1707962 (Refugee)

[2020] AATA 5171

1707962 (Refugee) [2020] AATA 5171 (7 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1707962

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Michael Hawkins

DATE:7 July 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 07 July 2020 at 8:15am

CATCHWORDS

REFUGEE – protection visa – Iraq – religion – academic conducted conference about gender inequality – harassment as secular and infidel by some students and colleagues, and threats from unknown persons and groups – credibility – time between conference and threats – delay in applying for protection – lack of corroborative evidence – no activist activity in Australia – ex-husband’s separate protection visa application – polygamous marriage inconsistent with claimed feminist views –  decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), r 1.12; Schedule 2

CASES

Chan Yee Kin v MIEA (1989) 169 CLR 379

Kavun v MIMA [2000] FCA 370

MIEA v Guo (1997) 191 CLR 559

Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445

Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

Selvadurai v MIEA [1994] FCA 1105

Subramaniam v MIMA (1998) VG310 of 1997

Zhang v RRT [1997] FCA 423

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 7 April 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Iraq, applied for the visas on 23 May 2016. The delegate refused to grant the visas on the basis that on the basis that the applicants are not refugees as defined by s.5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed to their receiving country, there was a real risk they would suffer significant harm.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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 themselves 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).

6. 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.

7. 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

8. 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.

   Member of the same family unit

9. Subsections 36(2)(b) and (c) of the Act provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a Protection visa of the same class as that applied for by the applicant. Section 5(1) provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include the children of the family head.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background:

11. The Tribunal has obtained the following background information from the applicant’s visa application forms and evidence presented to the delegate and the decision of the delegate:

12. The applicant is a citizen of Iraq.

13. The applicant married in 2011 to [Mr A].

14. The applicant has two children from this relationship.

15. The applicant and her husband separated in December 2016.

16. The applicant was nominated for a PhD Scholarship [in] July 2012.

17. The applicant, her husband and her two children arrived in Australia [in] December 2014 pursuant to a [Student] Visa.

18. The applicant applied for a Protection Visa on 23 May 2016.

19. The applicant attended an interview with the Delegate on 16 January 2017.

    Claims:

20. The applicant’s claims are summarised in her Statutory Declaration of 1 April 2016 and in the Delegate’s Decision.

21. The applicant claims her problems in Iraq started in March 2014 when she conducted a conference at [University 1]. She claims the conference was about women’s rights and the marriage of minors.

22. The applicant claims she invited her husband to attend the conference as well.

23. The applicant claims that some students asked she and her husband questions about their views in relation to marriageable age. The applicant claims that she and her husband expressed their deep concerns about the issue, because it was against what she believed in.  She claims that she is very active in promoting women’s rights and claims that she described the people behind passing the legislation and the clergymen who endorsed the legislation as “punch of ignorant who live in the medieval ages”.

24. The applicant claims that her comments provoked some students and some community members who attended the discussion. She claims that some of them promised they will revenge for the “Sharia law” as they said. The applicant claims that after the conference, she was constantly harassed by some students and even some of the fellow lecturers at the University. She claims she used to hear words like “infidel” or “secular”.

25. The applicant claims that towards the end of September 2014, her husband received a threatening phone call from an unknown person who said that he and his group will punish him and his wife.

26. The applicant claims that on the same day, she received a similar threatening phone call and was frightened that something imminent would occur. She claims she felt hopeless as the security forces were very ineffective when it comes to these threats.

27. The applicant claims that in January 2015, she parents received a letter with two bullets in it issued by an unknown group mentioning something to the meaning of “to the infidels [the applicant] and [Mr A] who acted on the devil’s behalf, death will be the punishment for those who oppose Islam’s teaching”.

28. The applicant claims that she fears going back to Iraq as she will be persecuted for expressing her ideas about women’s rights, as in Iraq there is gender inequality and women cannot express their opinions freely. She claims to fear for her life as she was very active in promoting women’s rights.

29. The applicant claims that militia groups implement Sharia law and that the Iraqi government itself is formed out of religious groups and is unwilling to provide protection for women, especially the active women who call for gender equality.

