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 affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5(6), 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2CASES
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 52Any 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, and found, that such a claim (referable to the refugee criterion) arose from the materials, which is significant in determining whether an unarticulated claim clearly emerged, and the Tribunal proceeded on the basis that the applicant was a Shia Muslim. The error is material because the Tribunal did not conclude that there was no real risk to the applicant of any type of harm in the foreseeable future as a Shia Muslim.
The matter is now before the Tribunal pursuant to an order of the Court and has been constituted to me.
[The applicant] appeared before the Tribunal on 12 October 2023 to give evidence and present arguments. He was accompanied by his adviser, a registered migration agent. The Tribunal hearing was facilitated by an interpreter in the Arabic-English medium.
There is much material on file attesting to [the applicant] suffering from anxiety and other mental health issues due, as reported, to his uncertain visa situation. I have taken these factors into consideration. I am confident, nevertheless, that [the applicant] was not prevented by any circumstances beyond his control from giving cogent evidence in this matter.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she 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 that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The 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 was
spending 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 at
his house. It was a shock for me and I knew that I could have been killed, had I been at
my house that night. I moved to live with a relative of me at the outskirt of Nasserya
because 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 family
threatened that they would inform the militias of my whereabouts if I do not divorce
her. 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 because
my relative was so scared that they might manage to reach me at the end and he and his
family will be in deep trouble. I have to admit that at that point I started to contact my
brother [Mr C] and insist that he peruse the issuing the Visitor visa so that I can leave
Iraq. I was not really sure what the situation would when I leave the country all what I
was thinking of is that if I stay in Iraq I will be murdered by those criminal militias who
want to impose their way of thinking upon everybody. I was extremely happy when I
got the visa and when I arrived and I straight away thought of asking about what I can
do 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]
Subsequent to the PV interview with the delegate, [the applicant]’s adviser submitted an email with the following claims:
1. With relation to the applicant's brothers back in Iraq and their employment status, the applicant stated "My brother [has] already stopped working at the [factory] because of the threats and he is unemployed at this stage fearing that the militia would harm him or even detain him to force me to return to Iraq. As for my brother [Mr A] he is still working but lesser than before as he manages the trade business we have in Iraq beside collecting the rent from our properties. [Mr A] is reducing his appearance in public and trying his best to avoid been in direct contact with the militias. He had also received many calls of threats because of me"
2. The applicant explained that he did not mention his address in [Location] because it was not a residential address, in fact, it was a hiding place for him and it was temporary. [Location] is a rural area very close to the marshes in the south of Iraq and people resort to that area when they are wanted by the militias or there is a threat to their lives.
3. The group that threatened the applicant at the gunpoint and then decided to give another chance, he stated that he has told the incident as it has occurred and that he cannot speculate as to why they did not kill or harm him at that instance, or as to why they behaved in such way. However, the applicant stated that he tends to think that they only wanted to show him that they are able of reaching him and do whatever they want to him. He also thinks that it was mainly to intimidate him.
4. The applicant explains that he lodged his application for protection only when his brother informed him of the ongoing threats. [The applicant] said, "I was planning to return to Iraq and did not think of staying despite the threats. However, when my brother told me while I am in Australia that they still after me and pledged to have me punished upon my return. Only then I thought of seeing a Migration Agent and applying for protection"
[presently-constituted Tribunal’s emphasis]
[The applicant]’s evidence to the previously-constituted Tribunal is summarised as follows (in AAT decision 1601100):
Pre-hearing submission
16. In a submission dated 22 March 2018 the applicant reiterated his claims and also claimed
that in February 2015 he was stopped at gunpoint and about to be shot by a group of militia
who accused him of being an atheist and a communist, when one person intervened and
stopped the execution saying the applicant’s father was of good character and they should
let the applicant go. His house was attacked by the militia two days later but he was not at
home.17. He also claimed that the threats continued with his siblings and they had to slow down their
business to avoid confrontation with the militia. His brother had returned to Iraq in April 2017
and had been threatened by the militia because they thought he was the applicant.AAT Hearing
18. The applicant was asked whether he knew everything in his PV application and that it was
true and correct and he stated that it was. He claimed that if he returned to Iraq he would be
killed by Islamic groups. Asked which group, he claimed that he didn’t but they were Shi’a
Islamic groups. Asked which Shi’a groups were active in his area, he claimed that he had no
idea but then said that Hizb ad-Da’wa were active in his area.19. Asked why they would kill him, he said that it was because he was accused of being a
communist and an atheist. This was the only claim he had. Asked if he was a communist
and an atheist, he claimed that he supported and liked the communists but he wasn’t a
member. Asked if he was an atheist, he said that he was and then said that he had been
accused of being one. Asked to clarify whether he was an atheist or whether he believed in
God, he claimed that he was born into a Muslim family but he didn’t mind being a
communist.20. It was put to him that he needed to be very specific about his claims and not to be circular
when discussing them. There was a chance that he could be considered to be evasive if he
was being circular. He was again asked if he was an atheist or whether he believed in God.
He said he was an atheist and then said that he believed in God but not any one religion. It
was put to him that this was contradictory and was asked to say whether he was an atheist
who did not believe in God.21. He said he practised no religion but believed in God. Asked whether he knew what an
atheist was, he said an atheist didn’t believe in God. He then said that the militias accused
him of not believing in God because he didn’t follow any religion. He was asked to confirm
directly whether he was or wasn’t a Muslim – he said that he had nothing to do with the
religion but was born into a Muslim family. Asked again to confirm his faith, he said he
wasn’t a Muslim. He believed in God but in no faith.22. He also stated that he supported the communist party but was not a member. Asked why he wasn’t a member, he said that he didn’t want to commit himself. It was put to him that he
helped them so was already committed, and he claimed that being a member required a
greater level of commitment.23. It was put to him that he had described himself in July 2015 as a Muslim Shi’a on his
application, and he claimed that he was from a Shi’a family and his siblings were Shi’a. It
was put to him that the question related to his own religion and he had advised the Tribunal
that everything in his application was true and correct. He was asked what had changed
between then and now, when he claimed he wasn’t Muslim. He claimed he hadn’t been
asked the same question as he was today – it was put to him that it was the same question
in the form and he stated that he had a religion, which was Shi’a Islam.24. He claimed that he understood the application question was asking what his background
was, whereas the tribunal asked what religion he was. It was put to him that the application
asked what religion he was (if any), so he could have said that he had no religion. The
inconsistent responses could raise questions as to whether he actually did have a religious
identity or not. He claimed he didn’t understand the question on the form.25. The adviser said that the question as to whether one was a Muslim was complicated and
that the Tribunal could ask the question again. The member said the question was quite
straightforward and was a test of credibility of the applicant and he could address the
inconsistency post-hearing if he wished.26. Regarding his connections to the Iraqi Communist Party (ICP), the applicant then stated that his father owned a [Job task] workshop and they used to feel for the poor people in their city. Some people were talking about communism and the search for equality. Some uncles
were in the ICP and he began sympathising with the communists, and then to help them.27. After the 1991 uprising he was giving money to the poor people who supported the ICP and
helped the ICP with [Job task]. Asked how he knew the poor people who supported the ICP
were, he claimed the ICP members told him who they were. It was put to him that people
normally gave money to parties who then gave it to the poor in order to generate support for
the party. His system sounded strange, as he could just give money to any poor person,
rather than trying to identify pro-ICP poor people to give individual donations to. The ICP
could prioritise people in need as well. He said when he gave people money who had been
referred by the ICP it looked like he was a member of the party too.28. He would provide the ICP with chairs for example when they needed. He would also attend
some of their meetings, but not official meetings. Asked to clarify what he meant and in what
circumstances he attended the ICP offices, he claimed that he used to attend general
meetings but not ones where political issues were discussed. He was asked to describe the
differences, he claimed he attended conferences but not committee meetings. The
conferences would discuss general issues about communism and how the government was
exploiting them.29. Asked if he got in trouble from the government for attending these meetings, he claimed he
didn’t. He began to have problems and was jailed in 1991 under the Saddam regime for
perceived as being communist. Some of his relatives were from the ICP. He was detained
for six months and tortured and then released as a result of an amnesty. He stopped
dealing with the ICP as he was under surveillance. He restarted his connection with the ICP
in 2003 after Saddam fell.30. He helped re-open the office and re-established the branch. It was a proud moment. It was
put to him that there must have been many photos taken of the re-opening of the ICP branch
and was asked if he had any photos of him at the office re-opening. He said that he didn’t
intend to keep memories of the event or for him to keep records of this. It was put to him
that if he didn’t then surely others would have.31. It was put to him that it may strengthen his claim if he could obtain photos from the
Nassiriyyah ICP branch of the re-opening of the branch showing him present. He claimed
that if he had known he would be applying for protection he would have taken photos – it
was again put to him that surely someone would have taken photos of such an event and he
had had two years to obtain them. He claimed he didn’t have any and there were no photos
of him at the ICP branch.32. In 2005 the office was attacked by a group and one of his colleagues [was] killed
and they ran away. They were sitting down talking when people with covered faces came,
swore at them and kicked them out calling them unbelievers and told them they couldn’t
return. They were also bashed. Asked if they took their identity cards, he claimed it was a
small area and everyone knew each other. He was known as his father was well known.33. He didn’t know who they were because their faces were covered and there were too many of them as they came in four cars. It was put to him that if it as a small area he could see their
eyes and hear their voices. He said he didn’t know who they were. This occurred in
summer 2005.34. Things calmed down after a while (about a month) and they returned to the office – things
returned to normal. He would drop by the office every day or second day after he finished
work. He began receiving threats about four or five months after they re-opened the office
(late 2005, later clarified as 2006). The first threat was via phone, followed by another
(between 2006-07). He was told to stay away from the ICP or they would deal with him. He
was called names (atheist, communist, kafir) after this.35. A long time later (many years – [February] 2015) he was attacked by five people and a gun was put to his head. Asked why they escalated to this extent after such a long time, he
claimed it may have been because he intensified his involvement with the ICP and attended
more meetings there. Asked if he had a visitor’s visa application submitted when he was
attacked in 2015, he stated that he did.36. Asked what they wanted when they put the gun to his head, as these groups normally
wanted to kidnap or kill people, he claimed that one of them pulled the gun and put it to his
head. One of the others told the person not to shoot the applicant. Asked the
circumstances of being stopped by the group, he claimed he was returning home and they
were standing at a side street next to their car. It was dark. One of the group told the
person holding the gun to stop and not to kill him.37. The group had stopped near his house in the side street. He parked his car opposite has
house and was going to get something from his house. They knew his house and were
waiting for him. He was asked why they didn’t kill him as he was personally targeted. He
said they wanted to but one of the group stopped him. Asked why someone would stop him,
he claimed he didn’t know but his father was well-known. It was put to him that they knew
who they were going to kill him, where he lived and had planned and now were executing
the attack when suddenly someone suddenly stopped them because his father was allegedly
well-known. This would have been known before they launched the assassination attempt.38. He said it all happened quickly. It was put to him that this mission was planned so they
would have known his father was well-known before they came to kill him, so it seemed
strange they would just have known at the moment before they were going to pull the trigger.
