1732285 (Refugee)

1732285 (Refugee) [2020] AATA 1314 (1 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1732285
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Shahyar Roushan
DATE:1 May 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
.

Statement made on 01 May 2020 at 2:59pm
CATCHWORDS
REFUGEE – protection visa – Iraq – particular social group – single divorced women without male protection in Iraq – level of education and employment history – mental health issues – not necessary to address other claims – religion – Sunni Muslim – imputed political opinion – anti-ISIS and Shi'a militias – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 6 December 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
Background
The applicant is a [age]-year-old national of Iraq and a Sunni Muslim. She was born in Kirkuk and resided at a single address in [Suburb 1] in Baghdad. The applicant was previously married to [Mr A]. Together they have one daughter, who currently resides with her own husband in Mosul, Iraq. The applicant’s mother and one of her two [sibling] reside in Baghdad. Her other [sibling] lives in Australia.
The applicant has completed two [qualifications] in Iraq. She first arrived in Australia on a Student visa [in] January 2008. She departed and re-entered Australia twice between 2008 and 2016. Prior to her most recent arrival [in] July 2016 on a Visitor visa, she was employed as a [Occupation 1] at [Workplace 1] administered by [the Iraqi government], which is linked to [Department 1] in Baghdad.
The applicant applied for a protection visa on 25 July 2016.
Protection claims
Protection visa application
In a statutory declaration dated 25 July 2016, attached to her protection visa application form, the applicant made the following claims.
She married [Mr A] in 1995. Following their divorce, she had custody of their daughter until 2008 when she received a scholarship to study in Australia. [Mr A] refused to provide written consent for their daughter to accompany the applicant to Australia. After the applicant travelled to Australia, [Mr A] went to the applicant’s house and ‘took’ their daughter from the family home. Following a custody battle, [Mr A] took their daughter to live with him in [Country 1]. The applicant travelled to [Country 1] once a year to visit her.
The applicant obtained a [Qualification 1] from [University 1] in 2004. In 2005, she started working for [a government department]. She stopped her work in 2007 following attacks on the [government] building. The applicant was offered an Iraqi government scholarship and travelled to Australia in 2008 to pursue post-graduate studies. In 2011, she obtained a [Qualification 2] and returned to Iraq later that year. Subsequently, she began working as an [Occupation 1 in the private sector].
In September 2013, the applicant was offered a job with [a workplace connected with an Iraqi government body], which was run by [Department 1]. She was offered the job despite her Sunni faith as the government was desperate to hire educated [Occupation 1s].
[Workplace 1] was established in collaboration with [Country 2] to increase knowledge of [Western languages and concepts] amongst Iraqis. The applicant coordinated a project funded by the [Country 2] government, and openly expressed her opinion against Islamic extremism [at work]. Due to her profile as a coordinator of a [Country 2] funded project, she faced ‘intimidation and abuse.’
In March 2016, the applicant was sent to [Country 2] for training and remained in that country for 27 days. Upon her return to Iraq, she faced ‘abuse and intimidation’, and was accused of being [a Country 2] spy. People also accused her of being a ‘characterless woman’ as she was single. On one occasion, when she was in a taxi, the driver asked her why she goes to the [Country 2] Embassy in the Green Zone. She interpreted this as an indirect threat.
She arrived in Australia [in] July 2016 and, a few days later, ISIS carried out suicide bombings to instigate sectarian violence. As a result, Sunnis are vulnerable to attacks from Shi’as. The Shi’a cleric Muqtada Al-Sadr has ordered his followers to attack [foreign] troops and these attacks may include those who are perceived to be working with [foreigners].
The applicant fears both Sunni and Shi’a extremists due to her opposition to ISIS brutality and Shi’a human rights abuses towards Sunnis. She is at risk of harm an as educated, Sunni woman without male protection. As a result of her work for a [Country 2] funded project and her travel to [Country 2], she will be perceived to be a spy. The authorities in Iraq cannot protect her because ISIS has established their network and presence in Iraq through their recent attacks. There has been a collapse of the rule of law in Iraq and the authorities are either unwilling or unable to protect people like her. She cannot relocate within Iraq as there is no place in Iraq which can be considered safe for a divorced woman without male protection.
Submissions to the Department
On 26 September 2017 the applicant’s then representative submitted the following documents to the of Immigration and Border Protection (the Department):
- Copy and translation of a custody order issued [in] 2012 by [a Sharia Court in Country 1]. The document indicates that [Mr A] has full custody of their adult daughter.
- Copy and translation of a letter, dated [in] 2013, issued by the [Department 1], confirming the applicant’s employment at [Workplace 1].
- Copy of an identity card issued by the [Department 1], featuring the applicant’s name and photograph.
- Copy of an identity card issued by [Department 2], featuring the applicant’s name and photograph.
- Copy of a personal identification card noting the applicant’s marital status as divorced.
- Copy of a Certificate from [University 2] (undated), confirming that the applicant completed [Course 1] conducted between August 2013 and April 2014.
- Copy of Certificate of Participation issued by [University 2] in recognition of the applicant’s completion of [Course 2].
- Copy of a November 2011 academic record issued by [University 3] in relation to the applicant’s [Qualification 2].
- Photos of the applicant posing with [Country 2] consultants.
In a submission to the Department, dated 29 September 2017, the representative repeated the applicant’s claims that she fears persecution due to her Sunni faith, her political opinion against ISIS and Shi'a militias, and her membership of a particular social group of Iraqi females holding a political opinion against ISIS.
The representative provided a long list of news articles and reports, in relation to attacks and killings by ISIS in Iraq and attacks against Sunnis by Shi'a militias. The representative also provided a list and links to reports from a number of sources, including the US Department of State, Human Rights Watch and Amnesty International in relation to the general security and political situation in Iraq. In addition, the representative included extracts from previous Tribunal decisions which reference this country information.
In relation to the applicant’s claims, it was submitted that the applicant belongs to the Sunni minority sect and faces a real chance of persecution due to her religious beliefs. She also faces persecution as an Iraqi female holding a political opinion against ISIS. It was submitted that the fact that the applicant is a female would aggravate this fear of harm.
In addition, the representative stated, with reference to case law and a 2017 Freedom House Report, that the authorities in Iraq will be unable or unwilling to provide her with protection against the harm she fears. It was further submitted that the applicant would be unable to internally relocate to avoid the harm she fears.
The following additional documents were provided under the cover of the submission:
·A letter of recommendation by [Professor B] of [University 2], dated 8 August 2016.
·An undated letter from [Mr C], President of [Organisation 1], confirming that the applicant attended the [Organisation 1] 2016 conference [in] July 2016.
·A document detailing the applicant’s travel history for the periods between August 1995 and July 2016.
A report from STARTTS, dated 29 September 2017, stated that the applicant first attended counselling [in] February 2017 and has had 11 counselling sessions. She underwent a psychosocial assessment using the Hopkins assessment tool and the Harvard Trauma Questionnaire which showed she was symptomatic of Anxiety, Depression, and PTSD. The report states that the applicant underwent various treatments including psychoeducation, grief and loss support, cognitive and behaviour therapy, and stress-management techniques, but appeared to make little progress.
This report also noted that the applicant had reported that her ex-husband divorced her without her knowledge in 1997, and that she experienced physical violence from him. The applicant described her husband as a ‘powerful man’ and fears for her safety if she were to return to Iraq. In addition, the applicant reported that whilst in Australia, she suffered emotional abuse in the form of threats and blackmail from her ex-husband via text messages and phone calls, using their daughter as leverage.
The interview
The applicant attended an interview with the Department on 3 October 2017. The interview was conducted with the assistance of an interpreter in the Arabic language. The applicant’s representative attended the interview. Where relevant, the applicant’s oral evidence at the interview is referred to in the Tribunal’s analysis below.
The delegate’s decision
On 6 December 2017, a delegate of the Minister refused her protection visa application. The delegate found that the applicant had not provided persuasive evidence that she would be personally targeted by militias because of her religion, political opinion or for being a divorced/single woman in Iraq. The delegate stated that the applicant’s claims lacked credibility and that her claims of past harm had not been substantiated.
In addition, the delegate found that the fact that her immediate and extended family continue to live in [Suburb 1] of Baghdad without suffering harm suggests that neither she nor her family hold any adverse profile of interest to anyone. Her frequent returns to Iraq and the use of her Iraqi passport also indicate that she does not have a profile of concern. Based on this, the delegate found that if the applicant were to return to Iraq, she would not face a real chance or a real risk of serious or significant harm.
