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Tribunal: Member Nicole Burns

The Department of Home Affairs (the Department) refused to grant the applicants Protection visas. The applicants requested a review of the decision by the AAT.

The applicants were a married couple from Iraq who stated that they feared Shia militia groups would harm them if they returned. The first applicant claimed she would be harmed because a specific militia group thought she had information they were seeking and because as a highly educated woman with her own career she would be generally be targeted. The second applicant claimed to fear harm from Shia militia groups because he was an academic with close anti-government links.

Australia has an obligation under the Migration Act 1958 to protect individuals who satisfy one of two criteria.[1] The first is called the ‘refugee criterion’ and broadly requires the applicants to have a ‘well-founded fear of persecution’.[2] The second is called ‘complementary protection’ grounds and broadly requires there is ‘a real risk of significant harm’ to the applicants.[3]

The applicants claimed to satisfy the ‘refugee criterion’ and that Australia had an obligation to protect them. The AAT considered this claim by looking at the meaning of a “well-founded fear of persecution” as provided by the Migration Act 1958, which lists a number of considerations and requirements.[4] The AAT particularly focused on the requirement that the applicants faced a real chance of serious harm on return to Iraq from the militia group. The AAT considered independent country information provided by the Department of Foreign Affairs and Trade. The AAT found that Iraq remained subject to sectarianism and violence; and that the power and influence of Shia militias had increased significantly in certain areas. The AAT found the applicants were credible witnesses whose oral evidence at the hearing was detailed and consistent with their provided written statements.

The AAT concluded the applicants had a well-founded fear of persecution and remitted the decision to the Department for reconsideration with the direction that the applicants satisfied the ‘refugee criterion’.

Read the full decision on AustLII.  


[1] Section 36(2) of the Migration Act 1958.

[2] Section 36(2)(a) and section 5H for the meaning of a refugee under the Migration Act 1958.

[3] Section 36(2)(aa) and section 36(2A) for the meaning of significant harm under the Migration Act 1958.

[4] Section 5J of the Migration Act 1958.