He was asked if he had mentioned this in his application, and he said that he didn’t but
mentioned at the DIBP interview. It was put to him that it was strange he wouldn’t mention
such a significant event. Asked how many times he had nearly been executed in the street
in the manner described, he said this was the first time but he didn’t know what to write in his
application.39. He was asked whether he thought it more relevant to mention an incident where he had
been seconds away from being executed by a Shi’a militia death squad as opposed to being
divorced from his wife. It was put to him that a reasonable person may believe mentioning
his near execution would have been preferable to his divorce when claiming protection. He
claimed that he was stressed and depressed, and was asked if he was under medical
treatment for depression. He said he wasn’t.40. Asked what the special day for the ICP was, he said it was 1 May. Asked if he had any
photos of him celebrating May Day with the ICP, he said that he didn’t. He was asked if he
had any evidence at all that he was involved with the ICP or whether the claim relied entirely
on his oral evidence. He said he had none as he didn’t think he would be applying for
protection. It was put to him that the ICP Nassiriyyah branch exists so he could have sought
evidence such as photos from them.41. It was put to him that he had had two and a half years [since the delegate’s decision] to get evidence about his interaction with the Nissiriyyah ICP branch to support his claim yet none was forthcoming. This raised serious questions whether he had any relationship at all with the ICP. He said that it never entered his mind to take photos or have photos taken of him.
42. Asked what his marital status was, he claimed he was divorced because his home was
attacked two days after the incident with the gunmen. His family was there, but he was at
his cousin’s house. He was divorced after the incident, [in] May 2015. He didn’t attend
the court. He arrived in Australia about six weeks after the divorce. He had been married
for about 15 years. His wife’s name was [deleted].43. …
44. …
45. Asked if anything had happened to his siblings or family in Iraq, he said there was some
pressure but they coped. His brother went back to Iraq and he was attacked as they thought
he was the applicant. Asked if his brother reported this to the Australian Embassy, he
claimed he didn’t think so. There was no evidence other than the oral testimony. The
applicant still had some properties rented out and the shop is still open, but the [Job task]
shop was closed. His brother collected the rent, it wasn’t put through the bank as this was
the way in Iraq. Asked if he could put it through the bank if he wanted, he claimed his
brother did it in person.46. Asked if he had a bank account in Iraq, he claimed he had one but it had been cancelled.
Asked what he did with the money when he closed the account in Iraq, he claimed that it
was there with his brother in cash. They don’t trust the banks like in Australia. Asked why
he had a bank account before if he didn’t trust the bank, he claimed he was there all the
time. He had a bank account in Australia but no accounts in any financial institution in the
world except for Australia. Asked when he closed his Iraqi account, he claimed he thought it
was closed but wasn’t there to close it. He gave his brother permission to close it.47. He had about USD 800,000 in the account and was just sitting in cash in Iraq, it wasn’t
invested anywhere as he couldn’t do anything with it. It was put to him that it was strange
that as a businessman he would be happy to sit on this amount of money and not invest it.
He claimed the situation was not good for investing. He was asked to provide computerised
bank statements from his account in Iraq and in Australia. He said his Iraqi account was
closed down, and it was put to him that there would have been statements prior to closing
down. He was asked for computerised statements from the 18 months before it was closed
down, showing deposits and withdrawals. This was done in order to test the applicant’s
credibility by checking his financial records with the oral account he had given.48. … under s 424AA it was put to him that there was some coincidental timing. He applied
for a visitor’s visa in February 2014 that was refused, he appealed in August 2014 and the
original finding was remitted in September 2014. Nothing had happened to him since 2007
yet in February 2015 in a very short space of time he was stopped and nearly shot and killed
by militia in the street and on the very night he was not at home militia people came to his
family home. The concern was that the timing was so coincidental that the events
underpinning his claim it [may have been] been entirely fabricated in order to obtain a protection visa in Australia.49. He claimed that he was better off in Iraq and the businesses were going very well there and
he wouldn’t have chosen to stay here if the threats hadn’t happened. If he had planned it he
would have produced more evidence. It was put to him that he didn’t apply for protection
until after his visa had expired. It raised questions as to how much he feared returning to
Iraq as his application didn’t appear to be a high priority after arrival in Australia. He claimed
that after he arrived he looked for an agent about what he could do, and it took him some
time.50. The agent was asked if he was the agent who did the applicant’s tourism visa and the
protection visa and he agreed he was. The applicant was asked why he had to spend time
looking given he already had an agent. He claimed he was asking advice and thinking
before he came to the agent. It was put to him that there wasn’t much to think about as he
had someone to approach straight away. He claimed it took the time to talk to his brother
and then tell their story to the agent.51. The applicant’s brother spoke as a witness. He claimed he went to Iraq in 2017 and stayed
at his brother’s house for a week. One night someone knocked at the door and raised
voices occurred. They were asking for [name deleted] and thought he was the applicant. They
wanted to enter the house but there were women and children there and he went outside.
He was accused of being his brother but he denied it. They asked for ID which he showed
and they let him go. They knew he was the applicant’s brother but didn’t do anything to him,
but they knew the applicant was in Australia living with him in Australia although he didn’t
know how they knew.52. They had masks and he didn’t know where they were from. They were armed. Asked if
there was a record of him, as an Australian citizen, of what had occurred to him and he said
that he wasn’t harmed. It was put to him that he, an Australian citizen had been confronted
by an armed group. This would be of interest to the Australian embassy so that travel
advisories could be amended to reflect the threat to Australians traveling to Nassiriyyah. He
claimed they were after his brother.53. He was asked if he told the Iraqi police that they were after an Iraqi citizen (his brother). He
claimed he wanted to, but his brother saw this as normal so he didn’t report it. He was
asked why an armed group looking for their brother with weapons would be considered a
normal day in Nassiriyyah and he claimed he didn’t know. It was put to him that he had told
the MRT during his attempt to get the applicant a visa to Australia that Nassiriyyah was
relatively quiet and would be considered the safest city in this regard. He was asked why he
wouldn’t have told anyone about his brother having a gun held to his head and then having
armed people still looking for him in 2017. He claimed this was unusual and Nassiriyyah
was normally quiet, but he never reported this to anyone.54. His brother was not observant and did not attend events. Asked if his brother considered
himself a Muslim, he claimed he was Muslim by name only. It was put to him that he had
two wives at one stage and this was God’s will. He claimed that non-Muslims in Iraq also
married two wives. Asked what groups did, he claimed he didn’t know what groups, but they
did this in Iraq. It was put to him that one had to be a member of a particular religion to have
two wives, and he said there was no problem for courts to register a second wife in Iraq
regardless of their religion.55. The applicant was asked why the ICP was targeted as country information indicated they did public May day parades and were in an electoral alliance with the Sadrists. He was asked to provide country information indicating that members of the ICP were being targeted in the
way he described. He claimed that this month a religious man called for killing the
communists like Islamic state. Asked how many members of ICP had been killed as a
result, he claimed he didn’t know as he was in Australia. It was put to him that he could
obtain this information from his ICP contacts – the onus was on him to provide supporting
information in order to strengthen his claim.56. He also claimed that there was a woman who was a candidate for the ICP and she was
threatened if she came to Nassiriyyah. It was put to him that the Tribunal had concerns that
he had no connection with the ICP and he was using an example of someone who was a
candidate for the Iraqi parliament which was a very different profile (given he didn’t even
claim to be a member). He claimed there were threats from everywhere, even Iranian
politicians.57. The adviser said one’s identification with Islam is a personal issue and can differ between
societies and cultures. It was put to him that the applicant had defined himself as a Shi’a
Muslim which was quite specific, when he could describe himself as having no religion. He
also claimed that marrying two wives could be cultural rather than simply religious.
58. Regarding the translation errors in the marriage/birth documents, he was asked to fix them
up and re-submit to the Tribunal. He also said that people could be assumed to be an ICP
member even if they were just a supporter. It was put to him that a concern for the Tribunal
was that describing oneself as a supporter and not a member may be a tactical move to
obviate the need to provide any documentary evidence regarding the membership of the
ICP.Submission to the presently-constituted Tribunal
[The applicant] submitted to the Tribunal a statutory declaration dated 2 May 2023. In that declaration he claimed to have helped to organise and participated in demonstrations [in] September, [October] and [November] 2019. He claimed his participation was published in a [Social media] page. He claimed he received many calls of congratulation. He claimed his daughter [telephoned] him on 4 December 2019, crying, to tell him that she had found a threatening letter, referring to his protest activities in Australia, in the front yard of her house. He claimed he then participated in a protest [in] December 2019. (He submitted a video as evidence of his involvement.) He claimed his youngest child [called] him to say that armed men from the AAH extremist group attacked her house, vandalised her car and left a list of assassination targets that included his name. (He submitted a screen capture of a photograph of the list to which he referred, along with photographs of a damaged car.) [The applicant] declared that he organised another protest, this time in front of [a location] [in] March 2021. He claimed to have specifically denounced the AAH via a loudspeaker at that rally. He concluded with comments about a number of deaths of protesters in Iraq.
