2118020 (Refugee)

2118020 (Refugee) [2022] AATA 2023 (5 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2118020
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Rodger Shanahan
DATE:5 May 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 May 2022 at 8:48am
CATCHWORDS
REFUGEE – protection visa – Iraq – religion – Sunni Muslim – particular social group – inter-sect marriage – threats and attacks by wife’s family – killing of friend and threats from his family – fear of harm from Shias and government – accepted as refugee in third country – credibility – inconsistent claims and evidence – probably Shia – extent of injuries and treatment – separated or divorced, with no contact with wife or her family – refugee visa cancelled after criminal convictions – immigration detention – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1)(a), 36(2)(a), (aa), 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 November 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Iraq, applied for the visa on 8 May 2020.
The applicant appeared before the Tribunal on 2 March 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
Protection Visa Application
The following claims were made in the protection visa application:
Why did you leave Iraq ? I was in fear for my life. I left Iraq with my family after we suffered persecution and prosecution as Sunni Muslims. In 2003 the security situation in Iraq deteriorated and I fled to [Country 1] where I was registered as refugee by the United Nations High Commission.
What do you think will happen to you if you return to Iraq ? I will be killed. I originally fled Iraq to avoid harm at the hand of Shi’a in Iraq. I was married in 2001 and I suffered a lot at the hand of my wife’s family who shot me in the [Body part] and stabbed me in the hand in Fallujah where we fled until my family was accepted as refugees. I was and continue to be a genuine refugee, especially now the situation in Iraq is very bad. The wife’s family will definitely kill me because I already left their daughter and originally I spoke with the embassy about the problems arising from my marriage and the embassy accepted me and children as credible because of mixed marriage and residence at the time in Fallujah.
Did you experience harm in Iraq ? I been shot at, this is why I left Iraq and went to [Country 1] with my wife, our child and other family members and in [Country 1] we were accepted as refugees and we came to Australia as meeting the criteria of humanitarian and my life changed completely because of my drug problems and in Iraq I was a better person and the Fallujah where I come is totally destroyed and now I do not know the whereabouts of my sister [Ms A] and my brother [Mr B]. My father died and I will not be protected in Iraq.
Do you think you will be harmed/mistreated if you return to Iraq ? I have already been shot last time, twice on the [Body part] hen I was in Iraq in 2016. I will be harmed because of my bad behaviour in Australia and I will have no support from anyone in Iraq. Here in Australia my brother [Mr C] will continue to support me in all aspects and I ask the Australian government to allow me to stay in Australia because my life will end if I return to Iraq.
Can you relocate ? Relocation is not possible because I am a minority. Now I lost the whereabouts of my sister [Ms A] and my brother [Mr B]. I will have no support in Iraq. I have no property, employment, prospect in Iraq and I ask the Department to consider the refusal of my AAT dated 30 January 2020 to understand the full circumstances as well as the disturbed person I am now.
Draft Statutory Declaration
The following draft statutory declaration was provided in advance of the AAT Hearing:
If I were forced to return to Iraq I would be in fear of my life from members of [Ms D]’s family (due to our previous inter-sect marriage) and from the family of my close friend, [Mr E], who blame me for his death. I also fear harm on the basis of being a Sunni Muslim.
This is not a comprehensive summary of my claims but I am providing this statement in order to provide information to the Tribunal in a clear way. I aim to provide further information at the hearing.
Background and life in Iraq
My wife and I were married in 2001. We departed Iraq in 2003 and fled to [Country 1] where we resided until 2010 when we arrived in Australia. As a Sunni man who was married to a Shia woman in a union that was not accepted by my wife’s family, I was at risk in Iraq.
During Sadam Hussein’s regime, the system was primarily Sunni and this meant I was able to marry my wife and live relatively peacefully. As her family were Shia, they could not raise objections and there was no issue with most intersect marriages.
Once Saddam Hussein’s family fell, the relationships between Shia and Sunni changed. Many Shia felt they wanted to take back power and conflicts arose. Members of [Ms D]’s family became or were already angry that she was married to a Sunni and it became dangerous for us. They tried to take my wife and our children back, which I could not accept.
At the time when her family started objecting to our marriage and things became serious we were living in Falluja. This was almost 20 years ago so the exact details are hard to pick out but I remember the main events. I was visited both at our home and my place of work by members of her family. The first time I was visited by members of her family they were very aggressive. There was a small number of people, possibly three who approached me, but I remember they threatened me with a gun, which they shot in the air, and one of the men had a knife. There was an altercation, I was hit a number of times and I was cut on the finger with the knife. I was shocked because we had not previously had issues and I believed we had an amicable relationship.
Shortly after, they came to my home while I was at work. They took my wife and children but I was able to get them back on this occasion with the help of [Ms D]’s mother. We tried to change our address afterwards because [Ms D] and my children were scared but were not able to as I couldn’t organise another house to go to.
Members of [Ms D]’s family visited again while I was at work and again tried to take them but they were stopped by my neighbours when they realised what was happening. After that, they visited me at my workplace and a fight erupted between us. They beat me but they were not able to harm me seriously because people were there watching. There are three times they came to my workplace that I remember.
Each time they came, I mistakenly thought they would not come again. I thought they came to threaten me, to make their point and would leave it there. I did not believe they wanted to follow through seriously with what they were saying. I thought an elderly figure from their side would say that this man was Sunni but nonetheless he loves his family and this should be dropped. For example, [Ms D]’s mother was supportive of us and I believed maybe there would be others, men with influence, who would be able to stop things from escalating. This was a mistake.
On the last occasion they came to visit me, I was at work and they attempted to kill me. I recognised two of them as [Ms D]’s cousins but there were others with them. I was stabbed in my back and my hand. I survived because other people came to intervene and allowed me to escape. I continue to have marks on my body from this attack. After this incident, I received medical treatment from a nurse, I went home and took my family to Baghdad. A few months afterwards, when we found someone who could take us, we travelled to Kurdistan and then into [Country 1].
Personal Circumstances
I am aware that intersect marriages are common in Iraq, but even now there are families that refuse intersect marriages even if people love one another. My ex-wife’s family is one of these. I separated from my former wife [Ms D] in 2012 and later divorced. There were issues with family violence during our separation and this has potentially caused additional issues, because her family may want revenge for mistreating her. I assume she will have told her family about the family violence, though I am unsure if she would have informed them of the divorce.
In 2015, I travelled back to Iraq in large part to inform her family that she and I were divorced and there was no need for them to take further issue with me. This was not successful. I travelled to Iraq in 2015 and stayed for approximately two months. I touched down in Najaf and went to Bagdad shortly after. I connected with some friends including [Mr E], who was a friend of mine since school days. He attended my wedding and has been close with me for a long time. He had access to a car at the time and took me to a number of places, including to get my Iraqi citizenship and assisted me throughout my trip.
When in Iraq, I tried to contact [Ms D]’s family via my father’s family. Some of my father’s family have connections with her family and I spoke with those people in my father’s family to pass a message on. The messages I got back were questions asking where I was and where I frequented. They wanted to see me face to face.
Sometime after, I went out shopping with a members of my father’s family in Baghdad. A black ute pulled over near to us and people in the ute had their face covered except for the driver, who I recognised as one of my wife’s cousins. When I recognised him, I told the people I was with that these people were from [Ms D]’s family. We ran away and they shot at us. I was hit in the [Body part] and taken to [Hospital]. They were many people around us when this occurred and the people attacking us could not stay long because of the commotion.
The police arrived sometime after and wrote things down but I do not know if this was a formal report. I have never received any follow up documents after this. I spoke with the police officers as did the others I was with and we described the people who shot at us. I don’t believe they have done anything to track down the people who attacked us.
When I recall these incidents, I feel agitated. It is difficult for me to recall these issues coherently because they were very intense. When I speak about these things I tremble and get mixed up. My adrenaline gets high. These were very difficult events, including the attacks in 2003, they were very difficult for me and are upsetting to remember.
In 2016, I started seeing a psychologist until approximately 2018. This helped me but I continue to have these issues if asked about my past. I want to be clear, I was not stabbed in 2015. The injuries I suffered from [Ms D]’s family from a knife were sustained before we left Iraq to travel to [Country 1]. [Ms D] was not with me during the trip to Iraq in 2015 as we had already divorced.
I do not know why her family continue to be angry at me. I can only assume that they continue to be angry that I took her away from them and kept her in foreign countries for so many years. It could also be that they are angry as a result of the family violence or that they don’t believe that she is actually separated from me.
A number of months ago, I became aware that my friend, [Mr E], had been killed. It’s my understanding that members of his family believe that he was killed by members of [Ms D]’s tribe because of his connection to me. Because of this, they believe I’m responsible for his death and want to take revenge.
I have no family support in Iraq. My father and mother have passed away and my two remaining siblings in Iraq, [Mr B] and [Ms A], do not speak to me and I not know if they are alive. I may be able to contact people within my father’s family but they are not my close family and would not be able to provide protection or ongoing support.
Fear of Harm
I fear that if I was forced to return to Iraq, I would be seriously harmed or killed or put in jail on the basis of false allegations laid against me. I fear that I would be targeted and killed by [Ms D]’s and my friend, [Mr E]’s tribes, both of which are wanting to harm for me for wrongs they believe I have committed against them. I also fear harm as a Sunni Muslim, though this is less immediate than the fears I hold of these families, but it is a risk. I am from Al Anbar, and Shi’ite consider that any Sunni from Al Anbar supports the old Saddam Regime. So where ever you go, when you identify yourself as from Al Anbar, it raises serious difficulties and means you are at risk of being seriously harmed. It would be easy for me to be falsely charged with a terrorism charge and be put in jail for four years.
I would be able to be found and targeted throughout Iraq. [Ms D]’s tribe, [Tribe 1] (though I am unsure of the spelling) is very large. They are predominantly in the south, where the Shi’ites reside, but have a presence throughout the country. The same is true for [Mr E]’s tribe, [Tribe 2] (again, I am unsure of the spelling). They are very large and have a heavy presence in Baghdad, Al Anbar and Falluja, but they also have pockets throughout almost all of the country, except for the south where they cannot go.
The Government of Iraq cannot protect me from all of the above consequences if I were forced to return to Iraq. There are matters that the government do not interfere with, including clan and tribal matters. Because of my profile, they would not protect me and may in fact be the ones to harm me or put me in jail.
Post-Hearing Statement
I make this statement in support of my appeal to the Administrative Appeals Tribunal (Tribunal)
and to provide further information following the hearing held on 2 March 2022.
I have presented my claims for protection to the best of my ability and have provided information
to the UNHCR and Australian government over a period of more than ten years and in very stressful
circumstances on each occasion. I have tried to remember all the details of my situation and describe them as accurately as possible but because of the amount of times I have had to retell this story, I am aware that I have made mistakes or described things slightly differently on different occasions.
I would ask that the Tribunal remember that after all the occasions of retelling my situation, including multiple times in the last few years, my claims have been consistent and that my claims not be thrown out on the basis of minor errors.
The hearing on 2 March 2022 was very difficult for me. I was extremely anxious throughout it and
could not sleep for days before. I bit my fingernails down until they bled on both hands and could
not stop myself from continuing after that. I felt the entire time that there was an effort to catch me
out in mistakes, that my claims were being laughed at and that every part of me was not believed,
even my religion.
One of the effects of this was that I could not concentrate or think clearly when questions were asked of me. I forgot to mention things or take time explaining things in the way they should have been said. Though I cannot go through everything that was said at the hearing, I do want to clarify a few things.
2015 Visit and Family Connections
First, it was said there was a concern that I went to Najaf in 2015 to visit my sister and had family in Baghdad. The Member indicated that I had previously told the Tribunal that I had gone to Najaf for that reason and that I had an aunt in Baghdad. Both of these claims are not correct. My sister and I have not spoken for a long time. Our relationship became much worse after my father died but in 2015 it was not nearly as bad as that. I knew that she lived in Najaf but did not have her contact details. My reasons for traveling to Najaf instead of Baghdad are as I said at the hearing, that I had to come here because of flight disruptions. While I was in Najaf I thought of seeing my sister and thought it would be good if we connected. This didn’t end up happening but it was on my mind when I was in the city. I did not stay with my sister or travel to Najaf to her. I certainly would not do so now given what has happened since.
When I was speaking about family in Baghdad, I did not say that I had an Aunt. I said that my father’s maternal uncle’s children lived there, what I consider to be cousins. We are not nearly as close as an aunt and nephew would be and I have no one that I have that sort of relationship with in Iraq. The description of my family was a mistranslation. I had problems with the interpreter when I was discussing this and tried to correct it, but this was not translated.
[Ms D]’s Siblings
Second, it was asked why I didn’t mention [Ms D]’s brother during an interview in [Country 1] and later said both ‘brother’ and ‘brothers’. As I have explained, I know that [Ms D] had one brother. I didn’t mention him in [Country 1] because at that time he was young and I didn’t think discussing him was needed or relevant. I believe she has since had another, but I don’t know for sure. For me, the difference between her brothers or cousins doesn’t matter much if they both want to harm me.
Family Influence in Baghdad Airport
It was also said that I had claimed that [Ms D]’s family had influence in the Baghdad airport and
that this conflicted with my claim that I freely left through that airport after I was shot. I never
claimed that [Ms D]’s family had the type of connections to be able to stop or harm me at an
airport. I said that they had strong connections in government bodies and that this may extend to
places like airports. I don’t believe they have the kind of power the Member mentioned and think
that my words were misconstrued.
Recount of Attacks
Last, it was said that I failed to disclose certain parts of the abuse I suffered from [Ms D]’s family while in [Country 1] and this raised concerns I was not telling the truth. To be clear, it is very difficult to talk about the times you have been attacked in such a way. I get very anxious when I have to do this and have not ever given an exact description of what happened to me when I was assaulted. Even in my most recent statement that I made earlier this month I was told to cut out some of the details because it was not necessary to describe it in that way. Not only was I stabbed and a gun was fired, I was also hit on the head, on the eye, there was pushing, I was yelled at, insulted, threatened. What happened during those incidents was complicated and traumatic for me. I gave the information that was required of me as best I could each time I have told people what happened, but I do not go on and on with more when they have had enough. It is not something I like to talk about or find easy to do. Though this is not everything that was problematic at the hearing, the above are things that I thought should be corrected.
Documents
I have tried to get medical records from my [Body part] wound but have not kept any given it has been so long. I have no way to access theses records. I have also attempted to get a copy of my divorce certificate but have not been able to from Christmas Island. I have asked my brother to help me but he also hasn’t been able to do it. I believe that [Ms D] and I are officially divorced and can try to get a copy if needed.
I ask that Tribunal considers my claims with care. Though I may have made mistakes and there have been miscommunications in how I have described my claims, this does not mean that they are not genuine. I please ask the Australian government for protection and not to send me back to Iraq. This statement was read back to me with the assistance of an interpreter fluent in both English and Arabic
on 18 March 2022.
AAT Hearing

