1727591 (Refugee)

[2021] AATA 2879

1727591 (Refugee) [2021] AATA 2879 (2 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1727591

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Mr S Norman

DATE:2 June 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 02 June 2021 at 10:25am

CATCHWORDS

REFUGEE – protection visa – Iraq – particular social group – victim of family violence – inter-religious relationship – religion – Shia – fear of former spouse’s family – fear of militia group – partner’s family converting home into a business – no formal divorce – access to applicant’s child – fear of killing – blood feuds – new Sabean-Mandean partner – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 116, 424, 499
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 dependants.

STATEMENT OF DECISION AND REASONS  

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 3 November 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 6 October 2016.

2. The Department delegate’s decision was lodged with the Tribunal.

3. The applicant did not respond to a Tribunal s.424(2) letter within the prescribed time, and after considering the matter, and though the hearing invitation had been sent, the Tribunal decided to conduct an interview. The applicant attended the Tribunal interview on 20 May 2021. The applicant’s sister and new partner arrived to support the applicant at the interview (none wished to give oral evidence – and due to COVID-19, the applicant’s new partner was asked to, and did sit in the waiting room during the interview). The Tribunal was assisted by an interpreter in the Arabic language. The applicant was assisted by a migration agent.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.

8. 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

9. 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

11. The Tribunal wishes to state that multiple submissions, statements, statutory declarations, photographs, country information etc, were lodged with it from time to time, during the course of these proceedings. Though the Tribunal has not expressly referred to each and every piece of evidence herein, I have considered all evidence and submissions prior to drafting this decision.

    Meaningful opportunity to give evidence and submissions:

12. By medical report ([a named medical] Centre) dated 6 May 2021, it was claimed the applicant was suffering from adjustment disorder with mixed anxiety and depression (the report then repeated many of the applicant’s claims). The Tribunal understood the applicant may have undertaken a self-reporting test and the results included:

    On DASS assessment of [the applicant] for symptoms of depression, anxiety and stress, he scored high on all 3 facets … Memory functions were intact with respect to immediate and remote recall of events and factual information

13. At the interview, the Tribunal did not ultimately have material concerns the applicant had any problem understanding the interpreter. However, the applicant’s agent who was an Arabic speaker (not NAATI accredited) did refer to one word which had been misinterpreted during the course of the interview (though this was not material to the Tribunal decision). The Tribunal did have to repeat questions to the applicant at the interview as he did not always answer the question asked – though when the question was repeated the applicant appeared to provide a material response.

14. The Tribunal was therefore satisfied the applicant was given a meaningful opportunity to put evidence and submissions in support of his case, including at the interview.

    The applicant’s receiving country / s.36(3)-(5) of the Act:

15. The Shia Muslim applicant (DOB: [specified] – [age] years old) lodged his Iraq passport (# [number]), expiry date [in] 2017.[1]

    [1] Department – folio 44.

16. At the interview, the Tribunal noted that evidence before it included that the renewal of an Iraqi passport could be processed at the Iraqi Consulate in Sydney.[2] The applicant was unsure but did not dispute this.

    [2] Consulate of Iraq, Sydney, Iraq Consulate in Sydney (consulate-info.com), accessed 13 May 2021.

17. That being said, the Tribunal accepts the applicant is a citizen of Iraq, and that Iraq is his receiving country.

18. Based on the lack of contrary evidence that it before it, the Tribunal does not accept the applicant has effective protection pursuant to s.36(3)-(5A) of the Act.

    The applicant’s migration history:

19. In the delegate’s decision, the applicant’s migration history is set out as follows:

Date	Event details
[July 2015]	Arrived in Australia on a Temporary [Spouse visa]
06/10/2016	Applied for a Protection visa

07/10/2016	Permanent [Spouse visa] refused
14/10/2017	Granted a [Bridging visa] which continues to be in effect

1. In his PV application, the applicant referred to the following prior travels:[3]

   [3] Department – folio 19.

Date from	Date to	Reason for visit	City/province/country
Day Month Year	Day Month Year
[March 2009]	[April 2009]	To attend [a family] wedding	damascus, syria
[April 2011]	[June 2011]	tourism	damascus, syria
[June 2013]	[June 2013]	treatment for my father	Mashhad, iran
[November 2013]	[November 2013]	treatment for my father	mashhad, iran
[July 2012]	[July 2012]	treatment for my father	mashhad, iran

1. By migration agent submission dated 12 May 2021, the following Australian visa application process was set out:

Date	Event
[March] 2014	Marriage to [wife’s name].
[July] 2015	Arrived in Australia on a [partner visa]
[February] 2016	Serviced with a protection order
02 May 2016	[Partner visa] cancelled
30 August 2016	Partner visa refusal affirmed by the AAT
06 October 2016	Applied for a protection visa
3 November 2017	Refused a protection visa
08 November 2017	Applied for appeal with the tribunal

The applicant’s fear of his ex-partner’s immediate and extended family/Tribe:[4]

[4] See statutory declaration dated 4 October 2016 – Department – from folio 6.