[The applicant]’s adviser made the following submission, which includes citations from media reporting that I have excised here for the sake of relaying the main points made:
The applicant’s matter was remitted from the Federal Circuit Court to the Tribunal, the
following is the applicant’s submission:1- The applicant wishes to refer to his statement signed and dated 2nd of May 2023
which was uploaded to the Tribunal’s portal previously.2- The applicant arrived at Australia [in] June 2015 on a visitor visa, he subsequently
applied for protection visa sub-866, his claims were the following:a- That he is a sympathiser with the Iraqi Communist party ( ICP) , he has
relatives and friends in that party and that, historically some of his relatives were
executed under Saddam Hussein’ s regime because of their affiliation with the
ICP, and that after 2003 , the applicant supported the ICP ( although he was not a
member of the ICP) by helping them in their activities, by contributing and
volunteering to their efforts and by attending their office regularly.b- In 2005, fanatic militia group attacked the ICP headquarter and assaulted the
people who gathered there (including the applicant), the ICP headquarter then
was burnt down, the applicant stated they were warned that the militia will kill
them. If they continue attending the ICP activities.c- In February 2015, the applicant’s house was attacked by militias, but he was
not at home at that time .and a very close friend of his ([Mr B])
was killed in the same night, the applicant then moved to the outskirts of
Naseriyahd- He was always perceived as a communist and atheist because of his links to
the ICP, because of the fact that members of his extended family were executed
for the same cause.3- While in Australia, the applicant participated in many protests against the iraqi
government, the militias and the Iranian intervention in iraq, his participation in these protests
were published on [social media] and the social network, with many people supporting him in his activities.4- On 4-12-2019, the applicant’s daughter [rang] him telling him that she found a
threat letter issued by the AAH, due to the applicant’s participation in the protests the
militias, the applicant knows many people who got kidnapped, harmed, or killed because of
their participation in the protests.5- A delegate of the department refused the applicant’s application for protection visa ,
in part the delegate referred to the applicant’s inability to provide evidence of his links to the
ICP.The applicant submits that the applicant’s inability to provide evidence is not something that
is unusual if we to take into account the political circumstances in Iraq, there were constant
attacks against the Iraqi communist party , hence, loyalists and members will not usually be
able to evidence their support to the ICP because of the constant persecution against this
party …6- Hence, the applicant’s lack of evidentiary proof is normal in circumstances where
there are constant attacks against the ICP and its support …7- The same happened in 2021, when militia groups attacked the ICP headquarter in
Najaf Iraqi Communist Party headquarters burnt down …8- It follows , the applicant’s claims about targeting the ICP headquarters is supported by
the relevant country information and that happened from 2003 and continuing until
now as I quoted country information’s that covers different periods of times starting
from when the applicant mentioned the first incident ( in 2005) until now , the above
country information doesn’t talk about targeting members of the ICP but rather the
targeting included its supporters, what the applicant said that although he was not a
member of the ICP however he is a supporter of the party , the applicant stated that he
was targeted because he is a supporter of the ICP , and not as a member , also , it is
not unusual that someone will not have an evidence about his links to the ICP in
circumstances where there is a wave of extremism , attacks and raids against the ICP
loyalists.9- The delegate himself accepted that openly advertising a link to the ICP could be
harmful , most of the refugees are unable to bring the evidence needed to prove why
they claiming asylum as they rush to flee their country of reference fearing
persecution in that country.10- The delegate accepted that the applicant knows some details about the party ,
however, the delegate stated that the applicant’s knowledge was not extensive and he
couldn’t name the national leader if the party, the applicant stated that he was not a
member of the ICP , he is a sympathiser , in this case it is not unusual that the
applicant will know who was the national leader of the party , just like anywhere in
the world , some people support specific party without even knowing who was the
leader of that party, the applicant stated that he ebeleived in social justice since his
early years and that he felt for the poor people , the applicant was supporting the idea
and not the persons who lead the party, he was straightforward by saying that he was
a supporter but not a member of the ICP…11- During the PV interview and In relation to February 2015 attack, the applicant stated
that he was threatened and attacked two days prior to that and that , and that an old man saved his life by intervening and talking to the militia men who assaulted the applicant , the
applicant was asked as to why he did not mention that in his written statement , the applicant
stated that he did not know if that incident was important or not , because the applicant
referred to major incident in February 2015 when his house was attacked by the militias , the
applicant maintains that thought that the later incident is more important that the previous
incident in which the situation was resolved by an old man and that he would have the
opportunity to explain the whole incident during the PV interview.12- The delegate’s main objection was in relation to the incident where militia men
assaulted the applicant two days before the house raid that occurred in February 2015 , the
delegate suggested that it was impossible to conceive that the applicant may have thought that
he was completely safe from the militia members following the first attack , however, the
applicant maintains that he meant to explain his circumstances in the PV interview as it was
more through and that he thought that the written statement was in relation to the important
incidents that was the reason as to why he left the country , the applicant’s understanding was
that his written statement is not an exhaustive statement and that he will have the chance to
explain his total claims in an oral interview , that was at least the subjective understanding of
the applicant and it is relevant to the assessment of his credibility, the same applies to
whether the applicant closed his business after he cam to Australia , the applicant stated that
his business was managed by his brother in rare occasions due to the adverse attention of the
militias , the applicant maintains that militia groups was interested in him personally due to
the perception about his atheism and links to the ICP , while his brother doesn’t suffer from
the same adverse interest.13- The reasons mentioned above were the reasons why the applicant’s application was
refused, the applicant submits that his claims were not given a proper assessment and that the
delegate relied on his personal opinions which can be proven to the contrary.14- The applicant claims that in Australia , he participated in the protests against the Iraqi
[deleted] in Sydney and that he attracted support from iraqi who share the same idea about
the importance of getting rid of the militias and the Iranian intervention and that his active
participation in the protests attracted the militias attention who sent a threat letter in this
regard , the applicant considers himself as an active person in relation to these protests16- In relation to the agents of persecution in the applicant’s case ( the militias under the
PMU) I will attach the full DFAT report ( January 2023). As the applicant will face real risk
12 of harm if he is to be removed to Iraq for his reasons of political activism through protests ,
the applicant’s statement refer to the fact that he receives a lot of admiration through social
network platforms and that his activities is known to the militias in Iraq , which means that
the applicant’s life is at risk if he is to be removed to Iraq now or in the near foreseeable
future for this reason.17- It is clear that DFAT report states that people who are active against the government and
the militias face a high risk of persecution , and that the militia groups monitor the social
network platforms for this reason.18- It is relevant to refer to the fact that the applicant will face harm in Iraq due to his mental
health problems as evidenced by STARTTS reports …19- It is relevant to state that the security situation in Dhi Qar is deteriorating due to
the clashes between protestors and the militia groups and the (PMU) called also
(PMF) …20- the applicant maintains that his name is listed by the AAH as a person of interest ,
the relevant country information supports the fact that the AAH issued such lists in
the past …21- currently m militia groups used new powers that is given to the Minister of
interior in iraq ( who belong to the PMF) to target people who are opposed to them
and who use social media …22- it follows that the applicant will be targeted because of his involvement in the protests in
Australia as we have seen from the above quoted country information , he will be easily
accused of working against the government and the militias ,the applicant will be targeted by
the PMF and the AAH for this reason , he will suffer significant harm due to his mental
issues and he will be deprived of his liberty and ability to express his political views …Independent country information
Relevant to the present application, I have had regard to the following recent reportage from DFAT[1]:
[1] DFAT Country Information Report Iraq, 16 January 2023
SECURITY SITUATION
2.24 Security incidents occur often and without warning, including rocket attacks, mortar attacks, attacks with improvised explosive devices (IEDs), grenade attacks, small arms fire and assassinations. Targets have included security forces, government offices, diplomatic missions, US-led coalition forces, Iraqi and Turkish military facilities, checkpoints, police stations, recruiting centres, airports and public transport centres, places of worship and religious gatherings, markets, non-government organisations, schools and universities, and civilian infrastructure. Violent crime is common, including kidnapping, murder and robbery. Other serious crime includes drug and people trafficking, prostitution and illegal organ harvesting. Organised criminal gangs, militias and armed tribal groups are significant threats.
2.25 Although the KRI is generally regarded as a less dangerous security environment than other parts of Iraq, it is still affected by high levels of violent crime, including kidnappings, murders, robberies and so-called ‘honour’ killings (see Women). Gun violence is common throughout Iraq. Gun ownership is among the highest in the world, and most households own at least one firearm. The ubiquity of weapons and a strong ‘honour’ culture mean minor disputes often rapidly deteriorate into violence, including murder.
2.26 Despite the territorial defeat of Da’esh in December 2017, Da’esh continues to launch attacks on security forces and civilians in Iraq, including suicide bombings and IED attacks. The group operates from safe havens in the Western Desert and along the disputed territories between federal Iraq and the KRI, supported by Da’esh fighters based in Syria. In 2021, Da’esh carried out more than 1,000 attacks in Iraq, killing or injuring over 2,000 people. These included a suicide bombing in Teyeran Square that killed 32 people in January 2021 and an IED attack in Madinat al-Sadr that killed 35 people in July 2021. Both attacks targeted Shi’a populations. According to the US Department of State, Da’esh also attacked electricity and water infrastructure, and abducted and killed civilians and security personnel, throughout 2021.
2.27 Iran and Turkey carried out rocket and artillery attacks in Sinjar and the KRI in 2022, reportedly targeting members of the KDPI (Kurdish Democratic Party of Iran) and the PKK (Kurdistan Workers’ Party, a Kurdish terrorist organisation active in Turkey and Iraq). Civilians were reportedly killed in and displaced by these attacks.
2.28 Large-scale, prolonged violent protests began in major cities in October 2019 and continued until mid-2021. These protests came to be known as the ‘Tishreen’ (October) protests, and participants as ‘Tishreenis’. Security forces, allegedly with the support of Iranian-aligned militias, used tear gas, water cannons and live ammunition against protesters, resulting in hundreds of deaths. In July 2022, in a separate period of unrest following the October 2021 elections, supporters of influential cleric Muqtada al-Sadr breached the International Zone in Baghdad (the partially-secured centre of the international and government presence in the city) and staged a sit-in at the Iraqi parliament that lasted several days. They were protesting the nomination by al-Sadr’s opponents of Mohammad al-Sudani as prime minister and attempting to inhibit government formation. In August 2022, al-Sadr’s supporters moved their protest to the Supreme Judicial Council, before forcing their way into the Presidential and Government Palaces. The protesters later clashed violently with groups believed to include Iranian-aligned militias, exchanging small arms and rocket fire continuously for 20 hours. At least 20 people were killed and more than 300 injured in this violence. See also Protesters and demonstrators.
2.29 Iraq is one of the world’s most landmine-affected countries. There are reportedly more than 2,000 hazardous mine areas nationwide from numerous conflicts. Border areas are particularly affected, and areas previously controlled by Da’esh have also been heavily mined, including with booby-traps. Explosive hazards pose risks at farms, schools, hospitals, water treatment facilities, power plants, bridges and other infrastructure, and have prevented the safe return of displaced people ...
Protesters and demonstrators
3.86 Article 38 (3) of the Constitution of Iraq guarantees the right to peaceful demonstration, to be regulated by law. Regulations require protest organisers to request permission seven days in advance of a demonstration and to submit detailed information regarding the applicants, the reason for the protest and the participants. The regulations prohibit all ‘slogans, signs, printed materials or drawings’ involving sectarianism, racism or segregation of citizens. The regulations also prohibit anything that would violate the constitution or law; encourage violence, hatred or killing; or prove insulting to Islam or other religions. Human rights observers report that authorities generally issue permits in accordance with the regulations.
3.87 A wave of nationwide protests known as the Tishreen protests commenced at the beginning of October 2019 (see Security situation). Participants were subjected to regular violence by various parts of the security forces, including masked men who were widely assumed to be from Iraq’s many militias. Some protesters also committed violent acts. According to the Iraqi High Commission for Human Rights, 591 protesters were killed and 54 reported missing between October 2019 and May 2021.
3.88 Many protesters were threatened, beaten, and arbitrarily detained by intelligence services during and after the protests. Security forces abducted dozens of protesters in the period between early October and December 2019 in several governorates, including in the cities of Baghdad, Amarah and Karbala, releasing most within days or weeks. Some were assassinated or disappeared. Others targeted by security forces included lawyers representing the protesters, medics treating injured protesters, people feeding protesters and journalists overing the protests (see also Media).
3.89 In 2021, former Prime Minister Kadhimi ordered an official investigation into the deaths and injuries of protesters and security forces related to the Tishreen protests. The investigation found excessive force by security forces had killed 149 protesters and eight members of security forces, with over 70 per cent of the deaths caused by shots to the head or chest. Many were killed or injured by teargas cannisters intentionally fired at their heads. The investigation has yet to hold anyone accountable.
3.90 Sources told DFAT that following the crackdown on the Tishreen movement, most protesters desisted from political activities, went underground or fled to the KRI, where they reportedly felt safer. Others joined political parties. Sources told DFAT that protesters who were no longer politically active were unlikely to face violence or harassment. Those who remain active are often harassed by armed groups, including through veiled threats, bullets in the mail or written threats known as ‘night letters’. Some are targeted for violence. In September 2022, PMF forces detained and allegedly tortured four prominent Tishreen activists in Diwaniyah whom they accused of being part of a ‘Ba’athist plot’ (see also Persons accused of links to the Ba’ath Party). Two of the activists died shortly after being released.
3.91 In July and August 2022, supporters of Muqtada al-Sadr conducted large-scale protests in Baghdad’s Green Zone (see Security situation). Most violence reportedly involved clashes between al-Sadr’s supporters and Iran-backed militia fighters. Iraqi Security Forces cordoned off the area, but were reportedly instructed to avoid escalating the violence. Many observers contrasted the state’s heavy-handed response to the Tishreen protests with their relatively light touch approach to the Sadrist protests in 2022.
3.92 The Kurdistan Regional Government allegedly uses arbitrary arrests, intimidation and legal harassment to deter critics, including protesters, journalists and civil society activists. In August 2022, KRI security forces arrested dozens of journalists, activists and politicians, including from the opposition New Generation Party, ahead of planned protests in Sulaymaniyah, Erbil, and Duhok.
3.93 DFAT assesses that, while previous involvement in protests is not in itself likely to place individuals at risk of harassment or violence, protesters and demonstrators who are perceived as acting against the interests of the state (including the KRG) or armed groups (including state-sponsored militias) face a high risk of harassment and violence. State protection is often inadequate.
Conditions for returnees
5.25 The practice of seeking asylum and then returning to Iraq once conditions permit is well accepted among Iraqis, as evidenced by the large numbers of dual nationals from the US, Western Europe and Australia who return to Iraq. There is considerable evidence that Iraqis who are granted protection by Western countries often return to Iraq, sometimes only months after securing residency abroad, to reunite with families, establish and manage businesses or take up or resume employment. Based on discussion with multiple sources, DFAT assesses it is highly unlikely a failed asylum seeker would face mistreatment on return to Iraq solely on the basis of his or her having sought asylum overseas.
I have had regard to the following DFAT[2] reporting about atheists in Iraq:
3.68 Sources told DFAT increasing numbers of young Muslims had become disillusioned with their faith, including because of atrocities carried out by Da’esh in the name of Islamic extremism. Some choose to retain their Muslim identity but abandon practices such as attending prayers and wearing hijab. Others choose to convert to religions such as Christianity or Zoroastrianism. Some become atheists. There is no official recognition of atheism in Iraq, but since atheists are generally registered as Muslim on their identity documents they are able to access the same rights and public services as other Iraqis. Atheists can reportedly often be identified by the non-Islamic names they adopt, such as ‘William’ or ‘Adam’.
3.69 Atheism is not well-accepted by conservative Iraqis. Former Prime Minister Nouri al-Maliki called atheism a ‘dangerous conspiracy’ and in 2017 a prominent Shi’a cleric, Ammar al-Hakim, called for atheists in Iraq to be confronted with ‘an iron fist’. Some activists publicly proclaim atheist beliefs, but harassment and violence against atheists by family members, religious groups and militia groups sometimes occurs. Known atheists reportedly have difficulty securing employment. Sources told DFAT they were aware of atheists being murdered by family members because of their denial of religion, but that these crimes were generally
reported as ‘honour killings’ or as due to ‘refusal to obey the family’.3.70 DFAT assesses that atheists in Iraq generally face a low risk of societal discrimination or violence, but this varies with individual circumstances. Atheists from highly religious or conservative families or communities face higher risks.
[2] DFAT Country Information Report Iraq, 16 January 2023
The ICP is said to be one of the oldest political parties in Iraq. In 2010, Dr Faleh Abdel Jabbar, at the time Director of the Institute of Iraqi Studies in Beirut, provided the following description[3] of the party’s history, composition, political and religious orientations, and mission:
The Iraqi Communist Party is one of the oldest known parties in Iraq. It was established in 1934, almost one decade after the new state was created amid the British mandate. Throughout the monarchy (1921-1958) and the next four republics, the party worked in secrecy except for short periods where it worked in a semi-public manner during the first year of the July revolution (1958-1959) or a streamlined public manner (the mandate of the National Front with the Baath (1973-1978).
The Communist Party presents itself as the political tool of workers, peasants, and intellectuals, stating that its ultimate goal is the establishment of the socialist society on the basis of the Marxist theory (previously). Although the party is, in this respect, an international party that’s part of the World Proletariat and the International Solidarity Movement it has designed to itself several political, economic, social programs and a local Iraqi culture, as it is a national party that operates within the legal framework of the Iraqi state ...
In its organizational and mobilization orientations, the party relies on its Marxist-Leninist ideology that focuses on awareness-raising, the organization, and the mobilization of workers, farmers, and revolutionary intellectuals who belong to the lower and medium categories of the middle class who rely on knowledge or property (or both) as long as they’re biased to socialist choices. As the social structure changed, this abstract theoretical framework changed accordingly during implementation. Given its commitment to secularism, the party was a trans-religious and trans-confessional party, just like it managed to be a trans-ethnic party thanks to its nationalist principles. True to this reputation, the party reached out to Muslims, Christians, Jews, and Aramaics. Practically, it is the only trans-confessional, trans-religious, and trans-ethnic Iraqi party. Hence the party’s strong tendency to strengthen the Iraqi identity besides the interest it dedicated to the Kurds’ right to self-determination and to the minorities’ cultural rights as well the attention it dedicates to Arab unity. And this proves the party’s ability to attract poor classes and minorities that are afraid of marginalization ...
[3] Jabbar, F.A., The Iraqi Communist Party, located at
As seen above, the ICP identifies as a secular party, open to enjoying trans-religious appeal, rather than being an “atheist” one.
I have had regard to international media reports about mass protests in October 2019 and over following months “in which Iraqi demonstrators all over the country united to condemn Iraq's endemic corruption, poor services, and unemployment.”[4] These protests supported by expatriate Iraqis in their many thousands in demonstrations abroad.[5] The uprising was vast. It saw around 800 young demonstrators killed, and many more injured, in clashes with armed forces and militias.[6] The movement saw to the resignation of the Iraqi Prime Minister in December 2019[7] but, apart from that and the running of a snap election with, however, the protests reportedly stalled in their objectives and led to repeated failures to form a national government, notwithstanding annual commemorations of the original 2019 movement. However, politics and the democratic process in Iraq, involving the ICP and other parties in emerging alliances, continue civilly to evolve:
[4] “Democratic Forces of Change: A new vision for Iraqi politics?” The New Arab, 6 February 2023
[5] “Can Iraq's protest movement still make a difference?”, The New Arab, 11 October 2022,
[6] “Democratic Forces of Change: A new vision for Iraqi politics?” The New Arab, 6 February 2023
[7] “The Iraq Report: The prime minister falls but the system remains”, The New Arab, 3 December 2019,
The Iraqi Communist Party (ICP) - the oldest political party in Iraq (1934) - has joined forces with several newly-established political and civic forces within a new alliance, called the Democratic Forces of Change (DFC). Together, the DFC is taking steps to consolidate a political programme and vision it says seeks to forge an alternative political path - and a way to implement the demands of the 2019 protests.