30. The second and third-named applicants had no separate claims of their own.

    Evidence:

31. The Tribunal has before it a range of material, including, relevantly:

    • The applicants’ protection visa application forms completed and signed on1 April 2016 (visa application) and lodged with the Department on 23 May 2016;
    • The applicants’ identity document being photocopies of passports and birth certificates presented to the Department;
    • Academic results for secondary school and university studies undertaken by the primary visa applicant;
    • A Limited Power of Attorney document issued [in] January 2012 and signed by [Mr A];
    • Statutory Declaration of the primary visa applicant dated 1 April 2016;
    • Record of interview with the delegate dated 16 January 2017;
    • The protection visa decision record (delegate’s decision record) dated 7 April 2017;
    • Submission for priority processing of applicant to the Tribunal received on 13 and 18 December 2019;
    • Pre-hearing submission from the Representative of 18 March 2020;
    • Various documents received at hearing on 20 March 2020 from [University 2, Australia], relating to the primary visa applicant’s PhD studies and employment at the University;
    • Country Information from the applicant’s submissions and other sources, as discussed at the Tribunal hearing. The Tribunal has also had regard to the DFAT Country Information Report on Iraq, published on 9 October 2018 (the DFAT Report).

    Pre-hearing Submission

32. The Tribunal received a pre-hearing submission from the representative sent to the Tribunal on 18 March 2020, which included a written submission. The contents of the written submission are set out as follows:

    1. The delegate’s main concern was in relation to the lack of evidence in relation to her social or political activities in Iraq, the applicant stated that she was highly active , however, the applicant meant that she was active only during her working field as part of the university functions, I referred to the applicant’s activism focusing on the right of minor girls in Iraq, the delegate did not accept that , saying that because the applicant was not active in Iraq then her claims were implausible.

    It is the applicant’s position that the delegate’s concerns were made in error for the following reasons:

    a.In Iraq, women are very restricted when it comes to  their social and political activities, hence, we cannot imagine women to have an active role in the Iraqi society, due to the sectarian and religious oppression practiced by the religious militias in that country, accordingly , the delegate’s  conclusions are not supported by the country information or the facts in that country, for example DFAT October 2018 refer to the following:

    3.67   DFAT is aware of cases of forced marriage of minors despite legislation stipulating that persons must be 18 years of age to marry. Current laws allow a judge to approve the marriage of a person between 15 and 18 in ‘urgent’ situations. Many marriages of minors are unregistered, which makes it difficult to register the birth of children of these marriages. Widows whose marriages were not registered can face difficulty gaining access to financial and other forms of support, as many legal documents require a male head of family to give permission, including for overseas travel and registering a child in school.

    3.68   In December 2017, the Council of Representatives rejected amendments to the Personal Status Law that would have left marriage, divorce and inheritance issues to religious rather than secular judicial authorities. The Council of Representatives had passed the amendments in principle in November 2017 and represent the second attempt to introduce significant amendments to the Personal Status Law. In 2014, the Council of Ministers approved amendments to the legislation that would have allowed parents and religious judges to approve the marriages of girls from the age of nine, and to limit the rights of women after divorce and in relation to inheritance. The amendments were not put to the legislature after international and domestic criticism.

    3.69  In 2011 the Kurdistan Regional Assembly passed a Family Violence Act, which criminalises domestic violence, defined to include psychological and sexual violence and female genital mutilation.

    3.70  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. This risk is exacerbated for women who are members of ethnic or religious minorities.

    In fact, the same report at 5.10 refer to the possibility of offering women as compensation in feudal disputes, DFAT states:

    5.10   A lack of government capacity and strong traditions mean tribal culture continues to play an important role in dispute resolution, particularly in the poorer areas of the south and west. Some Iraqi citizens have turned to local militias and religious and tribal groups to dispense justice rather than seeking redress through the official justice system. Women are particularly vulnerable, and DFAT is aware of reports of traditional and religious judicial outcomes in which women are awarded as compensation in disputes. Women often face harsh punishment for transgressing tribal customs.

    b.The delegate’s concentration of the applicant’s activities in Iraq does not have a legal foundation, the legal requirement is in relation to what constitutes a “real chance‟ which is a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. According to Mason CJ in Chan v MIEA, the expression “a real chance”:

    … clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring.

    ... If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.

    In fact in Chan v MIEA (1989) 169 CLR 379 per McHugh J at 429, his honor stated that:

    [A] fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur. ... an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be ... persecuted. Obviously, a far-fetched possibility of persecution must be excluded also. There is no requirement that an applicant be particularly at risk of persecution above others who are also at risk, only that there can be said to be a real chance of the applicant being persecuted There is no requirement that an applicant be particularly at risk of persecution above others who are also at risk, only that there can be said to be a real chance of the applicant being persecuted (Ponnundurai v MIMA [2000] FCA 91).