1. In brief, the Iraqi applicant said his problems arose from a failed marriage to an Iraqi women (who is an Australian citizen). The delegate recorded the applicant as claiming:

   ·     His problems have resulted because of his failed marriage

   ·     After he had arrived in Australia, he was shocked to find out that his father in law had a criminal history

   ·     He attempted to convince his wife to separate herself from her family to escape the violence but she did not listen and instead applied for an AVO against him

   ·     His father in law spread romours that he was not good for his daughter and showed a video of him dancing with other men

   ·     His sister and friends in Iraq have told him that his ex-wife’s uncles are hight ranking officers in [Militia Group 1] who have strong connections with the Iraqi government

   ·     He was told that the uncle has promised to kill him if he were to return to Iraq because he damaged their reputation.

   Apprehended Domestic Violence Order (ADVO) / cancellation of the applicant’s Partner visa / fear of his ex-partner’s family in Australia:

2. The applicant said he met his now ex-partner (said to be a distant cousin), when introduced by his sister, an Australian citizen who lives in Sydney. The applicant married his ex-partner in Iraq [in] March 2014; and he subsequently arrived in Australia on a Partner visa, in July 2015. He then rented a house (in Queensland) and commenced to live with his ex-partner. However, the ex-partner’s family intervened; and amongst other things, commenced [Business 1] at his house without telling him before-hand. The applicant also said that his ex-partner’s father had a criminal record as well as being ‘heavily involved in domestic family issues against his wife and daughter’. The ex-partner was said to have lodged a AVO against her father. It was also said the father was on a good behaviour bond. The applicant’s agent said the applicant now fears harm due to:

   ·     Being a male victim of domestic violence

3. The Tribunal notes that amongst other things, the evidence referred to the applicant suffering harm from his ex-partner or her family including that the ex-partner took the keys of his car (though at the interview the applicant said he did not then have a car and the ex-partner simply did not allow him to use her car); not letting him in their house (which the Tribunal understood referred to the incident when the applicant’s home was converted to [Business 1]); and that his phone had been taken and its contents checked by the ex-partner’s mother and or father; and that his mental health had suffered.

4. The applicant’s sister had provided a statutory declaration dated 9 May 2021, that the applicant was inter alia upset, and distressed and his mental health was suffering, and that the applicant’s mother-in-law had told her not to speak to the applicant (her brother); though this appeared to relate to a specific matter concerning the taking of photographs. The sister also referred to the applicant having a friend who visited him, and then being told not to bring the friend to the home again. The agent believed the evidence indicated the fault was principally if not entirely with the ex-partner and her family, and the applicant was warned by his friends not to return to Iraq.

5. The applicant’s sister also said she could not return to Iraq as she feared what the ex-partner’s family could arrange to happen to her there; and ‘her family members are known to be associated with the militias’. Other materially similar references (including statutory declarations) were lodged. The agent also said:

   [The applicant] maintained that he was threatened by his wife’s family many times and they always threaten him to cancel his visa unless he submit to their requirements … In November 2015, he maintain that her parents use every opportunity to control his life, for example, her father threatened him that he will bash the applicant because the father saw some video clip that shows the applicant dancing in one of the parties when the applicant was still in his home country.

   The applicant maintain that when he arrived to Australia he rented a house for him and his wife, it was close to her family home, he maintain that in the first week of his arrival to Australia her mum took his phone and inspected it to see if he has any chat with any other girl , he was shocked of her mother behaviour, her parents started threatening him that they will cancel his visa.

   He maintain that the real problems started when he complaint to them about turning his own house into [Business 1], they then rushed into the police and initiated an ADVO against him, he maintain that her father and her mother are on centrelink payments (pension) however her father works as [an occupation] and recently opened [Business 1], her parents feared that if the client will lodge a complaint with the government they might suspend their payment so they went and applied for ADVO to scare him, especially that they know that he never been into a police station or court before

6. At the Tribunal interview, the applicant explained that after he arrived in Australia in July 2015, and though he married his ex-partner some 16 months prior to that date (in March 2014), the applicant then only lived with his ex-partner in Australia for around three months. As a result of his house being converted to [Business 1] without him being told – and as the applicant objected to the [business], and only for this reason, he had been subject to a ADVO.

7. The Tribunal said it might presume that lodging an ADVO against him, could be thought to have provided encouragement for him to report the ex-partner’s family for the alleged wrong-doing on their part (though no such report was claimed to be made by the applicant to the Australian authorities). The applicant did not agree.  

8. Next, the agent said the evidence indicated the life the applicant entered in Australia was not only a ‘domestic’ life with his ex-partner (as the applicant had hoped). It was one where the wife’s family clearly interfered and were part of. It was unclear from the documentation before the agent as to what statements were used by the police officer to refer a potential ADVO to the court – though the report included the names of 10 individuals related to the ex-partner, and all gave evidence to the police against the applicant. The agent then suggested the evidence giving rise to the issuance of the ADVO may have been poor, that the applicant was not represented by a lawyer when he had attended the court and he had then signed a consent order. At the Tribunal interview, the applicant said he had attended court (in Queensland) and had been issued a ADVO at the end of those proceedings. The conditions attached to the ADVO included that he was prevented from contacting multiple members of his ex-partner’s family.

9. In the agent submissions dated 12 May 2021, it was conceded the applicant was issued an ADVO. Further, that his then Partner visa was subsequently cancelled under s.116(1)(e) of the Act, and merits review was not successful. The agent also advised, and the applicant confirmed at the Tribunal interview, that though he separated from his ex-partner in or around November 2015, he had not sought to divorce his ex-partner (either under Islamic law or Australian law), and neither had he or his ex-partner initiated divorce proceedings (at least no proceedings the applicant was aware of).

