1603667 (Refugee)

1603667 (Refugee) [2018] AATA 4862 (13 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1603667
COUNTRY OF REFERENCE:                  Iraq
MEMBER:Roslyn Smidt
DATE:13 December 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii)that the other applicant satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 13 December 2018 at 10:12am

CATCHWORDS
REFUGEE – protection visa – Iraq – social group – separated woman – abused by family – credibility issues – exaggerated claims about husband’s history – state protection unavailable for family – real chance of harm – decision under review remitted for reconsideration
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J, 5K- 5LA, 36, 65 , 499
Migration Regulations 1994 (Cth) Schedule 2
CASES
Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

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 on 14 March 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who are citizens of Iraq, applied for the visas on 31 August 2015.
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, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are 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 they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they 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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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
Background
The applicants are [the first named applicant] a [age] year old woman from [Region 1] in Iraq and her [children]. They are followers of Shia Islam. The first named applicant married in 1997 and separated from her husband in about September 2016. He currently resides in Iraq. Her youngest child also remains in Iraq.
The principle applicant’s parents are both deceased. She has [multiple siblings]. All of them reside in Iraq.
The applicants were granted visas on 17 March 2010 as dependents of the first named applicant’s husband who had [been granted a temporary visa]. The principal applicant’s husband travelled to Australia in June [2010]. The applicants arrived on [date] August 2010. They all returned to Iraq on [date] February 2013 and re-entered Australia on [date] May 2013.
The applicants applied for protection on 31 August 2015. The application was refused on 14 March 2016.
Summary of claims
In her initial application the first named applicant claimed that she and her children would be at risk of serious or significant harm if they returned to Iraq because her husband had been a senior military officer and member of the Baath Party prior to the overthrow of Saddam Hussein in 2003. She claimed that he was threatened because of his background when the family returned to Iraq in 2013. She also claimed that she and her children would be at risk of harm if they returned to Iraq because of the general situation in their homeland.
On 22 May 2018 the applicants made a number of new submissions. In essence she claimed that her husband had bullied, threatened and abused her in Iraq and Australia and also abused her daughter in Australia. She also claims that her in-laws, with whom she lived for many years, harassed and sometimes abuses her and her children. She claims that she is now estranged from her husband and that because of her decision to remain in Australia when her husband returned to Iraq is also estranged from her family. She claims that she would be at risk of harm if she returned to Iraq because of her status as a separated woman, that she and her daughters would be at particular risk of harm in these circumstances because of their gender and that she and her children would be at risk of harm because of the general situation, in a particular in [Region 1].
Findings of Fact
As noted above, the first named applicant initially applied for protection based on her husband’s background as a senior military officer and former member of the Baath Party. Her husband was not included in this application, never applied for protection in Australia and has since returned to Iraq which clearly indicates that he was not fearful of harm in Iraq. The first named applicant’s evidence regarding her reasons for lodging this applicant was confused and unconvincing. Some of her claims regarding her husband’s background were at odds with information which he provided to the Department of Immigration in relation to his student visa application and I found her evidence regarding the problems which he allegedly faced while visiting Iraq in 2013 implausible. I do not accept that the applicants are or ever were at risk of harm in Iraq because of the first named applicant’s husband’s background or involvement with the Baath Party. I find that the first named applicant exaggerated or concocted evidence regarding her husband’s background and concocted the claim regarding the problems caused by his background during the family’s visit to Iraq in 2013 in order to remain in Australia with her children.
As noted above the applicant claims that her husband was abusive to her in Iraq and Australia and was also abusive towards her daughter. I have concerns regarding some of the evidence she provided regarding her problems with her husband. For example, I have difficulty accepting that he did not want her to accompany him to Australia and only brought her and their children because [of other reasons] as this is at odds with information in communications between him and the Department of Immigration and it appears unlikely that her husband would have gained financially by having his entire family in Australia. Nevertheless, her evidence regarding her relationship with her husband and the problems which she and her children have faced was generally convincing and was supported by evidence from her children and I am prepared to give the benefit of the doubt in relation to these issues and accept that her husband has been violent towards her in the past and that her decision to remain in Australia with her children has greatly angered him.