Member: I was provided with a unsigned statutory declaration given by you. Can you confirm that you know everything that is included in that statutory declaration and that you know it to be true and correct?
RA: Yes.
Member: Now can I just confirm that you know everything you have provided in written and oral form in support of your claims and that you know it to be true and correct?
RA: Yes.
M: Nothing you like to change at this point?
RA: No.
M: I also received a letter here referring to which is a psychologist’s report. Is there any medical reason why you are unable to attend the hearing today?
RA: No.
M: There are no medical reasons that would affect your recall or memory?
RA: You know my fear and nervousness can effect my memory.
M: I understand, people can be nervous but there’s no medical evidence that you are suffering from any problem with your memory is there?
RA: I don’t have proof on this but there are some or don’t remember some thing or recall but certain things I do remember other things I don’t, the fear and the nervousness is a factor.
REP: Foreshadowed in the emails sent previously we think there may be medical evidence at the end of this we will have discussion for timeframe requested. My intention to request [Dr F] (inaudible). Noting we don’t have any actual evidence of it I just ask that it might be an issue, my understand that there may issue.
M: I just draw your attention to page of 5 of his protection decision record where there is a question that asks if he has issues to his memory. He said no problems. So I need some medical evidence, and psychologists as we know are not doctors, so I need some medical evidence not necessary psychologist report that may not necessarily carry much weight necessarily.
REP: What would be the alternative to a psychologist’s report?
M: A doctor’s report.
REP: Psychiatrist?
M: You tell me.
REP: The only issue is that may be issues to access psychiatrist, based on new interactions.
M: Just stop there. Interpreter can you please paraphrase.
M: So you are you currently undertaking any medical treatment?
RA: Currently, yes.
M: What medical treatment is that?
RA: I take every day 4 capsules, one for cholesterol, one for surgery at detention centres for stomach, two capsules I don’t remember for. I don’t know.
M: Are you currently seeing a psychologist or psychiatrist.
RA: I used to see him a while ago. Now I am in here I only see him three months.
M: when did you stop seeing the psychologist before you went into detention?
RA: I started seeing him from around 2016-2017 until I was detained.
M: When were you detained?
RA: 2019.
M: So who you seeing between that period of time?
RA: [Dr F].
M: You were seeing her from 2016-2019?
RA: Yes.
M: Are you seeing her at the moment?
RA: No, currently I can’t see her.
M: Cause she said that you resumed therapy with her in July 2019. But you are saying you haven’t seen her since 2017.
RA: 2019 she sent me the letter I was in detention centre and I requested that from her.
M: Sorry I am a bit confused.
RA: I requested the letter that I give to the solicitor and I was also part of my application to the tribunal.
M: This is the one I got yesterday or today.
RA: Yes.
M: Ok that’s where I am confused in the letter she says you resumed therapy with her in July 2019, but you are saying you haven’t seen her, so I am confused.
RA: Maybe because I can’t read English I don’t know what’s the content of the letter. I am not sure.
M: Well she said you restarted psychological therapy with her in July 2019, but you are saying you did not.
RA: I didn’t see her face to face but I used to speak to her on the phone but there was no way to see her face to face because I was at the detention centre.
M; are you still talking to her regularly by telephone?
RA: no it has been a while since I talked to her.
M: well adviser I think I will give you time for the psychologist to write the letter, but there is a significant gap between what she has written and what he says. The letter is pretty vague so I need something much more substantial than what she’s provided. Is that ok?
Interpreter can you please paraphrase that.
M: So at the moment I don’t have any medical evidence that would impact on your memory. I understand that you’ve been here for quite some time, just normally it is difficult to recall dates but significant events, even if you cannot place them in time, we tend to recall those quite readily even though we can’t recall the exact date. So I will be flexible with dates but actual incidents you should be accurately able to recall them.
M: Now is your opportunity to tell me about any serious harm you fear if you return to Iraq. Just briefly, what harm and what type of harm you fear, who will harm you and for what reason in one or two sentences, so we know exactly what you claims are and then we can expand on them after.
RA: The first reason is my wife family, my ex-wife family. The second reason is the government, before it was a Sunni government in Iraq, now it is a Shi’a government. Now we kind of persecuted. Sunnis are persecuted. The third reason is my closest friend was killed and his family think that my in laws my ex-wife family was responsible for his killing. He said because they think that his friend used to help him before.
M: What did your ex wife family do to you and why would they do that to you?
RA: For sure they going to kill me and I was subjected to violence by them. With the ex- government we had no problem we were living in peace as husband and wife. I know with the new government the new problem started. I am Sunni, she’s Shi’a so the problem started between us.
M: I don’t need your whole claim. Why are they going to kill you?
RA: Because their daughter against their word. I kind of like married her with the help of her mum not her family.
M: Ok now the Shia majority government, what are they going to do to you personally, and why are they going to do to you personally.
RA: Because of their connections and the government they can like ask someone from the government to arrest me and put me in gaol and there are this charge that you go for prison and then you go to prison for four years for it.
M: So the government is going to that on the direction of your ex-wife’s family. Is that right?
RA: You can say that through connections.
M: Ok I need you to say it. Is that what you’re saying?
RA: Yes.
M: Ok, so you’re saying that the Shia majority government at the direction of your ex-wife’s family will arrange for you to be arrested and gaoled on potentially terrorism charges. Is that right?
RA: Yes.
M: What is the family of your closest friend who was killed going to do to you and why would they do that to you?
RA: in 2015 when I went back to Iraq I asked for my friend (friend’s name) to get all my official citizenship documents for me it was hard to travel so I asked for his help so travel between Baghdad and _______ (inaudible37:38). He had a card and that is why it was easy to move with him and also he was my closest friend I asked for his help.
M: I don’t need to know the details at the moment, just tell me what is going to happen to you because your closest friend was killed and who will do it.
RA: His family.
M: What would his family do to you?
RA: They will take revenge from me. They will take revenge for their son.
M: So what do you mean take revenge. What will they do to you?
RA: Their son was murdered so you know between tribe, killing is kind of, when someone is killed, there should be a killing for the other party.
M: When did you have this fear about your friend’s family killing you?
RA: A few months ago, a friend of mine he told me that (the applicant’s) friend had died. I asked him how and then I called him. He told me the story how he was killed and what his family thinks.
M: Do you have any other claims? Are they your three claims?
RA: No I don’t have any more claims and can I please take a break. I just harmed myself. I bit myself.
M: What have you done.
RA: I want to take a break because I just bit my finger and I want to go and wash it.
M: Is it bleeding.
RA: Yes. I can show you.
M: Ok. I know you are nervous but stop biting your fingers. Ok. Is there any reason why you can’t proceed?

