2302478 (Refugee) - [2023] AATA 4680

2302478 (Refugee) [2023] AATA 4680 (11 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Ali Alkafaji
CASE NUMBER:  2302478
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Luke Hardy
DATE:11 December 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 December 2023 at 1:34pm
CATCHWORDS
REFUGEE – protection visa – Iraq – Federal Circuit Court remittal – political opinion and religion – affiliated with communist party and atheist – party office raided and burned down by militia – threatened at gunpoint and house attacked while absent – wife instituted divorce because of fear of harm – threats communicated to family while applicant in Australia, but no harm to them – organised and participated in demonstrations in Australia – inconsistent evidence – supporter of party and casual office worker, not member – limited knowledge of party’s history and policies – long time between incidents and coincidental timing of resumption after visitor visa application made and while in Australia – applied for protection after visitor visa expired – no supporting documentation or statements provided – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(6), 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
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
Sun v MIBP [2016] FCAFC 52
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 Immigration and Border Protection to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
[The applicant] is a citizen of Iraq. He entered Australia on a visa on a family-sponsored visitor visa [in] June 2015. He applied for a PV on 28 July 2015. Essentially, [the applicant]’s claims related to support for the Iraqi Communist Party and to being an atheist, though originally raised as a Shia Muslim.
The delegate refused to grant the visa on 21 January 2016.
The Tribunal affirmed the delegate’s decision, and that decision was set aside by the Federal Circuit Court [in] January 2023. The Court found that the Tribunal failed in its duty to consider [the applicant]'s claims arising from the general security situation in Iraq under the refugee criterion. The formulation of the claim by reference to the applicant's religion provided a relevant Convention nexus. The delegate considered,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2302478 (Refugee)

Details

AGLC: 2302478 (Refugee) [2023] AATA 4680
Case: [2023] AATA 4680
Decision Date: 11 December 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant from Iraq seeking a protection visa. The applicant claimed to be an atheist affiliated with the Iraqi Communist Party (ICP), alleging persecution by an Islamist militia. The dispute centred on whether the applicant met the criteria for a protection visa, either as a refugee or on complementary protection grounds.

The primary legal issues before the Tribunal were whether the applicant had established a well-founded fear of persecution for a Convention reason, specifically political opinion and religion, and whether, failing that, there were substantial grounds for believing that the applicant would suffer significant harm if returned to Iraq. The Tribunal was required to assess the credibility of the applicant's claims and consider the available country information.

The Tribunal found inconsistencies in the applicant's evidence regarding his affiliation with the ICP, describing his role as clerical rather than political. While the applicant claimed his home was raided and a friend murdered by a militia in 2015, and that he was threatened at gunpoint, the Tribunal noted the significant time lapse between the alleged 2005 office raid and the 2015 incidents. Furthermore, the applicant's delay in applying for a protection visa after his visitor visa expired, and the lack of supporting documentation, contributed to the Tribunal's assessment of his claims. The Tribunal applied the principles of refugee law and complementary protection, considering Ministerial Direction No 84 and relevant guidelines.

The Tribunal concluded that the applicant had not established that he met the criteria for a protection visa. Accordingly, the decision under review was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.CONSIDERATION OF CLAIMS AND EVIDENCEThe issues The key issue in this case is whether, on accepted evidence, [the applicant] is entitled to Australia’s protection as a refugee or, if not, on complementary protection grounds. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Claims made to previous decision makers [The applicant], who is from Nasiriyah in Iraq’s south originally claimed be an atheist affiliated with the Iraqi Communist Party (ICP). However, the affiliation he originally claimed does not appear to have been political or even substantially logistical but seems, according to a statement of claims dated 22 July 2015, to have been merely clerical or like the work an office cleaner might perform: “I helped them and did a voluntary work in preparing their office.” [The applicant] claimed he was gathered with party members in an ICP office when it was raided and burned down by an Islamist militia in 2005. He claimed his own home was raided in 2015 while he was visiting and sleeping over with a cousin in February 2015. He described what happened in his 22 July 2015 statement:My house was attacked by the militias in February 2015 but I was not home, I wasspending the night with my cousin [Mr A] who is also a member of the communist party.In the morning, I was told that my house was raided and that my very close friend[Mr B] was viciously murdered by the militias while he was asleep athis house. It was a shock for me and I knew that I could have been killed, had I been atmy house that night. I moved to live with a relative of me at the outskirt of Nasseryabecause I knew they were after me and that they will not stop until they have me killed.Meanwhile my wife asked for the divorce because she was afraid and her familythreatened that they would inform the militias of my whereabouts if I do not divorceher. I then appointed a lawyer to represent me at the court for the divorce at the court.I heard that militias' elements kept searching for me. I could not stay longer becausemy relative was so scared that they might manage to reach me at the end and he and hisfamily will be in deep trouble. I have to admit that at that point I started to contact mybrother [Mr C] and insist that he peruse the issuing the Visitor visa so that I can leaveIraq. I was not really sure what the situation would when I leave the country all what Iwas thinking of is that if I stay in Iraq I will be murdered by those criminal militias whowant to impose their way of thinking upon everybody. I was extremely happy when Igot the visa and when I arrived and I straight away thought of asking about what I cando in order not to go back to Iraq.

