ANJ21 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 742
•23 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ANJ21 v Minister for Immigration and Citizenship [2025] FedCamC2G 742
File number(s): SYG 311 of 2021 Judgment of: JUDGE D HUMPHREYS Date of judgment: 23 May 2025 Catchwords: MIGRATION – Protection Visa – Administrative Appeals Tribunal – Whether the Tribunal misapprehended the applicants claims and failed to give them proper, genuine and realistic consideration – Whether the Tribunal reasoned with the applicants claims in an irrational, illogical or legally unreasonable way – Proposed grounds of judicial review have no merit – Application dismissed Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 36(2)(b), 36(2)(c)
Migration Regulations 1994 sch 2
Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
EVI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 518
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 418 ALR 152
Minister for Immigration v Li (2013) 297 ALR 225
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Singh v Minister for Home Affairs [2019] FCAFC 3
Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297
Division: Division 2 General Federal Law Number of paragraphs: 68 Date of hearing: 15 May 2025 Place: Parramatta Counsel for the Applicants: Mr Bhasin Solicitor for the Applicants: Mr Turner (Ray Turner Immigration Lawyers) Solicitor for the First Respondent: Mr Sheedy (Sparke Helmore Lawyers) Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 311 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ANJ21
First Applicant
ANK21
Second Applicant
ANL21 (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVRE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
23 MAY 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to ‘Minister for Immigration and Citizenship’.
2.The application is dismissed.
3.The Applicant is to pay the First Respondent’s costs fixed in the sum of $8,371.30
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
INTRODUCTION
This is an application for judicial review of a decision of the (then) Administrative Appeals Tribunal’s decision dated 29 January 2021 affirming a decision of a delegate of the first respondent, refusing to grant the applicants a protection visa.
BACKGROUND
The applicants are citizens of Iraq.
The first and second applicants are husband and wife. The third and fourth applicants are their children.
The first applicant arrived in Australia on 9 February 2012, as a dependent on the second applicant’s Student (Temporary) (Class TU) (subclass 573) visa.
The first applicant continued as a dependent on a subsequent visa granted to the second applicant on 4 November 2013, which was valid until 15 March 2016.
On 13 November 2014, the first applicant (‘the applicant’) departed Australia for Iraq, and returned on 25 December 2014.
On 7 March 2016, the applicant lodged an application for a (Class XA) (Subclass 866) visa (‘the visa’). The second, third and fourth applicants were included in the application as members of the first applicant’s family unit.
On 10 May 2017, a delegate of the Minister for Immigration and Border Protection (‘the delegate’) refused to grant the applicants the visa.
On 14 June 2017, the applicants lodged an application with the Tribunal seeking merits review of the delegate’s decision.
On 2 December 2020, the Tribunal wrote to the applicants and invited them to attend a hearing on 17 December 2020. On 17 December 2020, the applicants attended the hearing and were assisted by a support person and an interpreter in the Kurdish and English languages.
On 29 January 2021, the Tribunal affirmed the decision under review.
The applicant applied to this Court for judicial review on 1 March 2021.
THE TRIBUNAL’S DECISION
The Tribunal outlined the criteria for a protection visa as outlined in s 36 of the Migration Act 1958 (Cth) (“the Act”) and Schedule 2 to the Migration Regulations 1994 (“the Regulations”). In accordance Ministerial Direction No. 84, the Tribunal took into account guidelines prepared by the Department of Home Affairs and country information reports prepared by the Department of Foreign Affairs and Trade (DFAT Report).
The applicant claims to fear harm, if he were to return to Iraq, for reasons of being forced to join the Kurdish military by his father, who is a Lieutenant Colonel in the Peshmerga. The Tribunal reproduced an extensive statement from the applicant in support of his claim from [10]–[44] of its decision.
The applicant gave evidence that he would be killed by his father, if he did not join the Peshmerga or ISIS because of his family’s affiliation with the Peshmerga. He believed that ISIS would kill him as all of his family are targeted ([55]–[56]).
The Tribunal questioned why the applicant did not serve in the military between the ages of 24 to 29. The applicant had previously stated he made excuses in and around age of 18 to 29 to avoid joining the military. The applicant had given an excuse that he would join the Peshmerga after he finished university ([58]). As to ages 24 to 29, the applicant claimed that he was under pressure and tried to commit suicide as his father was forcing him to join (the Peshmerga) alongside his brothers ([59]). The Tribunal noted that the applicant did not have any medical evidence to support this claim.
