2301873 (Refugee) - [2025] ARTA 1169

2301873 (REFUGEE) [2025] ARTA 1169 (24 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Representative: Mr BAKER AL MUSAWI (MARN: 0601647)
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number: 2301873
Tribunal:General Member Rosa Gagliardi
Date:24 February 2025

Place:Australian Capita Territory
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s.36(2)(a) of the Migration Act.

Statement made on 24 February 2025 at 3:15pm
CATCHWORDS
REFUGEE – protection visa – Iraq – ethnicity – mixed Arab and Kurdish – mistreatment, discrimination in education and employment and sexual assault by police – family’s unlawful departure, residence in three countries and return – religion – agnostic – beaten by fellow-students at university – political opinion – detailed and consistent claims and evidence – religious views genuinely held – mental health and treatment – country information – sister granted protection visa on different grounds – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
2114248 (Refugee) [2022] AATA 5027
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 February 2023 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 national of Iraq (a matter which is not in dispute and the Tribunal accepts) applied for the visa on 23 July 2019.
The delegate refused to grant the visa on the basis that the applicant did not convince as being an agnostic as claimed. An interview was conducted over the phone by the Department, but the Tribunal considers that there were sensitive matters the applicant wanted to put forward which meant a phone interview was not ideal in the circumstances and some of the applicant’s claims were not fully explored at the time of application.
The applicant appeared before the Tribunal on 6 February 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
BACKGROUND
The applicant is an Iraqi citizen but is of mixed ethnicity as his mother is of Arab ethnicity and his father is Kurdish. The applicant claims to be agonistic in faith and does not follow Islam due to his secular views. These matters underpin the applicant’s claims.
Evidence before the Department
To elaborate on his claims the applicant provided a statement which was detailed and particularised his claims. The statement sets out the applicant’s experiences in Iraq and elsewhere. He has stated that he arrived in Australia holding a student visa in July 2017, however for reasons the applicant explained at hearing with the Tribunal, the applicant was not able to complete his studies in Australia and then applied for a Protection visa.
The applicant originates from Mosul and has a Sunni Muslim background.
The applicant’s father was a medical doctor during Saddam Hussein’s regime and in the course of his work was ordered to chop off the ears of military deserters. The applicant’s father was so affronted by such commands that he and his family escaped Mosul in 1994 and travelled to [City] in Kurdistan given his father’s background, and the stable security situation enforced by the USA there at the time.
The applicant’s family was listed as traitors by Saddam’s regime, and it was impossible for them to obtain passports. His father planned to leave Iraq but remained in Kurdistan for three years providing medical services to the Kurds who were being persecuted by Saddam Hussein’s regime.
The applicant also wrote that he, along with his mother and siblings were mistreated by the Kurds because of their Arab and partial Arab heritage. The applicant also stated that as a child he had been sexually assaulted by the Kurdish police damaging his psychological wellbeing; the ramifications of which he carried to date. His family had rented a place near the centre of [City], where his father opened a medical clinic and the applicant as a child was often sent to purchase groceries, and this is when a police officer opportunistically took advantage of the applicant.
The applicant was discriminated against because he was viewed by the Kurds as an Arab and had hatred directed at him. He was denied access to schooling and the applicant suffered because unlike the children around him, he could not read or write or count numbers for 5 years and his education was delayed in Kurdistan. He did not speak the Kurdish language as he had only learnt Arabic.
The applicant claims in his statement that life became unbearable in Kurdistan and his family managed to secure fraudulent passports to escape to [Country 1], but at the border the [Country 1] authorities found that their passports were not genuine, and the family was arrested and detained for a few hours. The authorities questioned whether the applicant was indeed his mother’s biological son and took the applicant away from the family suggesting he had been kidnapped. His mother begged for his return and the head official released the applicant for payment of a bribe of $2,000, exhausting a good deal of the family’s life savings.
In reaching [Country 1], the applicant’s father was supposed to approach UNHCR, however, he refused to do so because as a doctor he had his pride and considered this would reflect badly on his reputation having to resort to the assistance of UNHCR. As they could only stay temporarily in [Country 1], a family friend told them to travel to [Country 2] as Iraqis were permitted to enter the country without a visa. With the family’s resources diminished they travelled by sea to [Country 2] where they lived for five years. In [Country 2] the applicant was at least permitted to continue his education, but the applicant claims he endured five years of bullying and mistreatment in that country and the applicant’s education began to suffer as a result and he had to be home schooled for two years.