The DFC was formally established in October 2022 to confront the Muhasasa system and corruption. It has made clear it aims to conduct its political activity within the prism of the civil movement in Iraq and keep a distance from the religious and traditional parties which have had a tight grip on government since the 2003 US-UK invasion.
Credible alternative
Raid Fahmi is the secretary of the ICP's Central Committee. In an interview with Al-Araby Al-Jadeed, The New Arab's Arabic-language sister edition, he spoke about the political situation in Iraq and his hopes for the emergent DFC.
"The parties that stick to the partisan, sectarian quota system – despite the powers they have, and their control of parliament and the ministries – are not popular with the Iraqi public, and they know it," he explained. "Therefore," he says, "they are worried about the DFC – and the level of credibility that Iraq's civil movement has with ordinary Iraqis."
Following the protests, a group of political and civil society groups began to crystalise around efforts to push forward with an agenda for the changes which were called for in the 2019 Revolution.
"These forces realised there was a need for united activity in order to overcome the doubts demonstrators had about political party organisation in general," explains Fahmi. "We had the idea to form a 'consultative council', bringing together a number of parties, trade unions, organisations and activists. After a series of meetings, the idea arose to form a purely political umbrella organisation."
The DFC currently includes eight political parties: the ICP, Beit al-Iraqi, Wa'ad al-Iraqi, Nazl Akuth Haqi, the Tishreen Democratic Movement, the Democratic Social Trend, and Beit al-Watani.
"There are others too, like Hizb al-Wathiqoun, who have expressed interest in meeting with us. In spite of this, we haven't yet reached the stage of announcing an electoral alliance and registering it, though everyone wants to do this," says Fahmi.
Working towards a different politics
Right now, the DFC is focusing on its own internal relations, coordination, and the consolidation of a unified vision and set of goals. "There is a shared desire," says Fahmi, "that the alliance shouldn't just focus on elections; but should aim to offer an alternative political project to the public."
He adds that while the DFC is open to other political groups, they have to research the backgrounds of all those expressing interest in joining them, and ensure that all those who wish to be part of the alliance are serious, and not serving hidden agendas.
Regarding the next elections, and whether the ICP and the DFC will stand, "right now the goal is for the DFC to transform into a political and electoral alliance […] but this idea needs to be built on in the coming period," Fahmi explains.
"We are trying to ensure our next steps are carefully planned and once taken won't be easy to undo. Certain parties on the fringes of the civil movement are now contacting us, some of whom have good relations with influential powers but who are seeking independence from them and say they want to join us; this needs careful consideration on our part."
Fahmi believes that the Iraqi civilian movement can no longer be overlooked – not just because of its "weight in numbers", but due to the starkly different programme it is putting on the table. He believes the combination of political and civil forces within the DFC is what gives it the potential to grow and develop, as well as to open up to certain independent MPs, and its links to civil society organisations.
Some of the political powers-that-be are afraid of the DFC's strong sense of purpose and precision in terms of its targets and how it has grown, says Fahmi, adding that certain parties have contacted them indirectly by sending representatives to certain groups in the DFC.
"These powers don't want us mobilising people into hitting the streets, or pushing them towards [voting for us] in elections. Moreover, they know that their rise to power didn't happen in a natural way, but to an extent was due to the withdrawal of the Sadrists."
While the ICP formed an alliance with the Sadrists in 2018, Fahmi says that there is no current plan for an alliance with the movement. "If the issues he [Moqtadr Sadr] proposes don't conflict with our programme, and if he is willing to work on the same demands as the DFC, then he is welcome. However, every party has its own path and right now, an alliance with the Sadrists isn't on the table - we are keen to preserve the DFC's identity as civilian and democratic."
Regarding [current] Prime Minister Mohammed Shia al-Sudani, Fahmi explains that while the PM's government's approach apparently takes many popular demands into account, it is difficult to see how he can implement the changes he proposes, especially as he came to power through the intervention of the Coordination Framework, which has "no interest, ultimately, in radical change".
When it comes to the atmosphere on the Iraqi street, Fahmi says that while some feel frustrated and tired of repeated attempts to bring about change; there are also those who have learned lessons from the protest movement. There are also some in the segments of society worst affected by Iraq's economic crises - like the dropping currency value – who have "have doubled down on their struggle and demand [for change]".
Challenges ahead for the DFC
While the hoped-for civil programme will be able to offer a credible alternative to Iraqis, Fahmi knows that the DFC faces huge challenges ahead if they want to convert goodwill into votes at the ballot box.
Aside from that, finding "a discourse that addresses people's needs", "represents and defends them", and presents the programme in a way which stays true to its popular vision, says Fahmi, are all challenges for the DFC to grapple with in the coming weeks and months, as it fights to consolidate and take further strides towards a reality in which the radical changes Iraqis are desperate for can finally enter the realms of possibility.
That said, in the to-and-fro if Iraqi politics, Islamist militias are sometimes co-opted into forming coalitions with larger secular parties in ongoing contests to form durable governing blocs:
Iraqi Prime Minister Mohammed Shia Al-Sudani has limited control over the Iranian-backed militias, whose support he needed to win power a year ago and who now form a powerful bloc in his governing coalition.[8]
[8] “U.S. forces carry out series of strikes against Iran-backed militia in Iraq”, Reuters, 22 November 2023,
I note that Mohammed Shia Al-Sudani
founded the Euphrates [al-Furaatin] political movement in January 2019, and … is its elected general secretary. (Al-Furaatin) is a civil political party that calls for citizenship rights, social justice, and equality for all Iraqis. It won three seats in the 2021 Parliament elections.
The current security situation in Iraq is described by DFAT[9] as follows:
The security situation in Iraq remains volatile, and there's a risk of violence, armed conflict, kidnapping and terrorist attacks. The security situation could deteriorate with little warning. You should leave immediately by commercial means if it's safe to do so.
If you decide to travel to or stay in Iraq, despite our advice, you should remain vigilant and have robust security arrangements and contingency plans in place. You should get professional security advice and keep up-to-date with the latest developments.
Large protests and political rallies occur regularly across Iraq. These can quickly turn violent. Avoid large public gatherings. If you're caught in an affected area, stay indoors. Follow the advice of local authorities or your security provider.
There's an ongoing threat to foreign interests. A US national was attacked and killed in November 2022.
Terrorist attacks can occur without warning. Avoid possible targets such as crowded places and public spaces, including markets, transport hubs, places of worship and government facilities. If you must visit them, always have an exit plan.
There's a high threat of kidnapping throughout the country. Terrorists and criminal gangs may kidnap expats working in Iraq. Academics, journalists and aid workers are at a higher risk. You should review your security arrangements regularly and carefully consider any travel plans.
[9]DFAT Travel Advisory “Iraq”,
The impression drawn here is that Iraq is a particularly risky environment for foreigners, not least due to occupation of Iraq by a US-led military coalition for many years after the 2003 allied invasion.
The US Department of State[10] provides the following information regarding societal respect for religious freedom in Iraq:
The constitution establishes Islam as the official religion and states that no law may be enacted contradicting the “established provisions of Islam.” It provides for freedom of religious belief and practice for all individuals, including Muslims, Christians, Yezidis, and Sabean-Mandeans, but it does not explicitly mention followers of other religions or atheists. Restrictions on freedom of religion remained widespread outside the Iraqi Kurdistan Region (IKR), and Iraqi security forces (ISF) committed violence against and harassed members of minority groups, according to religious leaders and representatives of nongovernmental organizations (NGOs) ...
The U.S. government estimates the total population at 40.5 million (midyear 2022), while the Iraqi Ministry of Planning estimates the population to be 42.2 million. According to 2010 government statistics – the most recent available – 97 percent of the population is Muslim. Shia Muslims, predominantly Arabs but also including Turkmen, Faili Kurds, and others, constitute 55 to 60 percent of the Muslim population ...
There were continued reports of societal violence by sectarian armed groups across the country except in the IKR. Although media and human rights organizations said security conditions in many parts of the country continued to improve, reports of societal violence, by Iran-aligned militia groups continued. Members of non-Muslim minority groups reported abductions, threats, pressure, and harassment to force them to observe Islamic customs. Many Shia religious and government leaders continued to urge PMF volunteers not to commit these types of abuses. Because religion and ethnicity are often closely linked, it was difficult to categorize many incidents as being solely based on religious identity …
On June 10, hundreds of young men and Shia clerics stormed the Sinbad Land amusement park in Baghdad in an effort to prevent a concert by Moroccan pop singer Saad Lamjarred, who has been accused of raping and sexually assaulting several women.
An August 14 conference brought together more than 50 religious leaders representing different groups and religions including Sunni, Shia, Christian, Sabean-Mandaean, Kaka’i, and Baha’i from Kirkuk Province. The conference was supported by the UN Development Program in Iraq and sponsored by the General Secretariat of the Council of Ministers and the Ministry of Migration and Displacement. Abdul-Karim Kadhim Ajeel of the General Secretariat of the Council of Ministers said the conference highlighted the main role of the leaders of religious communities in restoring peace, spreading tolerance, and renouncing violence in Kirkuk Province. He added that with the support of moderate figures, many displaced persons were able to return to their homes ...
[10] US Department of State, Office of International Religious Freedom, 2022 Report on International Religious Freedom: Iraq,
Evidence given at the hearing before the presently-constituted Tribunal
I asked [the applicant] about his family in Iraq. He said his four children range in age between [Age] and [Age], his son studying [Subject 1], one daughter studying [Subject 2], another studying [Subject 3] and another daughter not working due to intellectual disability. He said he is divorced from his wife, who is their daughter’s carer. He said he has [brothers], the ones in Iraq owning businesses. He said he has a brother who was resettled in Australia through the offices of UNHCR in the early 2000s. He said the brother is sick and does not work.
I asked [the applicant] about his one-month 2015 visitor visa. I asked if he showed evidence of incentives to return permanently to Iraq, and he said he did. I asked him if all that evidence had been truthful and he said it was. He said the delegate rejected that application. He said that decision was set aside on review.