100. RA: No I have no reason not to proceed. I can promise I won’t be biting my fingers because I am nervous.
101. M: I understand you’re nervous. I take it that your friend dying, that’s a new claim. You have mentioned it in your statutory declaration. Is that correct?
102. RA: I only knew about it a few months and I have proof of that and a letter and a text from my friend who told me about my friend had died and I have the exact time and date.
103. M: This claim about the Shi’a government arresting you, have you made this claim previously?
104. RA: Yes I did that before and I just trying to explain to you that in our government connections is above the law. Serving the connections is above the law.
105. M: Now I’ve lived in lots of Middle Eastern countries and I am quite familiar with cultures so you don’t need to explain culture or recent history for me so I need you to focus on the facts and your claims and not the differences as I am quite familiar with the differences. Now’s your opportunity to talk about your ex-wife’s family wanting to kill you. But before you do, we confirm when you say your ex-wife are you officially divorced from your ex-wife?
106. RA: Yes, divorced. And she remarried.
107. M: Do you have a copy of your divorce certificate from Australia and the registration from Iraq so that we know that you are considered divorced from the Australian and Iraqi governments?
108. RA: No I don’t have.
109. M: But you can get it can’t you?
110. RA: I can’t get it from my ex-wife there is no way I can communicate with her.
111. M: You can get one from the birth deaths and marriages from the state you were divorced in and not your wife. And I assumed that you have copy of the divorced certificate. They don’t normally just serve one, both parties get a copy of the divorce degree.
112. RA: I only know she remarried in 2019 I talked to her once when I was in the detention centre. I believe she has a copy.
113. M: Were you given a copy?
114. RA: No.
115. M: That’s strange. And has that divorce been registered in the civil court in Iraq?
116. RA: I don’t know. I have no idea.
117. M: But you haven’t done it?
118. RA: No.
119. M: Has your ex-wife been back to Iraq since you have been in Australia?
120. RA: I don’t think so. No, I don’t think so.
121. M: Have any of your children been back to Iraq?
122. RA: No they are all young children. I have one daughter that is [age] years old.
123. M: Have any of those been to Iraq since you have been in Australia?
124. RA: No I don’t think so.
125. M: You don’t think so or you don’t know?
126. RA: I don’t think so, maybe she’s back, but I don’t think so.
127. M: Maybe who’s back?
128. RA: I’m not sure whether she went back or not, I don’t know.
129. M: Who do you mean by she? Your ex-wife or your [Age]-year-old daughter?
130. RA: No, I mean all of them. My kids.
131. M: So you have no idea if your children have been to Iraq or not?
132. RA: No. I don’t have an idea.
133. M: Now tell me about why your ex-wife’s family is going to kill you?
134. RA: Firstly, because I married her without her uncles knowing, without her dad’s family knowing. I married her from her mum.
135. M: When was that?
136. RA: 2001
137. M: How did you meet in order to get married?
138. RA: The same area, usually every people knew each other.
139. M: How’d you know each other?
140. RA: I used to see her going in and out with her mother and I used to see her going school near our house.
141. M: So your two families related at all?
142. Their families were not related but because his mother and sister died, his wife’s mother knew there was no woman in their house. Asked if he had sisters, he said that he had one living sister who was older than him. The mother (he forgot her name) used to help and cook for them and when he asked the mother to marry her daughter ([Ms D]) she agreed. They had a good life. Initially there was no sectarian rivalry when Saddam was in power and he was from Anbar (near Tikrit) and many army officers were from there, he was left alone.
143. He was living in Fallujah when he met and married his wife. His wife had two sisters and a brother. He confirmed that at that time she only had one brother. He didn’t know if her mother had re-married and had any other sons. Asked if this is what he had told other officials in Australia that his wife had one brother and he said he believed so – it was put to him that he had been asked and confirmed that everything he had said previously was true and correct and he agreed.
144. Because he married their sister against their will and took her out of Iraq they are closed minded. He first knew they wanted to kill him when they threatened and beat him in 2003 – asked what they did and why in 2003, he said that this was when the government changed to a Shi’a government. Her cousins came to his house and there was an argument – he was stabbed in the finger (later he said in his arm and back) and they shot guns in the air. He didn’t think this would continue as her mother approved the marriage and he thought an elder from her family would intervene.
145. Asked what they were trying to achieve in 2003, he said they wanted him to give them his wife or they would kill him. Asked if he was targeted again between the 2003 incident and when he left in 2008, he said he didn’t leave in 2008. He was not attacked again in the same way as he was in 2003 but he was attacked twice after 2003 – again in 2003 he was attacked. This time he said that he was stabbed in his arm and back – in the first attack in 2003 he was only stabbed in the finger. Asked to confirm that guns were fired in the air during the first attack in 2003, he said he had answered quickly and that during the first attack in 2003 they pulled out their guns but didn’t fire them and he was stabbed in the finger.
146. He was at his home during the first attack and said they wanted him to give them his wife or they would kill him. The second 2003 incident he was at work as [an Occupation], they entered and threatened to hit him. They stabbed him and shot guns but not at him. They made the same threats. It was put to him that they had threatened to kill him twice but not done it and, at this time during the invasion it would have been easy to kill him and blame someone else. He claimed they weren’t in control of the situation and were afraid of his reaction. It was put to him that if they killed him he couldn’t react. He said they may have said it to terrorise him as they could have killed him but didn’t. They also took his wife from their home and took her to her mother’s house.
147. He got treatment and with the help of her mother he got his wife back. He tried to change his house but couldn’t, so he moved to Baghdad for a while. Asked when this was, he claimed he stayed for a while – he couldn’t remember for how long but it wasn’t a long time. It was less than a year. He stayed in a hotel. The adviser asked for a break, saying that the applicant was agitated and was repeating himself and not giving responses that were in context and it may be because he was recalling a traumatic event. The member replied that he didn’t feel that the responses indicated this and that they would continue for a while yet and there was not any indication the applicant was unable to continue. It was better to get to a point where it was logical to take a break.
148. Asked if he knew anyone in Baghdad when he stayed in the hotel, he said he knew friends but not close ones. Asked if he had relatives there he said he had none. He didn’t have cousins in Baghdad. Asked where they were, he said they were in Fallujah and others lived elsewhere but he didn’t remember where. His brother and sister lived in Najaf – his sister lived there as she had married her cousin and his brother lived with him in Fallujah but his brother in Iraq was now in Najaf near his sister. Asked if his siblings were Sunni or Shi’a he said he didn’t know.
149. It was put to him that Najaf was a holy Shi’a city and he was asked why people from Fallujah were in Najaf. He said his sister married his auntie’s son, and his auntie was Shi’a. Asked to confirm that his family had Sunni and Shi’a members in it he said that they did. Asked if he was Shi’a and whether he could prove he was Sunni, he said that his Iraqi ID proved he was Sunni. Asked why his Sunni brother was living in Najaf, he said he didn’t know. He had no connection with them and therefore didn’t know.
150. He couldn’t recall when he left Iraq for [Country 1] and was asked if 2006 sounded right, he said that he didn’t know. In his statutory declaration he said he left Iraq in 2003. He said he thought this was correct as he went to Kurdistan. It was put to him that he also said he went to Baghdad in 2004 – he said he thought so. He was in Kurdistan for a long time until he found someone to take him to [Country 1]. He was interviewed in [Country 1] by the Australian government and granted a visa to come here – this was correct. Asked if everything he told the officials was true and correct, he agreed that it was.
151. The applicant was then given a short break to clean his finger and was told the Tribunal would address his claims since he had been in Australia. The applicant came to Australia with his family and divorced his wife in 2012 – he was asked why he still thought he would be at risk of serious harm from her family 10 years after divorcing his wife. It was also nearly 20 years since the last alleged incident involving her family.
152. He said he had returned to Iraq and tried to communicate with her family that they were divorced and there was no need for him to be targeted. His father’s relative knew her family’s friend to tell them. It was put to him that surely his ex-wife would have told them and he said he didn’t know if she had. He was asked whether he would have assumed she had, and he said he didn’t assume this. It was put to him that divorce was common in Iraq and wasn’t a big deal and he agreed.
153. He was asked why, given this, she wouldn’t just have told them and everyone would have gone on with life. He said that she may have told them that there was violence was involved. He wasn’t sure of this but it may have been what she said. Asked if he had returned to Iraq since he had been in Australia, he said that he had. Asked why he did this if he thought her family was going to kill him, he said that from 2003-15 it was a long time and he thought they knew he was divorced. Asked to confirm whether he thought they knew he had divorced, he said he didn’t know if they knew. He was asked why he didn’t confirm this, or tell them through his father’s relative’s friends. He said that he didn’t know.
154. Asked what the ring he was wearing on his finger, he said that it was silver with a plastic stone. It was put to him that it looked like a ring (or replica) that observant Shi’a wore. He said that Shi’a wear specific stones. He stayed in Najaf for three days and then in Baghdad in Adhimiyya with his father’s relatives. Asked which relatives, he said it was dad’s auntie’s sons (his second cousins). He stayed there for around two months. Asked if he was close to them given he stayed with them for two months, he said he stayed with many people who had been displaced from Fallujah to Baghdad. They were all his relatives – it was put to him that this meant he had lots of relatives in Baghdad. He said they weren’t there permanently. They only moved there in 2015 when ISIS took Fallujah.
155. Asked to confirm that he never had family members in Baghdad prior to 2015 and that they had returned to Fallujah post-ISIS. He claimed that he only knew they were there in 2015 – he didn’t know where they were before or after this. It was put to him that he may have quite a few relatives in Baghdad currently there and he said it was possible. He hadn’t asked his brother in Sydney regarding the location of his relatives in Iraq as they didn’t talk about these topics. It was put to him that this struck the member as unusual given his experience in the Middle East that Arab families regularly spoke about other family members so it was hard to believe that he never spoke to his brother about their family in Iraq.