The difficulties they encountered as a family led them to move to [Country 3] where the applicant managed to complete primary and high school and he even studied at university for three years. However, it became known that the applicant was agnostic, and the word spread around the campus in a country where Islam is dominant and not able to be questioned. Therefore, he was told he would be either expelled or he could leave voluntarily as they could not guarantee his safety. He left to study in another university and graduated in 2013, this time being discreet about his beliefs.
After graduation the applicant was unable to obtain work in [Country 3] as being from Iraq, he had no rights. However, the applicant was keen to obtain work experience and worked for several companies without being paid, his employers taking advantage of the fact he could not work there, and he could not lodge a complaint.
In 2014 the applicant’s father decided they would return to Iraq. There the applicant again faced racism. He had to obtain a visa to go to Kurdistan even though he had a Kurdish background. He went to Mosul to get his qualifications to join the [union], which was a necessity to be able to work but was rejected on the basis he was Kurdish and had to return to Kurdistan.
The applicant then went to [City], Kurdistan and attended an interview for a job for which he was highly suitable. However, when the applicant was required to disclose whether he was Arab or Kurdish and informed his interviewer that he was of a mixed marriage, the applicant had his documents thrown back at him. In further humiliating conduct, the interviewer told him they did not hire “dirty blood”, referring to his mother’s Arab ethnicity. He was told that dead people were better than those who were alive and married to a non-Kurd.
The applicant considered it was his right to find a job and live in dignity yet in Kurdistan he was treated as an alien. He applied for many jobs without success. He then relocated to Baghdad and there was considered a [County 3 person] due to his accent, and once they knew he had Kurdish ancestry he was rejected for all job opportunities. Available jobs in Iraq are mostly governmental and an interviewer learning his place of birth was Mosul, jested that the applicant was collaborating with ISIS. The applicant felt insulted, but he could not express his views that he was agnostic (as opposed to an ardent adherent of Islam) otherwise he would have been shot on the spot. After the applicant’s genuine attempts to find work, it appeared that the applicant’s own country would not welcome him. Further, were he to express his religious views he would be killed by both sects of Islam.
The applicant then returned to [Country 3] where his mother and siblings were living to care for his younger brother who had suffered racism at Kurdish schools. His father began to abandon the family and the applicant had to remove his brother from Kurdistan to save his future.
The applicant applied to study at [a University] in [City, Australia], but the applicant struggled and applied for protection on the basis he could not return to Iraq. The reason the applicant was unable to succeed in his studies was because his father was no longer supporting him financially and emotionally and had, since moving to Mosul had a break down, becoming aggressive towards the applicant’s mother, including threatening her. The applicant knowing his parents’ circumstances had a deterioration in his psychological well-being and this affected his progression at university in Australia.
The applicant argues he cannot return to Iraq due:
·to his membership of a particular social group (child of mixed ethnicity Arab/Kurdish);
·his agnostic faith/imputed satanism; and
·his political and imputed political opinion (against the Iraqi and Kurdish governments).
Evidence before the Tribunal
A submission by the applicant’s representative was submitted to the Tribunal before the hearing dated 4 February 2025, again setting out the applicant’s claims and advancing that the applicant could not seek the protection of the state anywhere in Iraq because the state sanctioned serious harm against anyone who did not adhere to the Islamic faith and the applicant could not take reasonable steps to modify his behaviour to involve concealing his belief system to avoid a real chance of persecution.
It is further argued that the applicant does not have a right to enter and reside in any third country as illustrated by his family’s move from one country in the middle east to another in the hope of seeking safety.
The applicant has also submitted evidence of social media discussion regarding the applicant’s agnostic beliefs which were exposed at university in [Country 3] in 2011, referring to Allah cursing the applicant, that he was an infidel heretic, and another stating that if he saw the applicant, he would kill the applicant in the middle of the faculty and would then spit on him. Another wrote “But what is required is this damned man’s head on a tarred platter”. The applicant was seen as having attacked the holiness of the Prophet Muhammad and was referred to as having been on campus, “offensive and pretending of worshipping Satan”. The Tribunal at hearing asked to verify the originals of these messages and the applicant had them on his phone to support his case that he was beaten and sent away from the university because of his beliefs.
The hearing
The Tribunal found the applicant’s evidence at hearing detailed, realistic, and consistent with his claims at the time of application, at interview with the Department, and the supporting evidence submitted. The fact the applicant had referred to his beating due to his agnostic utterances in [Country 3], rather than claiming that the beating had occurred in Iraq which would have been more advantageous to him as it is his receiving country, confirms the applicant’s credibility.
The applicant stated he had tried to suppress memories of the sexual assault by the Kurdish police because he could not deal with it and that the assault was due to his mixed Arab/Kurdish ethnicity. It was evident that the applicant found this matter very difficult to discuss as he attempted to avoid the memory – a matter the Tribunal did not pursue in depth. The applicant was clearly distressed at the thought of what had occurred to him as an [Age]-year-old boy and which he had kept secret due to feelings of shame, having been subjected to such degrading conduct. The Tribunal at hearing emphasised the importance of dealing with the matter in a safe environment with a medical expert trained in dealing with such abuse, particularly as it was evident to the Tribunal that the applicant continued to carry the psychological scars of that event.
When the applicant spoke of his agnostic beliefs, the Tribunal found he was able to elaborate and that the views he expressed were genuinely held and a part of his identity. Having been raised in a family where education was important and having attended tertiary education the applicant at hearing displayed an ability to pose philosophical questions about the existence or non-existence of a God and how he considered that the human mind was not capable of grasping the nature of any such being. It was when the applicant was caught by fellow students discussing such concepts in a café in 2011 in [Country 3], that he was beaten at [University] and a large crowd gathered in the quadrangle to observe the beating by several students, after which the applicant left that university with an unfinished degree.
The applicant also gave pained evidence about not fitting in anywhere in Iraq – neither in the Arabic world nor in the Kurdish community because of his mixed ethnicity. This affected his ability to be educated and find work which further contributed to a deterioration of his mental health.
A letter dated 8 February 2025, has been submitted from a friend of the applicant who currently lives in [Country 4], but who was a fellow student of the applicant in the Department of [Subject] at [University], [Country 3], where the applicant was beaten. The applicant at hearing stated that this friend was the only person he confided in regarding his experiences:
Details of the Incident:
1. What I Saw:
During the week, [the applicant] received threats after a conversation we had that was overheard by someone. He contacted me over the phone to inform me of this. I advised [the applicant] to be cautious and mentioned that I would head to the cafeteria before him to check for any gatherings, as I had an early course that day. At that time, there were a few people present, and I informed him about it.
After finishing my course, I went down to the cafeteria and saw many faculty students and people from other departments gathering and shouting. I tried to get closer and saw university security dragging [the applicant] out of the mob. He was clearly bruised and was being taken to the security office in another building. I waited outside that building as the security guard instructed the crowd to disperse, stating there was nothing to see.
2. What I Heard:
I tried to message [the applicant] but received no response. I asked around and learned that they had accused him of being a devil worshiper or something similar, though I can't recall the exact details. After 3 to 4 hours, I saw the university security car driving him towards the buses…
The Tribunal for the purposes of the review and for the applicant to gain insight into his psychological condition did seek a report from a psychologist after the hearing. The report called, “Treatment Report” is from a registered psychologist and is dated 18 February 2025. The report indicates the applicant had two sessions and states that on having various tests administered showed he displayed severe stress and Post-Traumatic Stress Disorder which appeared to be “associated with underlying psychosocial development trauma. Particular with regards to reported early childhood sexual assault at the hands of a Kurdish Police Officer, Ethnic Discrimination and Family and Social Repercussions of holding agnostic beliefs within a religious/cultural societal context”.
The psychologist also observed that the applicant was vulnerable to dysthymic mood states (depressed) and reduced normal functioning behaviours, with increased tendencies towards avoidance of normative social and daily life activities. Due to his sexual assault the applicant had also avoided romantic relationships until he more recently met his wife. Further:
In general social exclusion, bullying and threats of violence may increase the likelihood the individual develops vulnerability to low self worth and self esteem. Whilst we have not discussed the issue of [the applicant]’s self identity in detail as part of his sessions to date, his self reports and thought content does suggest low self worth.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for 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.
REASONS AND FINDINGS
The issue in this case is whether the applicant meets the definition of refugee as set out under s.36(2)(a) of the Migration Act or whether alternatively, the applicant meets s.36(2)(aa) of the Act, the complementary protection provisions.
