2210419 (Refugee)

[2023] AATA 4827

2210419 (Refugee) [2023] AATA 4827 (8 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Catherine Farrell

CASE NUMBER:  2210419

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Paul Noonan

DATE:8 December 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act 1958 (Cth).

Statement made on 8 December 2023 at 11.24am

CATCHWORDS
REFUGEE – protection visa – Iraq – religion – Sunni Muslim residing in majority Shia Muslim area – imputed political opinion – sons previously worked for United States military – particular social group – elderly widowed women with significant health problems and cognitive decline – high risk of official discrimination against women – ability of state to provide protection – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J, 5K, 5L, 5LA, 36, 65, 91R, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Randhawa v MILGEA (1994) 52 FCR 437
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, who claims to be a citizen of Iraq, applied for the visa on 20 February 2014 and the delegate refused to grant the visa on 11 May 2015. The delegate was not satisfied that the applicant was a credible witness with respect to her claims to fear persecution.

3. The applicant was interviewed by the delegate on 19 March 2015. The Tribunal has listened to the recording of that interview.

4. The applicant was interviewed by the previous differently constituted Tribunal on 14 December 2017. The Tribunal has listened to the recording of that interview. The Tribunal affirmed the decision under review on 10 January 2018 and found that the applicant was not a credible witness and that she had fabricated much of her claims.

5. The applicant appealed the decision of the Tribunal.

6. On 1 July 2022 the Federal Circuit Court by consent ordered as follows:

   The Minister concedes that the Tribunal’s finding at [56] was illogical such that its decision is affected by jurisdictional error.

   The Tribunal affirmed the decision under review including because it found that the applicant was a Sunni Muslim. One of the Tribunal’s reasons for so finding was its rejection of the applicant’s evidence given in a statutory declaration dated 15 March 2015 concerning the circumstances in which the applicant’s [daughter] converted to the Shia Muslim religion. The reason the Tribunal rejected the applicant’s evidence was that it was only given in response to concerns that were raised by the Minister’s delegate. The Tribunal did not give any other reason for its rejection of the applicant’s evidence concerning the circumstances of [the daughter’s] religious conversion.
   The Tribunal’s finding at [56] was illogical and irrational in circumstances where the issue concerning the circumstances of [the daughter’s] conversion was raised for the first time by the Minister’s delegate and there is no evidence that the applicant was aware of this being an issue earlier, or of the evidentiary material from which the issue arose (a visa-related interview attended by [the daughter] in 2010, as recounted in a Tribunal decision concerning one of the applicant’s sons).

   The finding at [56] was sufficiently important to the Tribunal’s rejection of the applicant’s claim to be a Sunni Muslim and, consequently, its ultimate state of satisfaction that she did not meet the criteria for the grant of the visa, that jurisdictional error is demonstrated.

7. The applicant appeared before the Tribunal on 17 November 2023 to give evidence and present arguments.

8. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

9. The applicant was represented in relation to the review.

   RELEVANT LAW

10. 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, the applicant 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.

    Refugee criterion

11. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

12. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

13. Sections 91R and 91S of the Act, as were in force at the relevant time, qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

14. There are four key elements to the Convention definition.

15. First, an applicant must be outside his or her country.

16. Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

17. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition − race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.

18. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

19. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

20. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

21. 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 a protection 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 the applicant 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’).

22. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.

23. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.

    Mandatory considerations

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

25. The primary issue in this case is whether there is a real chance of persecution of the applicant should she be required to return to Iraq. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

26. A significant passage of time has occurred in this case since the applicant first applied for protection and since the previous decision of the Tribunal was made. The applicant is now [age] years old. Prior to the hearing the applicant submitted the following list of medical issues currently affecting her, together with accompanying Australia certified medical evidence from her treating doctors and clinical neuropsychologist. On the basis of this evidence, which is retained on the Tribunal file, the Tribunal accepts that the applicant is being treated for and suffers from the following medical conditions:

    ·Diabetes

    ·Depression

    ·Hyperlipidaemia

    ·Hypertension

    ·Impaired hearing

    ·Bilateral neck pain with radiculopathy

    ·Back pain and nerve/leg pain

    ·Tinea pedis

    ·Hyperphosphatemia.