    If the delegate’s contention was that the applicant have no past history of activism and that was the reasons for the delegate’s conclusions against the applicant then I will say that this is legally wrong, because making a finding about what occurred in the past is not enough to satisfy the real chance test; in MIEA v Guo (1997) 191 CLR 559 at 574, it was held that:

    The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.

    In the above mentioned case of Ponnundurai v MIMA [2000] FCA 91 it was held that an applicant who belongs to a persecuted group might establish a well-founded fear even though the applicant has not personally suffered harm in the past and Consideration of whether such an applicant has a well-founded fear of harm may be necessary even if their account of past events is entirely disbelieved MZZJO v MIBP [2014] FCAFC 80.

    c.the reliance on someone’s previous activism is usually used to test whether an applicant’s claims of activism in Australia was made in good faith or not, however, the contrary is not correct, on the other side, the delegate’s contention that it was implausible that the applicant had any social activism in the Iraq because she did not have any human rights activities in Australia lacks the logical legal reasoning.

    d.Even if elements of an applicant’s case are positively disbelieved, the decision maker must still consider any other basis on which it is claimed that a fear of persecution is well- founded (Abebe v The Commonwealth (1999)),accordingly,  for example, if the delegate believes that it was implausible that the applicant attended a conference in relation to the women right because he believes that the applicant have no history of activism in women rights , in this case, this finding  ignores the idea that an applicant can be harmed or have a real chance of persecution as a result of one major incident, as I stated above, the law in Australia doesn’t require  this “past activism “ invention.

    e.Although it is open to the decision maker to consider whether the applicant have past history of activism or not, however, such comparison is only beneficial when assessing whether an applicant will modify his or her behaviours if he or she is to go back to their country, however, this test is only one part of the “real chance of persecution “assessment. In the applicant’s case, the conference incident is sufficient to trigger the real chance of persecution principle based on the Country information available at the time of the decision being taken.

    The attack on the applicant’s credibility due to her marriage arrangements overlooks the social and cultural norms, the delegate’s assessment of what is considered “plausible” overlooked the assessment of the “real chance”, Well founded ‘means something more than plausible’. The fact that an individual’s claims of persecution may be plausible or credible is not enough to establish a real chance of persecution. In Chan v MIEA, Dawson J stated:

    “Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.

    f.The delegate also overlooked the applicant status as women in a country where there  is no women rights , for this purpose, I attach the UNHCR report titled “ international protection considerations with regard to people fleeing the Republic of Iraq/MAY 2019 whish states :

    “Women active in political and social spheres, including rights activists,532 election candidates, businesswomen, journalists,533 as well as models and beauty contestants, are reported to have been subjected to intimidation, harassment and threats,534 often forcing them to withdraw from the public sphere, or to flee the country.535 In September 2018, a series of assassinations of prominent women was reported, including the killings of a civil rights activist in Basrah and a social media figure in Baghdad,536 raising concern over the increased targeting of women perceived as contravening social mores and traditional gender roles.”

    Another important report such as EESO report march 2019 (EASO Country of Origin Information Report Iraq) states:

    3.5.7  Women in public roles Large differences persist in participation in the labour market between Iraqi women and men, UNAMI reported in 2013: ‘only 14% of women are working or actively seeking work compared to 73% of men; 21% of active females are unemployed compared to 11% of active males. The percentage increases to 27% for young women and is significantly higher in urban areas than in rural areas where women are mainly employed in the agricultural sector.’1354According to data from the International Labour Organization (ILO)(2010), published by the World Bank, Iraq was among the top five countries in the world with the lowest women’s employment participation rates: Iraq (15%), Yemen (21%), Syria (22%), Saudi Arabia (22%), Pakistan (22%).1355The UN Security Council noted in a July 2018 report that ‘according to the Independent High Electoral Commission, 2009 female candidates participated in the parliamentary elections. During the campaign period, posters of female candidates were vandalised and photographs allegedly showing candidates wearing revealing clothing were posted online. Some female candidates withdrew following threats and intimidation.’1356 In August–September2018 a number of prominent women was murdered in Iraq. One victim was a former beauty queen popular on social media (killed in Baghdad),another victim was a women’s rights activist (killed in Basrah). Two other victims worked in beauty parlours. According to the Guardian all four victims ‘had a public presence and a voice that had unsettled elements of Iraqi society, which has retained rigid views on how women should behave’.1357The head of the Iraqi Women Journalists Forum informed the New York Times the targeting of well-known women in Iraq had ‘greatly increased’.1358In a December 2017 article Al-Monitor reports that for many people in Iraq the only acceptable jobs for women are in certain home-related sectors or government departments. Women and girls who work in shops, cafes, entertainment, nursing or the transportation sector (taxi/truck drivers) are frowned upon.1359In a June 2017 article Niqash reports the provincial council in Wasit decided that women should not be allowed to work in cafes at night because of ‘long standing and deep cultural traditions’. The head of the council stated Wasit was a conservative place and that new practices, such as employing females, cannot be tolerated by locals.1360A human rights lawyer based in Kut (Wasit) informed Niqash women in the region don’t get the same employment opportunities as men. The source noted that ‘even if they get a job in a government department they are often harassed, just for working’, the lawyer states.