The applicant claimed his father was “shamed” as the applicant had run away from being a solider when his father was a Colonel. If he returned to his country, he would have to be a solider and guard for his father. At [61], the Tribunal put questions to the applicant about his involvement with the Peshmerga, to which the applicant answered that he was not in the Peshmerga.
The Tribunal put to the applicant that there was no shortage of soldiers in the Peshmerga and country information revealed that the group was “too big” and needed to reduce in its size. As a now 37-year-old with no previous military experience, there would therefore not appear to be too much pressure for the applicant to join the Peshmerga ([62]). The Tribunal asked again why the applicant would be needed by the military, without any training or experience and with the knowledge that there was an excess amount of people in the Peshmerga. The applicant distinguished the Peshmerga to the Australian army and stated: “You are given a gun and are a fighter” ([65]). Further, his father wanted him to protect the family and the village. He gave evidence that his sisters lived in the town of ‘M’. When questioned as to why he could not live there he stated that his father did not allow it. The Tribunal put to the applicant that even in this instance, the applicant was an adult and could reside wherever he wanted.
Similarly, the Tribunal questioned why the applicant could not live with his wife’s family in the town of ‘S’. The applicant answered similarly to the above. The Tribunal put to him again that he could live wherever he wanted as an adult ([66]). The applicant answered that even if he could live in ‘S’ as it was safer and he would likely be employed, his father would use his influence and power with the tribe, and would probably kill him ([66]).
In considering the applicant’s claims and evidence, the Tribunal found the applicant’s evidence regarding his claim to be inconsistent and lacking credibility. The Tribunal did not find him to be a reliable witness.
The Tribunal noted and made the following findings as to the applicant’s claim of forced recruitment into the Peshmerga:
·The Tribunal accepted that the applicant’s father is a member of the Peshmerga, however, it refused to accept that the father has or will seek to forcibly recruit the applicant into the Peshmerga on the basis that the applicant lived in Iraq until he was 29 without being forcibly recruited. The applicant was allowed to defer his military service until 2007 due to academic study however there was no explanation for how he avoided serving from ages 24-29 ([92]–[93]).
·The Tribunal did not accept the applicant attempted to commit suicide ([93]). This claim arose after the protection visa application was rejected. The Tribunal placed more weight on the deliberate timing of the claim. The applicant also travelled back to Iraq and stayed with his family from November/December 2014 without being forced to join the Peshmerga at a time of intense fighting. It is significant that Mosul fell to ISIS in June 2014 and the fighting between the Kurdish forces and ISIS began in November/December 2014.
·County information revealed that the Peshmerga had no shortage of personnel ([95]).
·For the same reasons it provided from [92]–[95], the Tribunal did not accept that the applicant would be forced to join the military because his father and tribe were shamed that he had run away or there existed a pressure or expectation for him to join.
·It did not accept that the applicant was allowed to return to Australia without being forced to join the Peshmerga, as at the time the applicant left there was a large threat posed by ISIS and the applicant would have been needed as personnel ([97]).
·It did not accept that he promised to return or that his father might kill him because he promised to return but never did ([97]).
·It also did not accept that the Peshmerga were still at war with ISIS and that there was no Peshmerga in the area such that the applicant would be required again ([98]). Further it refused that the applicant would be forcibly conscripted into the Iraqi army or ISIS.
As to the issue of the applicant moving from his home in Iraq and the attitude of the father, the Tribunal made the following findings:
·The Tribunal did not accept, based on country information that the applicant cannot relocate within Iraq because his father would kill him if he tried to live with his family-in-law and that the father wanted him to join the Peshmerga and protect the village. The applicant provided a document post-hearing that stated ‘men are equally at risk of becoming victims of honour crimes as women’ as evidence to support his claim ([101]).
·The Tribunal attributed little weight to the claim and evidence provided at [101] as the full quote from the document was ‘...men are equally at risk of becoming victims of honour crimes as women. In contrast, in the opinion of the WADI representative, boys and men are "not very likely" to become victims of honour-based violence in Iraqi Kurdistan, and when they are affected, "most" of the time it is due to "supposed homosexuality"'. Based on this, the Tribunal was satisfied the applicant and his family could move to ‘S’ if they believed the situation at home warranted it.