156. He claimed that this was because when his father passed away, none of their family members ever called to offer their condolences so there was a family rift and they never spoke about them as a result. Nobody even asked if they needed anything to help with the burial. His father died in 2018 – he then said he wasn’t exactly sure but could check. He thought his brother had been back to Iraq. He was asked again and said he had returned to Iraq. He went for two to three weeks. He thought he went to fix his teeth. Asked why he flew all the way back to Iraq to fix his teeth – this was hard to believe.
157. He said it was up to his brother to decide why he went. It could be for other reasons but he didn’t know. Asked where his brother stayed in Iraq, the applicant said that he didn’t ask but it was possible he communicated with his brother or sister but this was just a guess. It was put to him that it was strange that he and his brother never spoke of this or about their siblings in Iraq. He was asked why he stayed in a hotel in Najaf in 2015 if he had siblings there, and he said he had no contact with them and didn’t know anything about them.
158. It was put to him that the main entry point for Iraq was Baghdad and was asked why he went to Najaf. He said that in 2015 a Fly Emirates plane was subject to a gunshot at Baghdad so many then went to Najaf. He could go to Najaf or Basra but did not choose Basra because it was in the south. Asked why he stayed in Najaf for three days and not just get a service taxi to Baghdad as it wasn’t far away (less than two and a half hours) and his purpose was to go to Baghdad. The Tribunal was concerned that the applicant went to Najaf to see his siblings.
159. He claimed that he arrived at night and was tired and he went to visit the Imam Ali religious site and religious places. It was put to him that many of the religious sites were really of significance to Shi’a, not Sunni and was asked why he would spend days visiting Shi’a sites when he claimed Shi’a had tried to kill him. He said it was only certain Shi’a who had tried to kill him. He was asked why a Sunni was spending some days visiting Shi’a religious sites – asked if he had done ‘umrah or hajj in Saudi he said that he hadn’t. This raised concerns that he didn’t appear that keen to undertake pilgrimage yet wanted to visit Shi’a religious sites. The Tribunal was concerned that his reason for going to Najaf was to see his brother and sister. He said that he could have told the Tribunal that he went to visit his mother’s grave in Najaf (his sister is buried in Fallujah) because she is buried there, but he wanted to be honest.
160. He was asked if his mother was Shi’a and he said she was. Asked if he had mentioned this previously, he said that he didn’t know but thought he had. It was put to him that his mother was Shi’a, he had married a Shi’a woman, and his sister a Shi’a man and his brother lived in Najaf, yet he claimed to be Sunni. The Tribunal was concerned that the applicant may also be Shi’a. He said that he could check his father’s and brother’s religion – their prayers were different.
161. Asked why he thought he was at risk of serious harm because of his 2015 trip to Najaf and Baghdad, he said that he was subject to a gunshot just as he tried to communicate with his ex-wife’s family. Asked for more details, he claimed that he was shot in the [Body part]. He said he went out with friends (later clarified as his father’s family) to buy clothes and gifts for his brother in Australia. They were walking in a street and a ute came from the opposite lane. The driver and people in the vehicle had their faces covered, although the driver’s face was not entirely covered.
162. The vehicle was black and looked somehow different and they all looked at it. He told the people with him that they were [Ms D]’s relatives. Asked how he knew they were given their faces were covered. He said he recognised the driver as her cousin and one of the other people was his brother he thought. Asked how he knew this, he claimed that it was unlikely a friend would come to shoot someone, so there would also be a close relative.
163. He was shot in the [Body part]. The people were at the back of the vehicle when they opened fire. They were in the passenger seats in the vehicle when they fired. Asked what they were firing, he said they had Kalashnikovs and pistols. He was shot in the [Body part, more detail]. This occurred around five weeks before he arrived in Australia – he brought the ticket forward. It was put to him that he must have had surgery and physiotherapy for such a gunshot wound. He said he went to hospital, police came and interviewed him. He was admitted around 10 in the morning and released that evening. It was put to him that this was hard to believe.
164. He was asked if he had any evidence from an Australian medical practitioner on return to Australia that he had been shot in the [Body part] five weeks previously. A lower limb gunshot wound from an AK-47 was serious and it would leave a big wound and require ongoing medical treatment. The Tribunal was sceptical that such an incident occurred and that he received such a wound and was asked if he could provide any medical evidence from Australia in support of this. He said the bullet went through the skin and didn’t hit the bone. He was asked again if he had any Australian medical evidence that such an event occurred and he said that he didn’t.
165. It was put to him that shops had also received incoming fire and other people had been shot and he was asked if he had any evidence from the media or sites such as Iraq Body Count that such an incident had occurred as it would have been newsworthy even in 2015. He said he had no evidence but it may be on social media. It was put to him that he had had seven years in which to provide it so perhaps it didn’t exist.
166. Asked if he had any problems leaving Iraq given [Ms D]’s had unsuccessfully tried to kill him five weeks previously, he claimed that they did extra checking of his passport but just normal questions. Asked if anything had happened to his extended family in Iraq from [Ms D]’s family given they had been unsuccessful in targeting in the applicant. Tribal revenge would extend to other members of his family if he couldn’t be targeted and was asked whether they had been targeted.
167. He said he had no knowledge of this, but they weren’t first cousins and were distant family. He was asked why his friend (whom he alleged had been killed a few months ago by [Ms D]’s family as revenge against the applicant) would have been targeted seven years after the applicant last left Iraq, 10 years after he divorced [Ms D] and 18 years after he first left Iraq. This raised questions in the Tribunal’s mind as to the truthfulness of the applicant’s claim. He claimed that tribes didn’t think this way and revenge even after 40 years wasn’t considered late. His friend who was killed lived in Fallujah. Asked why his friend was killed seven years after the applicant left. His friend lived on their turf and could have been killed any time. He claimed his friend worked everywhere around Iraq so his location wasn’t fixed.
168. The applicant was advised about s 424AA and it was put to him that when he was in [Country 1] he was asked his and [Ms D]’s family composition and was consistent concerning his family makeup but regarding [Ms D]’s family the Australian official was told that her father was dead but her mother and two sisters were alive and lived in Iraq with no mention of a brother. In his protection visa interview he was asked about the 2015 shooting incident and he said he didn’t know who the others involved in the incident were but they could have been [Ms D]’s cousins or brothers (plural). At hearing he had referred to [Ms D]’s brother (singular). He had been inconsistent on three occasions and in [Country 1], where he had been accurate in describing his own family he never mentioned that [Ms D] had a brother. Since then he had mentioned that she had a brother and later brothers. This inconsistency could go to issues of his credibility.
169. He claimed it had been a long time between 2006 and now so it was hard to remember what he had said. He was also nervous and worried and made a mistake or said the wrong word because of this. It didn’t mean he meant to hide the truth. Also under s 424AA he had previously said that [Ms D] had a large tribe and had many people in government, including contacts in the airport which was how they knew he arrived in Iraq in 2015. He had said he had been attacked in Baghdad yet five weeks later he left without problem through the airport even though he claimed his wife’s family had high-level contacts there who had tipped off his ex-wife’s family as to his arrival years later. This raised concerns that the account regarding [Ms D]’s family’s connections was fabricated. He claimed that he never mentioned they had connections in the airport, but that they had connections in government bodies and they had the potential to reach to the airport.
170. Under s 424AA he had said at hearing that he had stayed with family in Baghdad who were there temporarily while ISIS occupied Fallujah and that when he and his then wife went to Baghdad in 2004 they stayed in a hotel. However in his protection visa interview, he said that he resided with his cousins whenever he was in Baghdad from 2001 until he left Iraq and then with them again when he returned to Iraq in 2015. In addition he said that he knew his sister stayed in Najaf but he knew nothing of her and that he stayed in a hotel there and took in some of the sites for three days. Still under s 424AA it was put to him that he had previously said that he had gone to Iraq to see his sister in Najaf and to stay at his aunt’s house in Baghdad. There is also information that his Australia-based brother had transferred money to his sister in Iraq as late as 2018.