10. Given the applicant had claimed to have been continually threatened by the ex-partner’s family, at the Tribunal interview I asked whether he had attempted to have an AVO issued against them. The applicant said no – and the Tribunal understands he had not formally reported the alleged threats. Though asked repeatedly, the Tribunal understands the applicant said that as someone brought up in a Iraqi Muslim family he would not do anything wrong. When the Tribunal noted that domestic violence appeared to be common in Iraq,[5] he said he would not engage in any wrongdoing. Be that as it may, at hearing the applicant explained, and the Tribunal accepts, that the applicant was issued with an ADVO in Queensland and this was apparently part of the reason for his former Partner visa being cancelled - and that decision was affirmed by a differently constituted Tribunal. The Tribunal also does not accept the applicant was entirely credible in his description of the event that led him to being issued the ADVO.

    [5] DFAT COUNTRY INFORMATION REPORT IRAQ, 17 August 2020, at [3.123].  

11. Next, the agent said the country information supports the applicant’s claim that he had not formally divorced his ex-partner under Islamic law. This is because the religious leaders require the consent of the husband to initiate the divorce or otherwise, they prefer the husband to be present. The applicant had indicated in his statement that the reason he did not participate in these proceedings is because he is afraid of the family and because they have withheld his child from him ‘since the beginning’. The country information referred to by the agent included:

    Both Muslim men and women are allowed to divorce in the Islamic tradition. But community interpretations of Islamic laws mean that men are able to divorce their wives unilaterally, while women must secure their husband’s consent.

    In Australia, there are instances where couples divorce under the civil process but the husband refuses to grant his wife access to a religious divorce by withholding his consent, effectively trapping her in a “limping” marriage situation. This means she is divorced under civil laws but still considered by her husband and community to be religiously married and unable to enter a new relationship.

    Like other faith communities in Australia, Muslims are able to have a combined religious and civil marriage through a religious leader if they are also an authorised celebrant. When it comes to divorce, however, the civil and religious proceedings must be done separately — civil divorce through the Family Court, and religious divorce through community processes. …[6]

    [6] ABC, March 2020, What are Muslim women’s options in religious divorce?, available at

1. The Tribunal also noted that in Iraq:

   3.121 The law generally allows women to initiate divorce proceedings against their spouses, but does not entitle a divorced woman to alimony other than child support or two years’ financial maintenance in some cases. A divorcing woman is occasionally required to return all or part of her dowry or otherwise pay a sum of money to the husband. Under the law, the father is the guardian of the children in divorce cases, although a divorced mother may be granted custody of her children until age 10 (extendable by a court until age 15), at which time the child may choose with which parent he or she wishes to live.[7]

   [7] DFAT COUNTRY INFORMATION REPORT IRAQ, 17 August 2020.

2. In writing, it was also claimed the applicant and his ex-partner have a son (at the Tribunal interview, the applicant said his ex-partner was pregnant when they separated). The applicant however, refused to ‘come to a settlement under Islamic law in relation to the termination of the marriage. This is because the family refuses to allow him to be a part of the baby’s life and threaten the applicant with his immigration status, and with his life.’ The Tribunal accepts the applicant was not formally divorced from his ex-partner, either by Australian law or Islamic law.

3. At the Tribunal interview, and after noting the principal reason given for the applicant refusing to divorce his ex-partner was the fact he was not allowed to see his son (the applicant said he feared his ex-partner’s family and they wished the divorce to proceed but the applicant refused), the Tribunal asked what he had done to secure access to his son, in the 5 ½ years since he separated from his ex-partner. The applicant said he consulted senior people. Though it took some time to clarify, the Tribunal believes the applicant was speaking about Tribal elders and or Islamic clerics in Iraq and or Australia. The applicant also said that some of these Shia elders were offered money to lie on behalf of the Sunni ex-partner’s father in order to resolve the marriage dispute, but this had been refused (and the applicant was subsequently informed). The Tribunal proposes to accept this is correct.

4. The applicant also said he once asked an Australian lawyer who told him it would cost around AUD$30k (he later amended this amount to AUD$20k) to arrange for him to see his son. However, the Tribunal noted (words to the effect) that mediation services are provided for family dispute resolution, that Legal Aid Queensland[8] provided advice about such services, and that some services may be provided free of charge (though longer waiting lists may attach to free services).

   [8] Legal Aid Queensland, Family Dispute Resolution, Family dispute resolution - Legal Aid Queensland, accessed 20 May 2021 – similar services are provided in NSW – see ‘How to arrange mediation’, Communities and Justice, How to arrange mediation (nsw.gov.au), accessed 20 May 2021. 

5. The applicant said he did not know this but he was advised (by a lawyer) that it would cost more than he could afford. The Tribunal accepted that fighting over child access in court may be expensive, however, and based on the evidence herein, however, I do not accept it is plausible that a competent lawyer would not refer him to the free services (including mediation services), if access to his son was a principal reason for the applicant refusing to agree to a divorce.

6. In response, the applicant noted that his father had provided around AUD$20k (dowry) to his ex-partner’s family for the marriage, and though the father wanted this money returned, this had been refused. The applicant also said that some of the furniture in their former home was his (though this had been paid for with the aforementioned AUD$20k). The Tribunal was also advised the applicant had not paid any child support to his ex-partner for the child (for 5 ½ years). The Tribunal proposes to accept the applicant’s father had paid the money claimed (AUD$20k), that the applicant had not paid any child support for the child, but that the money paid by the father was withheld – to assist with child support.