For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Does the applicant satisfy the refugee criterion for protection?
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70).
In determining whether an applicant is entitled to protection in Australia the Tribunal must at first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need for and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all their claims.
On the other hand, the Tribunal is not required to accept uncritically any, or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) R 547).
The Tribunal did not have any difficult with the applicant’s credibility and found his narrative consistent with someone who had lived the experiences he claims, and the Tribunal accepts these claims in their entirety. The real chance test is, however, forward looking and the Tribunal has to assess whether the applicant faces a real chance of persecution were he to return to Iraq now or in the reasonably foreseeable future, particularly as some of the events claimed did so in other countries such as [Countries 2 and 3] and not in Iraq.
The Tribunal in making its assessment about a real chance has had regard to the current country information about the return to Iraq of a hypothetical person with the applicant’s characteristics.
Membership of a particular social group (child of mixed ethnicity Arab/Kurdish)
Treatment of Kurds in Iraq
The history of the existence of the Kurds in Iraq has been marked by attempts to achieve autonomy and even a semi- autonomous Kurdistan has been blotted by marginalisation and persecution.[1] The area in which [City] (the applicant’s home area) exists is called the Kurdistan Regional Government (KRG) which is the semi-autonomous region in northern Iraq. In September 2017 voters in Iraqi Kurdistan overwhelmingly chose independence in a referendum held by regional officials despite objections by the Iraqi government, as Baghdad did not want to break up the state and continues not to want to do so.[2]
[1] ‘The Kurds’ Long Struggle With Statelessness’, 1920-2022, Council on Foreign Relations, Timeline: The Kurds’ Long Struggle With Statelessness.
[2] Ibid.
In October 2017 Iraq renewed ethnic cleansing of Kurdish and other minorities in the disputed territories and in oil rich Kirkuk which the Federal government does not wish to lose control over. Many Kurds left after the invasion on account of the abuses, rapes and houses destroyed [3]:
Iraqi state “Arabisation” policy seeks to displace Kurdish populations, which are then repopulated with settlers from other parts of Iraq. This is accomplished through direct violence, the creation of security vacuums where abuses can be carried out by non-state offenders including militias and ISIS. Displacement is then enforced through threats and violations of Kurdish security, repression of Kurdish culture and language discrimination in employment, and the harassment of journalists.[4]
[3] ‘Crimes Against Kurds – The New Ethnic Cleansing of the Disputed Territories’, Seoul: Transitional Justice Working Group, 2022, Reliefweb, Crimes Against Kurds - The New Ethnic Cleansing of the Disputed Territories - Iraq | ReliefWeb.
[4] Ibid.
The Crimes Against Kurds report states that the Iraqi government prefers to hire those who went to Arabic schools instead of Kurdish schools. Because of this, parents have begun to send their children to Arabic schools.[5]
[5] Ibid.
Recent country information shows that any hopes the KRG had after the US invasion in 2003 for statehood and elimination of human rights abuses by the Federal government were dampened:
March 2023 saw another setback for the Kurdish government’s desire to maintain an independent revenue stream. The International Court of Arbitration in Paris ruled that Ankara had violated a 1973 bilateral treaty with Baghdad (renewed in 2010) giving the Iraqi federal government sole authority over Iraq’s oil sales through the pipeline to Türkiye. In response, Türkiye promptly shut down the pipeline on its territory, which the Kurdish government had been using to pump 400,000 barrels a day to market from fields in Kirkuk and in the Kurdish region. (The federal government has used the same pipeline to export 75,000 barrels a day of Kirkuk oil to Ceyhan near the Turkish Mediterranean coast, in cooperation with the Kurdish government.) [6]
[6] ‘Iraq Kurdistan Twenty Years After’, International Crisis Group, Joost Hiltermann, Program Director, Middle East and North Africa,
The US Department of State country report on human rights practices in Iraq for 2023, reported:
The human rights situation worsened during the year due to increased federal and Kurdistan Regional Government restrictions on fundamental freedoms and civic space. There were intermittent attacks by the Islamic State of Iraq and Syria and its affiliated cells; sporadic fighting between the Iraqi Security Forces and the Islamic State of Iraq and Syria in remote areas; Turkish military operations against Kurdistan Workers Party bases in Iraq; the presence of militias not fully under the control of the government, including Iran-aligned Popular Mobilization Forces units; and sectarian, ethnic, and financially motivated violence.[7]
[7] ‘2023 Country Reports on Human Rights Practices: Iraq’ US Department of State,
During a Parliamentary Question in the European Union to the Vice-President of the Commission/High Representative of the Union for Foreign Affairs and Security Policy, the following was raised:
On 20 July 2023 two months before his release date, the Kurdish human rights defender and journalist Sherwan Sherwani was sentenced to an additional four years of imprisonment on highly dubious grounds.