I asked [the applicant] how long he stayed in Australia before lodging a PV application. He said he was here nearly a month before speaking to a lawyer and saying he wanted to stay here. He told me that after he lodged his visitor visa application his problems in Iraq started, so seriously that he had to go into hiding and await the review of the application before being able to leave the country.
[The applicant] confirmed that he had never actually joined the ICP in Iraq and had only ever been a supporter. I referred to his claims about the attack on the ICP office in 2005 and the lack of harm or threats of same until 2015. I put to him that he appeared to have had ten relatively peaceful years. He said that this was because he slowed down his political activities in that decade. He said that the religious militia left him alone until hearing that he intended to go to Australia, whereupon it threatened to kill him. I asked him why they would care if he was in Iraq or not in 2015, given they had only bothered him in the past because he happened to be in the office of a political party he had not even joined when they attacked it back in 2005. In reply, [the applicant] said, “I don’t know. Maybe [they] wanted money.” He went on to say that maybe the militia wanted him to donate to it. It surprised me that he was not sure if they wanted money from him or did not; it seemed reasonable to expect that people would make such an intention unambiguously understood. I put to [the applicant] that if the militia was merely trying to get money out of him, it might be because he was a businessman and they thought he could afford a donation. If they threatened to kill him, that would then appear to have been a simple case of criminal extortion. Here, [the applicant] changed his evidence and said that the militia members communicated to him that they did not like him discussing then amongst his friends. I asked [the applicant] how he came to realise that the militia specifically wanted to prevent him from travelling to Australia: a simple way to do that would have been to kill him rather than threaten him. In reply, he said he did not know. In this way he changed his evidence from a few moments earlier when he had said definitively that the militia heard that he intended to go to Australia, whereupon it threatened to kill him. He said a militia member put a gun to his head, whereupon he “realised” they did not want him to travel. I put to him that this sounded like bald speculation and he said, “Exactly.”
[The applicant]’s evidence here did not impress me. He still had not provided satisfactory and consistent evidence as to why the militia would have come out of nowhere to threaten him, let alone prevent him from travelling to Australia. Meanwhile, his evidence to me differed substantially from evidence he had provided years earlier to the delegate, to whom he evidently said that he came to Australia with the genuine intention to visit temporarily and even spent much of his month here buying souvenirs to take back. It is hard to see how this, logically, was consistent with hiding for his life in Iraq until he could safely leave. [The applicant] evidently told the delegate that he would have returned to Iraq but for having heard from his brother there that the militia was still looking for him, but in the claimed circumstances the militia was still looking for him as he left Iraq and arrived here, which might make the hunted person claim asylum very soon upon arrival instead of going shopping to collect take-home souvenirs.
I asked [the applicant] to recall being asked by the delegate why he had omitted from his PV application the claims about the militia member putting a gun to his head. [The applicant] said in reply that he did mention it before. He said a member of the group told the gunman not to shoot on the occasion described. I reminded him that the delegate disclosed to him that the claim was missing from his original PV application. I asked him if he could recall the explanation he had given for the omission. He said he did not recall ever having omitted the claim. Essentially he did not resolve the discrepancy arising from the omission. I note, nevertheless, that he evidently said to the delegate that he had not previously decided whether this information was important or not. Hearing him talk about the episode as the trigger for his going into hiding before being able to escape to Australia, it strikes me that [the applicant] did not resolve why he had not mentioned it in his earliest statement of claims.
I asked [the applicant] if he had ever donated money to any political party or cause in Iraq and he said he used to give donations to the ICP. He said these were neither formal nor documented. I asked how a businessman could afford political donations with four children to raise including one with intellectual disability, and he said he had been well-off in Iraq
I asked [the applicant] what the ICP did for him, which is to say what was its appeal. In reply, he said, “Nothing.” Then he said he was sympathetic simply because the ICP did not anyone else supporting them. Then he said they were not corrupt and were against religion. I asked hi if he thought being a private businessman might be incompatible with supporting and donating to the ICP and he said he did both because “they’re not killers and help people.
I put to that in evidence on earlier occasions he had given only vague answers to questions about ICP policy, ideology, membership and structure, etc. I asked him if he could provide any more detail to me. In reply he said the ICP office helped people, refused government financial support and was opposed to religion. I asked him if the ICP was currently banned in Iraq and he said it is not. He said that conservative Muslims, however, consider it haram (sinful). He went on to say that the ICP staged the mass demonstrations across Iraq in 2019. However, independent country information indicates that this assertion is misleading, and describes a broad coalition of political groups having come together for those protests.
I asked [the applicant] to describe is situation as a person who might be imputed in Iraq to be Shia, however nominally. In response, he said that as long as a person does not speak against Shia religion he or she is safe from harm. He said that over the years he suffered nothing more than minor pressure when he criticised extremist Islamist ideologies. I asked him to tell me who, in Iraq, ever heard him discuss his political views, and he said he only ever talked about them with local friends. He said he never spoke to the media. I asked him how his friends responded to hearing his opinions. He said there was always a variety of responses: some agreed, some disagreed, some just listened and some seemed scared of those conversations altogether. He confirmed that all he ever did was chat with friends about their political views and that nothing serious happened until those few weeks before he departed Iraq for Australia. In this light, it struck me as nonsensical that any Islamist militia suddenly emerged in 2015 wanting to prevent [the applicant] from departing Iraq and/or wanting to kill him on the spot.
I asked [the applicant] to describe any political activities he had been involved in prior to the late 2019 demonstrations he attended. In reply, he said he only engaged in conversations with friends. This evidence appeared to exclude affiliations with expatriate political groups such as the ones that appear to have organised the various demonstrations [the applicant] evidently attended. I asked [the applicant] to explain then what might be construed as a sudden active interest in attending demonstrations in 2019. In reply, he said the demonstrations were a response to the mass movement in Iraq at the time that spread around the world.
I put to [the applicant] that according to DFAT people in Iraq generally have the right to demonstrate peacefully. I also put to him that according to DFAT former asylum seekers, even those perceived as having shown no faith in the Iraqi government, do not face a real chance of being persecuted in Iraq. [The applicant]’s response was to refer me to the clashes during the 2019 demonstrations that led to the deaths of over 750 people. [The applicant] also said he will be killed because he was directly threatened by Islamists in the past (apparently referring here to the incident with the gun shortly before he left for Australia). [The applicant] said that at those demonstrations he publicly and directly criticised Qassem Soleiman, then the Iranian major general and commander of a wing of the Islamic Revolutionary Guard Corps (IRGC), who was responsible for IRGC foreign operations, such as those in Iraq. I note that Soleimani was assassinated in a US drone strike at Baghdad International Airport in 2020. Life in Iraq, and Iranian interference there, apparently went on.
I asked [the applicant] if he could name any of the organisations or groups that organised the demonstrations he attended; he was unable to do so, naming only an individual female contact. I asked [the applicant] to provide evidence in support of the assertion about facing persecution in Iraq for having joined demonstrations in Australia, and he referred me to the vandalising of the car and his inclusion in the AAH death list, as reported to him by his daughter.
I put to [the applicant] that the alleged attack on the car did not appear to sit with evidence he had given regarding his children getting on quite unremarkably with their lives, apart from the fact that three out of four of them were currently pursuing qualifications towards quite high-powered careers. The alleged vandalism of the car had not evidently delivered anything to the AAH that it is purported to have wanted and yet nothing else seemed to have happened in the time since. In response, [the applicant] said his children nevertheless fear being harassed. I asked him about the circumstances of his siblings in Iraq and he said they are going along with the trends there, “out of fear.” I reminded him of his evidence about his brothers simply getting on day-to-day running their businesses, and he said they are.
I asked [the applicant] if the AAH death list might not be genuine. I put to him that DFAT has reported[11] that falsified documents are easily manufactured in Iraq for a price. In reply, he said his claims were all true and tat the AAH would not name him in the list if he had not done the things he was claiming to have done. I invited [the applicant] to comment on the proposition that anyone might have made the list and fashioned or copied the signatures that appear on it. In reply, he said he could not prove the list was genuine, and referred to the car that was damaged.
[11] DFAT Country Information Report Iraq, 16 January 2023 at paragraph 5.40: “Fraudulent documents are cheap and commonly available. Genuine documents obtained through fraudulent means are also common, mostly obtained by paying bribes to officials. Documents issued under religious procedures such as marriage, divorce and custody certificates have weak or no security features. The forms of documentation superseded by the National Identity (ID) Card have weaker security features than the biometric ID cards and may have been issued according to antiquated or unreliable procedures.”
I asked [the applicant] why he had not been involved in any political activities since 2021 and he said that this was because there were no demonstrations. This reply made it harder to accept that he had actually helped to organise any of the demonstrations he had attended. I asked him why he had stopped organising demonstrations in 2021, and he said there had no been ongoing reason to hold any. He also said he had not wanted to clash with any rival or opposing groups. Hearing him say he stopped demonstrating because he feared reprisals by opposing groups, I asked him why he would have demonstrated in 2021 after his daughter had told him in December 2019 of the AAH death list. In reply, he said that if there is a demonstration, he goes to it. Again, these did not strike me at all as the words of any kind of organiser; or, for that matter, the words of a person who ever weighed the potential implications for himself and his family of continuing to attend such activities.
I drew [the applicant]’s attention to his attendance at demonstrations in Australia being, for the purposes of s.5(6) of the Act, as “conduct engaged in …in Australia” that was to be disregarded unless he satisfied “the Minister that [he] engaged in the conduct otherwise than for the purpose of strengthening [his] claim to be a refugee.” Responding to this, [the applicant] said he attended the demonstrations consistent with genuine political convictions.
Towards the close of the hearing, I invited the adviser to make closing oral submissions. The adviser reminded me that I need to consider [the applicant]’s protection prosects in Iraq in light of his capability of being imputed to be a Shia, particularly in the context of the current security situation there, even though he may subjectively be atheist. I was invited to consider [the applicant]’s prospect through separate and combined optics as a male, a Shia Muslim, and a person from Thi Qar, Nasiriyah, in Iraq’s south.
