1726639 (Refugee)
1726639 (Refugee) [2023] AATA 727 (9 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Baker Al Musawi (MARN: 0601647)
CASE NUMBER: 1726639
COUNTRY OF REFERENCE: Iraq
MEMBER:Shahyar Roushan
DATE:9 January 2023
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 09 January 2023 at 1:26pm
CATCHWORDS
REFUGEE – protection visa – Iraq – particular social group – single, divorced women without male protection – women perceived to transgress moral codes – independence discouraged by conservative family members – academic career – consent of a male relative required for travel – pressured to accept arranged marriage to protect family’s honour – risk of honour killing – high risk of gender-based violence – risk of physical abuse, harassment and discrimination – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2Any 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
BACKGROUND
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 24 October 2017 to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of Iraq and a Shi’a Muslim. She was born in Al-Kadhimiya, Baghdad, in [year]. Her mother, [and siblings] reside in Iraq. Her father and one of her brothers are deceased.
After finishing high school, the applicant completed [Qualification 1], followed by [Qualification 2] at [University 1]. The applicant worked as a [employee] at the same college and after obtaining [Qualification 2] in 2001, she was employed as a lecturer.
The applicant married [Mr A] [in] June 2009 and [in] June 2009, she arrived in Australia on a [temporary] visa sponsored by the Iraqi government to undertake [Qualification 3] at [University 2]. [Mr A] arrived in Australia approximately six months later and subsequently lodged a successful application for a Protection visa. The applicant was not included in that application as a dependant.
[In] December 2015, the applicant travelled to Iraq, where she remained for approximately three weeks. During her stay, she initiated divorce proceedings against [Mr A]. They were divorced in February 2016. In July 2017, the applicant completed [Qualification 3].
On 2 May 2016, the applicant lodged an application for a Protection visa.
Protection claims
Protection visa application
In a Statement of Claims attached to her Protection visa application and dated 1 May 2016, the applicant made the following claims.
Before she travelled to Australia in 2009, she worked as a lecturer at [University 1]. As a university lecturer, she was subjected to ‘serious and significant harm’ and a number of her colleagues were murdered.
In pursuing her education and career, she was supported and protected by her father. However, following her father’s death in 2007, her brothers began to exert control over her. She was denied her ‘liberty’ and was not allowed ‘to go and do anything’ without their approval.
When she succeeded in winning a scholarship to undertake [Qualification 3] in Australia, she had to seek permission from her brothers. They rejected the idea, ‘threatened’ her and told her that she should not even be permitted to work anymore. One of her brothers was also influenced by his wife, who did not like her (the applicant) because she is a ‘well-educated woman’. The applicant was told that she could not go overseas, particularly because she was not yet married. Her sister-in-law appealed to tribal customs and traditions to convince her husband that the applicant was ‘doing wrong things’ which would bring ‘shame’ upon him. Her sister-in-law also told the applicant’s brother that by going to a Western country and living a free life, the applicant would tarnish the reputation and the honour of the family.
The applicant was aware that as a single woman and as long as she remained under the control of her brother, she would be unable to study abroad. As she was determined to pursue her studies, she accepted her girlfriend’s suggestion to marry the latter’s brother. Her girlfriend’s brother was nine years younger than her and less educated. Despite the limitations that marriage posed to her freedom, she saw this as the only pathway for her to pursue her goals and escape her brothers’ control.
After obtaining her family’s approval, she married [Mr A] [in] June 2009. [Mr A] agreed to her travelling to Australia with the intention of following her soon after.
When she disclosed this plan to her brother, he ‘got crazy and his face was so angry’ as he did not want her to travel to Australia by herself. [Mr A], however, told her brother that as she was now his wife, it was [Mr A]’s responsibility to give permission as to whether or not she could travel. [Mr A] continued to support her and facilitated her travel to Australia some [number] days after they were married. [Mr A] arrived in Australia six months later and subsequently applied for a Protection visa based on his own circumstances and past association with Iraqi armed forces. The applicant did not want to be included in [Mr A]’s application for a Protection visa as she wished to fulfil her sponsorship obligations towards the Iraqi government first before returning to Australia through the migration program.
Due to their ‘personal circumstances’, the applicant and [Mr A] decided to end their marriage after six years and 6 months. [In] December 2015, the applicant travelled to Iraq in order to finalise her divorce application. The divorce was finalised [in] December 2015.