    3.5.8   Women’s shelters. In its most recent report on human rights USDOS observes that in most areas in Iraq there were few or no publicly provided women’s shelters. In the absence of shelters, authorities often detained or imprisoned sexual harassment victims for their own protection. Some women, without alternatives, became homeless.1362According to UNAMI, resources to publicly fund shelters for women across Iraq remain limited. In October 2017, a women’s shelter in Baghdad was attacked by an armed group comprising of about 50 persons, allegedly including some from the ISF.1363 The DIS/Land info 2018 report noted there is a shelter for women in each of the bigger cities in KRI: Erbil, Sulaimaniyah and Dohuk. These shelters are run by the KRG authority the Directorate of Combating Violence Against Women (DCVAW). The capacity for each centre is approximately 20 to 40 women. According to DCVAW access to their centres normally requires a court order. However, in urgent cases a woman can access the shelter directly with a court order being filed subsequently. The women in the shelters are not allowed to leave the shelter without a court order. Whilst shelters run by NGOs in KRI have experienced attacks from victims’ families, ‘shelters run by the state are less inclined to be attacked, because the state is seen as a stronger protector than the private actors.’1364The same source further remarks many women are reluctant to go to a shelter, because women in the shelters are seen as outcasts

    The reason for referencing the above mentioned reports is to support the idea that the delegate’s contentions about the lack of the past activism in relation to the applicant is not supported by the given country information, active women in Iraq are mostly either killed or kidnapped, even a non-active women who have a public position are persecuted (as we saw from EESO report), it follows that the delegate overlooked to consider many aspects of the applicant’s circumstances.

    Country of reference/ receiving country:

1. The applicants claim to be Iraqi nationals. Based on evidence provided to the Department by the applicants, and in the absence of any other evidence to the contrary, the Tribunal finds that Iraq is their country of nationality and also their receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.

2. The Tribunal is satisfied on the basis of the evidence before it that the applicants do not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicants are not excluded from Australia’s protection obligations under s.36(3) of the Act.

   Hearing:

3. The applicant appeared before the Tribunal on 20 March 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The applicant’s Representative attended the hearing by telephone.

4. After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection visa, the Tribunal discussed with the applicant that to be granted a protection visa she must either be recognised as a refugee or be a person entitled to Complementary Protection.

5. The Tribunal explained that under Australian law, to be a refugee she must have a well-founded fear of persecution in Iraq. This means the Tribunal must be satisfied that there is a real chance that she will face serious harm if she returned to Iraq. The harm must be directed at her for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.

6. With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk she will suffer significant harm if removed from Australia to Iraq.

7. The Tribunal discussed her claims as summarised in the Delegate’s Decision. It confirmed that her claims as so summarised were not in dispute. The Tribunal asked the applicant whether those claims were accurate and complete. The applicant stated they were and that she did not need to change them.

8. The Tribunal discussed the decision of the Delegate with the applicant, noting that the Delegate did not find the applicant to be a credible witness and was of the view that the applicant had fabricated her claims in their entirety. The Delegate did not accept that the applicant was a women’s activist and did not accept that the applicant was involved with any political movements or groups. Consequently, the Delegate did not find the applicant to be a person of interest to any person or group in Iraq.

   Assessment of Claims and evidence, and findings:

9. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (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).

10. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

11. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

12. The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.

13. The Tribunal has strong reservations about the genuineness of the applicant’s claims.

14. The Tribunal has had regard to the comments of Heerey J. in the Federal Court matter of Velauther Selvadurai v MIEA and Anor [1994] FCA 1105, where at paragraph 11 of the decision His Honour states:

    The applicant complained of the tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution….”

