1715817 (Refugee) - [2022] AATA 965

1715817 (Refugee) [2022] AATA 965 (24 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1715817
COUNTRY OF REFERENCE:                   Morocco
MEMBER:Shahyar Roushan
DATE:24 March 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 24 March 2022 at 3:37pm
CATCHWORDS
REFUGEE – protection visa – Morocco – member of a particular social group – unmarried mother – two children with different fathers – first partner died and second relationship ceased – fear of harm from conservative family and clan members and men in community – credibility – previous travel to other countries without applying for protection there, and regular returns – vague and exaggerated claims and evidence – core claims accepted – risk of threats, abuse, societal marginalisation and prosecution – rights of the child – child with neurodevelopmental condition – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), (4)(b), (c), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
AA v MIMA [2000] FCA 13
Applicant A101/2003 v MIMIA [2004] FCA 556
Lama v MIMA [1999] FCA 1620
MIMA v Darboy [1998] FCA 931
MIMA v Haji Ibrahim (2000) 204 CLR 1
MZYSL v MIAC [2012] FMCA 582
NAVZ v MIMIA [2005] FCA 13
Z v MIMA (1998) 90 FCR 51
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 dependants.
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 11 July 2017 to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant is a [Age]-year-old national of Morocco. She is a Sunni Muslim. She was born in Bab Lamrissa, Sale, Morocco, and resided at a single address in [Location]. She has no educational qualifications beyond primary school education.
The applicant’s father is deceased, and her mother resides in Morocco. She has [siblings] (including a ‘half-sister’ and a ‘half-brother’). Her brother and one of her sisters reside in [Country 1]. The applicant has two children from two different relationships. Both children are Australian citizens.
The applicant has previously travelled to [Country 2], [Country 3], [Country 4], [Country 5] and [Country 1].
In [Year 1], the applicant gave birth to her first child in [Country 2]. The child’s father, an Australian citizen, has since passed away. The applicant and the father of the child were not married. It is reported that the applicant’s first child has a diagnosis of [a neurodevelopmental condition].
The applicant arrived in Australia [in] September 2015 as the holder of a Visitor visa (Subclass 600). On 12 February 2016, she lodged an application for a Carer visa (Subclass 836), which was refused by the then Department of Immigration and Border Protection (now the Department of Home Affairs (the Department)) on 10 June 2016. The decision was affirmed on review by the AAT on 6 March 2017.
In [Year 2], the applicant gave birth to her second child. She was not married to the father of this child and she is no longer in a relationship with him.
The applicant lodged an application for a Protection visa on 9 November 2016. On 11 July 2017, a delegate of the Minister refused her Protection visa application.
Protection claims
Protection visa application
The applicant made the following claims on her Protection visa application form.
She left Morocco to marry her ex-partner, who is an Australian citizen. After she arrived in Australia with their child, she discovered that he was still married to another woman. He had misled and impregnated her and subsequently abandoned her and her child.
She is Muslim and comes from a very conservative Muslim family and society. She would be unable to return to Morocco as a single mother. Single mothers are regarded as ‘dishonourable women’. They are discriminated against, abused and violated by family and society.
She fears that her family, members of her clan, and ‘other men’ may harm her as she has brought ‘enormous shame’ upon them and will be a vulnerable target. She is an ‘easy prey for violence and sexual abuse’.
In addition, her former partner is Christian. This will bring dishonour to her family and her son will be targeted for having a Christian father.
The Moroccan government cannot protect her as they do not intervene in family and religious affairs, and there are no laws to protect women from abuse.
She cannot relocate to another part of the country as she has no resources to move and could not get a job as a single mother. Violence and discrimination against single mothers are widespread throughout Morocco.
The interview
The applicant attended an interview with a delegate of the Minister on 31 March 2017. The interview was conducted with the assistance of an interpreter in the Arabic language. Where relevant, the applicant’s oral evidence at the interview is referred to in the Tribunal’s analysis below.
The delegate’s decision
On 11 July 2017, a delegate of the Minister refused the Protection visa application. The delegate found that the applicant’s evidence and claims were unreliable and unpersuasive. The delegate expressed concern in relation to her willingness to previously return to Morocco as a single mother without facing physical harm, her failure to seek protection in [Country 5], and her delay in lodging her Protection visa application. The delegate was not satisfied that there is a real chance or a real risk that the applicant will face serious or significant harm if she were to be removed to Morocco.
