1731473 (Refugee)

The Administrative Appeals Tribunal considered the protection visa applications of a family unit, specifically focusing on the second applicant. The dispute centred on whether the second applicant, and by extension her family, met the criteria for a protection visa, particularly concerning her well-founded fear of persecution in Iraq.

The primary legal issue before the Tribunal was to determine if the second applicant had a well-founded fear of persecution for reasons of political opinion or membership of a particular social group, as defined by the Migration Act 1958. This involved assessing whether the harm she feared was for an essential and significant reason, involved serious harm, and constituted systematic and discriminatory conduct. A further issue was whether any required modification of her behaviour to avoid persecution would conflict with a characteristic fundamental to her identity or conscience, or conceal an innate or immutable characteristic.

The Tribunal reasoned that the second applicant's fear of harm stemmed from her refusal to conform to Iraqi social and cultural expectations for women, including her choice not to wear traditional Islamic clothing and her independent lifestyle. It accepted that she had experienced threats, an explosion at her home, and the kidnapping of her son, which were linked to her perceived Westernised and un-Islamic presentation. The Tribunal found that the modification of behaviour required for her to avoid harm, such as conforming to strict social norms and accepting a chaperone, would conflict with characteristics fundamental to her identity and conscience. Consequently, it concluded that she could not be expected to take such steps to avoid persecution. The Tribunal also considered that the Iraqi state was unlikely to provide effective protection and that relocation within Iraq was not a viable option.

The Tribunal remitted the matter for reconsideration, directing that the second applicant satisfies section 36(2)(a) of the Migration Act, and that the other applicants satisfy section 36(2)(b)(i) on the basis of membership of the same family unit.