I recall the adviser having said in the pre-hearing submission that there has been a deterioration in the security situation in Thi Qar due to the clashes between protestors and militia groups such as the PMU and PMF. In support of this assertion, the adviser cited the current DFAT report cited elsewhere in this decision:
3.90 Sources told DFAT that following the crackdown on the Tishreen movement, most protesters desisted from political activities, went underground or fled to the KRI, where they reportedly felt safer. Others joined political parties. Sources told DFAT that protesters who were no longer politically active were unlikely to face violence or harassment. Those who remain active are often harassed by armed groups, including through veiled threats, bullets in the mail or written threats known as ‘night letters’. Some are targeted for violence. In September 2022, PMF forces detained and allegedly tortured four prominent Tishreen activists
in Diwaniyah whom they accused of being part of a ‘Ba’athist plot’ (see also Persons accused of links to the Ba’ath Party). Two of the activists died shortly after being released.The adviser said that Iraqi authorities monitor activists inside and outside of Iraq. He characterised deaths suffered during demonstrations as a small sample of the repression of political expression in Iraq. He submitted that [the applicant], having insulted the late Soleimani, will be killed on arrival at the same airport where Soleimani was assassinated. He said [the applicant] protested in Australia in good faith. The adviser submitted that [the applicant] will be persecuted in Iraq for reasons of his mental health profile, as evidenced in the copious STARTTS reporting already put before me.
I invited [the applicant] to discuss the mental health factors affecting him. He said he fears suffocation, has claustrophobia and suffers “memory issues”. I asked if these could reasonably be summarised as anxiety issues and he said that they are.
Findings in relation to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[12] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, 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 made out.[13]
[12] MIMA v Rajalingam (1999) 93 FCR 220 .
[13] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[14] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[15]
[14] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
[15] Sun v MIBP [2016] FCAFC 52 at [69].
I have considered [the applicant]’s mental health record and accept that he suffers anxiety. I accept that, as reported, he is anxious about his immigration status here. However, nothing in the reporting satisfies me that his anxiety necessarily adds weight to his claims about past treatment in Iraq. I note that [the applicant] himself claims that anxiety can affect his capacity to recollect things accurately. I have given much consideration to this claim, having regard to the Tribunal’s Migration & Refugee Division Guidelines on Vulnerable Persons (November 2018)[16], including the following advice:
Events may … not have been accurately recorded at the time because the level of
emotional arousal the person was experiencing disrupted the ability to register those
events accurately. Later the person may have difficulty accurately recalling the events
associated with the event or may be able to recall only certain aspects of whathappened.[16]
In this case, overall, I am confident that omissions and inconsistencies in [the applicant]’s evidence are not due to factors outside of his control.
I accept that [the applicant] is a businessman from Thi Qar, Nasiriyah, in Iraq’s south. I accept that he prefers secular politics, which is not in itself to conclude that he has given active support to any political party in Iraq. I shall discuss that issue in more detail below.
I accept that [the applicant] is nominally a Shia Muslim and would generally be imputed to be Shia in Iraqi society, not least because of the predominantly Shia region in Iraq in which he lives. I do not accept, however, that [the applicant] is an atheist. His evidence to the previously-constituted Tribunal, although it apparently took some time for him to commit to, definitively indicates that he believes in God but does not adhere to any formal religion, though nominally Shia. DFAT reports that this is not an uncommon thing in in Iraq. I find that [the applicant]’s explanation for being attracted to the ICP in part because it is “atheist” shows a lack of knowledge and understanding of the party that he says he closely supports. The independent evidence before me indicates that the ICP is a secular party and not “atheist”, or having “atheism” as any part of its policy or platform. I also note from evidence in The New Arab that the ICP has become quite a pragmatic party, forming alliances with less secular parties in recent times.
I do not accept that [the applicant] has told friends in conversations that he is atheist. I can accept that he has said in friendly conversations that he prefers the ICP to other parties. I can accept that these friends’ respective responses to his views were varied, but none of the evidence suggests he suffered societal or other discrimination for reasons of his frankness in such conversations. I note that [the applicant] claims never to have spoken to the media in Iraq about his religious or political views. On the evidence before me, I find that this was because he had no inherent, genuine interest in doing so, rather than due to having to alter behaviour or supress beliefs to avoid being persecuted.
I have not forgotten that [the applicant] has claimed to me that between 2005 and 2015 nothing potentially relevant to this application happened to him because he slowed down his political activities in that decade. On the evidence before me, I do not accept that this claim is truthful, for in order to be true there would have to have been political activity on [the applicant]’s part up until 2005, and yet his evidence leaves me very confident that there was none at all. It is obvious from the that [the applicant] never acquainted himself with any details of ICP policy, not even after his apparent ignorance was raised with him by earlier decision-makers. He never, ever joined the ICP. He told the previously-constituted Tribunal that he never even attended any “formal” meetings of the ICP. His evidence in regard to what meetings, or “conferences”, he and members of the ICP attended was, I my view, vague and unpersuasive. I consider the claims about [the applicant] having attended conferences that were also attended by ICP delegates to have been an improvised one. Ultimately, I am not satisfied that [the applicant] modified his behaviour between 2005 and 2015 as claimed, let alone to avoid being persecuted, because I confidently disbelieve that he ever engaged in “political activities” in or before 2005. This is a finding to the effect that, in regard to a significant aspect of his claims in this matter, I find [the applicant] not to be a witness of truth. In view of his lack of significant contact, or of even being in the same room, with ICP members anywhere, I do not accept that he ever would have come to the attention of Islamist, extremist groups, let alone militias, in Iraq owing to “political activities” up to or including 2005.
A potentially separate claim relates to whether [the applicant] ever privately donated money to the ICP. On this topic, it is not inconceivable that, as in “the West”, there are “armchair socialists” in society in the Middle East. Perhaps there are even private businessmen who support secular parties even though their broader platform is less compatible with them, perhaps for strategic or pragmatic reasons. [the applicant] claims he somehow became notorious in the eyes of Muslim extremists for donating to the ICP. However, whilst it is not necessarily inconsistent for a middle-class businessman to favour a secularist, anti-corruption political party, even if it leans to the Left and primarily upholds interests of labourers and peasants, I am not satisfied on the evidence before me that [the applicant] was ever such a person. One would reasonably expect much more detail from a person whose family had supported the ICP for generations. This is because of his inability to provide any helpful detail about the party’s platform beyond its having superficial impressions such as its having kind heart and opposing corruption. This is also because he does not seem to understand that he lacks the insight born of experience that would tell him that the party is not “atheist”. This is also because I do not accept that [the applicant] himself is an atheist, hence his making this a significant reason for supporting the party financially is misleading. Meanwhile, there is no evidence to support [the applicant]’s suggestion that there were any transfers of funds between him and the ICP, and as for calling the donations “informal”, this just sounds like the “informal” contact he claims to have had with ICP members. Looking at the evidence overall, I am not satisfied that [the applicant] ever donated any money at all to the ICP or to any other party, alike or unalike.
In view of these findings, I do not accept that [the applicant] has been truthful about harassment he claims to have suffered up to and in 2005. I confidently find that his claims about such treatment are entirely fabricated. For a start, whereas [the applicant] initially claimed he attended an ICP party office regularly and he was present at the office when it was stormed by a religious militia in 2005, this is entirely inconsistent with his claim about how little he ever had to do with ICP members up close except at “conferences” due to never having gathered formally with them. I find that if [the applicant] were regularly attending the ICP office, he would have been able to give much more detail about party structure, processes and policy that the threadbare, “feelgood” impressions he has given throughout all of this evidence to date.
All this means that I do not accept that [the applicant] ever had any notoriety or even a “person of interest” profile at all with any individual or grouped opponents of atheists, or secular politics or the ICP up to or during 2005 or in the decade that followed. I find that he never did or said anything in all that time to attract such attention. I find that his claims about the raid in 2005 are entirely false.
This brings us to 2015 when [the applicant] was evidently enjoying life and work in Iraq, free from potentially relevant harm, and planning a holiday in Australia from which he maintains he always had the intention to return; that, purportedly, was until February of that year when, shortly after applying for his visitor visa for Australia, and while awaiting review of the initial refusal of his application, he was accosted at gunpoint by members of an Islamist militia who, he said, did not want him to leave the country, around the same time other extremists were raiding his house. He said that both of these events forced him to flee into hiding before he could escape to Australia in June of that year; meanwhile, in his original PV application to the Department he did not suggest having given up his usual address in Nasiriyah until June 2015 and he omitted describing in his original claims a physical encounter at gun point he had had with members of a militia who put a gun to his head because, according to him, he was not sure of it was important to mention.
The evidence about what purportedly happened to [the applicant] in February 2015 is, in this way, marred by a significant omission for which he provided, in my view, an implausible explanation, being that he was not sure if it would have been important to mention it in his application. This is absurd when one recalls his mentioning the arguably much less life-threatening matter of his wife divorcing him, supposedly over his political preferences. The claim about the encounter at gunpoint, however, is defective for a number of reasons. Firstly, it depends on [the applicant] having garnered notoriety with an Islamist militia prior to its alleged occurrence, but as reasoned above, I am confident that his claims to any such prior notoriety are entirely unreliable. Secondly, he gave confused evidence over time as to what he subjectively believed the militia wanted from him: on the one hand it did not want him to leave Iraq, which it appears happily or resignedly to have given him, by not killing him, an opportunity to do; on the other hand, he claims the militia wanted him to donate money to it, but eventually told me there was no basis for thinking that to be the case. Thirdly, evidence about his having gone into hiding is inconsistent. Looking at all of the evidence separately and cumulatively I do not accept that the raid on [the applicant]’s house or the the encounter at gunpoint or the weeks or months spent in hiding ever occurred. I find that [the applicant] invented all of these 2015 claims.
I recall that, on and soon after arrival in Australia, [the applicant] says he still genuinely intended to return to Iraq after his one-month visit here. He said he was genuinely hopeful that the militia was no longer interested in him, a claims consistent with having assumed that “the matter was resolved” but it appears to me that nothing in [the applicant]’s account is cable logically of feeding that assumption, and it is also contradicted by his evidence to the previously-constituted Tribunal about the militia’s threat being very much open-ended, such as when he talked about the militia wanting to intimidate him, not just in that moment, but to show him that they were capable of following him and doing whatever they wanted with him. It is illogical that a person who survived such an encounter and managed, fortuitously, to find himself safely landed in Australia, then proceeded to operate on the default assumption that the problem he fled might not still be awaiting him on return. My overall impression is that [the applicant] gave more or less factual evidence in his visitor visa about compelling factors motivating return to Iraq after a one-month visit to Australia. And that he spent the month he had in Australia concocting grounds for the purpose of applying for a PV here.
In light of the above findings, I do not accept that [the applicant] and his wife divorced for any of the reasons claimed. I find, meanwhile, that [the applicant] gave unreliable evidence about pressure on his brothers in Iraq, conditions he portrayed as being related to the problems he claimed to have faced with the militias there. I give much more weight to his more recent evidence about his brothers operating businesses. Similarly, in dismissing the bulk of [the applicant]’s claims as fabrications, I give weight in this matter to the evidence of [the applicant]’s children, with one exception due to disability, being able to pursue academic careers towards high-powered professions.
I give no weight in this matter to the alleged execution of a communist cousin back in the Saddam Hussein Era.
Just supposing [the applicant] were ever imputed to an atheist in Iraq, the evidence before me does not satisfy me that he ever faced serious harm or a real risk of it. This is probably because, as DFAT observes, “atheists in Iraq generally face a low risk of societal discrimination or violence”. I note the same reporting says that treatment of atheists may vary in “individual circumstances” such as in “highly religious or conservative families or communities” but none of [the applicant]’s evidence suggests he has ever lived or moved amongst people. [The applicant]’s evidence is of a family has supported secular politics for generations. The people with whom he gathers generally do not seem to mind his views.
I accept that [the applicant] peacefully participated in the peaceful demonstrations he claims to have attended peacefully in Australia in 2019, 2020 and 2021. I confidently reject his claims about having been involved in any way in organising such activities. Noting that [the applicant] engaged in no political activities in Australia until protests against the Iraqi government at the time went absolutely global, I can see how one might ask if he engaged in that conduct purely to strengthen his refugee claims. I have taken into account, however, the reportedly very broad goals of the demonstrations in question, being “to condemn Iraq's endemic corruption, poor services, and unemployment.”[17] It is reasonable to accept that these goals would be widely-shared and genuinely appealing to all manner of persons in or originating from Iraq, as well as to others concerned about conditions there. After due consideration, I have decided not to disregard [the applicant]’s conduct in attending the demonstrations for the purposes of assessing whether he faces real chance of being persecuted in Iraq. He is not caught by s.5J(6) of the Act. However, for reasons discussed above, I do not accept that he ever engaged in organising any such activities. Also, I give no weight separately or cumulatively to [the applicant]’s claims about having had casual conversations about Iraqi politics here in Australia. I have found that his purportedly casual, informal, private conversations in Iraq regarding religion and politics got him into no serious or significant trouble. I can find no reason to conclude that similar chat in Australia would ever lead to serious or significant harm in Iraq in the reasonably foreseeable future.
[17] “Democratic Forces of Change: A new vision for Iraqi politics?” The New Arab, 6 February 2023
I am not satisfied that the government or authorities would be concerned about [the applicant]’s participation in the demonstrations he attended here in Australia. [The applicant] claims he is different because at one event that he claims to have organised he shouted words to the effect of “Death to Soleimani”. However, I do not accept that [the applicant] organised that demonstration, so I do not accept he took a leadership role, such as in using a sound system to amplify his voice. Also, since I accept that [the applicant]’s behaviour at the protests was only ever peaceful, I do not accept that he would have been shouting, let alone broadcasting death threats, even threats relating to notorious persons like Soleimani. In addition, there is only [the applicant]’s word to go by here, and I have found him already to be a comprehensively unreliable witness in this matter. Ultimately, I am not satisfied that [the applicant]’s passing interest in joining mass demonstrations here in Australia will lead to state-sourced harm. In making this finding, I give no weight to [the applicant]’s claim about having appeared in a [Social media] thread about the demonstrations he attended. Thousands did here, and millions did in Iraq and around the world. On the evidence overall, I am not satisfied that being seen attending a demonstration in a photograph or comment in an anti-government [Social media] feed in 2019-2021 is enough to give rise to a real chance of being persecuted by state agents in Iraq.
[The applicant] claims, however, that the agents of the harm he faces for having joined those demonstrations here include non-state agents: Islamic militias; particularly those loyal to Soleimani and his memory. He claims that [Social media] may have alerted them to his being in Australia and being actively involved in the conducting of protests here. He claims the AAH militia has published a list of persons it wants to execute, including him, for having engaged in demonstrations in a foreign jurisdiction. However, I confidently disbelieve this claim.
I am not satisfied the claim is truthful because it depends on [the applicant] having already been a notorious foe in the eyes of a militia in Iraq before he left that country for Australia, and I have reasoned that claim to be utterly false. I am also dissatisfied as to the reliability of the claim because I do not accept that [the applicant] was in any way a prominent participant in any of the Australian demonstrations, let alone as a person calling for the death of Soleimani. Given all this, I consider the chance very remote that a militia member would have noticed [the applicant] on [Social media] or through any other means, let alone singled him out, let alone for execution.
Given [the applicant]’s poor performance as a witness in this matter overall, I do not accept that the purported AAH “death list” is genuine. I am all the more confident in this finding given the independent reporting to the effect that false documents are easy to produce in Iraq. In addition, I do not accept that the damaged car in evidence before me was vandalised by the AAH or damaged for the reasons claimed. I consider the evidence of the car to be an exploitation of an unrelated event.
Having regard to s.5J(3)(b), (c)(i) and (c)(ii) of the Act, I have considered whether [the applicant] would subvert his religious beliefs and/or preference for secular politics in Iraq in future due to a fear of being persecuted, but I am not satisfied that he would. Although he has said at one stage that he changed his behaviour between 2005 and 2015, I have shown why I find this claim to be false.
Turning to the general security situation in Iraq generally, and in and around Nasiriyah in particular, I must consider [the applicant]’s prospect there, not least given his being discernibly Shia and, to some or many, perhaps even a non-observant, secular one.
In considering [the applicant]’s prospects within this context, I give much weight to the evidence of his siblings operating their businesses and three out of four of his children progressing unimpeded through their academic careers. I find that if the security situation in and around Nasiriyah were to have any potentially significant impact on [the applicant], it would already be impacting significantly on his family there.
I note that the adviser has drawn my attention to conflicts in the Nasiriyah area that are purported to have a potentially harmful impact on [the applicant]. By and large, the conflict to which my attention was drawn is an ongoing one between the “Tishreen” (or October 2019) movement and PMF forces, which comprise a number of pro-state militias including Islamism ones. I note that sources told DFAT that protesters who were no longer politically active were unlikely to face violence or harassment. On the evidence before me, accepting what I accept about [the applicant]’s past, but discontinued subjective interest in supporting the Tishreen movement since 2021, and noting that [the applicant] has made no credible claims of having been politically active in Iraq, I am not satisfied that he would face a real chance of harassment let alone significant harm in Nasiriyah. I certainly do not accept that [the applicant] has anything that perpetrators of violence in Nasiriyah would impute him to have in common the four prominent Tishreen activists who were detained and tortured in 2022.
On the evidence before me, I am not satisfied that there is a real chance of the general security situation giving rise to a real chance that [the applicant] will suffer serious harm for a reason cited in s.5J(1)(a) of the Act, or for that matter that he faces a real risk of significant harm there.
I have considered [the applicant]’s potential profile in Iraq as a returnee and as a person who formerly sought asylum in Australia. Having regard to the DFAT reporting I am not satisfied that he faces a real chance of being persecuted in Iraq either separately or cumulatively for these reasons.
Having considered all of the evidence in this matter in its entirety, I am not satisfied that [the applicant] faces, either separately or cumulatively, a real chance of being persecuted in Iraq in the reasonably foreseeable future for any of the reasons cited in s.5J(1)(a) of the Act. His claimed fear of being persecuted is not well-founded. He is not a refugee.
For the reasons given above, the Tribunal is not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa), whereby a person who is found not to meet the refugee criterion in s.36(2)(a) may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
Relevant to this, s.36(2)(aa) refers to a “real risk” of an applicant suffering significant harm. The “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
“Significant harm” for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. “Cruel or inhuman treatment or punishment”, “degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment. Essentially, according to s.5(1) of the Act, all three of these forms of “significant harm” require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR.
“Cruel or inhuman treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. “Degrading treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Accepting that [the applicant] is a national of Iraq, I find that Iraq is the receiving country in this matter.
[The applicant]’s claims to complementary protection are essentially the same as his refugee claims. Those claims have failed for want of credibility and/or for not meeting the “real chance” test. In view of the “real risk” test imposing the same standard as the “real chance” test, the applicants’ protection claims can no more succeed as complementary protection claims than they have as refugee claims. The same goes for [the applicant]’s arguably more general, less s.5J(1)(a)-related claim regarding the security situation in his home region.
Whereas I accept that [the applicant] as a history of anxiety-related mental health issues, I am not satisfied on the evidence before me that he faces a real risk of significant harm in Iraq in the context of his health, and/or the availability or non-availability of appropriate treatment for it. The detriment described in submissions is not the death penalty or equivalent to arbitrarily depriving [the applicant] of life; neither, on the evidence before me, is there the “intentional” element required to meet the definition of torture or the two other forms of significant harm exhaustively defined in s.5(1) of the Act.
On consideration of the evidence in its entirety, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to Iraq, there is a real risk that [the applicant] will suffer significant harm as exhaustively defined under s.5(1) of the Act.
Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Conclusions
For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore he does not satisfy the criterion set out in s 36(2)(a) or (aa) for protection visas. It follows that he is also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
MemberATTACHMENT - 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.
…
- AGLC
- 2302478 (Refugee) [2023] AATA 4680
- Case
- [2023] AATA 4680
- Decision Date
CaseChat Overview and Summary
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
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
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.