The applicant could not hide this from her family and when she disclosed to them that she and [Mr A] were divorced, they ‘turned’ on her and treated her as though she had ‘committed a crime’. Her brother was ‘very angry and threatened to murder [her]’ if she left home. She was ‘insulted, mistreated, degraded and threatened’ by her brother. He also warned her not to return to Australia. He threatened to lock her up in the house and to never let her out unless accompanied by him or someone else. Her sister-in-law suggested that the applicant should marry her (the sister-in-law’s) brother, who already had two wives and was a leader in the [named] militia. The applicant immediately refused, making it clear that she was not interested in marriage and wanted to focus on her studies. Her sister-in-law mocked her and implied that she would not be allowed to return to Australia. Upon learning that she had refused the marriage, her brother became angry and ‘forcibly asked’ her to accept the proposal. This was due to the fact that her brother was fearful of his wife’s brother and the marriage would have shielded the family from attracting more shame.
The applicant was advised by her sister to pretend to accept the proposal in order to placate her brother. She did so but decided to escape ‘this miserable family and community’ and eventually fled Iraq [in] January 2016 and returned to Australia.
In support of her application, the applicant submitted a copy of a marriage certificate issued by the Supreme Court in Iraq, dated [in] June 2009; and a copy of a divorce order issued by the Supreme Judicial Council of Iraq, dated [in] February 2016.
The interview
The applicant attended an interview with the Department on 28 September 2017. The interview was conducted with the assistance of an interpreter in the Arabic and English languages. The applicant’s representative attended the interview. Where relevant, the applicant’s oral evidence at the interview is referred to in the Tribunal’s analysis below.
The delegate’s decision
On 24 October 2017, a delegate of the Minister refused the applicant’s Protection visa application. The delegate accepted that the applicant is Shi'a and that she had been employed at a university in administration and academic roles since 1994. He also accepted that the applicant married [Mr A] before travelling to Australia and that they are now divorced. The delegate further accepted that she has resided in a Western country and may be perceived to be an academic in Iraq. However, the delegate did not accept that the applicant does not have family support, nor that her brothers and sister-in-law bear ill-will towards her and are attempting to force her to marry a Shi'a militia leader. The delegate based these conclusions on the fact that the applicant was unmarried until [her thirties], two of her sisters are still unmarried, she had travelled to Australia on her own, other members of her family are well-educated and there is insufficient evidence to demonstrate that her brothers are controlling or conservative. The delegate also took the view that the applicant would not be seen or identified as a Westernised woman because she would continue to wear her head covering and that she would not be targeted as an academic.
The delegate was not satisfied that the applicant is a refugee, as defined by s 5H(1) of the Act or that there is a real risk of the applicant facing significant harm in Iraq, as defined in s 36(2A).
Review application
The applicant applied for a review of the delegate’s decision. She was represented by her migration agent, Mr Baker Al Musawi, in connection with the review.
Pre-hearing submissions
In a submission dated 31 August 2022, Mr Al Musawi repeated the key claims made by the applicant in her statement of 1 May 2016. Mr Al Musawi expressed disagreement with the delegate’s findings and outlined the following comments by the applicant in response to the concerns raised by the delegate in his decision record.
The care provided by my brothers to my mother and sisters, is based on cultural and social aspect in the community, in addition to the legitimate privileges. The brother takes the role of the head of the family substituting the father’s absence.
I have stated in the interview that the family’s property is a building consists of the apartment on the first level and shops on the ground level where my brothers run their businesses. This fact made them spend most of the time with us at the family place, besides that their own places are very close to the family place.
Al-Kadhimiya is distinguished by its religious and cultural environment where militias are widely spread. Residents are conversative; they abide by tribal, traditional, and strict religious rules. My tribe is one of the oldest in the area. Men (father or older brother) master the females’ affairs until they get married where then the husband holds this role.
Accordingly, after my marriage, my husband became legally and legitimately responsible for my personal affairs even though he was younger than me. Islamic practices are strictly followed on unmarried or divorced females, which include male’s guardianship (or mastering) that is in practice, passed onto the brothers after the father’s departure…
As explained above that since I was under a husband’s guardianship, there was no issue for me to travel with my then husband’s consent other than getting my brothers’ approval. I assume the delegate lacked better information about my religious and cultural aspects which requires accurate understanding and comprehension, not misinterpreting…
I did not have any fear from my family while I was married. On the other hand, my family respects the fact that being married I was under my then husband’s guardianship and they did not have any issue with me in respect to the religion and tradition.
It is well documented that divorced women are normally perceived as immoral or indecent, in particular if they lived or grew up abroad. The community and family’s perceptions are that divorced woman can easily commit sins including but not limited to adultery, since she is not virgin anymore.
My marriage was a strong evidence of my family’s conservative views that I cannot be abroad unless I am married. Yet after being in marriage experience and being fully mature woman, I believed my divorce would be tolerated. However, I was pressured under continues strict perception of divorced woman.
I had been under psychological violence from my family for my rejection to marry my sister in law’s brother (militia leader). The pressure on me did not leave any space for my dignity and liberty to decide. They all were of view of if that I committed or will commit wrongdoing. I was looked at as a mass of sins and to purify me is through forcingly getting married to their man of choice. Otherwise, I would be seriously harmed on the brothers’ hand. I seriously suffered significantly and developed phobia and depression…
Although I agree with [the delegate’s] finding that I cannot remarry for three months following the divorce, his assumption was based on the fact that I would return to Australia after that proposed marriage. However, the fact that forcing me to marry him does not necessarily [have] to be within the specific three months and by the end of the day I would not be consented to go back to Australia. The proposed husband could be anyone, but I was credible in stating that he was militia not to show grave danger from him as the danger exist from my own family.
I have escaped the country to come back to Australia; whereas my family sees me as I have breached religious principles, tradition, cultural and moral aspects. I left with no guardian which is considered insult to my brothers’ fame and dignity and that is with no doubt not tolerated and punishable by honour killing…
[Guardianship] is transferred to the husband for the [travel] purpose and [has] nothing to do with my brothers. My marriage to my ex-husband is strong evidence of the fact that I was not permitted to travel unless I was married. I got married to a younger husband whom I loved and developed good relationship with and that was broken up by medical difficulties in having children.
If the purpose of the marriage was for my ex-husband’s convenience, I would choose to be part of his protection application as dependent wife and by now, I would be an Australian citizen. However, I internally was honest and credible in every minute of my life, and I was not in a position to provide false or misleading information. This is also my comment for the delegate findings of delay in applying and not included in ex-husband’s application.
In support of the submission, the Tribunal also received medical evidence, indicating that the applicant was experiencing serious gynaecological issues in around October 2015, requiring hospital admission.
The hearing
The applicant appeared before the Tribunal on 14 September 2022. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. Mr Al Musawi attended the hearing by video. Where relevant, the applicant’s oral evidence to the Tribunal is referred to below.
Post-hearing submissions
Following the hearing, the Tribunal received a statutory declaration by [Mr A] deposed on 28 September 2022. In his statutory declaration, [Mr A] provided the following information.
He and the applicant got married [in] June 2009. He sincerely loved her and supported her ‘against the traditional treatment from her brothers’. Once she ‘legitimately’ fell under his ‘guardianship’, she was able to travel to Australia to commence her studies.
He followed her to Australia six months later, and they commenced their spousal relationship. Their relationship was genuine, and they lived together. He supported her during her studies, and she was a ‘lovely wife’ who provided him with ‘respect and understanding’.
Their plan was for her to return to Iraq following the completion of her studies ‘for employment and financial assurance commitments’. He, on the other hand, successfully applied for a Protection visa. The applicant did not want to be included as his dependant on that application because she ‘was so honest to not provide misleading information as she had the intention to return to Iraq’ and then apply for a partner visa.
However, due to medical reasons after six years of marriage the applicant could not get pregnant and even though they loved each other, she suggested that it would be wise for them to get a divorce so that he could get married again and have children in line with cultural expectations. She was ‘so compassionate and scarifying to reach this understanding’ and he genuinely appreciates it. As they lived a life isolated from the rest of the community, they had assumed that it would be necessary for her to travel to Iraq to finalise the divorce. In Iraq, the information about the divorce was ‘leaked’ to the applicant’s brothers, causing her hardship. He could not intervene as he had no say after they were divorced. He felt ‘so sorry and concerned for her safety’. He hails from the same area as the applicant and understands the influence of ‘religion, tradition, and extremism on people against women in general, and on [the applicant] being a well-educated woman and yet was mistreated or harmed.’ The applicant would be subjected to harm if she were to return to Iraq.