15. A delay in seeking protection can support an adverse credibility finding as well as a finding that the applicant's fear is not well-founded: Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370 and Subramaniam v MIMA (Carr J,10/3/98). In Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a three-month delay in lodging a Protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant's fear of persecution. While a delay in making a Protection visa application by itself is not conclusive it reasonably remains an indication in the applicant's case that the claimed fear of harm in this regard is not genuine.

16. The Tribunal discussed these concerns with the applicant at length.

17. The Tribunal noted that the conference that the applicant was involved with the organisation of and the subject of her claims, took place in March 2014 and that it was at that conference, in response to a student’s question, that the response gave rise to harassment of the applicant around the University. The Tribunal further notes that it was towards the end of September 2014 that she and her husband received threatening calls from unknown persons which she claims are related to her comments at the March 2014 conference. The Tribunal further notes that the applicant and her husband and family did not arrive in Australia until December 2014 but that she did not make a Protection Visa Application until 23 May 2016.

18. The Tribunal explained to the applicant that the delay between events, and in leaving Iraq and finally in applying for a Protection Visa, is of concern to the Tribunal and might indicate to the Tribunal that the applicant’s claims aren’t genuine. It invited the applicant to respond.

19. The applicant responded initially by stating that she didn’t understand the system in order to apply for a Protection Visa. She stated that her focus was on her studies and that she had a Student Visa. The Tribunal, noting that she was at University, enquired how she could not have not heard of Protection Visas or, why she had not asked about protection at the university. She replied that she had not asked about Protection Visas at the University. She then admitted to hearing about Protection Visas in mid-2015. The Tribunal then enquired as to why it took a further 12 months in which to make a Protection Visa Application given that she had known about them for a year. The applicant replied that it took about a year for her to get help, that she had children to look after, and had English language difficulties.

20. The Tribunal advised that it remained concerned by this less than compelling explanation.

21. The Tribunal enquired about the applicant’s ex-husband and his visa status. She advised that he was in Australia on his own Student Scholarship and visa and has made his own separate Protection Visa Application.

22. The Tribunal confirmed that the applicant’s ex-husband has made a Protection Visa application. His claims include some claims similar to those of the applicant, but makes an additional claim that in July 2014 some students belonging to one of the Shi’a militias came to his office and requested that he assist them pass subjects he had failed them on. He claims that his failure to do so led to threats and verbal abuse. The Tribunal noted that the ex-husband’s Protection Visa application is dated the same date as the applicant’s and that they have the same representative.

23. The Tribunal had discussed with the applicant and her Representative its concerns about having not one scintilla of corroborative evidence in support of the applicant’s claims.

24. The applicant has presented no evidence supporting her claim that she conducted conferences at [University 1] and no evidence of the fact of the specific conference that was about women’s rights and the marriage of minors. She has produced no evidence in support of her claims that she had received threats from students or fellow lecturers. The applicant could not identify who had made the threatening phone call to her husband and again to her in September 2014. She did not produce evidence that her ex-husband received such a call. Finally, she was not able to produce a copy of the letter or a photo of the letter with two bullets in it that was allegedly delivered to her parents in January of 2015. She has produced no evidence to support her claim that she was very active in promoting women’s rights. She produced no evidence to support her claims that she is very active in calling for gender equality or being critical of the marriage of minors.

25. In the absence of any such corroborating evidence, the Tribunal was faced with a simple decision - did it believe the applicant’s evidence and was it persuaded that her claims were genuine?

26. The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:

    In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[1]

    [1] Guidelines on the Assessment of Credibility (July 2015) Available at >

    However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[2]

    [2] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.

27. The Tribunal discussed the various events claimed to have happened in March and September of 2014.

28. The applicant confirmed that the March conference was held by the Municipality to which lecturers, students and people from the community attended. She agreed that she was not a speaker at the conference but was asked a question by a student about her views. She stated that her now ex-husband supported her views and said so.

29. The Tribunal asked the applicant about the threatening phone call in September of 2014. The applicant replied that it was from a militia group who she claims specifically recalled what she had said at the March conference and told her that what she said was against Sharia law and that she should be punished. She went on to say that the caller called her names, including that she was an atheist who deserved to be killed.

30. The Tribunal pressed the applicant on how she knew that the caller was from a militia. The Tribunal reminded her that she had claimed that the caller did not identify himself. The applicant said she drew a conclusion that they were militia and that they were the same people as at the conference.

31. The Tribunal asked how the applicant could draw that conclusion. She replied that they called her the same thing they did as at the conference, that is an atheist and a communist.