The Tribunal made findings about the applicant’s delay in applying for protection and the brother’s claim from [106]–[107] and other issues raised in the application from [108]–[111].
Based on the above findings at [112], the Tribunal was not satisfied that there are any substantial grounds for believing that the applicant faces a real risk of suffering significant harm. Further, there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq, there is no real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s 36(2)(aa).
The applicants did not satisfy the criterion as set out in s 36(2)(a) for a protection visa. They would also be unable to satisfy the criterion set out in s 36(2)(b) or (c).
GROUNDS OF JUDICIAL REVIEW
The applicants rely on two grounds of judicial review contained in an Amended Application lodged with the Court on 24 April 2025. The grounds of review are as follows (less particulars):
1.In rejecting the first applicant’s claim that he would be forcibly recruited into the Peshmerga if returned to Iraq (at [92]-[99] of its reasons) the Tribunal misapprehended his claim and failed to give it proper, genuine and realistic consideration and/or reasoned in an irrational, illogical or legally unreasonable way, such that its decision was affected by jurisdictional error.
2.In considering the first applicant’s claim that he would be at risk of being killed by his father if he sought to live outside his home village (at [65]-[67],[101]-[102]) the Tribunal failed to give his claim proper, genuine and realistic consideration and/or reasoned in an irrational, illogical or legally unreasonable way, such that its decision was affected by jurisdictional error.
APPLICANT’S SUBMISSIONS
Ground One
Ground one revolves around the Tribunal’s findings at [92]–[99] that the first applicant would not be forcibly recruited into the Peshmerga if he were to return to Iraq, and related findings on the Peshmerga’s recruitment needs, the applicant’s suicide attempt, and his lack of credibility.
The applicants noted that a central aspect of the first applicant’s claim to protection was that if he was returned to Iraq, he would be forced by his father to join the Peshmerga. It was submitted that the Tribunal’s reasons for rejecting that claim at [92]–[99] demonstrated that it failed to give proper, genuine and realistic consideration to it and/or that its rejection was based on illogical or legally unreasonable reasoning, and as such that Tribunal’s finding was affected by jurisdictional error.
The applicants submit that the first applicant’s claim was articulated on the basis of a personal risk arising from his family’s connection to the Peshmerga, in particular his father’s position as a Peshmerga Lieutenant Colonel, not on the basis of the general risk faced by Kurds as a result of conscription. However, it was submitted that the Tribunal’s reasons for rejecting this claim were based upon speculation as to the consistency with the supposed strategic imperatives of the Peshmerga as a corporate entity. It was further submitted that by relying on speculation as to the strategic imperatives of the Peshmerga in order to reject claims that the first applicant asserted arose due to his familial connections, the Tribunal misapprehended, and failed to grapple with the first applicant’s claim or otherwise reasoned in an illogical, irrational and/or legally unreasonable manner.
The applicants submit that the Tribunal erroneously recorded that the first applicant “tried to kill himself to avoid being made to serve” ([93]–[94]). It was submitted that the first applicant did not claim to have attempted suicide as a ploy to avoid joining the military, but rather that he attempted suicide as a result of being placed under pressure ([59]–[60]). The applicants submitted that by rejecting the first applicant’s account of his suicide attempt on the basis that it had not previously been reported, the Tribunal failed to consider the first applicant’s explanation at [59], that revealing it was traumatic and upsetting, and he had not been able to discuss it. The applicants submit that the Tribunal’s statement at [94], that “[g]iven the claim of attempted suicide only came after his protection visa had been rejected, I place more weight on the deliberate timing of the claim in finding that no such suicide attempt was made,” is otherwise conclusory and lacks an evident and intelligible foundation. It was submitted, that as such, the Tribunal failed actively to engage with this aspect of the first applicant’s claim, and/or reasoned in a legally unreasonable way.
The applicants further note that Tribunal’s finding at [96] is stated to be “[f]or the same reasons as I set out above,” and submit that this finding is infected with the errors identified above, and that the finding involves circular credibility reasoning that is illogical, irrational or legally unreasonable.
The applicants submit that individually and cumulatively, the above errors in the Tribunal’s consideration of the critical aspect of the first applicant’s claim, amounts to jurisdictional error.
Ground Two
Ground two takes issue with the Tribunal’s request that the applicant provide country information “demonstrating the risk of father posed to sons who seek to relocate generally,” and the weight the Tribunal gave the absence of such supporting country information when rejecting this claim.
The applicants submit that the first applicant explained at [65]–[66], that he was unable to live outside his home village as his father would not allow it, and would use his power and influence to kill him if he tried to do so.
It was submitted that, despite the first applicant raising an individualised risk posed to him from his father, the Tribunal insisted on the production of country information to support the existence of such a risk posed by fathers to sons generally. It was further submitted that the Tribunal ultimately rejected the existence of the risk based on to the absence of supporting country information at [101]–[102].
The applicants submitted that, by insisting on the production of country information supporting a risk posed to sons by fathers generally in order to consider the first applicant’s claim of an individualised risk to him posed by his father, and the subsequent rejection of that claim on the basis of the absence of such information, the Tribunal failed to give proper, genuine and realistic consideration, and/or reasoned in an illogical and/or legally unreasonable manner. The applicants submitted that as a result, the Tribunal’s decision was affected by jurisdictional error.
Materiality
The applicants submit that the aforementioned grounds of Judicial Review were material, such that they gave rise to jurisdictional error. The threshold for materiality is not demanding or onerous: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 418 ALR 152 at [14].
It was submitted that the errors arose in the context of the Tribunal’s consideration of the central claims by the first applicant about the risks posed to him if returned to Iraq, and therefore his entitlement to protection. It was further submitted that there was plainly a realistic possibility of a different outcome had the Tribunal properly considered each aspect of the first applicant’s claim.
The applicants submitted that the Tribunal relied upon the impugned findings as part of its adverse credibility findings against the first applicant, as Stewart J observed in EVI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 518 at [149]–[151], emphatic adverse findings on credibility may (and in this case are) “linked with one another so that it will not be possible, or realistic, for a reviewing Court to be confident that an error in one strand of credibility reasoning does not infect other strands.”
FIRST RESPONDENT’S SUBMISSIONS
Ground One
The first respondent submits that the applicant’s assertion that the Tribunal omitted to consider the individualised risk posed by the applicant’s father, with the Tribunal instead characterising the risk of being enlisted as being on the basis of the broader recruitment needs of the Peshmerga, is a mischaracterisation of the Tribunal’s reasoning. The first respondent submits that the Tribunal plainly understood that the applicant’s claim was that he would be forced to join the Peshmerga by his father.
The first respondent notes that the Tribunal expressly recorded the applicant’s claim that he feared his father would forcibly recruit him due to his family’s involvement with the Peshmerga at [58] and [92], and the Tribunal then made findings expressly rejecting that claim at [96].
It was submitted that a fair reading of the Tribunal’s reasons for decision as a whole reveal that it only considered the operational needs of the Peshmerga as one of many factors informing the risk of the applicant’s father forcibly recruiting him.
The Tribunal placed significant weight on the fact that “his [the first applicant’s] father allowed him to defer” enlistment after completing his studies at age 24, during the five-year period before he left for Australia at age 29 at [93]; and that the applicant returned to Iraq “and stayed with his family from” November to December 2024, during a period of intense conflict with ISIS, without being required to enlist at [94]–[95]. The first respondent further submitted that Tribunal noted that the applicant was in his late thirties, and that country information indicated there was no current shortage of Peshmerga personnel at [95]. It was submitted that the latter finding did not subsume the Tribunal’s earlier consideration of the applicant’s circumstances, and lack of past involvement with the Peshmerga.
In relation to the applicant’s contentions that the recruitment needs of the Peshmerga were irrelevant to the applicant’s claim, it was a matter for the Tribunal to determine what it considered relevant: Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5]–[7]. The state of recruitment within the Peshmerga was a factor that was logically relevant to the risk of the applicant being compelled by his father to enlist in circumstances where the Tribunal had accepted that the father was a member of the Peshmerga but had found based on country information that the Peshmerga were too big and needed to reduce in size. This was but one matter relevant to the Tribunal’s broader assessment of the applicant’s claim regarding his father.
In relation to the applicant’s contention that the Tribunal at [93] mischaracterised the oral evidence when it “did not accept that he [the first applicant] had tried to kill himself to avoid being made to serve" (AS [7]), and that no such claim was made, but rather that the first applicant had said he had attempted suicide because of being placed “under pressure”, the first respondent submits that the Tribunal’s interpretation of “pressure” in that context as referring to the claim that the father was forcing him and his brothers to join the Peshmerga was plainly open to it, and as such this contention should be rejected.