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. 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.
Having carefully considered the whole of the applicant’s evidence, the Tribunal found the applicant to have provided her claims throughout the process, whether orally or in the course of written submissions, in a consistent and coherent manner. The Tribunal does not share the delegate’s concerns regarding the applicant’s credibility. In contrast, the Tribunal found the applicant to be a believable witness who has attempted to provide a truthful account of her claims. Whilst the Tribunal formed the view that the applicant may have exaggerated aspects of her claims, it is neither uncommon nor surprising that applicants seeking protection may attempt to do so. The Tribunal did not draw any adverse credibility findings on that basis.
The Tribunal accepts that the applicant is a Shi’a Muslim and that she resided in the predominantly Shi’a area of Al-Kadhimiya in Baghdad. The Tribunal accepts that the applicant is highly educated, having obtained [Qualification 1], followed by [Qualification 2] from [University 1] and [Qualification 3] from [University 2]. The Tribunal accepts that the applicant was initially employed in an administrative role at [University 1] and that after completing [Qualification 2] in 2001 she was offered a teaching [position].
The Tribunal accepts the applicant’s evidence that it was due to her father’s support and protection that she was able to pursue her education and career as an academic. The Tribunal further accepts that following the death of her father, the applicant and her unmarried sisters came under the protection of their brothers, [named]. The Tribunal accepts the applicant’s evidence that her brothers harboured conservative views and adhered to traditional values. The Tribunal accepts that her older [brother] and his wife were particularly controlling. For example, whilst the applicant’s father was respectful of her wishes, after his death her brothers forced her to wear a head scarf to cover her hair. The Tribunal accepts that the applicant’s brothers were more controlling towards her because of her high level of education and career aspirations.
The Tribunal accepts the applicant’s evidence in relation to the circumstances of her marriage to [Mr A] and their subsequent divorce. Whilst the marriage could be seen as a marriage of convenience because it enabled both parties to achieve certain personal objectives, it does not mean that the marriage was not genuine. Indeed, this is evidenced by the applicant’s testimony, the contents of [Mr A]’s statutory declaration and the entries in the medical reports submitted by the applicant in support of the application for review.
The Tribunal accepts that the applicant was permitted to travel to Australia to pursue [Qualification 3] only after she was married to [Mr A]. According to the country information before the Tribunal, a married Iraqi woman requires the consent of her husband to obtain a passport and travel, whereas single Iraqi women are required to have confirmation from a close male relative (guardian).[1] The Tribunal accepts that the applicant and [Mr A] were divorced in December 2015.
[1] See Report Iraq: Travel documents and other identity documents Report Iraq: Travel documents and other identity documents, Landinfo, 23 January 2014, A subsequent report by Landinfo, published in December 2015, stated that ‘Women over the age of 18 no longer need confirmation from their guardian or husband in order to be issued a passport’ (Report Iraq: Travel documents and other identity documents Report Iraq: Travel documents and other identity documents, Landinfo, 16 December 2015, However, the European Union Agency for Asylum (citing US Department of State) reported in 2022 that ‘the right to freedom of movement is legally restricted for women in Iraq, since they need consent of a male relative to obtain a passport and the Civil Status Identification Document, which is required to access education, employment, healthcare, housing and food assistance (EUAA, Iraq - Targeting of Individuals, Country of Origin Information Report, January 2022,
The Tribunal questioned the applicant at the hearing as to why she felt the need to travel back to Iraq in order to finalise her divorce from [Mr A]. Whilst the Tribunal has some reservations in relation to the applicant’s explanations that she did not know that she could divorce [Mr A] in Australia as she did not know the ‘procedure’, the Tribunal is prepared to accept that she had acted according to her understanding of what she was required to do in order to finalise her divorce.
The Tribunal accepts that upon learning about her divorce, members of her family, particularly her brothers and a sister-in-law, subjected the applicant to persistent abuse and placed pressure on her to marry her sister-in-law’s brother in order to protect the family’s honour. The Tribunal accepts that in order to escape her predicament and avoid the risk of further harm, the applicant managed to escape and returned to Australia.