Review application
On 21 July 2017, the applicant applied for a review of the delegate’s decision. She was represented by [Mr A] in connection with the review.
Pre-hearing submissions
On 3 June 2021, the Tribunal received a submission from [Mr A] in support of the application for review. In his submission, [Mr A] provided a summary of the applicable law and ‘country information’ in relation to ‘persecution on the basis of her gender as a woman and unmarried mother’. Unfortunately, no sources were cited in the submission. He also provided the following information and arguments in support of the applicant’s claims.
The applicant arrived in Australia in 2015 in order to marry her then partner, who had fathered her first child. Subsequently, she discovered that her ex-partner was still married. She was then abandoned by her ex-partner, who is now deceased.
The applicant entered into a new relationship and, in [Year], she gave birth to a second child. The applicant and her new partner were not married and subsequently separated. The applicant currently is an unmarried single mother of two children. Due to her status, she fears harm from the Moroccan authorities, the community and members of her own family due to their ‘strict and conservative Muslim beliefs’.
As a result of having had two children out of wedlock, she has been ‘excommunicated from her family, and they refuse to have any connection or relations to her’. Her eldest child has no father, and the father of her second child also has no relationship with his child.
The submission referred to Australia’s international obligations under the Convention on the Rights of the Child (CROC) and stated that the applicant and her children are all at risk of harm in Morocco and that the applicant’s children should be afforded ‘the protection of the Australian government as a part of its obligations under the CROC’.
[Mr A] also submitted copies of medical evidence in support of the applicant’s first child’s diagnosis of [a neurodevelopmental condition].
The hearing
The applicant was first invited to appear before the Tribunal in person on 9 June 2021. Unfortunately, due to a number of reasons, including the NSW government’s stay-at-home restrictions, the hearing had to be rescheduled on a number of occasions. The applicant eventually appeared before the Tribunal on 8 December 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. [Mr A] also attended the hearing. Where relevant, the applicant’s oral evidence to the Tribunal is referred to below.
Post-hearing submissions
On 8 January 2022, the Tribunal received a further submission from the applicant’s representative. In his submission, [Mr A] stated that the applicant is currently the sole carer of her two children and lives on her own. Her second child has no contact with his father. Both children were born out of wedlock and this is ‘strongly forbidden’ in Morocco, particularly amongst conservative Muslim families, such as the applicant’s family. Whilst the applicant has some connection with her immediate family, she is fearful of members of her extended family as ‘perpetrators of abuse’.
It was submitted that due to the applicant’s status as a single mother, with children born out of wedlock, she is at risk of harm and abuse at the hands of members of extended family. The applicant is at risk of facing verbal and physical abuse, threats to her life and even abandonment. This abuse may also be faced by her children. In addition, since leaving Morocco, the applicant has distanced herself from Islam, bringing her into conflict with members of her family. This may result in ‘harmful and abusive conflict within her family’.
Attached to the submission were hyperlinks to a number of YouTube video clips and two webpages in Arabic. No translation was provided.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
The criteria for a Protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a Protection visa of the same class.
Section 36(2)(a) provides that a criterion for a Protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a) of the Act. In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1) of the Act, 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 of the Act, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, reasons and findings
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
In assessing the applicant’s evidence, the Tribunal found aspects of her claims to have been exaggerated. The Tribunal was also struck by the applicant’s, at times, inexplicable vagueness and inarticulateness at the hearing in explaining certain other aspects of her claims, which may be attributable to her lack of education. Overall, however, the Tribunal accepted the applicant’s core claims that this decision ultimately turned on.
In her Protection visa application and the submissions provided by [Mr A], the applicant’s family in Morocco was portrayed as a very conservative Muslim family. This did not appear to be consistent with the applicant’s own background and experiences. The applicant departed Morocco in approximately 2008 on her own, visiting and working in a number of countries, including [Country 1], [Country 4], [Country 2] and [Country 5] over the course of a number of years. The applicant travelled back to Morocco on a reasonably regular basis. As it was put to her at the hearing, this suggests that she had enjoyed a degree of independence and freedom and was not impeded by her family. Indeed, the applicant’s younger sister appears to have followed the same path and she is currently working in [Country 1]. In her evidence at the hearing, the applicant explained that not all members of her family are conservative and that she fears her half-brother, [Mr B], and members of her extended family. She stated that she did not know how they may react if they became aware of her relationship status and history. The Tribunal is prepared to accept that, at least some members of the applicant’s family, may harbour conservative or traditional religious and cultural views.
On the basis of the evidence provided, the Tribunal accepts that the applicant has two children from two different relationships. The Tribunal accepts that both children were born out of wedlock. The Tribunal accepts that the father of the first child is now deceased, and that the applicant has no relationship with the father of her second child. The Tribunal accepts that the applicant is currently single and the sole carer of her two children.
The applicant’s evidence indicates that, following the birth of her first child in 2011 in [Country 2], she returned to Morocco and resided with her mother and two of her full siblings. At the hearing, she explained that this arrangement was only possible because she had told her family and others had assumed that she was married. She further stated that whilst her mother is now aware of her situation, she does not want her to return to Morocco as this will attract adverse attention and create problems. The Tribunal is prepared to accept this evidence. The Tribunal further accepts that members of her extended family have also become aware of her circumstances and have directed verbal abuse towards her mother. When asked why she believed she would be harmed if she were to return to Morocco, she stated that, if she were to return as an unmarried mother of two children, she would immediately be perceived as a ‘prostitute’ by members of her extended family and the community at large. The applicant claimed that, due to her status, she would be at risk of harm in Morocco.
Marginalisation
The general consensus among the sources consulted by the Tribunal is that single mothers[1] are severely stigmatised in Morocco. A woman’s virginity remains highly valued by Moroccan society and loss of virginity before marriage is a great dishonour to the women’s family which can result in violence or death in extreme circumstances. Several reports also indicate that women who become pregnant outside of marriage can be imprisoned for prostitution.
[1] The terms ‘single mother’ and ‘unwed mother’ in this decision refer to women who have children outside the framework of legal marriage and excludes divorced or widowed women who had children during their marriage.
As noted by El Batoul Majbar, whilst Morocco is cited as an example of moderation and progressiveness in its attitudes and laws regarding women in the Middle East and North Africa, several Moroccan laws contain deep inequalities for women, which marginalise and stigmatise them.[2] Majbar further states that single mothers are among those women who are particularly marginalised:
Single mothers are considered as a source of trouble, shame and dishonor; therefore, they are totally rejected by society. Indeed, social stigmatization, criminal repression and legal discrimination marginalize these women and their children, and impact on their ability to live a normal life.[3]
[2] Majbar, BE, ‘Single Mothers Between Law and Civil Society in Morocco’, Official Conference Proceedings, The Asian Conference on the Social Sciences, 2013,
[3] Ibid.
Other researchers have also noted that single mothers ‘are among the most socially despised and marginalised people in Morocco’, regardless of their backgrounds, personal experiences and levels of education.[4]
[4] See Berwick, LV, Single Mothers in Morocco: Social Stigma and Struggle for Identity (dissertation submitted in partial fulfilment of the requirements for the degree of MA in Near and Middle Eastern Studies of SOAS, University of London), 15 September 2017,
In a 2005 special report on women’s rights in the Middle East and North Africa, Freedom House states the following in relation to the treatment of unmarried women and their children in Morocco:
…Virginity is highly valued by society – a woman who has lost her virginity before marriage is considered to have brought dishonor on her family and may not be able to marry. Unmarried mothers and their children, who usually come from disadvantaged backgrounds, are often subjected to inhuman treatment by society, and the mothers may be threatened with imprisonment for having sex outside marriage. The loss of virginity and/or pregnancy outside of marriage, combined with societal mores, lead many young women to commit suicide, abandon their children, or engage in prostitution. While several associations work to care for these women, their resources are inadequate to meet the women’s needs due to the high number of cases. The government seems to have adopted a policy of ignoring the problem, yielding to pressure from extremist religious groups.[5]
[5] Freedom House, Women’s Rights in the Middle East and North Africa - Morocco, 14 October 2005,
In February 2020, Moroccan author Leïla Slimani suggested that such attitudes continue to prevail in Morocco, stating ‘virginity is an obsession in Morocco and throughout the Arab world. Whether you’re liberal or not, religious or not, it’s impossible to escape this obsession’.[6] She noted that women who are no longer virgins are often described as ‘broken’, ‘spoiled’ or ‘ruined’ by men and had to be managed as a terrible ‘scar’.[7]
[6] Slimani, L, ‘Virginity is an obsession in Morocco’: an extract from Leïla Slimani’s Sex and Lies, The Guardian, 16 February 2020, ‘Virginity is an obsession in Morocco’: an extract from Leïla Slimani’s Sex and Lies | Society books | The Guardian.
[7] Ibid.

According to an article published by the Ithaca College Journal of Race, Culture, Gender & Ethnicity:
…Sexual acts can only be exercised within the walls of marriage; otherwise it is considered prostitution and thus illegal. If a child is produced from the act it is considered self-incriminating and grounds for legal penalties. Many Moroccans believe that unwed mothers justly reap the punishment of isolation from society. This is so because it is believed that a conscious risk was undertaken; the act and intent were present which constitutes the crime. Exile from family and society and in some cases 5 years in prison is thus seen as just punishment.[8] (emphasis added)
[8] McBean, T, ‘Victims Banned as Criminals: the Reintegration of Unwed Mothers into the Moroccan Society’, Ithaca College Journal of Race, Culture, Gender & Ethnicity, Volume 4, 2006
Similarly, Berwick has observed that:
In a society that looks upon single women – and even more so upon single mothers – with suspicion, not only does marriage have a high religious value, but it is the passport to acquire the privileged social status only married women enjoy. Being a mother but not a wife means not complying with gender norms and, therefore, is not an admissible choice… [in] this regard, “single mothers become prostitutes or victims in the collective imagination; total outcasts”… single mothers often beg, or work in the informal sector either in farms or as prostitutes, with high chances of being exploited.[9]
[9] Berwick, n4, above.
In a recent article, Ginger Feather has argued that ‘in Morocco legal codes and dominant discourses conflate single mothers (om’azba’) with prostitutes, creating a web of discrimination and marginalization for nevermarried women who are pregnant or have given birth’.[10] She goes on to state unmarried mothers are often forced to turn to sex work to provide for themselves and their children:
Women who become pregnant out of wedlock are often rejected by their families and ostracized by Moroccan society…Consequently, many single mothers resort to sex work to provide for themselves and their children, thus strengthening the identification of single motherhood with prostitution in the popular imaginary.[11]
[10] Feather, Ginger, ‘The Conflation of Single Mothers and Prostitutes in Morocco: Qiwama, Legal Exclusion, and Paternal Impunity’, Journal of Middle East Women’s Studies, vol. 17 no. 2, 2021, Project MUSE muse.jhu.edu/article/798697.
[11] Ibid.
Berwick has also highlighted difficulties faced by single mothers in accessing both private and public services, noting that it is not unusual for a single mother to see her request to rent a house refused. She states ‘[in] the worst cases, single mothers may be asked for their phone numbers or sexual favours in return for a service, which is justified by the fact that … ‘the social discourse says she is a loose woman’.[12]
[12] Berwick, n4, above.
Whilst it cannot be said that all single mothers in Morocco turn to prostitution, the underlying suggestion in the commentary and research is clear that, due to their status, single mothers face drastically reduced opportunities to find employment and participate in the formal economic sector. In these circumstances, they face significant economic hardship.
On the basis of the evidence before it, the Tribunal finds that if the applicant were to return to Morocco, as a single mother of two children born out of wedlock to two different fathers, there is a real chance that she will be severely stigmatised and marginalised. This marginalisation has been described as ‘total rejection’ and being ‘socially despised’. Stigmatisation and marginalisation alone do not ordinarily amount to persecution. However, as explained by McHugh J in MIMA v Haji Ibrahim, treatment that is ‘so oppressive or likely to be repeated or maintained that the person threatened cannot be expected to tolerate it, so that flight from, or refusal to return to, that country is the understandable choice of the individual concerned’, can be characterised as persecution.[13] Weighing all the evidence, the Tribunal is of the view that the stigmatisation and marginalisation the applicant will face in Morocco is likely to be extreme, sustained and prolonged. There is also a real chance that the applicant’s experiences will be compounded by the prospect of her being perceived to be and treated as a prostitute within the Moroccan conservative society.
[13] MIMA v Haji Ibrahim (2000) 204 CLR 1 at [65].
The Tribunal finds that as a consequence, there is a real chance that the applicant will not be supported financially by members of her own family and that she will face drastically reduced opportunities to access means of earning a living, other than sex work, to support herself and her two children. In these circumstances, the Tribunal finds that there is a real chance that she will be denied the capacity to earn a livelihood or significant economic hardship, threatening her capacity to subsist.
The Tribunal finds that the treatment the applicant will face in Morocco amounts to serious harm under s 5J(4)(b) of the Act. The Tribunal is satisfied that the essential and significant reason for the harm is the applicant’s membership of the particular social group of single mothers who have children out of wedlock in Morocco. The Tribunal is satisfied that the harm the applicant fears involves systematic and discriminatory conduct as required by s 5J(4)(c). The Tribunal is satisfied that the real chance of persecution relates to all areas of Morocco.
Article 490
The Tribunal has also considered the impact of existing Moroccan criminal laws on single mothers.
Several reports indicate that women who give birth outside of wedlock can be imprisoned under the Penal Code for prostitution. Article 490 of the Moroccan Penal Code provides for a prison sentence of one month to a year for ‘All persons of the opposite sex who are not related by marriage, and have sexual relations with each other’.[14] The maximum penalty is doubled in case of adultery (Article 491). According to Feather, Moroccan courts and society consider extramarital sexual relations a type of prostitution and whilst the Code does not explicitly criminalise professional sex work, illicit sex is criminalised under Articles 490 and 491. Only women, however, are held accountable for this ‘crime’.[15] In contrast, single fathers enjoy legal and social impunity for any sexual transgressions. Men often escape prosecution by denying the relationship or by paying off officials, assisted by the assumption that the woman is responsible for the relationship or the pregnancy.[16]
…if an expectant single woman files a complaint, asking the father to recognize his child, a judge can admit her pregnancy into court as proof of her "crime”.[17]
[14] Immigration and Refugee Board of Canada, Morocco: Application of adultery laws, in particular, of Article 490 of the Penal Code and of the articles that follow it; treatment by family members and in-laws of people who commit adultery (2010-August 2013), MAR104565.FE, 9 September 2013.
[15] Feather, n10, above.
[16] Ibid. See also The World Organisation Against Torture (OMCT), ‘State Violence in Morocco’, OMCT website, April 2004,
[17] Ibid.
Some reports suggest that the laws in question are seldom enforced. Other sources, however, indicate that thousands of Moroccan nationals have been charged under Article 490 in recent years. An article published in The Africa Report in March 2021 reported that ‘This year, according to figures from the public prosecutor’s office, 15,192 people were charged under [Article 490]’. The report did not break down the number according to the gender of those charged. However, it referred specifically to the case of a single mother who was sentenced to a month in prison after a pornographic video of her had been published on the internet without her knowledge. The male perpetrator was not charged.[18]
[18] Kozlowski, N, Women’s rights: Moroccan politicians take a stand on law against extramarital sex, The Africa Report, 5 March 2021, Women’s rights: Moroccan politicians take a stand on law against extramarital sex (theafricareport.com).
Feather, citing on the ground sources in Morocco, has noted that whilst the courts do not prosecute single mothers as they did before, ‘the police take single mothers to the crown prosecutor, who sentences them to one month’s imprisonment and then grants them clemency but not a pardon, reinforcing the idea that they are indeed guilty’.[19] This information suggests that the threat of prosecution and imprisonment of single mothers under the Moroccan Penal Code is real.
[19] Feather, n10, above.
The Tribunal finds that there is a real chance that, as a single mother, the applicant may come or be brought to the attention of the authorities by others if she were to return to Morocco. The Tribunal finds that there is a real chance that she will be charged, prosecuted and/or imprisoned under the Moroccan Penal Code.
The relevant provisions of the Code, on their face, are generally applicable criminal laws.[20] However, having carefully considered the country information before it, the Tribunal is satisfied that Articles 490 and 491 of the Moroccan Penal Code are enforced in a selective and discriminatory manner in that, according to the sources consulted, only women, particularly single mothers, are charged, prosecuted and sentenced under these laws.[21]
[20] See MZYSL v MIAC [2012] FMCA 582 at [17]–[19] where the Court found that Sharia law in Iran prohibiting premarital sex was non-discriminatory in its application and implementation.
[21] See Z’ v MIMA (1998) 90 FCR 51 at 58; MIMA v Darboy [1998] FCA 931; Lama v MIMA [1999] FCA 1620; AA v MIMA [2000] FCA 13.
The Tribunal finds that, if the applicant were to return to Morocco, there is a real chance that Articles 490 and 491 of the Moroccan Penal Code will be enforced or implemented against her in a discriminatory manner. The Tribunal finds that this selective and discriminatory enforcement is essentially attributable to her membership of the particular social group of single mothers who have children out of wedlock in Morocco.
The Tribunal has considered whether the provisions in question are appropriate and adapted to achieving a legitimate state object. Articles 490 and 491 are said to be based on Islamic law, which bans unmarried people from engaging in sexual activity and discourages debauchery.[22] According to its constitution, Morocco is a Muslim state and Islam is the religion of the state.[23] It, therefore, appears that the laws in question reflect, and are designed to protect, the religious identity and values of the country, as well as the welfare of its Muslim citizens. As such, Articles 490 and 491 expressly apply to both men and women and should be enforced against ‘anyone’ who is in breach of the law in order to achieve its legitimate object. The Tribunal, however, has found that the implementation of these provisions is discriminatory as they are not enforced against men or single fathers in the same way that they are enforced against women and particularly single mothers. Such a discriminatory application cannot be said to be appropriate and adapted to achieve their legitimate object, particularly when measured by the standards of civil societies.[24]
[22] Fakim, Nora, ‘Morocco: Should pre-marital sex be legal’? BBC News, 9 August 2012,
[23] US Department of State, 2018 Report on International Religious Freedom: Morocco,
[24] See Applicant A101/2003 v MIMIA [2004] FCA 556.
Further, it has been widely argued that these provisions violate a range of human rights, including the right to privacy, as guaranteed under article 24 of Morocco’s constitution and the International Covenant on Civil and Political Rights, which Morocco has ratified.[25] As reported by Human Rights Watch, on 28 October 2019, the National Human Rights Council (established by the constitution to provide guidance on human rights matters to Moroccan institutions) recommended decriminalisation of consensual sex between nonmarried adults and granting more religious freedoms.[26] Whilst the recommendations were rejected by the governing party at that time, they were supported by the Party for Progress and Socialism, 25 nongovernmental organisations, social movements and scores of Moroccan women.[27] The Tribunal is of the view that the discriminatory nature of the implementation of Articles 490 and 491 result in seriously discriminatory harm in relation to certain matters vital to human dignity.[28] The Tribunal finds that these provisions are not appropriate and adapted to achieving a legitimate object.
[25] Human Rights Watch, Morocco: Landmark Proposals on Individual Freedoms: Repeal Laws that Compromise Privacy, Freedom of Conscience, 4 December 2019, Morocco: Landmark Proposals on Individual Freedoms | Human Rights Watch (hrw.org).
[26] Ibid.
[27] Ibid. See also Kozlowski, n15, above.
[28] See NAVZ v MIMIA [2005] FCA 13.
The Tribunal has found that there is a real chance that the applicant will be charged, prosecuted and/or imprisoned under the Moroccan Penal Code if she were to return to Morocco. The Tribunal finds that the there is a real chance that the relevant provisions of the Code will be enforced or implemented against her in a discriminatory manner and that they are not appropriate and adapted to achieving a legitimate object of the country. The Tribunal finds that the applicant’s potential treatment under the Moroccan Penal Code is persecutory and amounts to serious harm under s 5J(4)(b) of the Act. The Tribunal is satisfied that the essential and significant reason for the harm is the applicant’s membership of the particular social group of single mothers who have children out of wedlock in Morocco. The Tribunal is satisfied that the harm the applicant fears involves systematic and discriminatory conduct as required by s 5J(4)(c). The Tribunal is satisfied that the real chance of persecution relates to all areas of Morocco.
For the reasons given above, the Tribunal is satisfied that the applicant has a well-founded fear of persecution. She is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Act.
Shahyar Roushan
Senior 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.
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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.
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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.
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36     Protection visas – criteria provided for by this Act
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(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.
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