Decision

Reasons for decision

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Claims made to previous decision makers [The applicant], who is from Nasiriyah in Iraq’s south originally claimed be an atheist affiliated with the Iraqi Communist Party (ICP). However, the affiliation he originally claimed does not appear to have been political or even substantially logistical but seems, according to a statement of claims dated 22 July 2015, to have been merely clerical or like the work an office cleaner might perform: “I helped them and did a voluntary work in preparing their office.” [The applicant] claimed he was gathered with party members in an ICP office when it was raided and burned down by an Islamist militia in 2005. He claimed his own home was raided in 2015 while he was visiting and sleeping over with a cousin in February 2015. He described what happened in his 22 July 2015 statement:My house was attacked by the militias in February 2015 but I was not home, I wasspending the night with my cousin [Mr A] who is also a member of the communist party.In the morning, I was told that my house was raided and that my very close friend[Mr B] was viciously murdered by the militias while he was asleep athis house. It was a shock for me and I knew that I could have been killed, had I been atmy house that night. I moved to live with a relative of me at the outskirt of Nasseryabecause I knew they were after me and that they will not stop until they have me killed.Meanwhile my wife asked for the divorce because she was afraid and her familythreatened that they would inform the militias of my whereabouts if I do not divorceher. I then appointed a lawyer to represent me at the court for the divorce at the court.I heard that militias' elements kept searching for me. I could not stay longer becausemy relative was so scared that they might manage to reach me at the end and he and hisfamily will be in deep trouble. I have to admit that at that point I started to contact mybrother [Mr C] and insist that he peruse the issuing the Visitor visa so that I can leaveIraq. I was not really sure what the situation would when I leave the country all what Iwas thinking of is that if I stay in Iraq I will be murdered by those criminal militias whowant to impose their way of thinking upon everybody. I was extremely happy when Igot the visa and when I arrived and I straight away thought of asking about what I cando in order not to go back to Iraq. In his PV application form, however, [the applicant] declared that he did not cease residing at his usual domicile until June 2015. [The applicant]’s original PV claims are summarised in the delegate’s decision, which [the applicant] submitted to the Tribunal for the purposes of the review:The applicant claims to be a Shia Muslim from Thi Qar (Dhi Qar), Nasiriyah. The applicant claims to have lived in Thi Qar, Nasiriyah his entire life before coming to Australia.The applicant claims that his extended family (uncles and cousins) were members of the communist party, they were opposed to the Hussein regime and participated in revolting against the regime in 1991. The applicant claims that his cousin was detained by the authorities in 1991 and executed. The applicant claims that he was arrested while serving in the army, he claims that he was interrogated about his uncles and cousins and he was held for nearly six months.The applicant notes that the communist party was banned in Iraq but it was revived in 2003. The applicant claims that he attended the party office regularly and he was present at the office when it was stormed by religious militia in 2005. The applicant claims that he had no problems in Iraq when he applied for a VV to come to Australia but then in February 2015 he was threatened at gunpoint and his home was attacked. The applicant claims that he was threatened and attacked because of his support for the communist party, he was accused of being an atheist.The applicant claims that he went into hiding before coming to Australia and since arriving in Australia he has been informed that that militia groups in Iraq have made threats against his siblings because he has travelled to Australia. The applicant claims that if he returns to his home in Iraq then he would be killed by militia ...At interview, in appreciation of the claim that the applicant and his relatives have had a relationship with the communist party over a long period of time, he was asked if he had anyway of proving those links to the communist party. The applicant said that because he was a business owner and he had money then he was always at the party’s headquarters in Nasiriyah. The applicant was asked if he could provide any evidence, he said that he could only provide verbal evidence. In appreciation of his earlier testimony, the applicant was asked if he provided financial assistance, he said that he did. The applicant was asked if he had any type of evidence of his financial assistance, the applicant said that he did not. The applicant was asked if he could provide any other type of evidence, it was suggested that he may have some photos of himself at the party’s headquarters or some other type of similar evidence. The applicant clarified that he could not provide any evidence outside of verbal testimony ...The applicant was asked what information he knew about the Communist party in Iraq and he was asked direct questions about the party. While he knew some detail about the party, his knowledge was not extensive and he could not name the national leader of the party ... Towards the start of the interview, prior to the applicant being requested to take an oath or an affirmation confirming that the information provided is accurate and complete, the applicant was asked if there was any significant information missing from the application. The applicant said that there was information missing, he said that he was threatened by a militia group about two days before his home was attacked in February 2015. The applicant testified that he was attacked by several militia members and a gun was held to his head and he would have been killed except an older man attached to the militia group stopped the men from shooting him, the older man said to leave him because he is well known. This claim was discussed at several points during the interview. The applicant was asked why the attack by the militia group and the gun being put to his head and the near death experience was not noted in the written application, the applicant said that he did not know if that information was important or not important …At interview, the applicant testified that his home was attacked by a militia group [in] February 2015 and he confirmed the written claim that he was shocked to hear about the attack on his home. The applicant confirmed the written claim that he was staying at a friend’s home when his house was attacked. In appreciation of the applicant’s testimony that he was surprised that his home was attacked, he was asked if there were any indicators that he could have been attacked at his home. The applicant said no, he said the thought was not on his mind and he asked the rhetorical question of why would I leave my family if I thought that my home may be attacked. It was put to the applicant that he earlier claimed to have been attacked by a militia group two days before the attack on his home, he was accused [of being] an atheist and un-Islamic and he barely escaped with his life. It was put to the applicant that his claim that there were no indicators that he could be attacked at his home or elsewhere was very hard to accept. The applicant reminded me that the older man had said to the younger militia members not to kill him and therefore he thought the matter was resolved. It was put to the applicant that militia groups are generally unpredictable and individual militia members could be capable of anything. It was put to the applicant that it was nearly impossible to conceive that he may have thought he was completely safe from the militia members following the first attack ...… The applicant testified that his brother took over his business when he came to Australia but he had to close down operations because of the negative attention received from militia groups. However, the applicant said that his brother continues to attend the place of work to perform other duties. As it was put to the applicant that his brother closing down the business but continuing to attend the business location made little sense and would not put a halt to the attention received by the militia, the applicant [appeared to change] his testimony to suggest that his brother rarely attended the business. This concern was also addressed by the applicant in a post interview submission Additionally, the applicant claims that his brother closed the business and received ‘many calls of threats’ because of the applicant ...At interview, it was put to the applicant that he arrived in Australia [in] June 2015 holding a VV valid for stay until [July] 2015. It was further put to the applicant that he did not apply for this PV until four days after his VV ceased ([July] 2015). The applicant was asked why it took him over a month to apply for a PV. The applicant testified that he had been buying souvenirs and it was his intention to return back to Iraq until he received word from his brother in Iraq that the militia were still looking for him ...[presently-constituted Tribunal’s emphasis]

Ratio Decidendi

Legal Principle Established

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.CONSIDERATION OF CLAIMS AND EVIDENCEThe issues The key issue in this case is whether, on accepted evidence, [the applicant] is entitled to Australia’s protection as a refugee or, if not, on complementary protection grounds. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Claims made to previous decision makers [The applicant], who is from Nasiriyah in Iraq’s south originally claimed be an atheist affiliated with the Iraqi Communist Party (ICP). However, the affiliation he originally claimed does not appear to have been political or even substantially logistical but seems, according to a statement of claims dated 22 July 2015, to have been merely clerical or like the work an office cleaner might perform: “I helped them and did a voluntary work in preparing their office.” [The applicant] claimed he was gathered with party members in an ICP office when it was raided and burned down by an Islamist militia in 2005. He claimed his own home was raided in 2015 while he was visiting and sleeping over with a cousin in February 2015. He described what happened in his 22 July 2015 statement:My house was attacked by the militias in February 2015 but I was not home, I wasspending the night with my cousin [Mr A] who is also a member of the communist party.In the morning, I was told that my house was raided and that my very close friend[Mr B] was viciously murdered by the militias while he was asleep athis house. It was a shock for me and I knew that I could have been killed, had I been atmy house that night. I moved to live with a relative of me at the outskirt of Nasseryabecause I knew they were after me and that they will not stop until they have me killed.Meanwhile my wife asked for the divorce because she was afraid and her familythreatened that they would inform the militias of my whereabouts if I do not divorceher. I then appointed a lawyer to represent me at the court for the divorce at the court.I heard that militias' elements kept searching for me. I could not stay longer becausemy relative was so scared that they might manage to reach me at the end and he and hisfamily will be in deep trouble. I have to admit that at that point I started to contact mybrother [Mr C] and insist that he peruse the issuing the Visitor visa so that I can leaveIraq. I was not really sure what the situation would when I leave the country all what Iwas thinking of is that if I stay in Iraq I will be murdered by those criminal militias whowant to impose their way of thinking upon everybody. I was extremely happy when Igot the visa and when I arrived and I straight away thought of asking about what I cando in order not to go back to Iraq.