The Tribunal accepts that the applicant is currently a single, divorced woman. The Tribunal accepts her evidence at the hearing that she is no longer in contact with any member of her immediate family, including her elderly mother and her sisters to shield them from ‘trouble’ and to protect herself from being subjected to hurtful criticism. The Tribunal accepts that the applicant’s conduct in refusing to yield to the authority of her brothers following her divorce, refusing to enter into an arranged marriage and her status as a divorced woman living in Australia alone is perceived to be shameful by members of her family, as well as the broader community in Iraq. The Tribunal finds that if the applicant were to return to Iraq, not only would she be denied protection by male members of her family, but she would also be at risk of harm by the same family members. The Tribunal further finds that the applicant would not be able to reside with other family members in Iraq.
In her evidence, the applicant repeatedly referred to her brothers’ perception that she has brought shame upon the family and has tarnished their honour. Article 409 of the Iraqi Penal Code permits ‘honour’ as mitigation for crimes of violence against family members. ‘Honour-killing’ traditionally refers to the murder of a woman by a male member of her family in order to clean the family’s or tribe’s honour from the ‘shameful’ act the woman committed by losing her virginity and having an extramarital relationship. However, this could also extend to include refusing an arranged marriage, seeking divorce, expressing sexual orientation or gender identity, and being a victim of rape.[2]
[2] EUAA, Iraq - Targeting of Individuals, Country of Origin Information Report, January 2022, >
More generally, the sources consulted by the Tribunal paint a grim picture of the situation of women in Iraq. In August 2020, DFAT assessed:
the majority of Iraqi women, regardless of ethnicity or socio-economic status, face a high risk of official discrimination and a high risk of societal discrimination. Long-standing traditional values and gender roles continue to restrict significantly the participation of women in the community and workforce, in both the public and private sectors. DFAT assesses Iraqi women and girls face a high risk of gender-based violence, including sexual assault and domestic violence...[3]
[3] DFAT, DFAT Country Information Report - Iraq, 17 August 2020.
In June 2022, the European Union Agency for Asylum (EUAA) reported that:
Women in Iraq continue to face violence, socio-economic restrictions and discriminatory practices, as a result of traditional stereotypes, patriarchal norms, discriminatory laws as well as weakness of state institutions.[4]
[4] EUAA, Country Guidance: Iraq, Common analysis and guidance note, June 2022,
Single or divorced women without male protection in Iraq appear to be particularly vulnerable and at risk of physical abuse, harassment and discrimination. In an earlier separate report, EUAA noted that divorced women in Iraq continue to face discrimination and stigma.[5] In a Research Report commissioned by the UN Women Iraq Office, Valeria Vilardo and Sara Bittar observed:
The situation for Iraqi women, despite the government of Iraq’s best efforts to address gender inequality, has declined steadily since 2003. Iraqi women comprise half of the total population and are heads of one in 10 Iraqi households—80 percent of these female heads of households are widows, divorced, separated, or caring for sick spouses. They represent one of the most vulnerable segments of the population…[6]
[5] EUAA, n2, above.
[6] Vilardo, V, Bittar, S, Gender Profile – Iraq: A situation analysis on gender equality and women’s empowerment in Iraq, Oxfam International, December 2018.
The Tribunal has accepted that the applicant is highly educated and that until 2009, she was employed as a lecturer at [University 1]. In view of her long absence, there is no certainty that the applicant will be able to secure employment and a regular income should she return to Iraq. A May 2012 report from the Centre for Gender Studies at SOAS University of London, which discussed the situation of female academics in Iraq, suggested that societal and cultural expectations may have an adverse impact on the ability of educated women to live independently in Iraq.[7] Vilardo and Bittar have also noted the ‘huge difference’ in the way the economic activities of a widow and those of a divorced woman are perceived, stating: ‘even if women in both situations work out of need, the latter is often criticized for working outside her home.’[8] In November 2019, Priyanka Boghani reported:
Around 85 percent of women age 15 and up, don’t participate in Iraq’s labor force, putting them at higher risk of falling into poverty — though they may take part in the informal economy doing work like sewing or handicrafts… Women who do have formal jobs face harassment and intimidation in the workplace…[9]
[7] Al-Ali, N, Al-Jeboury, I, Al-Enezy, I and Al-Dujaili, H, 'Female Iraqi Academics In Post-Invasion Iraq: Roles, Challenges & Capacities', Centre for Gender Studies - SOAS University of London, 8 May 2012, pp.13 and 15, 20190320141206.
[8] Vilardo and Bittar, n6, above.
[9] Boghani, P, How Conflict in Iraq Has Made Women and Girls More Vulnerable, Frontline, 12 November 2019, >
Whilst the applicant’s level of education and her employment history may indicate that, compared to other Iraqi women, she would be in a relatively strong position to find employment, this does not mean that any level of self-sufficiency gained would protect or shield her against the types of harm single, divorced women without male protection in Iraq may be exposed to. Even if the Tribunal were to accept that the applicant would be able to find employment in Iraq, the country information before it casts serious doubt on her ability to reside alone. The sources consulted suggest that it may be possible for an educated woman with an income to reside on her own. However, this possibility appears to be restricted and conditional on a number of other factors. According to EUAA:
Although it is possible for an educated woman with an income to live in a city on her own, ‘as long as she does not have an honour conflict with her family’, in practice the possibility for single women to live on their own has been reduced due to deteriorating societal restrictions and financial situation in the country. A study conducted by Oxfam in the governorates of Kirkuk and Diyala between November 2020 and January 2021 found that widows and divorced women face particular challenges, and that women who ask for divorce are particularly stigmatised for stepping outside of their traditional roles as wives and mothers.[10] (Emphasis added.)
[10] EUAA, n2, above.
In the June 2022 report, EUAA again noted that:
Living alone as a woman is not generally accepted in Iraq because it is considered inappropriate behaviour. Women living on their own will often encounter negative attitudes from society and are at a particularly high risk of violence. Women in female-headed households, divorced women and widows are in a vulnerable position economically and in terms of exposure to harassment, and have difficulty finding employment, especially if they lack the protection of a male relative and necessary connections to find employment and sustain dependent children. Women experience economic discrimination in access to employment, credit and pay equality. It is difficult for a single person to rent housing in Iraq because Iraqi society does not accept single people living alone or with non-relative families, particularly women. Women who have been repudiated by their family and lack a social support network, are considerably worse off.[11] (emphasis added)
[11] EUAA, n4, above.
The Finnish Immigration Service reported in May 2018:
The community-based culture in Iraq has a major influence on the individual’s situation. Men have the main responsibility for their families and family honour, and most women are dependent on men for cultural reasons. Although there has been some change in attitudes, women’s lives are restricted by cultural norms. Women also face discrimination in the labour market and education. Women who violate these cultural norms can become victims of so-called honour violence.
Living alone is not generally accepted in Iraq because it is considered inappropriate behaviour. Women can also face other legal infringements. In practice, a single woman has very poor chances of making a living independently.[12] (Emphasis added.)
[12] 'Overview of the status of women living without a safety net in Iraq', Finnish Immigration Service, 22 May 2018,
The Tribunal has found that the applicant is a single, divorced woman, who is perceived to have brought shame upon her family. The Tribunal has also found that the applicant will be without male protection in Iraq and at risk of harm by male members of her family. The Tribunal has further found that the applicant would be unable to reside independently on her own without placing herself at risk of significant physical harassment, discrimination and ill-treatment.
For the above reasons, the Tribunal finds that if the applicant were to return to Iraq, there is a real chance that she would face significant physical harassment and significant ill-treatment at the hands of members of her own family as well as the general public. The Tribunal is satisfied that such treatment would amount to serious harm under s 5J(4)(b) of the Act. 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 Iraq. The Tribunal is satisfied that the essential and significant reason for her fear of persecution is her membership of the particular social group of single divorced women without male protection in Iraq and/or the particular social group of women perceived to transgress moral codes in Iraq. The Tribunal further finds that there is no presently existing right, however expressed, for the applicant to enter and reside in any other country. Section 36(3) therefore does not apply.
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). As the Tribunal has found that the applicant has a well-founded fear of persecution for the reasons provided, the Tribunal does not consider it necessary to assess other protection claims arising from her evidence.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Shahyar Roushan
Senior MemberAttachment - 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.
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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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1726639 (Refugee) [2023] AATA 727
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