The first named applicant said that she had no desire to remain married to her husband, but if she returned to Iraq her options would be extremely limited as it would be virtually impossible for her to live alone with her children and they would be forced to return to the family home where she would be at risk of harm from her husband and her in-laws. She said that she feared that she and her children would be harmed for dishonouring the reputation of her husband and his family by refusing to return to Iraq with him and that she would face physical and sexual assault if she returned to live with him. Alternatively, if he refused to allow them to return to his family home which would mean that she and her children would be at risk of harm as they would be in a female headed household without a male protector.
Country information
By way of context, according to DFAT[1], women in Iraq experience economic discrimination in access to employment, credit and pay equity. DFAT understands that women routinely need permission from husbands or male relatives in order to engage in economic activities outside the home. In less developed areas of Iraq, reliance on traditional – rather than official – justice systems can lead to poor outcomes for women.
[1] DFAT Country Information Report Iraq 9 October 2018
No specific legislation criminalises domestic violence. Article 29 of the Constitution prohibits all forms of violence and abuse within the family, but a husband has the legal right to punish his wife under Article 41 of the Penal Code (2003). Attempts to amend the Penal Code to make it consistent with the Constitution have failed on the grounds that the current Penal Code reflects religious mores. Many Iraqis, including in government, consider domestic violence to be a private matter. The Penal Code recognises honour as a mitigating factor in crimes involving violence by men against women or children. Perpetrators of crimes involving sexual violence are exonerated if they marry their victim. Accurate statistics are unavailable but honour killings may number in the hundreds per year, including teenage victims.
DFAT assesses that women in Iraq face a moderate risk of official and a moderate risk of societal discrimination and violence. Women face a high risk of domestic and family violence.
In December 2017[2] the UN Assistance Mission for Iraq reported that women in Iraq continue to face discrimination, which adversely impacts on their ability to fully and equally participate in the political, social and economic life of Iraq. Throughout the ongoing armed conflict in Iraq, women and children continue to be subjected to violence of all forms, including in particular sexual and gender-based violence. Iraq does not have adequate legislative frameworks to prevent or protect women and children from domestic, sexual and gender-based violence or provide safe spaces to survivors of such violence. There is a lack of financial or in-kind support to shelters or other safe spaces where women and children can safely escape domestic violence or other life threatening situations. Many of these women are unjustly incarcerated as “prostitutes” or threatened with honour killings by members of their own families. Additionally, there are no accountability mechanisms in place for the perpetrators of domestic and sexual violence against Iraqi women. UNAMI/OHCHR remains troubled by the lack of movement in the Council of Representatives to push through domestic violence legislation that is in accordance with international human rights norms and standards.
[2] UN Assistance Mission for Iraq (UNAMI), Report on Human Rights in Iraq: January to June 2017 , 14 December 2017, available at: 12 December 2018]
Consideration of claims
I accept that the first named applicant’s husband has been abusive towards her in the past and that her decision to remain in Australia has angered him and increased the likelihood of violence in future. I also accept that she would be forced to return to the family home if she went back to Iraq as she is estranged from her own family and would not be able to support herself and her children if she did not return to the family home. Furthermore, it is clear that she would choose to live with and protect her children who would no doubt face extreme pressure and probably be forced to return to their father if they returned to Iraq.
After considering all of the relevant evidence, I find that there is a real chance that the applicant would suffer serious physical or emotional abuse from her husband if she returned to Iraq. Furthermore, while her husband’s motivation for inflicting this harm appear to derive from long standing problems in the marriage exacerbated by the applicant’s refusal to return to Iraq and instead remain in Australia with her children, it is clear from the evidence set out above that the Iraq authorities do not provide protection to women at risk of violence and that this is due to inadequate legal protections and general discrimination against women in Iraq.
Women suffering violence from family members may, depending on the circumstances, come within the scope of the Refugees Convention: Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1. A majority of the High Court in Khawar held that the refugees test may be satisfied by the selective and discriminatory withholding of state protection for a Convention reason from serious harm that is not Convention related. Importantly, there must be systematic and discriminatory conduct, and mere inaction will not suffice.
In these circumstances I am satisfied that there is a real chance that the state would discriminatorily withhold protection from the first named applicant for reasons of her membership of the particular social group 'women in Iraq'. I am therefore satisfied therefore she has a well-founded fear of persecution for a Convention reason were she to return to Iraq in the reasonably foreseeable future.
CONCLUSIONS
For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s.36(2)(a).
The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa). However, the Tribunal is satisfied that applicants two three and four are members of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i). As such, the fate of their applications depends on the outcome of the first named applicant’s application. It follows that the other applicant[s] will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii) that the other applicants satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Roslyn Smidt
Member

ATTACHMENT - 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.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2018] AATA 4862

13 December 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Natural Justice