7. The Tribunal will also accept the applicant married his ex-partner in March 2014, that he arrived in Australia in July 2015, that he then resided with his ex-partner for three months before the incident for which he was given the ADVO (in Queensland), that he then separated from his ex-partner (though he is not divorced), that tensions (said to be toxic) arose due to the nature of the separation, and the applicant then travelled to Sydney, where the Tribunal understands he may sometimes reside with a sister.

8. However, and even accepting the applicant was threatened by members of his ex-partner’s family in the immediate aftermath of his separation with his ex-partner (in November 2015), the Tribunal does not accept the applicant has been threatened, been a victim of domestic violence, or otherwise been subject to any serious (or significant) harm in Australia, in the approximately 5 ½ years since that time.

9. Further, after considering all the accepted evidence and the country information in the sources cited herein, the Tribunal is not satisfied the applicant has a real chance of suffering serious (or significant) harm in Iraq, for any reason discussed above.

   The fear of the applicant’s ex-partner’s family in Iraq:

10. The agent continued that the risk to the applicant remains even though his ex-partner’s uncles attempted to reconcile with the applicant’s family in Iraq (the November 2020 incident – discussed below). This is because there still exists evidence that the ex-partner’s family will do whatever it takes to harm the applicant.

11. The applicant claimed to fear the family of his ex-wife would kill him in Iraq because they believe that he ‘did not deserve her’. When asked if the applicant had received any threats, the delegate recorded the applicant as saying that friends in Iraq told him they had overheard threats made against him; and it was said family members of his ex-wife said they will harm him should he return to Iraq; and that he had destroyed his ex-partner’s reputation. The applicant had also said his ex-partner’s family had spread rumours about him.

12. After repeated questioning about this, the Tribunal understands the applicant said he feared his ex-partner’s family in Iraq, that he was once not provided a lift in a car by his ex-partner to a [sport] match, that his mobile phone was taken (though it was subsequently returned), and that he was not advised about [Business 1] at his house. The Tribunal was therefore unsure what rumours the applicant was specifically referring to however, I propose to assume they are discussed with his other claims herein (in particular the dancing incident – discussed below).

13. In a statutory declaration the applicant said his family in Iraq was threatened, and/or told that he would be killed if he returned to Iraq. The family were told the applicant would be ‘made a lesson for everyone’. It was said that if they (his ex-partner’s Sunni family in Iraq) killed him they would prove that they are ‘in control of everything in the area where the family lived’. It also said the family of his ex-partner are powerful in the south of Iraq and are influential.

14. It was also claimed the tribe of the ex-partner’s family in Iraq, have ties to militia. The applicant’s sister said the ex-partner’s uncles were high-ranking members of [Militia Group 1] and they had strong connections with the Iraqi government. These people vowed to take revenge. It was also said the ex-partner’s uncles had a strong relationship with the Badri tribe leader, who said they were ‘free to do anything they see fit against him’. At the interview, the Tribunal noted:

    [Information on Militia Group 1 deleted.] [9]

    [9] UK Home Office, Country Policy and Information Note Iraq: Sunni Arabs Version 3.0 January 2021.

15. When the delegate asked if the applicant could provide further information in relation to his ex-partner’s family, including about the uncle who was claimed to be a high-ranking militia officer with connections with the Iraq government, the applicant had stated no. When then asked how he knew the ex-partner’s uncle was a high-ranking officer, he said it was because his friends had told him. The applicant subsequently said he was unable to obtain much information because he (and presumably his family in Iraq) were avoiding his ex-partner’s family in Iraq and Australia due to fear.

16. At the interview, the Tribunal noted the applicant’s family (at least his parents and [siblings]) all resided in what the applicant referred to as the city of Thi Qar (though the Tribunal understands this is a southern governorate[10]), in Nasiryah (which is a city[11]) – and that the population was predominately Shia.[12] It was unclear why they had not been able to provide evidence of the claimed power of the ex-partner’s Sunni family in Iraq. Be that as it may, and more importantly, the Tribunal noted the ex-partner’s family were all Sunni (this had been difficult to ascertain but the Tribunal notes the ex-partner’s immediate family were Sunni and the ex-partners uncles were Sunni – and the applicant did not appear to dispute this at the interview), and that it therefore may not appear plausible they had any real or material connections to an Iranian backed Shia militia.

    [10] DFAT COUNTRY INFORMATION REPORT IRAQ, 17 August 2020, at [2.17]. 

    [11] Nasiriyah is the capital of the Dhi Qar Governorate. Its population 2003 was about 560,000, making it the fourth largest city in Iraq. Today, the city is populated predominantly by Shia - Cited in ‘Nasiriyah’, Wikipedia, Nasiriyah - Wikipedia , accessed 19 May 2021 – referring to Mockaitis, Thomas R. (2013), The Iraq War Encyclopedia, ABC-CLIO, ISBN9780313380631.

    [12] DFAT COUNTRY INFORMATION REPORT IRAQ, 17 August 2020, see Map, at p.2.