27. An August 2023 GP summary sets out that the applicant is currently on 17 different daily medications. These include antidepressants, diabetes medication, arthritis medication and cholesterol medication. In addition, a report dated 31 October 2023, by [a named] clinical neuropsychologist, reflecting the results of a clinical assessment and testing of the applicant, states that the applicant is suffering from onset cognitive impairment, not consistent with an Alzheimer type dementia, however, reflective of the possibility of an underlying vascular dementia process and also linked to the ongoing debilitating effects of chronic pain being experienced by the applicant.

28. The Tribunal accepts the above evidence with respect to the applicant’s medicines and mental health status to be true.

29. At the hearing the applicant presented as a frail, elderly woman who required assistance to stand and sit. Prior to the hearing she spent some time in the Tribunal sick bay being treated for distress after making her way to the Tribunal. Nevertheless, her representative advised the Tribunal that she wished to continue with the hearing and the Tribunal was satisfied that she was able to understand the questions asked of her and give answers to the best of her current capabilities.

30. The applicant is from the Iraqi city of Nasiriyah. She has at least two adult children who still reside in Nasiriyah. In her claims for protection the applicant asserted that she fears persecution as a Sunni Muslim residing in a majority Shia Muslim area of Iraq and because of her imputed political opinion as a result of her sons working for the United States military in Iraq in the past. The Tribunal notes that both the Department and the previous Tribunal found the applicant not to be a credible witness with respect to these claims. The Tribunal considered and discussed aspects of these claims with the applicant and her representative at the hearing. However, for the following reasons it is unnecessary to set out findings with respect to these particular claims.

31. The applicant confirmed to the Tribunal that she is a widow and is without a partner. She currently lives in a flat in [Town 1] which she rents. While the applicant submitted that she is not in contact or supported by any of her adult children in Australia the Tribunal raised with her and is satisfied that she has children residing in [Town 1] who support her as submissions were made from the children living in [Town 1] on her behalf. She also has two younger children who reside in Iraq. She agreed she is in contact with these two children as they have submitted a written statement to the Tribunal. While it appears that the applicant has other children in Iraq, she stated, much like her evidence with respect to her children in Australia, that she is not in contact with them and is unsure where they reside.

32. Submitted prior to the hearing was a statement from the applicant’s two children currently residing in Iraq who are in regular contact with the applicant. They submitted that they live together in a small flat and engage in seasonal work. They submitted that they do not have room or the capacity to support the applicant in her current state of health.

33. The applicant’s representative submitted that the applicant is now a member of a particular social group being elderly widowed women with significant health problems and cognitive decline.

34. The meaning of the expression ‘for reasons of ... membership of a particular social group’ was considered by the High Court in Applicant A’s case and also in Applicant S. In Applicant S Gleeson CJ, Gummow and Kirby JJ gave the following summary of principles for the determination of whether a group falls within the definition of a particular social group at [36]:

    … First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a ‘particular social group’. …

35. Whether a supposed group is a ‘particular social group’ in a society will depend upon all of the evidence including relevant information regarding legal, social, cultural and religious norms in the country. However, it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be for reasons of the person’s membership of the particular social group.

36. The Tribunal accepts that the applicant is a member of this particular social group and that it has characteristics of advanced age, ill health both physical and mental, sex (female) and marital status (widowed) which are common to all members of the group. Further that the attribute common to all members of the group is not just the shared fear of persecution. The Tribunal is also satisfied that the characteristics common to this particular social group distinguish the group from society at large.

37. It is generally accepted that a person can acquire refugee status sur place where he or she has a well-founded fear of persecution as a consequence of events that have happened since he or she left his or her country. However, this is subject to s 91R(3) of the Act which provides that any conduct engaged in by the applicant in Australia must be disregarded in determining whether he or she has a well-founded fear of being persecuted for one or more of the Convention reasons unless the applicant satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening his or her claim to be a refugee within the meaning of the Convention. The Tribunal is satisfied that the applicant’s entry into the particular social group under consideration in the first instance in this review is largely because of events that have occurred after she left Iraq. However, these events are not as a result of conduct undertaken for the purpose of strengthening her claim to be a refugee. Rather the events leading to her membership of this particular social group are primarily as a result of the natural ageing process and associated declining health. The applicant was already a widow prior to leaving Iraq and of course female.

38. In considering the risks to the applicant should she be required to return to Iraq, the Tribunal must consider whether there is a real chance of serious harm to her upon her return either immediately or in the reasonably foreseeable future. Section 91R(2) of the Act provides that the following are instances of serious harm: (a) a threat to the person’s life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person’s capacity to subsist; (e) denial of access to basic services, where the denial threatens the person’s capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

1. The latest DFAT Country Information Report with respect to Iraq assesses that there is a very poor security situation in Iraq with significant levels of targeted and general crime resulting in high levels of violent crime generally.[1] DFAT also assesses that female headed households, including households headed by widows, are highly vulnerable to poverty, food insecurity, displacement, eviction and sexual harassment and abuse. Women living alone also face stigma.[2] DFAT assesses that overall, regardless of ethnicity or socio-economic status, women in Iraq face a high risk of official and societal discrimination and gender-based violence.[3]

   [1] DFAT Country Information Report – Iraq, 16 January 2023, p 11

   [2] Ibid. pp 28-29

   [3] Ibid. p 31

2. With respect to health care in Iraq DFAT assesses that there is a very low capacity to deliver health care of any standard due to under resourcing and ongoing targeted violence against medical personnel due to the serious ongoing problem of revenge attacks against medical personnel and ‘tribal penalties’ being levied against medical personnel under whose care a person has died which has resulted in many doctors fleeing the country. In addition, essential medicines are often lacking in supply and waiting lists for treatment of any kind are long.[4]

   [4] Ibid. pp 8-9

3. The Tribunal considers that the applicant may be able to return to Iraq and reside with her children there. However, the Tribunal considers that the applicant would be completely reliant upon them to seek out and obtain medicines and all other essentials for her. The Tribunal considers that this is an unrealistic expectation as the applicant would need a local diagnosis and prescriptions. In addition, the Tribunal accepts the applicant’s children’s evidence that her children engage in seasonal work necessitating travel on occasion. Given these considerations it is reasonable to expect that the applicant would be forced to enter society, on occasion unaccompanied, to seek out medical treatment necessary to maintain her life and capacity to subsist. She would also on occasion be required to enter society to obtain basic necessities such as food.

4. The applicant would enter society in Iraq as an elderly woman with significant levels of physical and cognitive impairment. Country information reflects that women, including widows, are highly vulnerable to official and societal discrimination and gender-based violence. The Tribunal is satisfied that the applicant, in undertaking the extremely difficult tasks of trying to locate medical treatment and medicines necessary to maintain her health, would be at high risk of treatment and/ or medicines being discriminatorily withheld due to her membership of her particular social group. She would also be at high risk of intentional targeting for sexual harassment and abuse as she sought out such treatment, as well as when seeking out necessary supplies for her maintenance, due to her membership of her particular social group. This is because of the country information cited above which reflects she would be making her way in a society with high levels of general violence as a physically and cognitively declining unaccompanied elderly woman. As such her ability to successfully negotiate confrontation and dangerous situations is markedly less than it would have been if she were younger and less infirm. The Tribunal is satisfied on this basis that there is a real chance of serious harm to the applicant with regard to the instances of such harm set out under s 91R(2) of the Act.

5. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of ‘practicable’, to expect him or her to seek refuge in another part of the same country. What is ‘reasonable’ in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

6. The Tribunal is satisfied that the applicant does not have relatives living in other parts of the country. Due to her state of health, and the country information with respect to the situation for widows and female headed households in Iraq in general, the Tribunal does not consider it is reasonable for the applicant to relocate to another area of the country such as Kurdistan where the security situation may be slightly better than elsewhere in Iraq.

7. Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-State actors is Convention-related, and the State is unable to provide adequate protection against the harm. Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29]. Harm from non-State actors which is not motivated by a Convention reason may also amount to persecution for a Convention reason if the protection of the State is withheld or denied for a Convention reason.

8. DFAT assesses that women in general face a high risk of official discrimination in Iraq. DFAT also assesses that several parts of the country are not under the effective control of the state. Impunity for abuses by security and other officials remains the norm. While there has been some recruitment of females into the police force since 2010, there are no female officers in senior positions. Police are reported to be regularly complicit in human rights abuses with a reliance on evidence extracted under torture. Like other state institutions the judiciary is subject to corruption and political interference.[5]  The Tribunal concludes that the Iraqi government would not or could not provide citizens in the position of the applicant with the level of protection which she would be entitled to expect according to international standards.

   [5] Ibid. pp 36-39

9. There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country apart from Australia. As such the Tribunal finds that s 36(3) of the Act does not apply in the circumstances of this case.

   CONCLUSION

10. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant satisfies the criterion set out in s 36(2)(a).

    DECISION

11. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act 1958 (Cth).

    Paul Noonan
    Member