171. The concern was that he had not been truthful about his relatives in Iraq, he had cousins in Baghdad and had since 2001 and that he remained in contact with his sister in Najaf and visited her in 2015. This went to issues of his credibility because of the inconsistencies in his accounts and that it indicated he had ongoing family links in both Najaf and Baghdad and could leverage off them if he were to return to Iraq. Country information indicated that it was easier to re-integrate if one had existing family links in Iraq and he appeared to have significant ones.
172. He claimed that not everything that had been mentioned by the Tribunal was true. His sister was married to a strange man, he hadn’t spoken to his brother in more than 10 years and he had no contact with family members in Iraq. If his brother contacted his siblings this was his business – they never spoke about it. He only found out about the money transfers from Immigration and he refused to speak more about it. When his brother went to Iraq he said he was getting his teeth treated – he didn’t know where he stayed or whether he contacted any family as he was in detention. He had no knowledge of the money transfer to their sister.
173. The Tribunal stated that it had concerns that he was ever of interest to [Ms D]’s family and had to move away. There were a range of reasons he may have moved given the 2003 invasion of Iraq. He said his father was Sunni but his mother and sister were Shi’a and his brother lived in Najaf. He himself may be Sunni or Shi’a. His family was at ‘worst’ mixed so it made little sense as to why [Ms D]’s family would target a mixed family. He claimed that to [Ms D]’s family, who were a conservative, uncivilised extended tribe they didn’t like mixed families. Even when he had told them he had divorced [Ms D] they still shot him. When they have visitors to their tribe they still use their hands.
174. The applicant had an opportunity to confer with his adviser but didn’t wish to add anything to what he had said. Under s 424AA it was put to him that he had raised several occasions that members of [Ms D]’s family had visited him at work in Iraq, assaulted him and fired weapons. Yet in [Country 1] he had simply said that they had come to his house in Fallujah, broken his finger and hurt his back. He made no mention of being stabbed or people with weapons visiting him at work. This raised questions as to whether the events regarding being visited by his ex-wife’s relatives ever actually occurred. He said he was stressed and nervous and sometimes mixed up things or forgot them – he didn’t mention everything because sometimes he didn’t remember everything.
175. The adviser said that when the Tribunal asked the applicant if he remembered everything that he had said and put to the Tribunal since 2006, he originally said that he did but now he wished to resile from that. He lacked access to a range of material whilst he was on detention on Christmas Island. He said that they would try to collect evidence of the shooting in 2015 – it was not necessarily an AK-47 and could have been a pistol. It was put to him whether he was shot with a 9mm pistol or 7.62mm AK-47 the fact that he was out of hospital the same day and was on a plane unassisted five weeks later without the need to consult a doctor on return to Australia raised serious concerns about the truthfulness of the account.
176. The adviser was told that the applicant should be able to get a copy of his divorce certificate online – he may need to register first but could easily obtain itself. He was told that the psychologist’s report was unclear and didn’t indicate the times and nature of his psychological sessions. The Tribunal would need a clearer indication. Additional time was given to provide these documents.
CONSIDERATION OF CLAIMS AND EVIDENCE
177. The applicant is a [Age] year-old Iraqi man – I accept that he is an Iraqi citizen and his claim will be assessed accordingly. He arrived in Australia in August 2010 as the holder of a Refugee XB (subclass 200 visa). Having committed a number of offences in Australia between 2011 and 2018 to which he was given fines and periods of imprisonment, his visa was subsequently cancelled. The applicant then applied for a protection visa in May 2020.
178. The hearing was conducted by video because the applicant is currently in immigration detention. The applicant claimed that if he returned to Iraq he would be arrested by the Shi’a-majority government at the direction of his ex-wife’s family and jailed, and/or killed by the family or tribe of his ex-wife’s family because they disapproved of the marriage, or killed by the family of his best friend because they blamed him for his friend’s death.
179. In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
180. I have taken into account the applicant’s January 2020 letter from a psychologist that said the applicant had commenced psychological therapy with in 2017. It also said that he resumed psychological therapy in July 2019 although no record of this was provided. In a post-hearing letter the applicant’s adviser stated that the psychologist who wrote the letter had not seen the applicant in a clinical capacity since 2018. It is therefore not clear on what basis the psychologist stated that he resumed therapy in July 2019.
181. The psychologist report said that the applicant’s mental health had continued to deteriorate over time because he wasn’t receiving the necessary psychologist’s support. The adviser noted that the applicant instructed that he had an aversion to discuss events in Iraq in detail and that this may affect his ability to properly describe or recall events. He also claimed at hearing that his fear and nervousness may affect his memory.
182. I have taken the issues surrounding his mental health, including the psychologist’s letter into account however lend them little weight. Her diagnosis of his mental health state is based in whole or in part on traumatic events to which he was subject in Iraq (including being stabbed in the back) that the Tribunal has found to have been fabricated.
183. The psychologist also wrote in her letter that the applicant’s mental health state continued to deteriorate over time as he wasn’t receiving the necessary support required. The Tribunal is not satisfied that the psychologist can make such a definitive assessment of the applicant’s mental health situation despite not having seen him in a clinical capacity since 2018. She stated in the letter that she had made a phone call to the applicant in December 2019 to review his progress but no face-to-face consultation was possible because he was reportedly detained in [Detention Centre 1].
184. The applicant said that he spoke to the psychologist in July 2019, although I am satisfied that he was referring to the December 2019 call. There is no indication that he has required mental health treatment since being in detention – the adviser claimed that there may be issues with accessing a psychiatrist however I note that [Detention Centre 1] and Christmas island are two of several immigration detention centres that have in-house mental health staff[1]. The fact that he appears not to have required any mental health treatment from the facilities would appear to indicate that his mental health state is not deteriorating as his psychologist claimed.
[1] [Reference deleted], accessed 4 May 2022.
185. I also note that there is no medical support for his claim to suffer from a poor memory. The Tribunal is aware that many of the events described occurred years ago and it has endeavoured to take this into account even though it cannot ignore significant inconsistencies in the applicant’s recollection of events to assess the applicant’s credibility.
186. The applicant asked for a break shortly after the hearing commenced because he claimed he was bleeding from where he bit his finger(nail) and at one point the adviser requested a break because he felt the applicant was agitated and his answers were out of context to the questions asked. Neither was granted at the time they were requested because the bite was minor and the member disagreed with the adviser’s assessment, there was no indication the applicant was unable to continue and it was in the middle of a line of questioning. A break was granted shortly after it was requested at a less disruptive spot in the proceedings.
187. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and that he fabricated many of his claims in order to be granted a protection visa.
Fear of harm as a Sunni Muslim
188. I do not accept that the applicant is a Sunni Muslim or that he would be persecuted by the Shi’a-majority government. I note that the applicant has been consistent in claiming that he was Sunni, however the more the Tribunal explored the issue the more concerned it became that this was not the case. Throughout his claims he has always maintained that his was a mixed marriage – his was a Sunni from a Sunni family and [Ms D]’s was a Shi’a one. This was okay prior to the fall of the Saddam Hussein regime in 2003 however it became problematic after a Shi’a-majority government came to power.
189. Yet during the hearing he claimed that his mother’s grave was in Najaf. Najaf is perhaps the holiest site in Shi’a Islam and the applicant when asked admitted that his mother was in fact Shi’a. He claimed that he didn’t know whether his brother and sister in Iraq were Shi’a or Sunni but his sister was married to her (Shi’a) cousin and lived in Najaf, while his brother also lived in Najaf.
190. The fact that his siblings chose to live in Najaf given its significance to the Shi’a faithful supports a finding that the applicant’s siblings are also Shi’a. I do not accept that he has nothing to do with his siblings. He travelled to Iraq in March 2015 and stayed in Najaf, according to him, for three days. Despite his ultimate destination, Baghdad, being less than two and a half hours away by road (and his close friend [Mr E] lived in Baghdad and had access to a car) he claims that he spent the time visiting Shi’a religious sites.

191. Given that he had never gone on a pilgrimage to Mecca or Medina, his willingness to delay his departure to Baghdad in order to visit Shi’a religious sites is further evidence that he is Shi’a. The Tribunal is also not satisfied that the applicant never caught up with his siblings while he was in Najaf. He had said previously that he had gone to Iraq in 2015 to visit his sister in Najaf. In addition, despite being in close contact with his brother in Sydney, he claimed that they never spoke to him about their siblings, or whether the brother caught up with them during his own trip to Iraq. He also claimed not to have been aware that his brother transferred money to their sister in Iraq. His claim that his brother went to Iraq to get his teeth fixed because it was cheaper over there lacks credibility.
192. The applicant claimed that his Iraqi ID card proved that he was Sunni. The Tribunal has no copy of the ID card nor was one provided to it by the applicant. The applicant also claimed that he was from Fallujah which is a predominantly Sunni town, although given his mother and his wife’s family were also from Fallujah it would indicate that there were some resident Shi’a as well. That having been said, his claim to be from Fallujah is also reliant on his oral testimony. I also note that the applicant father and brother’s name is [G] which is also the name of [one of the sons] of Imam Ali (the first of Twelver Shi’ism’s Islam’s 12 imams) and his wife Fatima and hence is a name favoured by (although not exclusive to) Shi’a.[2]
[2] The Tribunal member is very familiar with Shi’ism and his PhD thesis was on ‘Shi’a political development in Lebanon’.
193. His claims regarding his Sunni faith would have been given more weight had he proven to be truthful in his other claims yet, as is apparent from the other issues discussed below, his claims are generally inconsistent or implausible.
Marriage and Family Targeting
194. The applicant was asked for evidence that he was formally divorced from his wife. None was provided. Given my concerns over his credibility as a witness I do not accept that he is legally divorced from his wife, however I am satisfied that the marriage is effectively over, even if it has yet to be registered as such.
195. I do not however, accept that the marriage went ahead with his mother-in-law’s approval but without the imprimatur of her broader family or of the tribe to which she belonged. The applicant claimed that the issue that enraged her family/tribe was the fact that it was a mixed marriage and he was Sunni while she was Shi’a.
196. Because I have found the applicant to be a Shi’a and not Sunni it was therefore not a mixed marriage. It therefore follows that the religious objection to it never existed and therefore the applicant was of no interest to the family-in-law or the tribe to which they belonged, his family was never taken by them, he was never of interest to, let alone assaulted by them nor would he be if he returned to Iraq, nor would he be accused of being a terrorist if he returned to Iraq. As well as my finding that he is Shi’a and not Sunni and hence his was not a mixed marriage, there are several other issues in his claims relating to the family’s interest in him that makes me disbelieve the claim regarding being targeted by his family-in-law.
197. His accounts of the times he was visited by her family and the actions they took prior to leaving Iraq were inconsistent. Even accounting for the passage of time, there are sufficient inconsistencies in the accounts (such as the appearance/use of guns, where he was when he was stabbed, and where he was stabbed) that raise serious questions about the veracity of this claim.
198. For example in his October 2008 Departmental interview at the UNHCR in [Country 1]: he claimed that he was beaten by her family a few times, they attacked him at home in Fallujah. broke his finger and hurt his back. In his Protection Visa Application however, he simply said that he was stabbed in the hand in Fallujah. And in an (unsigned) statutory declaration he said that he was at work when they attacked him and stabbed him in his back and hand.
199. The statutory declaration also stated that he was threatened with a gun which they shot in the air the first time they visited, and in his AAT hearing he claimed that the cousins-in-law came to his house and shot guns in the air (he later said they pulled them out but didn’t fire them). The inconsistencies between when and where he was stabbed in the back, and the late introduction of firearms in his account of the intrusions does little to engender confidence in the applicant’s account of his experience in Iraq. It is however my finding that he is not Sunni and other issues outlined below that carry more weight in my finding that this claim regarding being assaulted by his family-in-law to have been fabricated.
200. The applicant’s voluntary return trip to Iraq in 2015 is also inconsistent with someone who claims to be in fear of his life from his wife’s family and tribe. I do not accept that he did so because it was a long time since he had been attacked and he thought that her family knew they were divorced. I do not accept that he would have made such an assumption given the implications of him being wrong about it. Given the applicant still had lines of communication with her family through his father’s friend, it makes no sense that he would have willingly returned to his place of alleged persecution without first making sure that his ex-family in law knew he was divorced and that they had no ongoing problems with him as a result.
201. I do not accept that the applicant was attacked and shot by her family members while he was there. He claimed that he had been shot at and wounded by several gunmen in a vehicle in a shopping district in Baghdad. He provided no media report of such an incident and, given the nature of the attack that he described, it lacks credibility that such a shooting in the capital could have occurred without at least some mention in mainstream or social media.
202. The applicant also claimed that he was shot in the [Body part] during the incident by either an AK-47 (7.62 mm) or pistol (9 mm) round. He claimed that it didn’t hit a bone but went through his [Body part]. This represents a serious injury (particularly the 7.62 mm round) and therefore it lacks credibility that he would be admitted to hospital at 1000 and out that evening. He came to Australia five weeks after the incident and he has no evidence that he visited any medical facility in Australia or has seen a doctor or physiotherapist for an examination post-incident.
203. I have taken into account what he claims are photos of the healed bullet wound. The photos are too indistinct to verify this and, without any medical report that could describe what they are and when they occurred I can lend them no weight in supporting his claim to have been wounded in Iraq.
204. I have also noted that the applicant claimed that one of the family members involved in the attack was his ex-wife’s brother. Yet in his 2008 Departmental interview in [Country 1] he stated that his wife only had two sisters. I do not accept that he never mentioned the brother at the time because the brother was young and he didn’t think that discussing the brother was needed or relevant. He wasn’t asked to discuss the brother by the Departmental officer, just to outline what siblings his wife had, which was a pretty simple and straightforward question to answer accurately.
205. Because I do not accept that the applicant was ever of interest to, let alone wanted by his former family-in-law, it follows that his friend [Mr E] was never killed by the ex-family-in-law. The applicant provided no evidence beyond his own oral and written statements in support of this claim and, given I have not accepted that he is dead, it follows that [Mr E]’s family do not blame the applicant for his death.
Lack of family support in Iraq
206. The applicant has claimed that he will have no support from anyone in Iraq and that, given he has lost the whereabouts of his brother and sister he will have no support, property, employment or prospects in Iraq. I have already raised my concerns regarding his alleged estrangement from his siblings in Iraq and am satisfied that he does have relations with them, and has visited them when he was last in Iraq in 2015.
207. I am also satisfied that he also has extended family who are resident in Baghdad and with whom he has stayed in the past. During his protection visa interview he claimed that he had stayed with his cousins in Baghdad whenever he went to Baghdad between 2001 and the time he left Iraq, and then when he returned in 2015.
208. To begin with, although the applicant claims to be divorced from his wife I am not satisfied that this is the case. He also claimed that this relationship with his cousins was not nearly as close as it was with an aunt. Be that as it may, it is still sufficiently close that he can stay with siblings or cousins in at least two cities in Iraq. I do not accept that he has no contact with his cousins in Baghdad because he broke off contact after they failed to offer condolences following his father’s death. This relies entirely on the applicant’s oral testimony which I have found lacks credibility.
209. On return to Iraq the applicant will be required to re-integrate into a society that he left more than a decade ago. He has previously stated that he had taken drugs in Australia which contributed to his marital issues. He did not claim that he was still taking drugs nor that his previous drug-taking would be repeated in Iraq, nor that the Tribunal should take this into account. As a result I will not address this issue further. He also claimed that ne would have no property or employment prospects on return to Iraq.
210. Because I am satisfied that the applicant still has a substantive family-based social network in place in Iraq I am satisfied that he will be provided with accommodation on return and that he will be able to compete for work in Iraq commensurate with his qualifications. Because of his native Iraqi Arabic language skills and access to this family network, I am satisfied that he will be able to leverage this network to smooth his re-introduction into Iraqi society[3] and that any problems with his readjustment will not meet the threshold of serious harm for s. 5J(6) purposes.
[3] DFAT Country Information repprt – Iraq, 17 August 2020, pp 63-4.
Other Issues
211. The applicant’s adviser raised a number of claims in a post-hearing submission that the Tribunal was concerned had not been raised at hearing. The Tribunal contacted the adviser who in turn contacted the applicant who believed that they did not represent any new claims and merely summarised the claims already made. I am satisfied that this is the case but for completeness’ sake I will outline and address them below:
a.His religion as a Sunni and imputed supporter of Saddam Hussein as a Sunni from Anbar – I have already found that he is a Shi’a and not a Sunni as he claims;
b.Member of a particular social group (PSG):
i.A Sunni Muslim in, or formerly in an inter-sect marriage – I have found him to be Shi’a and therefore he is not a member of such a PSG;
ii.A person perceived to have transgressed moral codes (including by engaging in inter-sect marriage without family consent, removing spouse from country without consent or engaging in domestic violence against spouse). I have found his marriage not to be inter-sect, and have already found his claims that the marriage was against the wishes of, that he was targeted by his in-laws and that they tried to take his wife away from him to have been fabricated. Given this I do not accept that he took his spouse away from the country without consent. Therefore he is not a member of this PSG;
iii.As ‘a person displaying western behaviour or associated with western morals and influences’. The claim was not put forward by the applicant prior to, or at the hearing. Nor has the adviser noted exactly what elements of the applicant’s behaviour he believes constitutes ‘western behaviour’ – the claim itself therefore becomes so vague as to be meaningless. I note the adviser referenced a European Union document in support of the claim, however the reference refers to members of the LGBTQI community, alcohol sellers, artists, Christians, women wearing non-Islamic clothing or engaged in prostitution. None of this applies to the applicant and therefore he is not a member of this PSG;
iv.A person who is blamed for the death of another person – the Tribunal is not satisfied that the person’s friend was killed, as he had claimed.

212. Regarding his claim that he would be harmed because of committing family violence against his wife, I accept that the applicant was convicted of failing to comply with a restraining order and aggravated assault against a spouse in October 2011. I do not however accept that the applicant would face serious harm from his ex-wife’s family because of this. His claims that her family knew about this were inconsistent. In his statutory declaration he said that he assumed his ex-wife had told them about the family violence, then he later stated that she may have said it to her family but he wasn’t sure.
213. It is therefore supposition on his part that she has told them. Even if she has told them I am not satisfied that he is, or would not be at risk of serious harm from her relatives because of it. Given that the offence occurred in 2011 it lacks credibility that the applicant would have returned to Iraq voluntarily in 2015 if he believed that her family would have harmed him because of it. And, if he thought that there may be a problem because of, why he didn’t check with her family through his father’s friend that things were okay between them before he returned. His willingness to return to Iraq in 2015 is sufficient reason for the Tribunal to form the opinion that he did not fear serious harm on return to the country and that there is not a real chance that he would face serious harm in the reasonably foreseeable future.
214. As the applicant hasn’t raised any other claims to fear persecution, and having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any s. 5(J)(1)(a) or any other reason either now or in the reasonably foreseeable future.
Complementary Protection
215. Because I do not accept that the applicant is Sunni, in an inter-sect marriage, imputed with being a supporter of Saddam Hussein, that his family-in-law objected to his marriage and attacked him while he was in Fallujah, that he had to escape from them to Baghdad, or that when he returned to Iraq in 2015 he was shot and wounded by her family, that he would be harmed because of committing family violence against his ex-wife, transgressing moral codes or being imputed with Western morals and influences, that he would be unable to re-integrate if he returned to Iraq or that his friend has been killed and his family blame the applicant for his death, I am not satisfied that there is a real chance and therefore a real risk (as per MIAC v SZQRB (2013) 210 FCR 505) that the applicant will suffer significant harm.
216. As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s. 36(2)(aa).
CONCLUDING PARAGRAPHS
217. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION

220. The Tribunal affirms the decision not to grant the applicant a protection visa.
Rodger Shanahan
Member

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

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

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

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

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

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

5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

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

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

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

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

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

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

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

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

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

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

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

[2022] AATA 2023

5 May 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction