1731473 (Refugee)

1731473 (Refugee) [2022] AATA 5167 (16 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Jeremy Bayliss (MARN: 1383248)
CASE NUMBER:  1731473
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Denis Dragovic
DATE:16 December 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
that the second named applicant satisfies s 36(2)(a) of the Migration Act; and(i)
(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 16 December 2022 at 9:42am
CATCHWORDS
REFUGEE – protection visa – Iraq – political opinion – Western cultural view of women’s rights – religion – imputed anti-Islamic – perceived as un-Islamic and Westernised – chooses not to conform to social and cultural expectations – pressured to wear Hijab to ensure safety – applicant’s vehicle exploded in front of their house – son kidnapped and released after ransom paid – anonymous threats received by email and phone – high risk of gender-based violence – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
S395/2002 v MIMA (2003) 216 CLR 473
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 8 December 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Iraq, which I accept, applied for the visas on 17 August 2016.
The delegate refused to grant the visas on the basis of despite having accepted their claims the level of risk that they would face was assessed as not amounting to a real chance of serious harm or a real risk of significant harm.
The applicants appeared before the Tribunal at the Perth Registry on 3 November 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
Considerations relating to the fears of the second named applicant
The second named applicant fears harm due to her profession as an [Occupation 1], what she described as her modern and moderate religious practices and that she believes there would be a perception that she is un-Islamic and Westernised.
I first turn my mind to her claim of fearing harm as a result of her claim that she will be perceived as un-Islamic and Westernised. This fear arises in part due to being a woman whose approach to her dress, freedom and independence does not align with the legal, social and cultural expectations of women in Iraq.
In her original statement accompanying her application for protection she wrote:
I am an independent, free-thinking, and educated woman. Whilst living in Iraq I made the decision to not wear traditional Islamic clothing including a Hijab. We were threatened and targeted because of this. We received anonymous telephone calls, email threats and an explosion occurred out the front of our house. Following these incidents, I felt pressured and compelled to wear a Hijab to ensure my immediate safety and that of my family. I do not wear a Hijab in Australia and appreciate the freedom I have to choose my clothing style. When I returned to Iraq in 2016 to visit my seriously ill father in [Location 1], I continued to not wear a Hijab and my son was kidnapped when we were at my sister's house in [Location 2]. I oppose the extremists who are trying to impose a strict interpretation of Sharia law whereby women are relegated to roles in society that limits our right to have an education, to work, to express our opinions freely and to act independently of our spouses, brothers and fathers. I am independent and do not require a male to chaperone me in public.
The second named applicant explained that when she returned to Iraq in 2015, she saw few other women without the hijab. When I asked her whether they too were at risk, she said that it depended upon their individual circumstances. She noted that since then there is an increase in women wearing the hijab and the abaya.
She noted that the rate of wearing the abaya depended upon the area of Baghdad. She noted that this geographical segregation mattered less when you have to travel through different suburbs each with their own checkpoints.
Her experience of working in a [workplace] was that there are many conservative [clients], and for that reason it would be expected that she would have to wear a hijab.
The applicant said that she has permission to return to her work as a [Occupation 1]at [Employer 1] if she was to return to Iraq. She added that Shia militia control [Employer 1]. This means that the head of the [workplace and branches] are assigned to those positions through their affiliations with Shia militias. This would affect her as she does not dress according to the expectations of the Shia militias.
The second named applicant’s sister works as a [Occupation 2]. The applicant described how there is a [directive] that women have to dress in a conservative manner.
The applicants cited the receipt of anonymous emails in late 2010, the last being received on the 8 December. These emails call upon the first named applicant to control the way his wife dresses. The first named applicant received three emails in total. The key points of the emails included:
a.Descriptions of how his wife dresses as being ‘dishonourable’ and statements indicating that she is ‘uncovered, presenting her body and being nude.’
b.By allowing her to dress in such a manner he is acquiring sins, especially as a result of those men who look at her with temptation.
An example of the attitude in the email is:
There’s a saying says; the unprotected money brings thieves; your wife in her such a situation and dressing looks like unprotected money. I know she is a good young woman, but our people and our era will not show mercy! Imagine you are in company of your wife and someone thinks of her and desires her!
The emails did not include overt threats, though the first named applicant interpreted lines in which the author refers to others acting as threats.
The second named applicant described receiving anonymous phone calls around the same time as the emails warning him about how his wife dresses.
In 2011, the applicants described how their vehicle exploded in front of their house a few minutes before they were about to drive to their [workplace]. I asked what type of explosion, specifically whether it was assessed as a bomb under the car or alternatively for example a mortar landing on it. He said that it appeared to be a bomb under the car based upon the nature of the damage. He said that he hadn’t heard before or since of a stray mortar landing on a car but that it was common for cars to be intentionally blown up to threaten or harm people. He believes it to be related to his wife’s dress. He said that after the explosion of his car, he did not receive any further emails.
Similarly, the first named applicant said that the head of [Employer 1] would often approach him and warn him about his wife telling him that he needs to control her and in particular how she dresses.
Regarding other aspects of her life, the second named applicant said that she had driven alone in Baghdad and had not experienced any problems, though she fears that the situation has changed in Iraq since 2014 when she left.
In February and March 2016, the second named applicant returned to Iraq with her son. Regarding her return, she said that her level of risk was lower because she was not attending work or moving about.
In late March 2016 the applicants claimed that their son was kidnapped from the front yard of their sister’s house. In brief, the kidnappers made contact and demanded US$[Amount 1]. After negotiations the applicants collected and paid [approximately one third of Amount 1]. The third named applicant was claimed to have been released after being held captive for four days. He was said to have been [age] years old then.
They have not returned to Iraq since then. Instead, they travelled to [country] where the second named applicant’s sister also travelled.
During the second named applicant’s return to Iraq in 2016 she did not wear the hijab. She said that she did not wear it as she had already spent two years in Australia. She said that when she placed the hijab on her head she felt that she lost something of herself.
Considerations
Firstly, in considering what weight to place on the second and third named applicants’ return to Iraq despite claiming to have a well-founded fear of persecution, I note that it is important to distinguish the harm the applicant would face from non-state actors by living and working in Iraq, travelling every day to a job, being known in the community and taking the child to school, from the risk she faces returning for short periods of time to stay with her family. Based upon this distinction, I place no weight on the fact that the second and third named applicants chose to return to Iraq in 2016.
I accept that the life the second named applicant lives in Australia is a life that she would live in Iraq free from fear, that is she would dress as she does, make independent decisions as she does and embrace the freedom that she does. In Iraq, this has proven to be problematic for her and could so again into the future.
In her statement accompanying her application she wrote:
If I return to Iraq I fear that I will be abducted and physically harmed. I have been threatened because of my status as a modem, educated, and professional woman in the past, and could easily be kidnapped and physically or sexually assaulted in the future. I fear that I might even be killed. These are the sorts of things that have happened to other female [Occupation 1] in Iraq and to anyone who is perceived to have views and practices that are contrary to those political groups and religious extremists whose militia control the streets in Iraq.
There is considerable country information, referenced below, which suggests that women whose preferences do not conform with social and cultural expectations, such as the applicant, would face limitations upon her freedom with the threat or actual use of psychological and physical harm to ensure conformity.
The Department of Foreign Affairs and Trade in its most recent 2020 report on Iraq notes the following regarding the situation of women in Iraq:
DFAT assesses 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, while Iraqi girls face a high risk of being forced into early or involuntary marriage.[1]
[1] DFAT, DFAT Country Information Report: Iraq, 17 August 2020 at [3.132]
The DFAT report defines ‘high risk’ as a ‘strong pattern of incidents.’ That there is a strong pattern of gender-based violence including sexual assault weighs heavily in considering the risk of future harm the second named applicant may face.
In addition, I note that the report identifies there being a high risk of official and societal discrimination. Official discrimination is defined as ‘legal or regulatory measures applying to a particular group that impede access to state protection or services that are available to other sections of the population… behaviour by state employees towards a particular group that impedes access to state protection or services otherwise available, including by failure to implement legislative or administrative measures.’ The DFAT report defines societal discrimination as ‘behaviour by members of society (including family members, employers or service providers) that impedes access by a particular group to goods or services normally available to other sections of society …ostracism or exclusion by members of society.’[2]
[2] Ibid p7
That the applicant faces circumstances in which there is a high risk of official and societal discrimination weighs heavily in considering the future circumstances of the second named applicant.
Other information on the situation of women includes:
Law and custom generally do not respect freedom of movement for women. For example, the law prevents a woman from applying for a passport without the consent of her male guardian or a legal representative (see section 2.d.). Women could not obtain the Civil Status Identification Document, required for access to public services, food assistance, health care, employment, education, and housing, without the consent of a male relative.[3]
[3] United States, Department of State, ‘Human Rights Report: Iraq’ 2021 >
Finnish Immigration Services noted in a 2018 report that:
The community-based culture in Iraq has a major influence on the individual’s situation. …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.[4]
[4] >
The same report goes on to note that women’s participation rates in the workforce are one of the lowest in the world. The example of women working in cafes was given in the report, noting how it is looked down upon as being for women with low morals and even banned in one governorate.
Arising from these qualitative descriptions is the World Economic Forum’s quantitative ranking of Iraq as 152 out of 153 on the global gender gap.[5]
[5] Global Gender Gap Report, World Economic Forum, >
The second named applicant outlined her views and lifestyle in a written submission:
I totally reject the extreme principles of the fundamentalists. I am an independent, free-thinking, and educated woman. Whilst living in Iraq I made the decision to not wear traditional Islamic clothing including a Hijab. We were threatened and targeted because of this. We received anonymous telephone calls, email threats and an explosion occurred out the front of our house.
Following these incidents, I felt pressured and compelled to wear a Hijab to ensure my immediate safety and that of my family. I do not wear a Hijab in Australia and appreciate the freedom I have to choose my clothing style.
I oppose the extremists who are trying to impose a strict interpretation of Sharia law whereby women are relegated to roles in society that limits our right to have an education, to work, to express our opinions freely and to act independently of our spouses, brothers and fathers. I am independent and do not require a male to chaperone me in public.
In addition to these views which she expressed at the hearing was her demeanour at the hearing. While taking account of demeanour can be problematic in most instances, in this case I am reluctant to ignore it. The second named applicant presented as fiercely independent, strongly motivated in expressing her views of her freedoms in Australia and came dressed in a manner that would be unacceptable in Iraq. Her English was excellent and as such we did not need a translator. This allowed for her passion to be evidently expressed which otherwise may have been lost through a translator.
In post hearing submissions pictures that she had posted on Instagram were provided showing the applicant in shorts, short sleeve top, short skirt and a sleeveless top. As someone who has spent over three years living in Iraq, including Baghdad, I accept the applicants’ claims that this type of clothing is not acceptable in the social and cultural context of Iraq.

In addition, the simple act of posting a picture of herself on Instagram has become problematic. As one Iraqi author explained, ‘Today, what counts as illicit and immoral includes also establishing relationships through social media or even posting personal photos or videos. On the one side, social media make women free to express themselves, on the other, precisely because they allow a certain exposure, which is frowned upon, they render women an easier target.’[6]
[6] Ahmed Marwan Al -Saeedi, ‘Honor killings in Iraq’ 4 July 2022, >
The applicant submitted information about her participation in a Multicultural Committee at her son’s primary school. It was claimed and I accept that informally through such a role she supports women from various backgrounds who are facing divorce and domestic based violence. Nevertheless, I do not accept the assertion that such activities would describe her as an advocate for women’s rights. This is relevant as the representative submitted that she would face harm on par with women’s rights advocates in Iraq. There is a difference, though, between participating in a multicultural committee at a school that indirectly leads to engagement with women who suffer from domestic violence and proactively advocating for women’s rights. The type and degree are starkly different and as such I do not accept any degree of association.
In considering the harm the second named applicant faces, I accept that the harm that would be inflicted upon the applicant would amount to serious harm in the form of a loss of liberty, psychological harm by way of pressure to conform to social norms, discrimination in the limitations of options she would have and physical harm by non-state actors such as neighbours, militia and random actors who would physically harm her to ensure compliance with such norms.
I accept that the serious harm she faces would be for the essential and significant reason of being a woman who chooses not to conform to social and cultural expectations. I now turn my mind to consider whether such harm is for one of the reasons in s5J(1)(a) namely religion, race, nationality, political opinion or membership of a particular social group.
In considering this question I note that not all women in Iraq face harm separate or apart from other citizens of Iraq. The harm described in country information and feared by the applicant is as a result of her desire to pursue a life contrary to what is expected and as such pressures to conform would be forced upon her. Ultimately, she does not want her liberty to be curtailed simply because she is a woman. The harm she faces, therefore, isn’t necessarily due to being a member of the particular social group of women in Iraq, as there are women who are not harmed as they choose to live lives within the social and cultural constraints of Iraq. Instead, the harm she fears arises on either political opinion or religious grounds.
The harm she fears could be driven by her political opinion as she has refused to conform in the past while in Iraq, has adopted a Western cultural view of a woman’s rights while in Australia and would do the same in Iraq into the reasonably foreseeable future were she free from fear. It could amount to political opinion as the perpetrators of the harm are Islamist political parties and their militias who have imposed norms of control over women that do not accept the Western liberal approach the applicant has adopted.
Alternatively, it could be for reasons of religion, as the majority source of the justification for maintaining such structures is Islam.
I accept that the harm the applicant faces is systematic and discriminatory as it has been integrated into the society backed through laws and cultural interpretations of expected norms.
I accept that the applicant has the cultural knowledge necessary to navigate the world that women occupy in Iraq and could resume a life free from harm, but this would require the applicant to modify her behaviour.
Section 5J(3) of the Act states:
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
…
The modification that would be required for the applicant to attain some level of safety would be for her to conform to the norms of life as they have developed over recent years in Iraq. Would such a modification of behaviour conflict with a characteristic that is fundamental to her identity or conscience? To answer this question requires delving further into the limitations imposed upon any expectation for asylum seekers to modify their behaviour.
In the Explanatory Memorandum accompanying the amendment that introduced the new subsection 5J(3) it was noted that the ‘Government considers that [it] is not inconsistent with the principles enunciated by the majority in the High Court‘s finding in S395.’ This is relevant as S395/2002 v MIMA (2003) 216 CLR 473 offers some further insight into the approach to be taken towards modification of behaviour.
In the case of S395 the High Court grappled with a situation in which the Tribunal had determined that as the appellants had not suffered harm in the past by acting discretely, they can similarly avoid harm in the future by acting discretely. This line of thinking was summarily dismissed in S395 by noting that living a discrete life because of fear is not a ground upon which a decision maker can set aside protection obligations.
In S395 Justices McHugh and Kirby noted at [40] that, ‘Persecution covers many forms of harm ranging from physical harm to the loss of intangibles, from death and torture to State sponsored or condoned discrimination in social life and employment.’ (Italics added) They then explain in the same paragraph that, ‘persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality.’
The situation of the second named applicant in this case can be informed by principles from S395. The applicant’s ability to navigate the cultural norms of Iraqi society by wearing an abaya, remaining largely in the home, accepting a chaperone when exiting the home and playing a secondary role in society would lead to her avoiding harm but this line of reasoning is fraught as it is dependent upon changing her behaviour due to a fear of harm. As Justices Gummow and Hayne noted in S395 at [80], it would be wrong to ask the question ‘could the applicant live in that country without attracting adverse consequences’ by living a discrete life.
Returning to s 5J(3), I am satisfied based upon the evidence before me including her views as expressed at the hearing and in her written statements such as ‘I totally reject the extreme principles of the fundamentalists. I am an independent, free-thinking, and educated woman’ along with her demeanour that having a liberal understanding of her rights as a woman is fundamental to her ‘identity’. As such I do not accept that the applicant ‘could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution.’
I also do not accept that the applicant can seek protection from the state for the reason that country information referenced above identifies the state as being a potential persecutor.
I do not accept that the applicant can relocate to another part of Iraq where a liberal woman living the life that she lives could be lived without facing a real chance of serious harm.
For the reasons given above I am satisfied that the second named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).
The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that the first named applicant is the husband of the second named applicant and that the third named applicant is the son of the second named applicant and as such they are members of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i). As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
I have also considered whether according to s 36(3) the applicants have a ‘a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.’ There is no evidence before me that citizens of Iraq such as the applicants have a right to enter and reside in another country apart from Australia. As such I find that the exception to Australia’s protection obligations under s 36(3) is not met.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the second named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii) that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Denis Dragovic
Deputy President

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

[2022] AATA 5167

16 December 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction