1725964 (Refugee)

1725964 (Refugee) [2022] AATA 2287 (11 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1725964
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Melissa McAdam
DATE:11 May 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 May 2022 at 2:06pm
CATCHWORDS
REFUGEE – protection visa – Iraq – particular social group – homosexual men – fear of harm by community and authorities – originally identified as homosexual but now identifies as heterosexual – fathered a child – no longer fears harm in Iraq – lack of detailed evidence – credibility issues – separation of family – compassionate circumstances – best interests of the child – Ministerial intervention requested – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 351, 417, 499, 501J
Migration Regulations 1994 (Cth), Schedule 2
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 18 October 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Iraq, applied for the visa on 7 October 2016.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.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.
SUMMARY OF CLAIMS AND EVIDENCE
Protection visa application
The following is a summary of the claims and information the applicant provided in his Protection visa application:
a.He was born in [year], in Muthana, Al Samawah Province, in Iraq. He submitted a copy of his passport issued in Al Samawah, in 2012.
b.He lived in [Al Samawah] in Iraq and worked as a [occupation]. He had 16 years of education and holds a [Diploma].
c.He is Arab and of Shia Muslim faith but is not a practising Muslim.
d.His father is deceased. His mother, [and siblings] are living in Iraq. He is in regular phone contact with his family in Iraq.
e.He arrived in Australia in July 2014 on a partner visa. He separated from his wife in October 2015. His wife is in Australia. He has different views from her about religions and extremism. His visa was refused when his ex-partner withdrew her sponsorship. So he had no alternative but to return to Iraq which he is not willing to do.
f.Since his childhood he did not know much about sexuality and it was always considered in his community that any sexual relationship must be legitimate. Everything was taboo and he was not allowed to have relationships unless that relationship would lead to marriage.
g.This restriction led him to find alternatives for his sexual desire and his relationships were always with males. He was attracted to them but could not explore nor express his homosexuality to anyone. If he did, this could mean the end of his life.
h.He was very cautious in finding a male partner. He was suffering and had no emotions towards girls. When he reached the age of 18, he had a lot of energy and was in very heavy psychological stress to have a sexual relationship.
i.He met [Mr A] in [year] at the river and they greeted each other. The applicant felt strange feelings towards [Mr A] when he was staring at the applicant with his wide dark black eyes. The applicant felt he needed to hug and kiss him. However, he was very fearful to do so as if someone saw them, they would be harmed by the community and the authorities.
j.The time was night and there were less lights in the area. Once the applicant liked him with his feminine look, he was indulged immediately in loving him. Straight away they agreed to hide in a farm by the river and the applicant had his first sexual encounter. They were shaking, fearing that someone saw them however they were lucky to leave the area with no troubles.
k.The applicant could not sleep that night daydreaming of seeing [Mr A] again. Their relationship continued for many years and they had to be discreet. They feared the community and the authorities.
l.After 2003 when the radicals ruled Iraq, life changed and no law was in place. If they were caught, there would not be any justice and they would be killed by militias. [Mr A] was fearful to continue living in the province when people started nagging him about his homosexuality. He escaped in 2011 and to this day the applicant has not heard from or about him and does not know his whereabouts.
m.[Mr A]’s departure made the applicant fearful to stay in his province where the militias and extremists were chasing young people to find any homosexuals or anybody that did not subscribe to their beliefs and outlooks.
n.The applicant’s family became suspicious of his sexuality and encouraged him to get married to dispel rumours that they had heard. In order to avoid his family knowing his desires and to avoid any harm he agreed to marry a woman despite the fact that he has no sexual desire towards women.
o.He started to build a heterosexual relationship with his wife and was eventually sponsored by her to come to Australia. After trying to maintain their relationship she became aware that his orientation leans more towards men and started causing a lot of stress and worry. She was eventually convinced of the applicant’s homosexuality and it led her to withdraw his visa application.
p.The applicant applied for review of the decision but he was frank with the Australian authorities and that led him to withdraw his application before the hearing took place. He decided to apply for protection once he felt encouraged to tell his story and his genuine fears of being persecuted should he return to Iraq.
q.If he returns to Iraq he will be seriously and/or significantly harmed due to his membership of a particular social group, imputed political opinion and perceived faith.
r.He has no access to a third country and the authorities in Iraq are discriminative and cannot offer him any type of protection.
He submitted several photos of himself standing next to another man.
Departmental Interview, 04/09/2017
The following is a summary of the claims and information the applicant provided in his Department Interview:
a.The applicant has two or three photos on his phone he wants to show the Delegate. He will show them later. He will show them but cannot name the person with him in the photos. He showed the Delegate photos of himself with another man. The Delegate put to the applicant that the photos do not convey much.
b.The applicant cannot go back to Iraq because he will be killed. He felt strange from his childhood. He felt different. He assumed a man can only marry a woman. It was later that he found out it was different. He has a feeling. He more tends to have feelings towards a man. He only has feelings for a man. In Iraq when he was an adult he had a relationship with a gay man. His name was [Mr A]. After he reached 18 he felt feelings towards men. [Mr A] was very lively and full of life. There was some eye contact and the applicant felt there would be something and then they had a relationship. There was love between them. The relationship lasted many years, he can’t remember how long. It started around [year]. It lasted for many years, probably about 4 years. No, more than 4 years. It could be 12 years. It was a long time relationship. They would meet. They would not see each every day. They would make an appointment and see each other. There were two places they met. They were the most secure places to meet. It was like a secluded field where people would rarely go.
c.The Delegate put to the applicant that he came to Australia on a spouse visa, claiming to be married to a woman. The applicant responded that when he first married the applicant’s wife did not know he was gay. The relationship was not uncomfortable to the applicant. He had to prove he was a man in a relationship with a woman, for his parents, tribe and society.
d.He lived with his wife for a year and a few months when he came to Australia. Definitely he consummated his marriage. They lived as a married couple but he did not feel comfortable towards her. He was forced to participate in sex with his wife. He was trying to participate in the relationship but he was not comfortable.
e.His wife started to realise he was sexually orientated towards men because she felt it and she saw him. She saw him with another man he had grown to love. This was after approximately a year, she felt it. She saw him at home with the man and that is why they separated. She wanted revenge on the applicant and that is why she did what she did. She saw the applicant in the bedroom with the man having sex.
f.The applicant was having a relationship with the man in Australia. The applicant saw him and they liked each other very much and they started loving each other and having sexual relations. The Delegate put to the applicant that he had not mentioned this man before. The applicant responded he was not sure if he was being asked about Iraq or Australia.
g.Initially it was not a strong relationship, he was just the applicant’s boyfriend. But later the feelings got stronger and that is when his wife found out.
h.The Delegate put to the applicant that he had stated that the reason his relationship with his wife broke down was because he wanted to have children with her and she didn’t want more children. The applicant responded that he did state this but at the time he did not know what his destiny would be in Australia. He had tried to love women. He could not say it was because he was gay because he did not know what his future would be in Australia. He does not know what his wife had stated to the department.
i.The applicant is still in a relationship with the man. The applicant has not had any other relationships with a man in Australia.
j.The Delegate put to the applicant that he had sought review of his Partner visa refusal, after he had begun his relationship with his boyfriend. The applicant responded this is true and that he loved his boyfriend and wanted to keep him.
k.The Delegate put to the applicant that he had not mentioned his boyfriend in Australia in his initial Protection visa application. The applicant responded he asked for review of his partner visa refusal because he did not know his destiny in Australia and was not able to expose his sexuality.
l.The Delegate asked the applicant why he did not tell his wife he was gay and end the relationship. He responded that he cannot tell her because his friends would hear about it and it is hard for him to return to Iraq because of his parents.
m.The Delegate asked why the applicant did not disclose that his wife had caught him in bed with a man in his Protection visa application. The applicant responded he could not because he was not 100% sure about the relationship. Six months ago he realised he did have a strong feeling towards the person and he is the applicant’s boyfriend.
n.The Delegate asked why the applicant waited til October 2016 to lodge his Protection visa application. The applicant responded he did not know what his destiny here would be and he wanted his relationship to be stronger and stronger. He was waiting to see what the relationship would be between himself and the man.
Delegate’s Decision
The Delegate was not satisfied the applicant’s claims were credible. He did not accept that the applicant is a homosexual man.
The Delegate expected that the applicant would have significant and detailed information to put to the department is support of his claims. The Delegate noted that the applicant’s written statement was very brief and there was a distinct lack of evidence in support of his claims. The applicant was asked to speak about his long-term relationship with a man but provided only limited information. The Delegate did not accept that he was in the relationship. The Delegate did not accept the applicant is in a new gay relationship in Australia. The Delegate considered that the photographs submitted by the applicant simply depicted a friend.
The Delegate was not satisfied that the applicant had a well-founded fear of persecution in Iraq, or that he was owed complementary protection.
Information to the Tribunal
Pre-Hearing Submission, 15 March 2022
On the morning of the hearing scheduled for 10am the Tribunal received a submission from the applicant’s [representative], which outlined the following:
In this matter, the circumstances for [the applicant] have changed. [In] June 2020, he married [Ms B] at a ceremony at …
They now have a daughter [Miss C] born on [date] who will be [age] in [number] days.
The tribunal will meet [Ms B] and [Miss C] at the hearing. [Miss C] is an Australian born Australian citizen child. [The applicant] plays a very important role as her father, he is not working although is studying English at TAFE, he is the stay at home parent, he is very close to [Miss C].
Accordingly request is made under s351 of the Migration Act for the tribunal to refer this matter to the Minister.
If [the applicant] were forced to leave Australia he would be separated from his wife and child for a considerable time. [Ms B] does not wish to take the child to Iraq to live there for an extended period while an offshore partner visa was applied for. [Miss C] is too young, it is not in her best interests.
The Minister’s Guidelines state:
5. Other relevant information
For all cases referred to me under these guidelines, the Department will provide information on any other relevant issues, including the following:
• circumstances that may bring Australia’s obligations under the Convention on the Rights of the Child into consideration, including the best interests of the child - which must be treated as a primary consideration, but can be balanced against other primary considerations
The Convention states:
Article 3
1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
It is clearly in [Miss C]’s best interests for her father to remain in Australia, uninterrupted during her very tender years. There are no countervailing factors to what is in [Miss C]’s best interests.
In that Ministerial Discretion referral, it may be appropriate for the tribunal to state that all that [the applicant] asks for is a visitor visa which would enable him to then apply for a subclass 820 partner visa onshore. The delegate could then assess the bona fides of the relationship between [the applicant] and [Ms B]. It is not a big ask as far as Ministerial intervention is concerned, it is, in contrast, a big benefit to [Miss C], an Australian born Australian citizen child.
It would therefore be the case that this part of the guidelines applies:
• circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case
In circumstances such as this the legislation does lead to an unfair result, one legislative solution is to allow a person to apply for a ‘recalibrating’ visa when there is an Australian born Australian citizen child, especially of tender years, affected by a separation from a parent, however that does not exist in the regulations.
The tribunal would doubt would have in mind, how did all this come to pass. [The applicant]’s visa application was genuine. However sexual preferences are not binary.
The renown scientist Dr. Alfred Charles Kinsey biologist1, professor of entomology and zoology USA, Indiana University), identified what became known as the Kinsey scale which is set out below and there is a further summary attached to these submissions.
Kinsey postulated that there is a scale of one to six as far as human sexuality is concerned. Whilst there may be debate about the gradations in the scale and indeed many religious faiths argue against what Professor Kinsey postulated, it is now regarded as orthodox psychology that a person’s sexual preferences are not binary and that such preferences may change emphasis over time. A celebrated example in the Australian context is Peter Allen who married Lisa Minelli as a young man although later in life was probably on five of six on the Kinsey scale, tragically Peter Allen died of AIDS.
There is no doubt that both males and females are heavily influenced by the reproductive instincts and for a male, the desire for a man to start a family and be a father would affect how he sees a female. When an appropriately attractive female comes within that male’s orbit and there is emotional chemistry and mutual attraction between the two, then a male on 3 or 4 on the Kinsey scale can see a happy and stable future in falling in love with a woman and starting a family. Respecting the privacy of [Ms B] and [the applicant], there is no need to go into the intricacies of that in this document although they are both available to give evidence at the hearing. On the next page is the Kinsey Scale: …
No doubt there will always be debate about the accuracy of the scale and the delineations, however the concept that sexual preferences are not binary is now accepted as orthodox in modern psychology.
[Ms B] and [the applicant] met in a gay bar and were attracted to each other. The rest is history. In all of this [Miss C]’s ‘best interests’ are ‘a primary consideration’.
Tribunal Hearing, 15 March 2022

The applicant appeared before the Tribunal on 15 March 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The Tribunal also received evidence from the applicant’s wife, [Ms B]. The following is a summary of the information provided at the hearing:
a.The applicant’s representative submitted that he and the applicant expected the Tribunal to affirm the Department’s decision but would like the Tribunal to address their request to the Tribunal to refer the matter to the Minister for consideration under s.417 of the Act. The representative further stated that the review application has to be affirmed and the purpose for attending the hearing was to discuss matters relevant to a s.417 request.
b.The Tribunal asked why the information regarding the applicant’s change of circumstances had not been provided at an earlier date. The applicant’s representative told the Tribunal that despite the information regarding the applicant’s change in circumstances being known for over a year they had not informed the Tribunal because they were worried the family would be separated.
c.The applicant confirmed that he did not want to discuss his Protection claims at the hearing because he was now married with a child. In answer to a question from the Tribunal he stated he did not fear any harm in Iraq.
d.The Tribunal explained that according to the representative’s submission the applicant was still claiming to have been gay and that there was insufficient information in the submission and before the Tribunal for it to determine if the applicant was a person in respect of whom Australia had protection obligations. The applicant stated that it would not be risky for him in Iraq as he is married with a child. The Tribunal explained that if the applicant was maintaining he was gay then the Tribunal should discuss his protection claims further with him. The applicant expressed a reluctance to discuss his protection claims. The Tribunal offered the applicant a brief adjournment to allow him to speak with his representative which the applicant accepted.
e.After a brief adjournment the applicant stated that he had been gay in the past.
f.The applicant is currently heterosexual. This will not change. It won’t change because he has a wife and child. The Tribunal put to the applicant that other men may become or revert to being gay after marriage to a woman and he responded maybe they do but not him.
g.He has been gay but he doesn’t remember when this was. He does not remember when he realised he was gay. He was an adult man, about 20. Before that age he had an interest maybe in men more than women. He did not have much interest in women in Iraq. He had a little interest but not much.
h.The Tribunal asked the applicant what he thought at the time he realised he was gay. The applicant responded he did not know what he thought because he was young. He did not know how to behave or act. He does not know how other boys behaved or acted as everyone is different. He had friends in Iraq.
i.The Tribunal asked the applicant if there was a time he decided that he was not gay but heterosexual. The applicant responded that he did not think like that. He is no longer that person he used to be. He met his wife and was a new person. He was a new person before he met her, a while before he met her.
j.He does not like the person he was because he has a wife and daughter who he loves. He feels born again and a new person.
k.He has no gay friends. He used to have gay friends. He doesn’t know when he had gay friends. He is not good with dates.
l.He liked his gay friends before but not now. He is still friends with them. He did not leave or dump them. He does have gay friends. It would be difficult for him to give their names. After some time the applicant stated that one of them was a person called [Mr D]. He was Iraqi. The applicant does not know where [Mr D] now is as he has not heard from him in seven years. The applicant knew [Mr D] through the gym.
m.The Tribunal asked the applicant if he had had any gay relationships in Australia. The applicant responded it was with [Mr D], the person he just spoke of. The applicant can’t remember when the relationship started. It did not last for long. He cannot remember how long it lasted for. The applicant has had no other gay relationships in Australia. This is because a while after [Mr D] and the applicant separated everything changed. He can’t say when this happened. The Tribunal asked what caused the change and the applicant responded it was just him by himself. He thought he needed to change and think about his future and marry someone. The Tribunal put to the applicant that in Australia he could marry a man. The applicant responded that he knows this but he would not do it. The Tribunal asked him why not and he responded that he is different from other gay persons in many aspects and not all are the same.
n.The applicant had a gay relationship in Iraq. He had only one relationship there. It was with someone he knew. The person’s name was [Mr A]. The applicant does not remember how they met. He has forgotten everything. He can’t remember how long he and [Mr A] were together. Their relationship ended because of problems. They could be said to be family problems. It was a different community from Australia. The applicant did not stay in contact with [Mr A] after they separated. They separated and that’s it, it is normal.
o.The applicant was attracted to [Mr A]’s personality. He was a lovely person, shorter than the applicant and bald with a thicker build.
p.No one in the applicant’s family knew about the applicant’s relationship with [Mr A]. He does not know if anyone in Iraq knew about it because they could not say it to his face. People who would know would know that it is easy to recognise different orientations. They know because they are tribe orientated but they would not go to a person’s family. Possibly they saw the applicant with the person he used to be with. Maybe they saw them kissing or other things.
q.The Tribunal asked the applicant if he and [Mr A] kissed in public. The applicant responded no, they could not. Maybe people would see him go to a hiding place that people know. The applicant and [Mr A] would go to a hiding place, under a bridge.
r.He has no fear of harm now in Iraq. He has a wife and child and can live his life. Others will not think he is gay anymore. In Australia no one knows he was gay.
s.The applicant and his wife had a simple wedding with only his wife’s family present. An old friend of the applicant’s family is a Sheikh and prepared the marriage contract, which the couple signed at the Sheikh’s home.
t.The Tribunal put to the applicant that his Marriage Certificate records his marriage as June 2020. He responded that he thinks this is the correct date.
u.The applicant’s Iraqi friends did not attend the applicant’s wedding but they know he is married with a daughter. The applicant’s family watched the applicant’s wedding on-line through the Internet. The couple later held a wedding ceremony at the applicant’s wife’s family’s home in Tasmania
v.The applicant is Muslim and sometimes attends [a mosque] in Sydney.
w.The applicant’s wife is Christian. It is no problem for him to have a Christian wife. His family have accepted her. He does not expect his wife to adopt the Muslim religion. It is not a condition. They are not raising their daughter as any particular religion. It will be a matter for her which religion she chooses.
x.The applicant and his wife have lived together in Sydney since 2018. He is not sure when in 2018 but it may have been October. Their relationship started after they had been texting each other. The applicant decided he wanted to have children. They started living together after their relationship started.
y.The applicant met his wife at a club. He thinks it was [Business 1] on [Street 1]. He would go there on Saturdays to have fun. He was there with his friend [Mr E] who is a married man. They went there to have fun and dance. They did not dance together. His wife was also at the club to have fun. She was there with a male friend. She saw the applicant and said ‘hi’ and liked him. The applicant did not speak very good English. He tried to communicate with her through signs and text. They spent about two hours together at the club and danced together.
z.His wife saw that the applicant cared for her. They texted for a while. After about one week they saw each other again. The applicant went to her house. It was Valentine’s Day and he took a flower to her. She has kept the flower. He stayed for about one hour with her then left.
aa.Their relationship grew closer.
bb.His wife has been previously married. The applicant does not know who she was married to or when or how long she was married for. He does not know why the marriage ended. His wife’s ex-husband was an Australian citizen. The applicant does not interfere in his wife’s past. She was single when he married her and that’s it.
cc.The applicant’s wife knows about the applicant’s past. She knows why the applicant’s previous marriage did not last. The applicant was honest and told her everything. He told her that he and his previous wife did not have mutual agreement between them. He told her that one person being gay would be the reason for separation. The person being gay was himself. His wife did not ask him anything more about this.
dd.The applicant told his current wife that when he was first married he was gay. It has been more than eight years since he separated from his first wife. This was in 2015.
ee.The applicant did not tell his current wife anything else about being gay. She has gay friends and knows about these things. She asked if the applicant was gay and he said yes. This was after their relationship started. He told her he could change. He told her it was a long time ago and it was in the past. He does not think that his wife believes the applicant is gay. She does not check with him about whether or not he wants to have sex with men because she knows him too well and that it will never happen.
ff.The Tribunal asked the applicant about his views on homosexuality. He responded that every person has a different nature and for him homosexuality is not a good thing. It is not a good thing because he has a wife and child and he doesn’t think about those things. He has no interest in gay culture. If his daughter is gay, it’s her life and he would respect her.
The following is a summary of the information provided by the applicant’s wife, [Ms B], at the hearing:
a.She first met the applicant in January 2018 at a gay bar called [Business 2] on [Street 1]. It was the 12^th of January, a Friday. The applicant was with a friend [Mr E] or [Mr F]. She was with a friend [Mr G]. They had been at work drinks and then went to [Business 2] because [Mr G] is gay.
b.She met the applicant on the edge of the dance floor and got talking to him and his friend. Over the next few hours they danced and talked and swapped numbers.
c.After that they messaged and met up a couple of times. She had thought that his friend was his boyfriend.
d.They have been living together since the beginning of 2019, after about a year, when their relationship became more serious.
e.After they first met at the club they next saw each other in the middle of February. It was Valentine’s Day and he brought her flowers to her home. They kissed and cuddled. She was confused and his English was not good. She thought he was attracted to men at the time. She thought he was gay. She asked the applicant if [Mr E] was his boyfriend and the applicant said [Mr E] wasn’t. She asked the applicant if he was interested in men and he said he had sex with other men. She didn’t ask him anything more. They discussed visas and she went to see his lawyer with him.
f.She is aware that the applicant came to Australia and married here, and that he had relations with men and women. He told her he had been gay and in a long relationship in the past. She knows he was married to an Iraqi woman in Australia. Things hadn’t gone well and they broke up. He did not tell her why things did not go well. She knows that the police were involved in an incident and that his ex-wife lied about things.
g.The applicant is kind and family orientated so she is not concerned about him wanting to have sex with men. She has not asked him about this directly. Their relationship is very close and they are married, she does not feel insecure about him.
h.She is not sure if the applicant has any gay friends. His friends are Iraqis and they do things together in the western suburbs. That is his social group.
i.They married in June 2020 in an Islamic ceremony. They signed a marriage contract then. The applicant is quite religious and the celebrant was someone he knew. She belongs to the Church of England but is not a practicing Christian. She has not converted to Islam but is interested in the religion from a learning perspective. They are raising their daughter to understand Islam and to have a choice about religion.
j.She has met the applicant’s family over the Internet and through telephone calls. They are all in Iraq. She often communicates with the applicant’s sister using Google Translate.
k.It is very important to her that they remain a family unit. She would not be comfortable about relocating to Iraq. She prefers to be in Australia.
l.She works full time and the applicant attends TAFE. He is the primary carer of their daughter.
m.She doesn’t think it is possible that the applicant has not been gay as his characteristics are slightly effeminate but this could also be cultural.
The applicant’s representative submitted that there may be a risk of harm to the applicant in Iraq because he was suspected to be gay, and that contrary to his earlier submission, the applicant’s protection claims should be positively assessed.
Country Information
DFAT’s most recent ‘Country Information Report on Iraq, published on 17 August 2020, contains the following:
Sexual Orientation and Gender Identity
The Constitution and law do not extend anti-discrimination protections to lesbian, gay, bisexual,
transgender and/or intersex (LGBTI) individuals based on their sexual orientation or gender identity. While the law does not criminalise consensual same-sex sexual conduct between adults, Article 394 of the Criminal Code prohibits sexual relations outside marriage, thus effectively criminalising all same-sex sexual activity given there is no provision for same-sex marriage. Authorities have used public indecency or prostitution charges to prosecute cases of consensual same-sex sexual activity (these charges are also used to prosecute heterosexual persons involved in sexual relations with anyone other than their spouse).
In addition to legal constraints, local and international groups report there is little to no societal
understanding or acceptance in any part of Iraq towards consenting adults who consciously embrace same sex attraction or alternative gender identity as a key part of their personal identity. Individuals perceived to be LGBTI often face abuse and violence from within their families and communities and may face denial of services, including health care. LGBTI individuals often do not report abuse for fear of further victimisation or acts of discrimination or violence that may result from them admitting their sexuality or gender orientation.
… According to NGOs, Iraqis who experienced severe discrimination, torture, physical injury, and the threat of death on the basis of real or perceived sexual orientation, gender identity and expression, and sex characteristics have no recourse to challenge those actions via courts or other state protection agencies.
A number of perceived gay men or transgender individuals were murdered during the Da’esh
occupation, including through being thrown from buildings. Human rights organisations report armed gangs in both Shi’a and Sunni areas have harassed and attacked LGBTI individuals, particularly men perceived to be effeminate. In 2017, a prominent actor was abducted, stabbed and tortured to death, reportedly for ‘looking effeminate’. According to in-country sources, Shi’a militias would kill any openly LGBTI individual residing in their area.
Human rights observers reported that in May 2019, the Kirkuk police ordered its officers to prevent
youth from wearing skinny jeans in public places, to arrest violators, and to monitor and observe cases of what it called ‘youth effeminacy’. In August 2019, Anbar police arrested numerous youth wearing skinny jeans in public places, then began to arrest those who objected to the security decision on social media platforms, including an activist who was placed in Al-Khalidiya prison.
… In-country and media sources report a relatively more open environment for LGBTI individuals in the KRI. In April 2018, authorities granted permission for a local group to put up murals in Sulaymaniyah designed to raise awareness of the rights of LGBTI individuals and encourage societal dialogue. However, a KRI-based human rights NGO director reportedly told international human rights observers that members of his staff refused to advocate for LGBTI human rights based on their misperception that LGBTI individuals were mentally ill. Informal organisations reportedly occasionally hold meetings elsewhere in Iraq, outside the KRI, to enable LGBTI individuals to interact, although such meetings are deeply clandestine.
When the EU Mission to Iraq raised a rainbow flag in its compound (co-located with the UK Embassy) in May 2020, accompanied by a tweet (supported by the UK and Canada) to mark International Day Against Homophobia, Biphobia, Intersexism and Transphobia, Iraq’s Ministry of Foreign Affairs (MOFA) protested strongly. Following considerable public backlash and the MOFA statement, the tweet was removed from social media. According to an Iraqi LGBTI NGO, an uptick in violence against the community followed the incident, with nine LGBTI people killed in just two months. DFAT assesses LGBTI individuals face a high risk of official discrimination in the form of arrest, and a high risk of societal discrimination that is highly likely to include violence or the threat of violence. This risk may be lower in some parts of the KRI.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant submitted his Iraqi passport. On the basis of this document and the applicant’s oral evidence the Tribunal is satisfied he is a citizen of Iraq. The Tribunal assesses the applicant’s claims against Iraq as his country of nationality and receiving country.
Credibility
The applicant claims he was gay in Iraq and only interested in men there. He claims that when he came to Australia and married his first wife he still identified as a gay man and was not sexually comfortable with women. He claims he continued to identify as gay when he first met his current wife and started a relationship with her. He claims he now identifies as heterosexual and does not believe he will be gay again.
The applicant also stated at hearing that he had no fears in Iraq or about returning to Iraq, apart from not wanting to his family to be separated. He stated because he was married with a child there would not be any suspicions against him that he was homosexual.
Apart from this the applicant was highly reluctant during his Tribunal hearing to speak about having been gay in the past. The applicant’s agent submitted that this was because it was difficult for the applicant to speak about such things. While the Tribunal acknowledges that the applicant may have personal and cultural inhibitions speaking about homosexuality this does not explain why he could provide so little detail about his claimed past in terms of claimed facts and events. He also seemed to view homosexuality with a dismissive dislike or negativity which was not supportive of his claims to have had meaningful gay experiences. He was unable to provide any information about why he would view homosexuality negatively now, despite claiming to have been gay for most of his adulthood. He merely repeated it was not for him because he is now married with a child. While this is a reason to no longer consider himself gay it does not readily explain an antipathy to homosexuality. The applicant recounted problems and difficulties with his first wife so that the relationship ended acrimoniously, however he did not indicate similar difficulties, beyond ‘family problems,’ with either of his claimed gay relationships. At his Tribunal hearing he provided very little information at all about his claimed gay past.

The Tribunal found the applicant’s evidence that he was gay in the past and had two gay relationships, one in Iraq and one in Australia lacking in detail and confused. At his Tribunal hearing he claimed not to remember most significant details about his past claimed relationships or his past as a gay man. Regarding his claimed relationship in Iraq he could not recall to the Tribunal when the relationship started or how long it lasted. He also gave varying evidence about how the relationship ended. Similarly regarding his claimed gay relationship in Australia the applicant gave varying evidence about how long the relationship lasted and could not recall to the Tribunal when the relationship occurred.
The applicant’s wife gave evidence that she believes the applicant was gay when she met him. She claimed to base this belief on meeting him at a bar that is frequented by both homosexuals and heterosexuals, what she described as his slightly effeminate characteristics, and his statement to her that he is or was gay. She agreed that her view of his slightly effeminate characteristics could also be a cultural aspect, not necessarily due to the applicant’s sexuality. According to the evidence from both of them, the applicant actively pursued romantic engagement with [Ms B] from the time of first meeting her yet also confirmed to her he was gay. While the Tribunal accepts that sexuality can be fluid and that relationships progress in various ways, the nature of the conversations recounted by the applicant and his wife appeared very brief and vague. There was also some confusion as to what was said and each party’s reactions indicating a possible lack of genuine recall. While the Tribunal would be reluctant to find, without any other basis, that the evidence of the conversations was not credible, when looked at in the context of the overall poor quality of the applicant’s evidence that he was gay the Tribunal is not satisfied that the conversations took place, or if they did, that they were based upon genuine statements from the applicant. If the applicant’s wife does believe the applicant was gay in the past then the Tribunal does not consider there is a sound basis for her belief.
The applicant has been married to women twice in Australia. He remains married to his current wife. She gave evidence that she has no concerns about the applicant wanting to have sex with men. The applicant also stated emphatically that he is heterosexual and would not be gay in the future.
The evidence before the Tribunal strongly suggests that the applicant is and has always been heterosexual. His claims to have been gay in the past have been weakly presented with the applicant unable to substantiate these claims in any meaningful sense. For these reasons the Tribunal does not accept the applicant was gay in the past or that he has had any gay relationships.
Even if the Tribunal is wrong about the applicant’s past sexuality the Tribunal accepts the applicant’s current evidence that he identifies as heterosexual and does not fear any harm in Iraq.
The Tribunal notes the applicant expressed a belief that there was a possibility that others may have suspected he was gay in Iraq in the past, however he had no actual knowledge that this was so. If there were such suspicions the Tribunal accepts that the applicant’s return to Iraq as a married man with a child would effectively dispel the past suspicions. As stated by the applicant, even if people in Iraq did suspect he was gay while he lived there, they no longer would because of his marriage and daughter. Therefore even if the applicant was gay in the past and this was suspected in Iraq it no longer gives rise to a chance of harm to the applicant in the reasonably foreseeable future, due to his identification now as heterosexual, his marital status, and his child.
Given the above findings the Tribunal is not satisfied on the evidence before it that there is any real chance that the applicant would face serious or significant harm in Iraq as a gay man, or an imputed homosexual.
The applicant is married to a non-Muslim woman who is a non-practicing Christian. They both gave evidence that their families are supportive of their marriage. The applicant also stated it is not a problem that his wife is not Muslim. The applicant has not raised any claim to fear harm in Iraq as a Muslim man married to a Christian woman. The Tribunal was also unable to locate any clearly relevant country information on the situation for people with inter-faith, Muslim-Christian, marriage in Iraq. The Tribunal notes the applicant’s and his wife’s evidence that his family know of the marriage and relations between them are open and supportive. The Tribunal is therefore not satisfied on the information before it that there is a real chance of serious or significant harm to the applicant in Iraq as a Muslim man married to a Christian woman.
The applicant has not raised any other claim to fear serious or significant harm in Iraq and none arises on the information before the Tribunal. There is no indication he will face serious harm in Iraq for a reason in the refugee definition. There is also no indication he will face torture, arbitrary killing, the death penalty, or cruel, degrading, or inhuman treatment or punishment in Iraq.
The Tribunal is therefore not satisfied on the information before it that the applicant has a well-founded fear of persecution in Iraq, or that there is a real risk he will suffer significant harm on return to Iraq.
CONCLUDING PARAGRAPHS
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).
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).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
Section 417 Request
The applicant’s agent has requested the Tribunal consider referring the applicant’s matter to the Department for consideration by the Minister pursuant to s.417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.
The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers (s.351, s.417 and s.501J)’ and will refer the matter to the Department, for the following reason.
Given the applicant has married an Australian citizen and has an Australian citizen child, his matter may involve unique or exceptional circumstances in that:
-     Circumstances exist that may bring Australia's obligations as a signatory to the Convention on the Rights of the Child (CROC) into consideration under Article 3.
-     Circumstances exist that may bring Australia’s obligations as a signatory to the International Covenant on Civil and Political Rights (ICCPR) into consideration under Article 23.1
-     Strong compassionate circumstances exist such that a failure to recognise them may result in irreparable harm and continuing hardship to an Australian citizen or an Australian family unit (where at least one member of the family is an Australian citizen or Australian permanent resident).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Melissa McAdam
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 2287

11 May 2022

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