32. The Tribunal expressed its concern again about the lapse of time between the conference and the threat received in September. It asked why anyone would wait six months or more to follow-up a comment with the type of threat claimed. The applicant replied that there was a sequence of threats. The Tribunal invited the applicant to explain. The applicant advised that at lectures, she would listen to the problems of students and would give them advice. She said she would often give her own opinion and would often speak about the danger young girls are exposed to. The Tribunal asked specifically about the threats she received. She replied that she received threats from a group of students at the university who called her an atheist and a liberal and accused her of using her position to make the case for young girls. The Tribunal confirmed that she had never been physically harmed.

33. The Tribunal noted the applicant had been notified of a scholarship in 2012. The applicant confirmed that was the case. She said she had been thinking about coming to Australia to complete scientific research. The Tribunal asked the applicant why it took from 2012 until December of 2014, to finally make it to Australia. She advised that she had responsibilities to complete at her university and also had to complete all of the processes necessary to get a Student Visa to Australia. And then she had to activate her scholarship. The Tribunal confirmed that she continued working at the university until her departure for Australia.

34. The Tribunal asked the applicant about the threat received by her family in January of 2015. She confirmed that it was a letter that had two bullets with it and which promised to punish her and her husband. The Tribunal confirmed that the letter was addressed to her parents. She confirmed that and stated that the letter was pushed under their front door. The Tribunal asked whether she had a copy of that letter or whether she might have a statement from her parents as to its receipt. She stated she did not.

35. The Tribunal enquired as to whether her family were still in Iraq. She confirmed they were. She also confirmed that they have received no more threats in relation to her or her ex-husband, however, she stated that her parents tell her to stay in Australia.

36. The Tribunal discussed with the applicant a concern that the Delegate had in its interview with the applicant. The Delegate had noted that the applicant claimed to be an activist for women’s rights. The Tribunal noted from the applicant’s specific claims that she claimed to be very active in promoting women’s rights and gender equality. The Tribunal noted in particular the applicant’s own Statutory Declaration of 1 April 2016. The Tribunal reiterated the Delegate’s concern as to her apparent acceptance of polygamy, noting that she was the second wife of her ex-husband who had also brought his first wife and children of that wife to Australia as well. The Tribunal asked the applicant how her apparent acceptance of polygamy, which is only available to males, sat with her very strong views of women’s rights and gender equality, noting that it was the applicant’s own choice to enter into that polygamous relationship. The applicant provided, what the Tribunal considered to be a very off-handed response, in stating that if both families are happy, then so be it.

37. The Tribunal also noted that the applicant had told the Delegate that she had not been an activist in Australia for women’s rights or attended any conferences or rallies and the Tribunal asked the applicant to confirm that. The applicant confirmed that she was not an activist in Australia, but that she had attended some cultural events at university where different issues are discussed.

38. The Tribunal considered the Representative’s pre-hearing submissions.

39. In addition to the submission which the Tribunal has incorporated into this decision, the Representative’s submission included a number of articles from the BBC News and The Guardian relating to the deaths of some female Iraqi human rights activists.

40. The Representative also provided links to complete publications of:

    • No Place to Turn: Violence Against Women in the Iraq Conflict, published by Cease Fire, The Centre for Civilian Rights of 35 pages;
    • The European Asylum Support Office Country of Origin Information Report on Iraq, Targeting of Individuals, dated March 2019, of 242 pages;
    • A UNHCR Report on International Protection Considerations with Regard to People Fleeing the Republic of Iraq, dated May 2019, of 130 pages;

41. The Tribunal expressed its gratitude to the Representative for providing the said reports and noted the Representative’s references to them in his submission.

42. The Representative also provided a very detailed dissertation in relation to the legal requirements in relation to what constitutes a “real chance” which the Tribunal accepts.

43. The Representative referenced the UNHCR Report which referenced the targeting of women considered to be active in political and social spheres.

44. He also referenced the EASO Country of Information Report which noted some alarming statistics relating to the percentage of women in the Iraqi workforce, noting that Iraq was one of the top five countries in the world with the lowest women’s employment participation rates. It also considered the poor success rate of female candidates seeking election.

45. The Tribunal acknowledged the relevance of the reports if it indeed found that the applicant was active in political and social spheres.

46. The Representative’s final written submission was similar to a submission he advanced during the hearing which was a somewhat confusing submission based on his interpretation of the Delegate’s finding that the applicant was not an activist. The Representative appeared to contradict the applicant’s own very specific claims as to being very active in relation to women’s rights and gender equality when he submitted that it was not possible for her to be an activist as active women in Iraq are mostly either killed or kidnapped. The Representative appeared to be submitting that the applicant’s one incident at the university alone has given her the public profile which now exposes her to the risk of death.