According to the country updates in the 2022 EU annual report on human rights and democracy in the world, the EU is concerned about “the deteriorating human rights situation, especially as regards freedom of expression, gender equality and equal rights” in the Kurdistan Region of Iraq.[8]
[8] ‘The deteriorating human rights situation in the Kurdistan Region of Iraq’, Parliamentary question – E-oo3536/2023, Parliamentary question | The deteriorating human rights situation in the Kurdistan Region of Iraq | E-003536/2023 | European Parliament.
Given the Kurdish-Arab history driven by control over oil as well as ethnic tensions, the country information demonstrates that the applicant having a father who is Kurdish and a mother who is Iraqi-Arab would face hostility, discrimination and serious abuse in his country because of his ethnicity. His sexual assault as a child was about the tragic imposition of power over a child due to his race. The country information would indicate that these sentiments of hostility between the two ethnic groups have not abated and human rights in Kurdistan have deteriorated.
In Kurdistan the applicant was unable to attend school because he did not speak Kurdish and his mother imposed the Arabic language in their home, presumably with the intention the applicant would not stand out in Iraqi society in general and to conceal his Kurdish ethnicity. In Kurdistan someone with some Arab ethnicity faces serious discrimination for not being a full Kurd. Further, hostility towards Arabs in Kurdistan is growing as greater numbers flock to the region to take advantage of lower house prices and there is some concern about their entry [9] :
The continuing influx of Arabs into the Kurdistan region raises concerns for some Kurds, such as 20 year old Makuwan Mohammed, selling fruit and vegetables near the Qalat Market in Erbil. He voices his apprehension about the region potentially transforming into an Arab-dominated area. “As Arabs increasingly populate the markets and residential areas, Kurdistan risks losing its identity. While it’s true that tourism depends significantly on them, their migration to settle here has increased economic challenges for us. They are now vying with us for the limited job opportunities available.”

He gestures towards the shops, saying in colloquial Arabic, “Practically every shop here is run by Arabs. They’re competing with locals for employment, and we’ve all had to pick up Arabic because many customers are Arabs.”

[9] ‘Why Iraqi Arabs flock to Kurdistan: Security, freedom and services’, 26 June 2024, NIRIJ Media, Why Iraqi Arabs flock to Kurdistan: Security, freedom, and services – NIRIJ.
[10] Ibid.
In response to market demands, individuals like Makuwan have found themselves compelled to acquire proficiency in Arabic, a language they had no prior familiarity with years ago. Furthermore, a significant number of establishments including shops, companies, restaurants, hospitals, and medical clinics employ signage in Arabic.[10]
And the security situation in the KRG leaves vulnerable groups open to abuse:
The KRG forces have been accused of committing a wide range of human right violations such as arbitrary arrests, enforced disappearances, torture and other forms of ill-treatment of individuals with perceived ISIL affiliation (see 3.1.1. Individuals with perceived ISIL affiliation). There were also reports of discrimination and harassment by the KRG of certain ethnic minorities (see 3.10. Religious and ethnic minorities) as well as reports of arbitrary detention of political opponents and journalists and violent suppression of demonstrations (see 3.3. Human rights and political opposition activists, protesters and other perceived critics of the authorities and 3.4. Journalists and media workers).[11]
[11] ‘Kurdistan Regional Government (KRG) authorities, European Union Agency for Asylum, Country Guidance Iraq 2024, 2.3. Kurdistan Regional Government (KRG) authorities | European Union Agency for Asylum.
On the analysis of the country information the Tribunal finds that there is a real chance the applicant would be persecuted in both the Arabic and Kurdish areas of Iraq due to his mixed ethnicity. In combination with the applicant’s agnostic views and perceived anti-Islam perspective, however, the Tribunal is satisfied that the real chance of serious harm is heightened, and that the applicant would also face serious harm on account of his beliefs were he to return to Iraq now or in the reasonably foreseeable future.
The applicant’s agnostic views and imputed anti-Islam religion
The applicant at hearing stated that in Iraq and growing up in other countries the applicant also experienced discrimination due to his interest in heavy metal music which was perceived to be in the context of Islam, demonic and satanic. Atheism and agnosticism is very rare in Iraq, but there are reports that an increasing number are non-believers, attributable in part as a reaction to the excesses of ISIS and fundamental Islam.[12] While there is no law prohibiting atheists and agnostics, those seen to be defying the Prophet Mohammad have been persecuted for ‘blasphemy’ and other related charges.[13] There is also low social tolerance of atheism which is why it is considered many non-believers keep their views secret.[14]
[12] ‘The Freedom of Thought Report: Iraq’, Humanists International, 1 November 2024, Iraq - Freedom of Thought Report.
[13] Ibid.
[14] ‘The Freedom of Thought Report: Iraq’, Humanists International, 1 November 2024, Iraq - Freedom of Thought Report. See also: Individuals considered to have committed blasphemy and/or apostasy, including coverts and atheists’, European Union Agency for Asylum, 3.9. Individuals considered to have committed blasphemy and/or apostasy, including converts and atheists | European Union Agency for Asylum.
In a decision (2114248) by Senior Member, Shahyar Roushan, he has referred to the complexity of those who do not believe and atheism (the applicant is not claiming to be an atheistic, he does not exclude or accept the existence of God), and how they are viewed in Iraq:
Some religious figures promote the idea that liberal and communist ideologies are inherently anti-religion and teach that God doesn’t exist, which is why they should be resisted, as Shiite cleric Amer al-Kufaishi stressed in August 2017.[15]
[15] Al-Monitor, ‘Iraqi courts seeking out atheists for prosecution’, 28 March 2018, Iraqi courts seeking out atheists for prosecution - AL-Monitor: The Middle Eastʼs leading independent news source since 2012. Courtesy of decision by Senior Member Shahyar Roushan.
In other words, there tends to be a conflation by politicians and religious leaders of any views such as secularism, atheism, agnosticism and satanism because they are perceived as being anti-Islam and a threat to a cohesive politic.
And again, courtesy of Senior Member Shahyar Roushan’s decision 2114248:
Humanists, atheists and secularists are the focus of particularly pernicious repression. There is a pattern of impunity or collusion in violence by state actors against the non-religious. They are considered to be ‘apostasizers and blasphemers. The Iraqi Penal Code criminalises blasphemy with up to three years in imprisonment. Members of other faiths and those identifying as agnostics, atheists, humanists are not able to record their faith identity on national ID cards.[16]
[16] ‘New report reveals vast extent of global non-religious persecution’, Humanists UK, 1 March 2021, New report reveals vast extent of global non-religious persecution.
Further:
Fadi does not believe in God, and he is terrified.
In a Baghdad café, the medical student sits far from other customers, and glances over his shoulder to make sure nobody is watching and listening.
“I am afraid of being discovered – then I would be killed”, he says in a voice that rarely rises above a whisper. “This may also harm my family, although none of them know that I don’t believe”.
Fadi, 23, says that he could be targeted for believing that God and all of the world religions are human inventions. To avoid detection he deletes all searches on his computer and cellphone.
Like all of the 20 atheists NBC News spoke to, Fadi asked to be identified by a pseudonym to avoid being targeted by militias or police.
…Anecdotal evidence suggests a small but growing community of Iraqi agnostics and atheists in the Muslim majority country. One Facebook page called Iraq’s Agnostics and Atheists has nearly 13,000 likes and 17,000 followers.
But power, violence and religion are a toxic mix.
Many of Iraq’s unbelievers have been forced underground as religious hard-liners battle for control of the young democracy, which is struggling to balance the demands of both Sunnis and Shiites, plus small ethnic and religious communities.
….
Darwin, who was raised in a devoutly Shiite family in the southern holy city of Najaf, once shared his thoughts on science and religion via Facebook, where he posted under a false identity.
"We used to talk about different issues, and exchange information," he says.
But he deleted this page about a year ago.
"I heard militias had started to chase us, and they had the technology and people to track my account," he says. [17]
[17] ‘Iraq’s atheists go underground as Sunni, Shiite hard-liners dominate’, F. Brinley Bruton, 5 April 2019, Iraq's atheists go underground as Sunni, Shiite hard-liners dominate.