17. At the interview, it was claimed that such things may be possible. However, after considering the country information in the sources cited herein, and given the area the applicant’s family reside is a majority Shia area, and given the ex-partner’s father had already been refused assistance by Shia elders in the applicant’s home area (when he made a brief visit there in November 2020), the Tribunal does not accept the claim is plausible. The Tribunal has concluded that the applicant’s claims about the power of his ex-partner’s family in Iraq, and or that he has a real chance of being subject to any harm there for any reason discussed above, is not correct.

    The November 2020 incident in Iraq:

18. In his statutory declaration dated 11 April 2021, the applicant said his ex-partner’s uncles in Iraq (who the Tribunal accepts lived near the applicant’s family in Iraq), arranged a meeting between his ex-partner’s father (he had returned to Iraq to attend [a family event]), and [the applicant’s brother] in Iraq ([some] of his [relatives] continued to live in the applicant’s former home area in Iraq - Nasiriyah). The brother who met with the ex-partner’s father (now approximately [age] years of age) had conducted a [specified] business; [details of other relatives’ occupations deleted].

19. The applicant continued that in November 2020, his brother was ‘directly threatened with death by his ex-partner’s family’ in Iraq, and that the ‘threat extends to the applicant being the source of the issue’. The agent said the ex-partner’s father had threatened the applicant’s brother with a gun.

20. The meeting was an attempt to settle the marriage dispute between the applicant’s family and the ex-partner’s family. However, when the brother sat down for the meeting, the ex-partner’s father said ‘things like, tell your brother to come back to Iraq so we can do what we want with him, we cant do anything while he is in Australia’. The brother blamed the ex-partner’s family for the problems and the ex-partner’s father took out a gun and pointed it at the brother. The Tribunal was not able to ascertain the order of the discussion, and/or who may have made the first insult, however, I propose to accept that after speaking for a short period the ex-partner’s father took out a gun and pointed it at the applicant’s brother. The applicant said that a relative or associate of the ex-partner’s family intervened to prevent the situation escalating and the ex-partner’s father flew out of Iraq on the same day.

21. The applicant continued that his family then moved to a different house but remained fearful as the ex-partner’s family ‘is crazy’ (though at the Tribunal interview it was said the ex-partner’s uncles in Iraq were more reasonable than the ex-partner’s father). However, the applicant now ‘knows that he would be killed in Iraq’, as he had not agreed to the divorce.

22. The day before the Tribunal interview, the applicant provided photographs which he claimed at the interview, was the location (a tent) on the outskirts of his home city (Nasiriyah), and where his brother (who had attended the meeting with the ex-partner’s father) now resided, in order to avoid any ongoing harm. This brother had also ceased his [business] immediately after the November 2020 incident. However, the applicant’s [parents and specified family members were] now allegedly in hiding [and were] all residing either in or near their usual homes in the applicant’s home city. There was no indication that any were making any attempt to protect or hide themselves (it was claimed the parents had moved to another home a short distance away but the other family members [specified] were all said to be residing in their usual homes).

23. The Tribunal also understood that compensation was offered, by an associate (a relative) of the ex-partner’s family in Nasiriyah in Iraq, as a result of the brother being threatened (though this and the apology was not accepted by the applicant’s family[13]). The applicant’s sister said it was her father who did not accept the apology and they no longer speak to this other family. The agent referred to country information that inter alia:

    Tribal conflicts can reportedly be triggered by intentional or unintentional killing, but also by other offences such as the infliction of injury, loss of “honour” (e.g. as a result of the kidnapping or rape of a woman or girl, or socially unacceptable activities on social media), theft, unpaid debts, or unresolved disputes over land, access to water supplies or property.[14] Under tribal custom, male members of an extended family (“khamsa”) are obliged to avenge the injury or death of another member, be it in the form of killing someone from the murderer’s “khamsa”, 2 or, more commonly, agreeing on financial compensation (blood money, “fasl” or “diyya”) to the family of the victim.” [emphasis added]

    [13] Agent submission dated 12 May 2021 at [47].

    [14] UNHCR (JANUARY 2018), Tribal Conflict Resolution in Iraq, available at

    …

    In instances in which tribes fail to resolve disputes between them through peaceful means, disputes can turn into blood feuds (“tha’r”). Such feuds between tribes are reported to remain a common occurrence, particularly in the southern governorates, with clashes sometimes lasting for days with the use of heavy weapons. Blood feuds may give rise to long cycles of retaliatory violence and revenge, sometimes passing from generation to generation, and can sometimes flare up after being dormant for many years.[15]

    [15] April 2020,

24. The agent also referred to the following:

    As a result of a weakened state authority and ineffective formal justice system, people have turned to their tribes to resolve their problems and provide security. The tribal authorities will attempt to resolve a blood feud. This may be more difficult if the participants in the feud are tribal leaders. Restitution can involve the payment of ‘blood’ money to allay vengeance. In some cases, therefore, a tribe may be able to offer effective protection…

    …

    There are also reports of law enforcement personnel being reluctant to get involved in tribal conflicts as they fear that they will exacerbate the situation. Law enforcement have also been known to ‘take sides’ in line with their own tribal affiliations. At other times law enforcement officials are reported to be powerless to intervene in tribal disputes and, without sufficient military back up, fear reprisals. Judicial authorities reportedly often avoid following up on tribal incidents[16]

    [16] UK Home office report (Feb 2020), Country policy and information note: Blood feuds, available at

25. That being said, and as stated above, the Tribunal proposes to accept that after the applicant’s brother and his ex-partner’s father spoke for a short time in November 2020, the ex-partner’s father drew a gun and pointed it at the applicant’s brother. The Tribunal also accepts as claimed, that one of the ex-partner’s father’s relatives intervened to ensure the applicant’s brother was not harmed. The Tribunal also accepts that in an effort to avoid ongoing tension between the applicant’s family in Iraq, and the ex-partner’s family in Iraq, the ex-partner’s family offered an apology, and offered monetary compensation – which after some discussion at the interview, the Tribunal understood the monetary compensation arose for the gun incident only. However, the applicant’s father refused to accept the apology/compensation and his family no longer speak to the family of the relative of the ex-partner in Iraq.

26. The Tribunal also accepts that Tribal conflicts and blood feuds have developed in Iraq, for what may appear to be trivial reasons. However, and apart from the recent claim that the brother had been in hiding in a tent since November 2020, there was no evidence that any of the applicant’s family members in Iraq, all of whom may be subject to harm or harassment if the applicant’s fears are accurate, had taken any material steps to hide or protect themselves. The Tribunal does not accept it is plausible they would not have done so if there was a real chance they may be harmed in Iraq. In the circumstances, the Tribunal has also decided to reject as false, the claim the applicant’s brother has been hiding in a tent in Iraq, since immediately after the November 2020 incident.

27. Further, when asked why the father had rejected the apology and compensation, the applicant said variously this did not compensate for the loss of his grandchild (though access to the applicant’ son is discussed above); that he feared his ex-partner’s family in Iraq; that senior persons may have intervened. However, based on the information in the sources cited herein, the Tribunal believes it more likely that some further attempt might have been made to negotiate a settlement (or accept the apology/compensation) if there was any material fear of harm for the family in Iraq, or the applicant.

28. The Tribunal accepts there is tension between the applicant’s family and the ex-partner’s family, including in Iraq. The Tribunal also accepts that apparently trivial slights in Iraq may escalate into blood feuds and or tribal conflicts. However, the Tribunal understand that divorces occur in Iraq and few would give rise to any risk of serious harm.

29. Therefore, given this is the only incident of harm in the 5 ½ years since the applicant had separated from his ex-partner, and given the Tribunal is satisfied the applicant’s family in Iraq understand this will not cause further harm (which is why they had not taken material steps to protect or hide themselves), and given nothing else had occurred since November 2020, and given the ex-partner’s father left Iraq on the day of the gun incident and had not returned, the Tribunal does not accept the applicant has a real chance of suffering serious (or significant) harm in Iraq, for any reason arising from the November 2020 incident.

    The claim the applicant had danced with men in Iraq:

30. Regarding the applicant dancing with men who were in his [sport] team in Iraq, he said his ex-partner’s father saw a video of him dancing with the men, and he then told the tribe in Iraq the applicant was ‘not man enough and that he had a feminine side’. It was also said the applicant was tarnishing the family reputation’; and the ex-partner’s father threatened to ‘bash’ the applicant.

1. The delegate recorded the applicant as also claiming he feared ‘his tribe will kill him in Iraq because he had brought shame to them as his wife had divorced him because he has been seen dancing with other men in his [sport] team. The delegate referred to a video of him dancing with members of his [sport] team; and the delegate believed it was not uncommon for professional sportsmen to be dancing or touching in ways that might not be accepted in wider society.

2. When discussed at the interview, the Tribunal declined to watch the video of the applicant dancing (he said in his [sport] gear) in a dressing room or bedroom with other men in his [sport] team (but the Tribunal has accepted the dancing took place as claimed). However, as then noted at the interview, the country information stated:

   Dabke, Debke, is THE dance genre of the Levant – Syria, Lebanon, Jordan, Palestine, and parts of Israel, Iraq, Turkey, Yemen, and Saudi Arabia. … there are many types of dabke, some of which have other basic steps. …

   …

   1.       Al-Shamaliyya (الشمالية): is probably the most famous type of dabke. It consists of a lawweeh (لويح) at the head of a group of men holding hands and formed in a semicircle. The lawweeh is expected to be particularly skilled in accuracy, ability to improvise, and quickness (generally light on his feet). … This is the most popular and familiar form of dabke danced for happy family celebrations, such as weddings, circumcisions, the return of travelers, release of prisoners, and also for national holidays, in which dabke becomes a demonstration of national personality.

   2.       Al-Sha’rawiyya (الشعراوية): is limited to men and is characterized by strong steps or stomps. The lawweeh is the most important element in this type of dabke … [17]

   [17] Dabke, Debke – Lebanon, Palestine, Syria, Jordan – Revised and Expanded, Folkdance Footnotes, Dabke, Debke – Lebanon, Palestine, Syria, Jordan – Revised and Expanded – Folkdance Footnotes, accessed 19 May 2021.

3. The applicant conceded it was not uncommon for men to dance with other men in Iraq, but he said his circumstances were different as he was dancing with men in a room, possibly after a [sport] match or practise. However, and the Tribunal did not propose to make the applicant’s case for him, and it was on occasion difficult to keep the applicant on point, there was no suggestion that anyone else in the [sport] team in Iraq, many of whom were photographed, were harmed, harassed or even questioned about the dancing. At the Tribunal interview, the applicant said it was the football shorts they were wearing that caused some concern, but when the Tribunal said it presumed they were wearing the usual types of [sport] shorts, which appeared to be worn in most countries in the world (including Iraq), the applicant conceded this was correct.