47. The Tribunal noted the submission and the Representative’s summary that as the applicant now has this public profile and as she has been accused of being an apostate and an infidel, it follows that she would be returned from Australia to Iraq as a female lecturer with a public profile as an apostate.

48. The Tribunal reiterated its concerns, together with those of the Delegate, that the applicant appeared to have no history of being an activist and had evidently not engaged in activism in Australia. The Representative again replied that it is not possible for the applicant to be an activist in Iraq as she would be killed. The Tribunal noted that but again referenced the applicant’s claims, and very specific claims, and her Statutory Declaration wherein she claimed to be very active in promoting women’s rights and expressing her views about women’s rights and gender inequality and marriages of minors. And that it was because she was an activist, that she feared persecution.

1. The Tribunal did not find the applicant to be a compelling witness. She was not forthright in her responses, and even allowing for translation delays, the Tribunal did not find her responses to be spontaneous or fulsome.

2. The Tribunal was not persuaded by her explanations as to the reasons for the delay in leaving Iraq after the claims of threats received or in making her protection visa application nearly 18 months after her arrival in Australia.

3. Notwithstanding the paucity of evidence about her university activities in Iraq, and notwithstanding that her ex-husband has made a contemporaneous protection visa application with an accompanying Statutory Declaration that is in the same form and style as the applicant, and that they are both represented by the same representative, and that the ex-husband has made some similar claims (though provided inconsistent evidence to the delegate), the Tribunal does accept that the applicant may have attended the March conference.

4. The Tribunal notes that the applicant was not a scheduled speaker at the conference and was somehow asked a question by a student to which she responded and her ex-husband somehow was engaged to express his support for her response. How and why she came to be asked such a question was not provided in evidence. The Tribunal might accept that she answered a question directed at her from a student to which she expressed a personal view as to the marriage of minors. The Tribunal does not accept that the applicant used the language expressed in her claims (refer paragraph 23 above) as she could not recall it in evidence.

5. The Tribunal is not satisfied that the applicant is an activist for women’s rights, she provided no evidence in support of any pattern of activism, apart from the one incident in March 2014, which the Tribunal would not define as activism. The Representative agreed that it was this one incident that has given her a profile.

6. The Tribunal is satisfied that the applicant has not participated in any activism of any nature since being in Australia and is unlikely to do so in the future, be it in Australia or Iraq.

7. Further, the Tribunal is mindful of the applicant’s preparedness to enter into a polygamous relationship with her husband (who had another wife and several children) and the applicant’s flippant response to the Tribunal’s invitation to her to reconcile that with her claimed strongly held views of women’s rights and gender equality, the Tribunal has formed the view that whilst she might have strong views about the marriage of minors (and she would not be alone in that), her views about gender equality could not be as strongly held as claimed. The Tribunal would expect that her students, if aware of her situation, would call her out on that.

8. The Tribunal is also satisfied that even if it did accept that the applicant answered a question from a student and gave her own opinion at the March conference, and received some pushback at the time for what she said, it does not accept that it tipped off an enduring campaign of harassment and intimidation, or threats, and certainly would not have culminated in a threat of the type the applicant claims took place in September 2014.

9. The applicant could provide no evidence of the call she received in September, no corroborative evidence of it, for example by way of statement from her ex-husband, and nothing more than speculation that it was from a militia. The Tribunal does not accept that such threat was received.

10. The applicant did not present any evidence in support of her claim of the letter and bullets delivered to her parents’ home in January 2015, for example by way of statement from her ex-husband (with whom she shares a representative) or statement or photograph from her parents with whom she continues to have contact. The Tribunal does not accept that such threat was received.

11. The Tribunal also accepts that the applicant was able to continue in her employment at [University 1] until she departed for Australia in December 2014, which would also support the Tribunal’s finding that there was not an enduring campaign of harassment and intimidation, or threats against her.

12. The Tribunal notes that the applicant was the recipient of a Government Scholarship in 2012 and that she was able to continue to progress it through to the time of its grant with student visas for herself and family.

13. She continued her employment until she departed Iraq and was able to leave Iraq freely with a Government scholarship. The Tribunal is satisfied that the applicant was not imputed with any adverse profile or indeed had any profile at all.