Review application
The applicant applied for a review of the delegate’s decision. She was represented by her new migration agent, [Mr D], in connection with the review.
Pre-hearing submissions
In a submission, dated 29 July 2019, [Mr D] repeated the key claims made by the applicant in her statutory declaration of 25 July 2016 and submitted that the applicant has a well-founded fear of persecution for the following reasons:
·Religion - as the applicant is a Sunni Muslim, she and her family are vulnerable to persecution from the more fundamentalist or extremist Shi'a groups and more conservative and extremist Sunni groups.
·Imputed political opinion - the applicant’s father was in the military of the former regime, which imputes her with a political opinion against the Shi'a led Iraqi government.
·Membership of a particular social group - the applicant is a member of the particular social group of divorced women and/or westernised educated women in Iraq. She is also a member of the particular social group of her family, as she is at risk of being targeted by those seeking to obtain money from her due to her perceived wealth as she has lived and worked outside of Iraq for a number of years.
[Mr D] referred to a number of reports from a variety of sources, including EASO and UNHCR, as well as country information relating to the targeting of professionals and persons displaying westernised behaviour in Iraq, and risk of persecution to Sunnis in Baghdad
[Mr D] referred to the UNHCR Guidelines on International Protection and submitted that, as a single woman, it would not be possible for the applicant to internally relocate in Iraq.
In a statutory declaration, dated 18 July 2019, the applicant provided the following additional information.
Her father passed away in 2002 and she does not have a close connection with his family in Mosul. Her mother and sister live in Iraq. Her mother is unwell and cannot walk. Her daughter was forced to marry a man chosen for her by [Mr A] in January 2018 and now resides in Mosul.
While in Iraq, she worked as a [Occupation 1] as part of a project funded by [Country 2] government. In her classes, she encouraged discussion on topics related to human rights, women’s rights, drug use, sexuality, democratisation and climate change. She also expressed her views in relation to Islamic extremism. As a woman from a Sunni family background, it would not be safe to discuss controversial topics, as Shi'a religious leaders want to control what is discussed and what people think.
Due to her profile as a coordinator of [Country 2] funded project, she faced intimidation and abuse in Iraq due to the perception that she worked for [Country 2] government. When she returned from a trip to [Country 2] in 2016, she faced abuse and intimidation from people accusing her of being a [Country 2] spy.
She suffered abuse at the hands of her former husband following their divorce in 1997. In April or May 2000, he assaulted her while she was at University and ‘bashed’ her at home. He also tried to stop her from studying, but she managed to complete her studies without his knowledge. He eventually left Iraq for [Country 1] in 2003.
Her former neighbour in Iraq, who was also a Sunni, was kidnapped by a militia gang in 2015, and another Sunni neighbour was killed. After these incidents, her family stayed at home and did not go out.
In Australia she has been very stressed and suffers from a number of mental health issues because of her experiences, resulting in her requiring regular counselling.
She fears returning to Iraq because she will be seen as a western spy. She is also at risk from more extremist Shi'a militias and gangs. [Mr A] will also continue to abuse her and her daughter as a way of persecuting and bullying her. It is not possible to get proper protection from an abusive man in Iraq and she would be unable to relocate internally.
The applicant submitted a report from STARTTS, dated 17 July 2018, stating that she had received ‘brief psychological therapy’ between 13 October 2017 and 10 July 2018. The report stated that, in January 2018, the applicant was in severe psychological distress following her daughter’s arranged marriage. On 18 April 2018, the applicant was assessed using the Hopkins assessment tool and the Harvard Trauma Questionnaire. It was stated that, when compared to the previous tests conducted on 7 July 2017, the applicant showed limited signs of improvement. The report noted that while her symptoms for PTSD are stabilising, ‘her symptoms for anxiety and depression are severely significant’ due to the ongoing absence of safety and security of the protection visa application process, as well as her fear for her daughter. It was stated that various treatment options, including psychoeducation, strengths-based practice, grief and loss support, mindfulness and grounding, cognitive behaviour therapy, and stress-management techniques had been explored, and that it is recommended that she continues her treatment at STARTTS.
The hearing
The applicant appeared before the Tribunal on 20 November 2019. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. [Mr D] attended the hearing. Where relevant, the applicant’s oral evidence to the Tribunal is referred to below.
Post-hearing submissions
In a submission, dated 19 December 2019, [Mr D] essentially reiterated the claims made by the applicant previously. He referred to country information, extracting from reports published by a number of sources, including EASO, UNHCR, and the Finnish Immigration Service in support the applicant’s claims relating to her risk of persecution due to her profile as a divorced woman from a Sunni background living in Baghdad and as a professional and educated person. [Mr D] reiterated that the applicant would face harm in Iraq as a person perceived to be wealthy person from a Western country, displaying ‘westernised behaviour.’
In relation to the possibility of relocation, [Mr D] submitted that the applicant would be unable to relocate to the Kurdistan Region of Iraq (KRI). He referred to information sourced from the UNHCR and various other journal articles that Iraqis from religious minorities, including Sunnis are prevented from entering KRI. It was submitted that the applicant cannot relocate to the south or north of Iraq, due to her profile as a professional, divorced Sunni woman. She would not be able to move around Iraq without the support of her family. Her only existing male relative in Iraq is her young nephew who would not be able to provide her and the other women in her family with protection.
[Mr D] further submitted that the applicant was a victim of domestic violence and continues to fear her former spouse. These experiences have contributed to her mental health issues. He referred to text messages claimed to have been received by the applicant from [Mr A] and submitted that these messages are examples of the ‘aggressive and negative tone of her former husband’, which have reinforced her fears and have affected her mental health.
The following additional documents were attached to the submission:
·A STARTTS report, dated 9 August 2019, stating that the applicant has been receiving ongoing treatment since 23 November 2018 and has attended 17 counselling sessions. The report stated that psychometric assessments were readministered in March 2019 and the results indicate that she is symptomatic of anxiety, depression and post-traumatic stress. The report also relates her persistent symptoms to her pending protection visa application and recommends that she receives continued counselling.
·Screenshots (and translations) of text messages purportedly exchanged between the applicant and [Mr A] between August 2017 and January 2019.
On 24 March 2020, [Mr D] made a further submission to the Tribunal and referred to the applicant’s anxiety, depression and post-traumatic stress. It was submitted that there has been in increase in the severity of the applicant’s symptoms and that she reports current thoughts of suicide, but that her religion and the shame associated with suicide prevent her from acting on such thoughts.
Attached to the submission was a further report from STARTTS, dated 23 March 2020. The report stated that the applicant has sustained multiple traumas and that she recalls memories of her then [age]-year-old daughter being taken at gunpoint by her former husband. The report also stated that the applicant has expressed guilt, worry and sadness that she is unable to see or provide support to her daughter and elderly mother, but that she recognises the potential risks to her safety if she were to return to Iraq.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law

The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994. An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a) of the Act. In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1) of the Act, a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA of the Act, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, reasons and findings
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Having carefully considered the whole of the applicant’s evidence, the Tribunal formed the view that the significance attached by her to certain claims is highly exaggerated. Nevertheless, the Tribunal did not form the view that her narrative of her experiences should be doubted or that her credibility is in question. The Tribunal found the applicant to have provided her claims throughout the process, whether orally or in the course of a number of written submissions, in a consistent and coherent manner.
The Tribunal accepts the applicant’s account of her marriage and divorce, as well as her claims in relation to her experiences or encounters with [Mr A]. The Tribunal further accepts the applicant’s account of her education and employment history.
The Tribunal accepts that the applicant is a single, divorced woman. The Tribunal accepts that her daughter is now married and resides with her husband in Mosul. It further accepts that, due to the continuing influence of her former husband, her contact with her daughter is limited. The Tribunal accepts that the applicant’s elderly mother and her sister continue to reside together in Baghdad. It accepts that her mother [has mobility issues] and her sister is also divorced.
The available country information in relation to the situation of women in the applicant’s circumstances in Iraq was limited. A number of the relevant sources consulted were either somewhat dated or confined their assessment to specific regions within the country. Nevertheless, collectively, these sources presented a grim picture of the situation of women in Iraq.
In a Factsheet, published in March 2013, the UN noted:
Years of repression, economic sanctions, and armed conflicts have led to deterioration in the lives of women in Iraq and an associated loss to the country since women are marginalized and unable to contribute economically, socially, and politically. Iraqi women today suffer from a lack of educational opportunities, a lack of health care and limited access to the labour market as well as high levels of violence and inequality. These conditions are often exacerbated by misconceptions of traditions, cultural and social values, false perceptions, and a lack of awareness of women’s rights and potential, as well as institutional and legal barriers.[1]
[1] UN Iraq, Women in Iraq Factsheet, March 2013,
In its October 2018 report in relation to Iraq, DFAT stated:
3.63 The Constitution provides women with specific rights under the law, including freedom from discrimination and the right to vote and guarantees social and health security. In practice, women face various forms of legal and social discrimination. Women enjoy greater legal protections in the Kurdistan Region, but conservative social norms constrain women’s participation in public life throughout the country...
3.70 DFAT assesses that women in Iraq face a moderate risk of official and a moderate risk of societal discrimination and violence. Women face a high risk of domestic and family violence. This risk is exacerbated for women who are members of ethnic or religious minorities.[2]
[2] DFAT, Country Information Report, Iraq, 9 October 2018.
Single women without male protection in Iraq appear to be particularly vulnerable and at risk of physical abuse, harassment and discrimination. In a Research Report commissioned by the UN Women Iraq Office, Valeria Vilardo and Sara Bittar observed:
The situation for Iraqi women, despite the government of Iraq’s best efforts to address gender inequality, has declined steadily since 2003. Iraqi women comprise half of the total population and are heads of one in 10 Iraqi households—80 percent of these female heads of households are widows, divorced, separated, or caring for sick spouses. They represent one of the most vulnerable segments of the population…[3]
[3] Vilardo, V, Bittar, S, Gender Profile – Iraq: A situation analysis on gender equality and women’s empowerment in Iraq, Oxfam International, December 2018.
In a May 2018 report, the Finnish Immigration Service stated:
The community-based culture in Iraq has a major influence on the individual’s situation. Men have the main responsibility for their families and family honour, and most women are dependent on men for cultural reasons. Although there has been some change in attitudes, women’s lives are restricted by cultural norms. Women also face discrimination in the labour market and education. Women who violate these cultural norms can become victims of so-called honour violence.
Living alone is not generally accepted in Iraq because it is considered inappropriate behaviour. Women can also face other legal infringements. In practice, a single woman has very poor chances of making a living independently.[4]
[4] 'Overview of the status of women living without a safety net in Iraq', Finnish Immigration Service, 22 May 2018, p.1, CIS7B839419159
In a February 2019 report, the European Asylum Support Office (EASO) stated that:
It is socially not acceptable that women live on their own without men. Those who do not conform to this will often encounter negative attitudes from society and are at a particularly high risk of violence.[5]
[5] 'EASO Country of Origin Information Report - Iraq Key socio-economic indicators', European Asylum Support Office (EASO), 4 February 2019, p.46, 20190205091157
An April 2015 CARE report also stated that in Iraq ‘[s]ocial norms appear to prevent women from living without men, leaving female-headed households particularly at risk of violence.’[6]
[6] 'Multi-sector needs assessment, April 2015 - Kirkuk City/Iraq', CARE Australia, 14 April 2015, p.11, 20190319112733
The applicant’s evidence indicates that, if she were to return to Iraq, she would reside with her mother and sister and not on her own. However, all three women will live without a man in the household, as the Tribunal accepts that the applicant’s nephew resides in separate accommodation with his own family. The Tribunal is cognisant of information before it, suggesting that there are only ‘rare cases of older women living alone or sisters or a mother and daughter living together without a male in the household’.[7]
[7] 'Report on Joint Finnish-Swiss Fact-Finding Mission to Amman and the Kurdish Regional Government (KRG) Area, May 10-22, 2011', Finnish Immigration Service and Switzerland: Department of Justice and Police (FDJP), Federal Office for Migration, 1 February 2012, p.38, CIS22533
The EASO report, referred to earlier, stated:
[W]omen without male relatives, including women-headed households, divorced women and widows are placed in a vulnerable position economically and in terms of exposure to harassment, and have difficulty finding employment…[8]
[8] EASO, n5 above, p.45
The Tribunal has accepted that the applicant is highly educated and that, prior to her most recent travel to Australia, she was employed as a [Occupation 1] at [Workplace 1] administered by the [Iraqi government]. The EASO report included a summary of information from a November 2016 Dutch language report by the Netherlands’ Ministry of Foreign Affairs which stated that ‘the position of single women who are self-sufficient because they have a job differs from the position of unemployed and/or uneducated women’.[9] However, no further information was provided, which clarified how their situation would be different and the Tribunal has found no other information in this regard. For instance, it is unclear whether these women would not be exposed to harm or harassment. In any event, self-sufficiency in this sense appears to be contingent on having a job.
[9] 'EASO Country of Origin Information Report - Iraq Targeting of Individuals', European Asylum Support Office (EASO), 7 March 2019, p.165, 20190308091632
A May 2012 report from the Centre for Gender Studies at SOAS University of London, which discussed the situation of female Iraqi academics in Iraq, provided information which suggests that societal and cultural expectations may have an adverse impact on the ability of educated women to live independently in Iraq.[10] Vilardo and Bittar also noted the ‘huge difference’ in the way the economic activities of a widow and those of a divorced woman are perceived, stating ‘even if women in both situations work out of need, the latter is often criticized for working outside her home.’[11] In November 2019, Priyanka Boghani reported:
Around 85 percent of women age 15 and up, don’t participate in Iraq’s labor force, putting them at higher risk of falling into poverty — though they may take part in the informal economy doing work like sewing or handicrafts… Women who do have formal jobs face harassment and intimidation in the workplace…[12]
[10] Al-Ali, N, Al-Jeboury, I, Al-Enezy, I and Al-Dujaili, H, 'Female Iraqi Academics In Post-Invasion Iraq: Roles, Challenges & Capacities', Centre for Gender Studies - SOAS University of London, 8 May 2012, pp.13 and 15, 20190320141206
[11] Vilardo and Bittar, n3 above.
[12] Boghani, P, How Conflict in Iraq Has Made Women and Girls More Vulnerable, Frontline, 12 November 2019, >
Whilst the applicant’s level of education and her employment history may indicate that, compared to other Iraqi women, she would be in a relatively stronger position to find employment, this does not mean that any level of self-sufficiency gained would protect or shield her against the types of harm single, divorced women without male protection in Iraq may be exposed to.
The Tribunal has found that, if the applicant were to return to Iraq, she would seek to reside with her elderly mother and sister. It has also found that the applicant’s nephew resides in separate accommodation and that all three women will live without a man in the household. Whilst the applicant has not claimed that her mother and sister have experienced harm in Iraq, on the basis of the country information before it, the Tribunal finds that as a single, divorced woman without male protection, the applicant is highly vulnerable and at risk of harm if she were to return to Iraq.
The Tribunal is of the view that the applicant’s vulnerability is exacerbated by the mental health issues she has been experiencing. The Tribunal accepts the substance of the psychological evidence provided by the applicant, indicating that she has anxiety, depression and post-traumatic stress. The Tribunal is of the view that the applicant’s fragile mental health is likely to amplify the effect of any abuse, harassment and ill-treatment she may be exposed to in her daily life, as well as any intimidation or discriminatory treatment she may face in the labour market, should she be able to overcome the significant challenges she will be facing in accessing employment in Iraq as a woman.
For these reasons, the Tribunal finds that if the applicant were to return to Iraq, there is a real chance that she would face significant physical harassment and significant ill-treatment at the hands of members of the general public. The Tribunal is satisfied that such treatment would amount to serious harm under s.5J(4)(b) of the Act. The Tribunal is satisfied that the harm the applicant fears involves systematic and discriminatory conduct as required by s.5J(4)(c). The Tribunal is satisfied that the real chance of persecution relates to all areas of Iraq. The Tribunal is satisfied that the essential and significant reason for her fear of persecution is her membership of the particular social group of single divorced women without male protection in Iraq. As the Tribunal has found that the applicant faces a real chance of being persecuted in Iraq for the reasons provided, it is not necessary to address the other protection claims made or raised on the face of the evidence.
For the reasons given above, the Tribunal is satisfied that the applicant has a well-founded fear of persecution. She is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Shahyar Roushan
Senior 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.
…

[2020] AATA 1314

1 May 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Statutory Construction

Natural Justice

Procedural Fairness

Remedies