4. At the Tribunal interview the applicant also said his ex-partner’s family may have seen him kissing another man during the dancing. When asked, the applicant showed the Tribunal a still photograph of him kissing the face (cheek) of an unresponsive teammate (the applicant was standing behind his teammate and had lent around to kiss the cheek, in what appeared to be an impromptu photo while engaged in some celebration). However, the Tribunal has not seen any evidence which has satisfied it that kissing the cheek of a football teammate, in what appeared to be a joyous and festive football celebration, which was apparently attended by multiple members of the football team, even when same was conducted in a dressing room or a bed room, has more than a remote chance of giving rise to serious harm in Iraq. Neither was there any suggestion that other participants, including the person being kissed, suffered any consequent harm.

5. Next, the applicant said that as he had resided in Australia for six years he had been accustomed to the lifestyle in Australia and (ie) preferred to wear his hair or dress in a manner considered fashionable for young men in Australia but which may not be accepted in Iraq. However, and after discussing same, the Tribunal was not satisfied for instance, that for the present applicant, deviation from his Australian fashion preferences would constitute serious harm. Neither did I accept his fashion preferences, were an expression of eg, a political opinion or a belief that was fundamental to the applicant, or an innate or immutable characteristic, and which he should not be expected to resile from.

6. As noted above, the now [age] year old applicant told the Tribunal he was accustomed to life in Australia. However, he had resided in Iraq for the first [number] years of his life and as discussed at the interview, the Tribunal said it had not seen material evidence which satisfied it that persons who lived for a lengthy period of time in a western country would necessarily have a real chance of suffering any harm for that reason in Iraq.  In fact the country information cited below, stated the ‘practice of seeking asylum and then returning to Iraq once conditions permit is well accepted among Iraqis’. [18]

   [18] DFAT COUNTRY INFORMATION REPORT IRAQ, 17 August 2020, at [5.43].

7. The applicant said he was different, but with respect, the Tribunal is satisfied the applicant could safely return to Iraq and reside there, notwithstanding his having spent six years residence in Australia.

8. The Tribunal is not satisfied the applicant has a real chance of suffering serious (or significant) harm in Iraq, for any reason discussed above.

   The applicant’s fear arising from his Shia religion:

9. The agent said the applicant fears harm due to:

   ·     Being of Shia Muslim background

10. The applicant said his ex-partner’s father is a Sunni, and he hates Shia (though the ex-partner’s father agreed to the marriage between his Sunni daughter and the Shia applicant).

11. The agent said the family of the applicant’s ex-partner were Sunni. After then referring to other Tribunal decisions, the agent said ‘we accept that the parties got married despite their different sects, we submit that the difference is an underlying and subconscious prejudice that aggravates the situation, especially since the Shia – Sunni conflict has worsened over the past few years. Furthermore, it also means that the ‘mediation process’ to finalize a divorce settlement may be rife with tensions as different Islamic interpretations may come to play’; and this is demonstrated by the conflict between the applicant (and his family) and his ex-partner (and her family), both in Australia and Iraq. The agent however, sought to withdraw this comment in the submission received on the day before the Tribunal interview. As noted at the interview, the Iraq country information stated:

    3.42 Article 41 of the Constitution provides citizens the right to choose which court (civil or religious) will adjudicate matters of personal status, including marriage, divorce, child custody, inheritance and endowments. Islam takes precedence as the choice of religious court when one of the parties to the dispute is from an unrecognised faith. …

    …..

    3.44 There are no laws preventing marriage between Sunni and Shi’a couples. These have reportedly increased in prevalence as sectarian tensions have reduced over the past decade but remain relatively uncommon due to concerns and opposition from the families of the persons involved. Mixed marriages between Sunni and Shi’a couples are reportedly more common than mixed marriages between Arab and Kurdish couples.[19]

    [19] DFAT COUNTRY INFORMATION REPORT IRAQ, 17 August 2020.

12. At the interview, the Tribunal noted the applicant’s home area in Iraq (Nasiriyah), was a majority Shia area.[20] As noted above, the Tribunal is not satisfied there is a real chance the Sunni ex-partner’s father or his connections in or around Nasiriyah, would be willing to seriously harm the applicant in Nasiriyah. As noted above, the Tribunal also understands the elders of a Shia tribe in or around Nasiriyah, had already declined a request to assist the ex-partner’s father.

    [20] See DFAT COUNTRY INFORMATION REPORT IRAQ, 17 August 2020, Map, p.2.

13. Based on the country information seen, the Tribunal does not accept the mere fact of a mixed Shia/Sunni marriage would give to a real chance of the applicant suffering serious (or significant) harm in Nasiriyah.

14. The Tribunal will accept there has been a separation of the applicant and his ex-partner, that tensions have arisen from that separation, that the families are in the process of seeking to settle the dispute, and the only serious harm that has occurred in the 5 ½ years since the separation, was the November 2020 incident. Further, that even though the applicant’s brother was claimed to be in hiding (discussed above), none of the other family members appeared to have taken any material steps to protect or hide themselves. As reasoned above, the Tribunal believes this is an indication the incident was not expected to cause any further harm in Iraq.

15. After then considering the accepted findings, the Tribunal is not satisfied the applicant has a real chance of suffering serious (or significant) harm in Iraq, for any reason discussed above.

    The applicant’s new (Sabean-Mandean) partner:

16. By migration agent submission dated 12 May 2021, it was claimed:

    ·     The applicant is in a serious relationship with an Australian citizen who is of ‘Mandean background’ – and that he and his partner would be at risk of significant harm if he returned to Iraq with his partner

    ·     It was submitted that since 2020, the applicant has been in a serious relationship with his new partner and they intend to marry 

    ·     He cannot return to Iraq due to his relationship with her as she will not be safe due to her Mandaean background and this directly impacts him. Mandaeans are severely persecuted in Iraq

17. The applicant’s partner lodged a statutory declaration dated 12 May 2021. Amongst other things, she said she met the applicant on 17 October 2020; that the applicant smiled at her; that she was not able to speak with him at that time as she was with her family; that they subsequently met up and their relationship developed; that she comes from a ‘extremely strict family’; and that she intended to marry the applicant. She also said that if the applicant returned to Iraq, she would return with him. However, she understood that Iraq is not safe (other related evidence was lodged, including ‘chat messages’).  The agent said the applicant fears harm: 

    ·     Being in an inter-religious relationship with an individual of Mandaean background.

18. After quoting inter alia a November 2006 report on mixed marriages (Sunni/Shia), the agent said that Mandaeans have extensively been persecuted in Iraq, and country information was provided. The country information seen by the Tribunal included:

    3.55 DFAT assesses Sabean-Mandeans face a low risk of official discrimination. Like other minorities, Sabean-Mandeans face a moderate risk of societal discrimination and violence in areas where they are a minority. Those living in areas controlled by PMFs [Popular Mobilisation Forces] are likely to keep a low profile to avoid negative attention … Those living in areas where violence continues or who have been displaced face a risk of societal violence similar to that faced by other groups living in those areas or situations.[21]

    [21] DFAT COUNTRY INFORMATION REPORT IRAQ, 17 August 2020.

19. In his statutory declaration dated 11 April 2021, the applicant said he met his new partner approximately  seven months ago, she did not initially tell her own family, but as a Mandean she is not permitted to marry a Muslim man. However, the new partner is ‘willing to leave her whole family to be with’ him. The relationship continues to be secret. By statutory declaration dated 12 May 2021, the applicant’s new partner sought to corroborate the applicant’s claims (photographs and other evidence pertaining to the claimed relationship were lodged).

20. When discussed at the Tribunal interview, the applicant said he had met his new partner’s sister but had not met her parents. He said his new partner’s ‘extremely strict’ Sabean-Mandean parents had not yet been told their daughter was ‘dating’ a Shia Muslim man from Iraq. When asked, he also said the parents would never agree to him marrying their daughter. The Sabean-Mandean new partner however, said she would definitely travel to Iraq to be with the applicant, as they intended to marry, and she and the applicant would then be at risk of persecution. Accordingly, it appeared the applicant and his partner are claiming they are prepared to risk persecution in Iraq, but are not prepared to risk the wrath of the partner’s parents.

21. The Tribunal had concerns about the nature of the relationship between the applicant and his partner. After considering the evidence, the Tribunal believed the relationship was one of boyfriend and girlfriend and it was still very uncertain how that relationship may develop.

22. Be that as it may, at the hearing the Tribunal said it appeared the applicant might be able to apply for some type of Partner visa (either temporary or permanent) should he be unsuccessful in his PV application. The applicant did not comment and his agent did not provide submissions about this.

23. Irrespective of this, based on the evidence, the Tribunal was not satisfied the applicant and his new partner had established (ie) a mutual commitment to a share life together as a couple. Accordingly, the Tribunal was not satisfied the applicant would have a real chance of suffering serious (or significant) harm for this reason (a claimed marriage) in Iraq.

24. The Tribunal is not satisfied the applicant has a real chance of suffering serious (or significant) harm in Iraq, for any reason discussed above.

    Failed asylum seeker:

25. The country information stated:

    5.43 The practice of seeking asylum and then returning to Iraq once conditions permit is well accepted among Iraqis, as evidenced by the large numbers of dual nationals from the US, Western Europe and Australia who return to Iraq. There is considerable evidence that Iraqis who are granted protection by western countries often return to Iraq, sometimes only months after securing residency abroad, to reunite with families, establish and manage businesses or take up or resume employment.

    …..

    5.45 DFAT has limited evidence to suggest that voluntary returnees face difficulties in assimilating back into their communities. …[22]

    [22] DFAT COUNTRY INFORMATION REPORT IRAQ, 17 August 2020.

26. At the interview, the Tribunal put to the applicant it had not seen evidence that without more, persons who seek asylum in a western country, or who had resided in a western country for a lengthy period, would have a real chance of suffering serious or significant harm for that reason. When asked, the applicant did not materially comment. However, and after considering the evidence, the Tribunal is not satisfied the applicant has a real chance of suffering serious (or significant) harm in Iraq, for any reason discussed above.

27. Even considering the accepted claims cumulatively, the Tribunal is not satisfied the applicant has a real chance of suffering serious (or significant) harm in Iraq.

28. 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).

29. 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).

30. 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).

    DECISION

31. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Mr S Norman

    
    

    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.

    …