Advance unedited version CAT/C/63/D/744/2016
declaration, a subsidiary protection status declaration or a status declaration as a person
otherwise in need of protection. The Agency ordered his expulsion to Iraq if he could not
show that other country can accept him and gave him four weeks to leave the country. In
reaching that decision, the Agency considered that the complainant failed to prove or
plausibly demonstrate his identity with the documents produced, which nonetheless proved
that he has been resident in Iraq. Thus, in support of his identity, the complainant submitted
Shenasnamehs for his alleged father and grandparents and an ID card issued by the KDPI in
Iraq. The Agency held that since he had not submitted any ID documents that proved or
plausibly demonstrated his identity, he could have not been linked to the submitted
Shenasnamehs, which in any event alone could not prove his identity or even plausibly
demonstrate it. Regarding the ID issued by the KDPI, the authorities noted that it lacked a
data chip, fingerprints, hologram, security features or anything else that might have
guaranteed its authenticity. Nor was it issued by a competent authority. It was therefore
considered of a “simple nature” and was therefore accorded limited probative value in
establishing his identity. The complainant was thus deemed to have neither proved nor
plausibly demonstrated his identity through the submitted documents. The Agency found
that the complainant has also not submitted any documentation to show or even imply that
he was a citizen of Iran. It therefore declared that the complainant had not shown that he
was either a citizen of Iran, or an Iranian refugee in Iraq, or a citizen of Iraq. In light of the
information in the file, it found that the complainant was probably a resident in Iraq, reason
why it examined the grounds for protection in relation to the prevailing conditions in Iraq.
The Agency also noted that the complainant did not state in what way he had been
personally threatened by the Iranian authorities, but simply referred to a threat of
persecution on grounds of his engagement with the KDPI. It thus found that the
complainant had not plausibly demonstrated that he encountered any problems in Iraq on
grounds of race, nationality, political views, gender or sexual orientation.
2.6
The complainant appealed, alleging that he was not legally entitled to remain in Iraq,
that the mere membership of the party entailed a risk of being subjected to abuses and also
submitted evidence showing that the KRI did not guarantee refugees any level of security if
individuals had political views and that it was well-known that the Iranian security services
kill members of the opposition outside Iran and that they conduct extensive infiltration
activities. He also contested the fact that the Migration Agency did not consider whether he
was a member of the KDPI, which was a crucial question. The Migration Court heard two
witnesses who confirmed that the complainant’s family had long been politically active
within the KDPI, that they were well-known within the party and that their involvement
was well-known to the authorities in Iran.
2.7
On 9 October 2014, the Migration Court rejected the complainant’s appeal against
the decision of the Migration Agency. It held that the complainant had not plausibly
demonstrated his identity and citizenship and also did not make acceptable efforts to obtain
documents to support his identity; that the general situation in Iraq as such was not
sufficiently serious to entitle an applicant to a residence permit; that the evidence did not
show that through his membership of the KDPI5 alone the complainant risked treatment
constituting grounds for protection on return to Iraq; that he has not plausibly demonstrated
that he was in need for protection vis-à-vis Iraq on the grounds that he had no legal right to
remain in the country, given that he was born and grew up in the Iraqi Kurdistan, attended
school in Iraq for fourteen years and his parents and siblings still live in Iraq; that the
evidence was not sufficient to show that his fear of being subjected to treatment
constituting grounds for protection in the form of persecution due to his political views was
well-founded; and that there was no well-founded reason to assume that upon return he
would risk being subjected to inhuman treatment or punishment on grounds of his political
views.6
5
6
The court found no reason to question the fact that the complainant was a member of the KDPI.
Two judges submitted a dissenting opinion, considering that the complainant had plausibly
demonstrated that he was a citizen of Iran and therefore the case should have been referred back to the
Migration Agency to examine whether he had grounds for protection with respect to Iran.
3