The delegate dismissed that the applicant had agnostic beliefs, but the Tribunal tested these thoroughly at hearing and the applicant’s answers were consistent with what is generally known to be an agnostic. The Merriam-Webster defines agnosticism as:
a person who holds the view that any ultimate reality (such as God) is unknown and probably unknowable
broadly : one who is not committed to believing in either the existence or the nonexistence of God or a god.[18]
[18] Agnostic Definition & Meaning - Merriam-Webster.
The applicant convinced the Tribunal that the applicant’s beliefs were ones developed over time and in keeping with a questioning mind about the nature of any God who was beyond human comprehension.
Having such a profile therefore, particularly, as the applicant also stated that he pursued heavy metal music as a way of relaxing in Iraq, means there is a real chance the applicant will be imputed with satanic beliefs and “western values” inimical to the Islamic religion. A decision of the UK Upper Tribunal relating to similar facts (although gender also came into the assessment) gives a definition of what Westernisation might mean:
In the evidence before me ‘westernisation’ appears to amount to a fairly loose bundle of characteristics: an adherence to a particular set of values, a rejection of religion, and prominently, the freedom to enjoy a socially liberal way of life. The Appellants’ witness statements make repeated reference to their ‘western lifestyles’ and how they do not want to give them up.[19]
[19] YMKA and Ors [2022] UKUK 00016, Published 14 January 2022. Tribunal decisions.
In this case His Honour Judge Bruce found:
30. It cannot be said that the contracting states agreed to offer a protected and unfettered right to enjoy ones life in the way that one would like: there is no human right to listen to a particular kind of music, drink alcohol or to wear jeans. A claim based simply on such matters could not, under the Convention, succeed. But is there not more at stake here?

31. Integral to the Appellants’ claim to be ‘westernised’ – and their collective decision to live their lives in the way that they do - are their values. All the adults speak of their abhorrence of extremism, and their support for a secular, democratic, society; the family evidences a strong belief in gender equality. Whilst A4’s decision to date her boyfriend, or to wear what she likes, are at first glance wholly personal matters, they are here expressions of a deeply held ideological belief. Such political opinion is, uncontroversially, a characteristic capable of attracting protection under the international framework. No dispute arises that there is a protected right not to believe in a god: see Article 10(1)(b) of the Qualification Directive (2004/83/EC) and Article 18 of the International Covenant on Civil and Political Rights 1966. Similarly, it is well established that in certain circumstances the harms visited upon women can amount to persecution for reasons of their membership of that particular social group. Where, therefore, the Convention does not offer protection from social conservatism generally, it can do so in certain circumstances, here where the modifications required of the claimants amount to suppressions of the inalienable rights afforded to them by international law.[20]
[20] YMKA and Ors [2022] UKUK 00016, Published 14 January 2022, Tribunal decisions.

Ultimately, His Honour found in favour of the applicants.
The applicant wishes to be able to openly have dialogue about the possible existence or nonexistence of God and other philosophical discussions, including to listen to music that might be associated with the West without fear of serious harm. He also does not wish to be deprived of his rights to find work and to live free from discrimination on account of his mixed ethnicity. It would not be reasonable for the applicant to have to conceal these elements of his existence to avoid persecution.
The Tribunal notes that the applicant’s sister has also been granted protection, however her claims can be distinguished as they were principally gender-based.
The Tribunal does not place adverse weight on the fact the applicant only applied for protection after it was clear he could not continue his studies and the skilled pathway was no longer an option. The Tribunal accepts the applicant’s evidence that once his father’s mental health failed and he renounced his family, the applicant struggled financially as he was no longer supported, and the applicant held grave fears for the well-being of his mother and siblings.
Conclusion
Having carefully considered the evidence before it, the Tribunal finds that there is a real chance that were the applicant to return to Iraq now or in the reasonably foreseeable future he would be subjected to threats to his life or liberty and would experience significant physical harm, including psychological harm on account of his religious/political views and there is a real chance he would face significant economic hardship that threatens his capacity to subsist on account of his mixed ethnicity.
For the reasons given above the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s.36(2)(a).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s.36(2)(a) of the Migration Act.
Representative: Mr BAKER AL MUSAWI (MARN: 0601647)
Date of hearing: 6 February 2025
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.
…