In relation to the second limb of the applicant’s contention that the Tribunal failed to consider the applicant’s explanation for why the suicide attempt had not previously been reported, the first respondent submits that it was open for the Tribunal to reject the explanation given merely because it found it unconvincing and needed not to have rebutting evidence before it could reject the explanation: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 per Heerey J at [349].
In relation to the applicant’s claims that the Tribunal’s findings at [96] were erroneous and affected by adverse credibility findings, the first respondent submits that the Tribunal’s overall adverse credibility findings relied upon by the Tribunal were grounded in logical reasoning and probative material that was not limited to the reasoning at [92]–[95].
Ground Two
In relation to the applicant’s complaint that the Tribunal’s narrow focus on the availability of country information resulted in a failure to consider the claim of an individualised risk posed to the first applicant by his father, such a contention disregards the context in which the Tribunal considered and rejected the first applicant’s claim.
The Tribunal considered the information provided by the applicant in the context of considering the secondary issue of whether there were societal expectations in Iraq between fathers and sons that would support the applicant’s contention. There was no error in that approach.
The Tribunal plainly understood that the applicant’s claim involved an individualised risk posed by the first applicant’s father, and that it was open for the Tribunal to consider whether there may be information available about societal norms in Iraq that would support the applicant’s claim.
The applicants seek to draw too much from the Tribunal’s comment at [67] that it “would accept it if [the first applicant] could provide some country information to support his claims”. The Tribunal was not “insisting on the production of country information” in order to consider the applicant’s claim, but rather that the Tribunal had identified for itself an issue it considered relevant to the claim, being that it was not aware of any country information that said that fathers in Iraq might kill their sons for moving away from home. The Tribunal put the first applicant on notice of that issue and invited him to provide any such country information. The first applicant did so, but the Tribunal did not accept the underlying contention the applicant advanced in relation to that information. There was nothing in that approach or course of reasoning that illogical or legally unreasonable.
CONSIDERAITON
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a court conducting judicial review was described in this manner:
… An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.
It is well established the Tribunal is not required to accept uncritically any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451.
Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out: Selvaduri v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347 at 348
It is for the applicant to satisfy the Tribunal, being the relevant decision maker, that the applicant meets the criteria for being a refugee: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187].
Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it: Minister for Immigration v Li (2013) 297 ALR 225 at [28], or where a decision has been made that lacks an “evident and intelligible justification”; Li at [76]. The test for unreasonableness is “stringent” and will only arise in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the court disagrees with the consideration of matters or the evaluative judgements made by the decision-maker: Li at [30], [113].
In relation to a claim of a failure to actively engage intellectually with an applicant’s claim, the proper approach to such a claim was summarised by Reeves, O'Callaghan and Thawley JJ in Singh v Minister for Home Affairs [2019] FCAFC 3 at [37] (citations omitted):
In determining whether the decision-maker had an active intellectual engagement, the following matters are relevant:
1.First, the degree of consideration which is necessary for the jurisdiction to have been exercised, and exercised in a manner which is authorised, is affected by the centrality of the matter, which it is said was not engaged with, to the issues and the prominence the matter assumed.
2.Secondly, in examining the reasons of the decision-maker to determine whether there was a lack of intellectual engagement:
a)the reasons should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error”: Carrascalao at [45], quoting Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30];
b)it is necessary to read the reasons in light of the whole case as it was before the Tribunal, which might have involved more issues than are raised, and more evidence than is, before courts on judicial review and subsequent appeal. The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues and the way in which the matter was conducted in the Tribunal; and
c)a conclusion that the decision-maker has not engaged in an active intellectual process “will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof”: Carrascalao at [48].
Ground one is a claim of an erroneous treatment of the applicant’s claim of forced recruitment by his father into the Peshmerga. The Tribunal’s rejection of this claim is impugned on the basis that it failed to give the claim proper, reasonable and genuine consideration and/or it was based on illogicality such that it was legally unreasonable.
It should first be noted that the Tribunal set out in full at [10]–[44] the applicant’s claims, including his claims of forced recruitment by his father into the Peshmerga. The evidence of the applicant at the hearing in relation to this issue is then set out in detail at [55]–[66]. The claim that the applicant will be forced to join the Peshmerga was rejected by the Tribunal at [96]. The reasoning for this conclusion is not based just on ‘speculation as to the strategic imperatives of the Peshmerga as a corporate identity’ (AS6), but also on the fact that the applicant did not join the Peshmerga while aged 24 to 29 years, nor was he forced to join when the fighting intense when he returned to Iraq in 2014.
The Court is reasonably satisfied that the country information relied upon by the Tribunal was but one of a number of factors that lead the Tribunal to reject the applicant’s claim. The Court is satisfied that the Tribunal did actively engage with this aspect of the applicant’s claim, and the rejection of it was open to the Tribunal based on the totality of the evidence before it and for the reasons it gave. The reasoning of the Tribunal reveals an evident and intelligible justification, that does not give rise to a supportable claim of legal unreasonableness, noting the ‘stringent requirements’ for the jurisdictional error to be met.
The second aspect of ground one is that the applicant claims the Tribunal erroneously recorded that the applicant stated he “tried to kill himself to avoid being made to serve”, when no such claim was made. It is submitted that the applicant did not claim attempted suicide as a ploy to avoid joining the military but explained that he attempted suicide due to being placed under pressure by his father.
In considering this claim, the Tribunal noted that it only came to light after his protection visa had been rejected. The Tribunal gave weight to what it considered to be “the deliberate timing of the claim”, noting it had not been previously raised. The Court is satisfied when read as a whole, that when the Tribunal did not accept the applicant tried to kill himself to avoid being made to serve. This needs to be read in relation to the previous paragraph at [92] where the Tribunal found it did not accept that the applicant’s father “has, or will seek to forcibly recruit him (the applicant) into the Peshmerga’. The Court is satisfied that the Tribunal clearly understood that the suicide attempt was claimed by the applicant to be as a result of pressure from his father. The submission of the applicant that the Tribunal somehow misconstrued the evidence, in my view seeks to read the Tribunal’s reasons with ‘an eye finely attuned to error’.
The Court is further satisfied it was open to the Tribunal to find that the timing of a claim, after he was refused protection by the delegate, was a factor that the Tribunal could take into account when considering the overall credit of the applicant. The Court does not accept the submission that the Tribunal’s credibility findings were circular in nature, and find they were grounded in logical reasoning and probative material. Ground one has no merit.
Ground two challenges the Tribunal’s assessment of the applicant’s claim that he would face a risk of being killed by his father if he attempted to live outside his home village. The Court is satisfied the Tribunal properly explored the applicant’s claim that he would be required to live in his father’s home village and would be unable to move to either the village of ‘M’ or the village of ‘S’, where his wife’s family came from.
In so doing the Tribunal noted country information that Iraqi’s are free to move within the KRG area. Complaint is made that the Tribunal asked the applicant to provide country information that supported his claim or being unable to move. The Tribunal noted at [101] that the applicant provided a post hearing submission that stated that ‘men are equally at risk of becoming victims of honour crims was women’.
The Tribunal perused the document relied upon to support this claim, but gave it little weight at [102] as the document stated that boys and men ‘are not very likely’ to become victims of honour crimes and that ‘most’ of the time this was due to ‘supposed homosexuality’. Accordingly, the Tribunal found the applicant could move to the village of ‘S’, where his wife’s family resides, if the situation in his home village warranted it.
The finding is criticised on the basis it did not deal with the individualised claim that the applicant’s father would kill him or arrange for him to be killed. This finding needs to be considered together with the Tribunal’s finding that the applicant’s father would not pressure him to join the Peshmerga in order to protect his family and the village. Having made this finding, the Court accepts the respondent’s submission that this effectively disposed of the claim that the applicant was unable to move elsewhere in Iraq. The Court does not accept that the Tribunal did not understand the claim by the applicant of individualised risk from his father. The Tribunal simply did not find as a matter of fact that this risk existed. As it did not exist in relation to forced enlistment in the Peshmerga, it was open to the Tribunal to find it did not exist in relation to the issue of moving away from his home village. Ground two has no merit.
Accordingly, the application is dismissed. The Court will hear from the parties on the issue of costs.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 23 May 2025
SCHEDULE OF PARTIES
SYG 311 of 2021 Applicants
Fourth Applicant:
ANM21
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11
2