14. With regard to assessing whether the applicant faces a well-founded fear of persecution on account of having made a complaint to the Integrity Commission and his role in the Electoral Commission, the Tribunal has duly considered that the criterion in s.5J(1)(b) of the Act imposes an objective standard, that there be a real chance the person would be persecuted.

15. The Tribunal notes that a ‘real chance’ of persecution is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.

16. Following careful consideration, the Tribunal is not satisfied that if the applicant returns to Iraq now or in the reasonably foreseeable future, there is a real chance that she would face serious harm on account her answering a question about her views in relation to marriageable age at a conference at which she was not a speaker.

17. Whilst not specifically claimed by the applicant, for the sake of completeness, the Tribunal has considered whether the applicant might face targeted harm as a returning educated academic, who will have to return to Iraq upon completion of her studies and likely teach in an academic position.

18. The Tribunal considered the DFAT Report which stated that DFAT is not aware of any specific examples of targeting of academics or students, including students who have studied or lived abroad. The government expects students who have studied abroad on Iraqi government scholarships to return, and guarantees employment for those students. Government connections are usually required to obtain a scholarship and scholar-returnees are likely to come from well-connected families. Many high-ranking government officials have studied abroad[3].

    [3] DFAT Report, paragraph 3.61

100.   DFAT assesses that students or academics do not risk official or societal discrimination on the basis of their employment or education either in Iraq or abroad[4].

[4] DFAT Report, paragraph 3.62

101.   Finally, the Tribunal considered that the applicant will be a single woman with children returning to Iraq. The Tribunal noted the plethora of county information provided to the Tribunal, but also noted that no specific claims were made by the applicant or the representative in relation to the applicant’s fears of returning as a single woman. It is only for the sake of completeness that the Tribunal considers this aspect.

102.   The Tribunal notes that the applicant still has family living in Iraq. She made the comment that they have not received any threats in relation to her since the claim made about January 2015. That assumes the applicant remains in contact with her family, and it can be further assumed that they would provide a support network for the applicant upon her return.

103.   Together with the information above in relation to how the government will guarantee employment for returning scholarship holders, and that DFAT assesses that women in Iraq face a moderate risk of official and a moderate risk of societal discrimination and violence, the Tribunal is satisfied that the applicant will not be at risk of serious harm as a single woman if she returns to Iraq now or in the reasonably foreseeable future.

104.   For the reasons stated above, the Tribunal finds that the applicant has no fear of serious harm in Iraq. It accepts that she has not suffered any form of harm in the past and does not risk suffering any form of harm in the future.

105.   The Tribunal is not satisfied that there is a real chance that the applicant will be at risk of serious harm for reason of race, religion, nationality, membership of a particular social group or political opinion if she returns to Iraq now or in the reasonably foreseeable future.

Cumulative claims

106.   Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal finds that there is no real chance that the applicant will suffer persecution as a consequence of her answering a question about her views in relation to marriageable age at a conference at which she was not a speaker, or any other reason if she returns to Iraq now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if she returns to Iraq. Accordingly, the Tribunal finds that she does not satisfy the criterion in s.36(2)(a) of the Act. 

Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm?

107.   The Tribunal has considered the applicant’s claims under complementary protection.

108.   Having regard to the Tribunal’s findings of fact above the Tribunal does not accept that the applicant left Iraq because she feared for her life as a consequence of her answering a question about her views in relation to marriageable age at a conference at which she was not a speaker and therefore found that there is no real chance that the applicant will suffer persecution, the Tribunal does not accept that the applicant fears that she will suffer significant harm as a consequence of her answering a question about her views in relation to marriageable age at a conference.

109.   The Tribunal finds that the applicant would not be faced with unreasonable difficulties finding accommodation in Iraq if she was required to return as her family still lives in Iraq.

110.   In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if she returns to Iraq now or in the reasonably foreseeable future.

111.   Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on her, she will be subjected to cruel or inhuman treatment or punishment or she will be subjected to degrading treatment or punishment if she returns to Iraq now or in the reasonably foreseeable future.

Conclusion: Refugee Criterion

112.   Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). Her fear of persecution is not well-founded as required by s.5J of the Act and therefore she is not a refugee within the meaning of s.5H.

Conclusion: Complementary Protection

113.   Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq that there is a real risk that she will suffer significant harm.

Overall conclusion:

114.   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).

115.   Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

116.   For the reasons given above the Tribunal is not satisfied that any of the applicants are a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.

DECISION

117.   The Tribunal affirms the decision not to grant the applicants protection visas.

Michael Hawkins
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.

…

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.

…