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 2CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
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
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 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).
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
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…
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CaseChat Overview and Summary
This case concerned an application for a Protection Visa by a citizen of Iraq. The applicant claimed that her problems began in March 2014 after she conducted a conference on women's rights and the marriage of minors, during which she expressed strong views against the legislation and those who endorsed it. She alleged that this led to harassment from students and colleagues, including being called "infidel" and "secular," and receiving threatening phone calls in September 2014, followed by a letter with bullets sent to her parents in January 2015. The applicant arrived in Australia in December 2014 and applied for a Protection Visa in May 2016.
The primary legal issues before the Tribunal were whether the applicant met the criteria for a refugee visa under section 36(2)(a) of the Migration Act 1958, or alternatively, whether she was entitled to complementary protection under section 36(2)(aa) of the Act. The Tribunal was required to assess the applicant's credibility, the plausibility of her claims regarding threats and harassment, the time lapse between the alleged inciting incident and the threats, and the lack of corroborative evidence. Additionally, the Tribunal considered the applicant's activism, or lack thereof, in Australia and her personal circumstances, including her acceptance of a polygamous marriage, in relation to her claimed feminist views.
The Tribunal found the applicant to be an uncompelling witness, noting her responses were not spontaneous or fulsome, and was not persuaded by her explanations for delays in leaving Iraq or in applying for the visa. While accepting she may have answered a question at the conference, the Tribunal did not accept she used the specific language claimed, nor did it find her to be an activist for women's rights based on the single incident. The Tribunal was not satisfied that the alleged threats were received, citing a lack of evidence and implausibility, and concluded that the applicant did not have a well-founded fear of persecution. Furthermore, the Tribunal found no substantial grounds to believe there was a real risk of significant harm upon her return to Iraq, considering her family support network and the country information regarding academics.
Consequently, the Tribunal affirmed the decision not to grant the applicant a Protection Visa, finding that she did not satisfy the refugee criterion under section 36(2)(a) or the complementary protection criterion under section 36(2)(aa) of the Act. As a result, she also could not satisfy the criteria under sections 36(2)(b) or (c) relating to being a member of the same family unit as a visa holder.
The primary legal issues before the Tribunal were whether the applicant met the criteria for a refugee visa under section 36(2)(a) of the Migration Act 1958, or alternatively, whether she was entitled to complementary protection under section 36(2)(aa) of the Act. The Tribunal was required to assess the applicant's credibility, the plausibility of her claims regarding threats and harassment, the time lapse between the alleged inciting incident and the threats, and the lack of corroborative evidence. Additionally, the Tribunal considered the applicant's activism, or lack thereof, in Australia and her personal circumstances, including her acceptance of a polygamous marriage, in relation to her claimed feminist views.
The Tribunal found the applicant to be an uncompelling witness, noting her responses were not spontaneous or fulsome, and was not persuaded by her explanations for delays in leaving Iraq or in applying for the visa. While accepting she may have answered a question at the conference, the Tribunal did not accept she used the specific language claimed, nor did it find her to be an activist for women's rights based on the single incident. The Tribunal was not satisfied that the alleged threats were received, citing a lack of evidence and implausibility, and concluded that the applicant did not have a well-founded fear of persecution. Furthermore, the Tribunal found no substantial grounds to believe there was a real risk of significant harm upon her return to Iraq, considering her family support network and the country information regarding academics.
Consequently, the Tribunal affirmed the decision not to grant the applicant a Protection Visa, finding that she did not satisfy the refugee criterion under section 36(2)(a) or the complementary protection criterion under section 36(2)(aa) of the Act. As a result, she also could not satisfy the criteria under sections 36(2)(b) or (c) relating to being a member of the same family unit as a visa holder.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
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: 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: The applicant is a citizen of Iraq. The applicant married in 2011 to [Mr A]. The applicant has two children from this relationship. The applicant and her husband separated in December 2016. The applicant was nominated for a PhD Scholarship [in] July 2012. The applicant, her husband and her two children arrived in Australia [in] December 2014 pursuant to a [Student] Visa. The applicant applied for a Protection Visa on 23 May 2016. The applicant attended an interview with the Delegate on 16 January 2017.Claims: The applicant’s claims are summarised in her Statutory Declaration of 1 April 2016 and in the Delegate’s Decision. 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. The applicant claims she invited her husband to attend the conference as well. 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”. 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”. 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. 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. 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”.
Evidence
Evidence Before The Court
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 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: 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: The applicant is a citizen of Iraq. The applicant married in 2011 to [Mr A]. The applicant has two children from this relationship. The applicant and her husband separated in December 2016. The applicant was nominated for a PhD Scholarship [in] July 2012. The applicant, her husband and her two children arrived in Australia [in] December 2014 pursuant to a [Student] Visa. The applicant applied for a Protection Visa on 23 May 2016. The applicant attended an interview with the Delegate on 16 January 2017.Claims: The applicant’s claims are summarised in her Statutory Declaration of 1 April 2016 and in the Delegate’s Decision. 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. The applicant claims she invited her husband to attend the conference as well. 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”. 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”.
Decision
Reasons for decision
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.The Tribunal discussed the various events claimed to have happened in March and September of 2014.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.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.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. 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.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.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.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.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. 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.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.The Tribunal considered the Representative’s pre-hearing submissions. 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.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; The Tribunal expressed its gratitude to the Representative for providing the said reports and noted the Representative’s references to them in his submission.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.The Representative referenced the UNHCR Report which referenced the targeting of women considered to be active in political and social spheres.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. The Tribunal acknowledged the relevance of the reports if it indeed found that the applicant was active in political and social spheres.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.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.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.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.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.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.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.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.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. 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.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.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.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.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.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.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.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. 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. 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.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.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 3.61100. 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 3.62101. 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 claims106. 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 Criterion112. 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 Protection113. 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.DECISION117. The Tribunal affirms the decision not to grant the applicants protection visas.Michael HawkinsMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…
Ratio Decidendi
Legal Principle Established
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.Member of the same family unit 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 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: 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: The applicant is a citizen of Iraq. The applicant married in 2011 to [Mr A]. The applicant has two children from this relationship. The applicant and her husband separated in December 2016. The applicant was nominated for a PhD Scholarship [in] July 2012. The applicant, her husband and her two children arrived in Australia [in] December 2014 pursuant to a [Student] Visa. The applicant applied for a Protection Visa on 23 May 2016. The applicant attended an interview with the Delegate on 16 January 2017.Claims: