1801362 (Refugee)

[2023] AATA 4529

1801362 (Refugee) [2023] AATA 4529 (13 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Joseph Eugene Lopez (MARN: 0848144)

CASE NUMBER:  1801362

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Peter Katsambanis

DATE:13 October 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the third 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 their membership of the same family unit as the third named applicant.

Statement made on 13 October 2023 at 3:00pm

CATCHWORDS

REFUGEE – Protection Visa –Iraq – religion –Shia Muslim – race – Arab ethnicity – a member of the army in Iraq – an army deserter – risk of honour killing – membership of the particular social group – young, single women in Iraq or young women with Western values, dress and culture – young women who do not wear a hijab – effective protection measures are not available to the applicant – the third named applicant satisfies s 36(2)(a) of the Migration Act – membership of the same family unit – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 36, 48, 91, 65, 499

Migration Regulations 1994, Schedule 2

CASES

DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW20 [2021] FCAFC 63

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 5 October 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. Department records confirm that the applicants were validly notified of the delegate’s decision on 12 January 2018, and that any previous notification of the decision was not valid.

3. The applicants, who claim to be citizens of Iraq, applied for the Temporary Protection (Class XD) subclass 785 (Temporary Protection) visas on 10 February 2017. The delegate refused to grant the visas on the basis that the delegate was not satisfied that the applicants were persons in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.

4. According to Department records, the three review applicants arrived in Australia by sea at the Territory of Ashmore and Cartier Islands on [date] December 2011. In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Migration Act 1958 (Cth) (the Act)). Accordingly, the applicants are not a ‘fast track applicant’ (as defined in s 5(1)) and a decision refusing to grant them a Temporary Protection visa is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.

5. After their arrival in Australia, the applicants were granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 8 February 2017. At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time.

6. However, as determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63, s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands. Therefore, the application for a Temporary Protection visa that is currently under review is not subject to the s 91K bar and the applicants made a valid application for review on 18 January 2018.

7. The first named and third named applicants appeared before the Tribunal on 11 October 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

8. The applicants were represented in relation to the review by a registered migration agent.

   CRITERIA FOR A PROTECTION VISA

9. 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.

10. 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.

11. 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).

12. 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.

13. 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

14. 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

15. The issues in this case are whether there is a real chance that if the applicants return to Iraq, they will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purposes of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Iraq, there is a real risk that they will suffer significant harm for the purposes of s 36(2)(aa) of the Act.

    Protection Visa Application

16. The primary applicant for the application made to the Department on 10 February 2017 was [Mr A], who is the husband of the first named review applicant and the father of the second named and third named applicants.

17. The three review applicants did not make any claims, and no claims were made on their behalf, in the protection visa application form or at any time before the delegate’s decision on 5 October 2017. They instead relied on their membership of [Mr A]’s family unit. The Tribunal will refer to [Mr A] as ‘the husband’ or as ‘the father’ or as ‘the husband and father’ where appropriate to do so in this decision.

18. The husband and father of the review applicants was born on [date] in Najaf, Iraq. He is of Arabic ethnicity and Shia Muslim religion. He married the first named applicant on [date] June 2022 in Qom, Iran. His father and one half-brother are deceased. His mother, two sisters, 5 brothers and one half-brother all live in Iraq. He arrived in Australia by sea without a valid Australian visa on [date] October 2012. He claims that he left Iraq legally on his valid Iraqi passport which was taken off him by a people smuggler in [Country 1]. He had previously spent time living with his family in Iran from 1993 to 2003 and again briefly in 2012 before coming to Australia through [countries].

19. The husband claimed that whilst living in Iran he completed [a grade] and then completed [a] course. He later worked in a [shop] in Iran. After his return to Iraq from Iran, he had been employed in the Iraqi army.

20. The three review applicants all arrived in Australia by sea without a passport or a valid Australian visa on [date] December 2011. They claim to have left Iraq legally using the first named applicant’s valid Iraqi passport (which also recorded the names of the children), but the passport was taken from them by people smugglers in transit to Australia. They claim to be of Arab ethnicity and Shia Muslim religion.

21. The first named applicant, who is female, claims to have been born on [date] in Basra, Iraq.

22. The second named applicant, who is male, was born on [date] in Al Najaf, Iraq.

23. The third named applicant, who is female, was born on [date] in Qom, Iran but claims to be a citizen of Iraq.

24. In the temporary protection visa application, the husband claimed that as a result of his highly sensitive role in the Iraqi army and assisting the American army with intelligence when it was based in Iraq, he and his family have been subjected to harm. This harm included death threats received by the husband and his family, the murder of his father in 2010 in Najaf because the husband remained with the army and the bombing of the husband’s house in Hillah by militants that he suspects are affiliated to ISIS.

25. The husband also claimed that his family had a history of Ba’ath regime opposition in the past, including the death of his uncle in custody and the exile of his family in Iran. He stated that he could not relocate to any other part of Iraq to avoid the harm he feared because the threats were widespread, and the Iraqi authorities were powerless to assist him.

26. The husband claimed that he feared harm if he returned to Iraq including violence and murder at the hands of non-government militant groups because he had been a member of the army in Iraq and had assisted the American army during his service.

27. The husband was interviewed by the delegate on 26 September 2017 in relation to the temporary protection visa application. The delegate’s decision record notes that at this interview, he provided a new claim that he had deserted the Iraqi army prior to coming to Australia and that he feared harm on return to Iraq from the authorities because he was considered an army deserter.

28. The decision record also notes that the husband confirmed at this interview that his wife (the first named applicant in the review application) was not making any claims for protection in relation to the temporary protection visa application despite previously having made some claims that had been considered and rejected in the past by Australian authorities.

29. On 3 October 2017, the applicants’ then-representative made a submission to the Department summarising the applicants’ claims and providing arguments in support of these claims. The Tribunal has read and considered this information prior to making its decision in this matter.

30. The delegate refused to grant protection visas to the applicants on 5 October 2017. However, as outlined above, the Department file indicates that they were not validly notified of this decision until 12 January 2018.

    Application for Review

31. The three review applicants applied to the Tribunal for a review of the delegate’s decision on 18 January 2018. [Mr A] (the primary applicant in the application to the Department) was not included in this application for review.

32. The applicants also provided the Tribunal with a copy of the delegate’s decision and a copy of the accompanying notification letter.

33. In an email provided to the Tribunal on 7 September 2023, the first named applicant stated that she had given birth to another son who had been born in Australia and she expected that he would become an Australian citizen in 2024 when he turned 10 years of age. This son had also been included in the temporary protection visa application that was the subject of the delegate’s decision on 5 October 2017. However, this son was not included as a party in this review application and is therefore not a party in this matter.

34. In the first named applicant’s statement, she claimed that her daughter, the third named applicant, had lived in Australia since she was [age] years old and considered this to be her home. She would soon graduate from high school and would then enrol in a [course], with the ambition that she may one day become a doctor. She claimed that if her daughter returned to Iraq her life would be over.

35. The first named applicant stated that her son, the second named applicant, had been in Australia since he was [age] years old. He has only known Australia and cannot remember living in Iraq. He is currently studying [a course] because he wants to become a nurse so he can help people.

36. The first named applicant claimed that her children’s entire lives had been lived in Australia and that they had grown up here, so if they returned to Iraq their lives would be over.

37. The first named applicant claimed that since she came to Australia, she had completed [qualifications]. She stated that she had opened a [business] which she operated for some time and provided documentation relating to this business. She claimed that she is currently working in [a] field. She claimed that she would not have the courage to do this work in Iraq because the country was not safe for her or her family. She also attached a copy of the correspondence she had previously sent to the Department about a data breach that had briefly exposed online some details of applicants for protection visas (including these applicants). She also stated that she feared for her family on return to Iraq because of her husband’s previous involvement with the Iraqi military and the American forces in Iraq.

38. On 2 October 2023, the applicants’ representative provided the Tribunal with a statutory declaration made by the first named applicant on 27 September 2023.

39. In this declaration, the first named applicant claimed that if her family returned to Iraq, her husband may be jailed for deserting the Iraqi army or forced to work for the army again. She claimed she would be forced under Iraqi customs to live with her husband’s family, which would be problematic because her husband’s younger brother, [Mr B], had previously performed some leud acts in the presence of her daughter, and she feared he would do so again. The authorities were powerless to protect her daughter in these circumstances and if the rest of the family found out, the daughter would be at risk of harm or death as the family would consider her honour had been sullied. The first named applicant also feared she may be harmed if it was considered that she had not protected her daughter from harm.

40. The first named applicant stated that she was the person she claimed to be. A people smuggler had taken her passport on her journey to Australia, but her husband had provided the Department with copies of her Iraqi national identification card and her marriage certificate. She stated that she had previously claimed to the Department that she was stateless because she no longer had any connection to Iraq apart from her husband, who was absent for long periods of time with the army. She had also followed the advice of other refugees she met on her journey to Australia who also did not have documents and who told her that it might be better if she claimed to be stateless on arrival in Australia.

41. In relation to the different names or aliases that the family had provided to the Department over time, the first named applicant claimed that these names were not incorrect and that she had no intention to mislead. She claimed that in Iraq people can have up to 5 names including an honorific, a family name, and a religious name. These names could be used interchangeably, not necessarily in the same order and each name may often be spelt in multiple ways. She also stated that the various birthdates recorded against the family were due to birthdays not being celebrated in her culture and some confusion was caused by working between the Islamic and western date systems. She stated her correct birthdate was [date].

42. In relation to the third named applicant, it was claimed that the month and date of her birth had been accidentally interchanged on one occasion and that her correct birth date was [date].

43. The first named applicant described how she was born in Basra, Iraq to a Shia family. When Saddam Hussein came to power in 1979, he commenced persecuting people of Shia religion and her family fled to Qom, Iran when she was around [age] years old. They were issued with green cards in Iran, and she lived in Qom with her family until they decided she should get married to her husband, who she referred to in her statutory declaration as [name]. The couple continued to live in Qom and the first named applicant fell pregnant in 2003 with her first child, who she referred to in her statutory declaration as [Miss C]. This child, under a different name, is the third named applicant.

44. After the fall of the Saddam Hussein regime in Iraq in 2003, Iran began to deport undocumented Iraqis, which included the first named applicant’s husband. The husband’s family also returned to their home city of Najaf, Iraq around the same time. The first named applicant remained in Iran to access superior health care during her pregnancy, but she and her daughter left to join the rest of her husband’s family in Najaf in late 2004.

45. The first named applicant explained that the third named applicant was around [age] old at the time. The family registered her birth with Iraqi authorities on arrival and the authorities registered the child as being born in Iraq given her young age. The first named applicant claimed that this was the reason for the discrepancy in the child’s birthplace between the first named applicant’s claims over time and the official paperwork.

46. The first named applicant claimed that her husband obtained work with the Iraqi army with the assistance of his brother, [name], and that as part of his duties he was expected to assist the United States army. The first named applicant claimed that she had mistakenly claimed her husband worked for the Al Madhi army in past statements to Australian authorities because she had been confused between this group, that was active at the time, and the new Iraq army formed after the fall of Saddam Hussein’s regime. She claimed that her husband moved to Baghdad to work for the army but that she and her child stayed with her husband’s family in Najaf because it was customary in Iraq that women would not live alone without an adult male in their home.

1. The first named applicant claimed that her own family still lived in Iran, but her mother refused to let the applicant family live in her own home. Her siblings now had their own families in Qom.

2. The first named applicant claimed that around 2006 her father-in-law started receiving death threats because his son, the first named applicant’s husband, was working for the army. Her husband moved his own family to Hillah in 2009 because of these death threats. She claimed that her father-in-law was murdered in Najaf in 2010 and that the house in Hillah had been bombed soon after she arrived in Australia.

3. The first named applicant claimed that when she lived at her in-laws’ house, her brother-in-law [Mr B] treated her badly. He would shout at her, hit her, and threaten her. Whilst she was pregnant in 2006, this harassment reduced somewhat. One day in 2009, whilst in Najaf, the first named applicant witnessed [Mr B] performing a leud act in front of the third named applicant who was around [age] years old at the time. The child later told her that this happened commonly, even at their house in Hillah. The mother-in-law knew about this incident and warned the child not to tell anyone. The mother-in-law even made a deep cut with a knife in the child’s arm as a warning. The mother-in-law also told the first named applicant not to tell her husband because she feared he may kill his brother. [Mr B] also forced the first named applicant not to tell her husband about the incident.

4. Despite claims previously made to Australian authorities, the first named applicant stated that she now did not believe that [Mr B] was responsible for written death threats received by her husband around the time of this incident because the threats called on the husband to quit the army and [Mr B] would not receive any benefit from such action.

5. When her husband came home to visit the family, the first named applicant told him the third named applicant had slipped on playground equipment and asked him to take them to the doctor. Only the first named applicant went inside the doctor’s examination room with the child and the doctor confirmed that although the child was still a virgin, there was some evidence of sexual interference. The first named applicant resisted the doctor’s request to refer the matter to authorities because, based on what she had heard from friends, she feared that the authorities were unlikely to prosecute [Mr B] but when news spread, the family clan of the husband would blame the first named applicant for not protecting her child. She would then certainly be expelled from the clan, or at worst, she could be killed to avenge their honour and her husband would not be given any say in the matter. In addition, the third named applicant would be seen by the clan as being ‘damaged’, she would not be seen a suitable candidate for marriage in the future and she may even be killed to protect the clan’s honour.

6. The first named applicant stated that after this incident, she contacted her mother in Iran and begged her to take the family into her home, but her mother refused because she did not like the husband’s family and had previously warned the first named applicant’s father not to arrange the couple’s marriage.

7. In her statement, the first named applicant claimed that previous statements she had made to Australian authorities about [Mr B] attempting to sexually assault her were not correct but that he had threatened to rape her and then tell everyone that she had seduced him. He also often hit her and tried to control her.

8. The first named applicant claimed that if the family returned to Iraq, her husband would still face death threats in Iraq because of his work with the Iraq army. He may be imprisoned for deserting the army, which would leave the rest of the family unprotected. They would be forced to live with the family of her husband, including [Mr B] who still lived in the family home, and this would expose them to further danger. When her husband inevitably found out about [Mr B]’s actions in the past, there would be a confrontation between the brothers resulting in one being killed. No matter who was killed and who was imprisoned for the killing, the first named applicant’s family would again be left unprotected.

9. The first named applicant feared further harm for the third named applicant because, apart from being exposed to her terrible uncle, she would not be allowed to go to school. She claimed that without family support relocation was not an option for the family in Iraq. The Iraqi state was not able to offer any meaningful protection and even if they prosecuted [Mr B], the clan would find out what had occurred and this would destroy the reputation of the third named applicant, which would expose both the first named and third named applicants to the risk of honour killing.

10. In a submission to the Tribunal on 2 October 2023, the applicants’ representative provided arguments and country information in support of the applicants claims. The Tribunal has read and considered this submission prior to making its decision in this matter.

    Tribunal Hearing

11. At the hearing, the first named applicant explained that she was born in Basra, Iraq to a family of Arab ethnicity and Shia Muslim religion. She lived in this area until an intifada broke out in Iraq around 1991. Her family then moved to Qom, Iran as refugees because of the danger they faced in Iraq due to their Shia Muslim religion. Whilst in Iran, she studied in Arabic at what she described as a ‘de facto school’ that had been set up by volunteer teachers to teach Iraqi refugee children because the Iranian government did not permit these Iraqi children to attend Iranian schools.

12. The first named applicant stated that she and her family had been issued with a green card in Iran which allowed them to live there as refugees, but they needed to update this card every three months or so. They had to travel to Tehran every time they needed to update their card. She claimed that her mother, her two brothers and her two sisters still lived in Iran. Her siblings were all unmarried. She was uncertain about their residency status but claimed that the green card had now been changed to a white card and her family still needed to go to Tehran to renew their card every 6 to 12 months. She stated that her family had never returned to Iraq.

13. The first named applicant claimed that she returned to Iraq after her eldest daughter was born in 2004. The daughter had been born on [date] in a hospital in Qom, Iran. However, her birth had never been recorded in Iran and had only been recorded after the family returned to Iraq. She claimed that there was uncertainty around her daughter’s birth date because the calendar used in Iran was a different calendar to the Western calendar, which was also used in Iraq. When she recorded the birth of her child on return to Iraq, the local officials told her it would be better for the child to start school earlier and recorded her birth date as ]date[. When the family came to Australia, they explained to the Australian authorities that the daughter had been born on [date], and this was the birthdate that had been recorded on Australian records including the daughter’s immigration identity card.

14. The first named applicant stated that when her family returned to Iraq from Iran, they initially lived with her husband’s family in Najaf but then moved to their own rented home in Hillah. She left Iraq around the end of 2010 with her two children. They travelled by bus to Iran where they stayed for two days before flying to [Country 1]. They use the first named applicant’s passport, on which her two young children were also recorded, for this flight. From [Country 1], the family were taken to [Country 2] by small boat and were detained by police in a camp for five or six months before being taken to another camp. A people smuggler then took them to the capital of [Country 2] and arranged for them to come to Australia by boat.

15. The first named applicant explained that she and her children had come to Australia separately from her husband because her husband was a member of the army in Iraq and just wanted to get his family out of the country as the situation was becoming more dangerous for them. The husband arranged to get his family out of the country with the intention that he would join them later.

16. The first named applicant stated to the Tribunal that she had no idea why her husband, who had been the primary applicant in the temporary protection visa application made to the Department, was not a review applicant for the purposes of this review.

17. The first named applicant and the third named applicant both confirmed that the third named applicant’s legal or official name was [name]. However, the first named applicant gave her daughter the nickname of [Miss C] when she was first born, and the daughter now preferred to be called [Alias of Miss C] because it was simpler for her friends to say.

18. In her evidence to the Tribunal, the third named applicant stated that she came to Australia when she was [age] or [age] years of age. She could not really remember what life was like in Iraq and it was all a blur to her. Her main recollections of childhood were the times she had lived in Australia because she had grown up in this country.

19. The third named applicant stated that when she first arrived in Australia she went to school at [a college] where she completed Years 2 and 3. She then completed the rest of her primary school studies at [a] School [before] attending [a] College where she was currently about to complete her year 12 studies. This is her local government high school as the family live in the Perth suburb of [suburb].

20. The third named applicant stated that she could only speak Arabic but could not read or write it. She had never been to an Arabic after-hours school or received any instructions in Arabic whilst living in Australia. During the few years she spent at [a] College she had to study the Koran, but she could hardly remember any of those studies now. She had not engaged in any studies of the Koran since that time, and she never attended a mosque. Her family were also not attendees of a mosque. They would observe festivals like Eid by eating together as a family and occasionally pray together but even on important religious occasions such as Eid and Ramadan the family would not attend a mosque.

21. The third named applicant claimed that apart from attending school, she regularly works in her father’s [shop] in the Perth suburb of [suburb]. In her spare time, she plays in a [sport] team with her friends, goes to the gym and just hangs out with her friends.

22. The third named applicant explained that the hijab was not a big issue for her. She chooses not to wear it on a regular basis and was not wearing it at the hearing. Occasionally, she would wear it on days like Eid or Ramadan so as not to embarrass her mother and so that family friends did not unfairly judge her mother. However, she does not wear it at work or when she goes out and finds that it gets too much for her because it is hard to stay covered up and it becomes very uncomfortable when the weather gets hot.

23. The third named applicant stated that she initially wanted to be a lawyer but because of her uncertain immigration status in Australia it was not possible to study law. She had therefore switched her attention to [another] field. It is her dream to become a [occupation] in the future. Next year she will enrol in a [course] which will enable her to transfer to [specified]l studies in the second year of the course.

24. When asked why she believed she could not return to Iraq, the third named applicant stated that the people in Iraq would not accept her because she was very strong-minded. She wanted to continue with her education and create the future that she had always dreamt of. However, in Iraq, relatives would try to marry her off and she does not want that. When asked if she could simply ignore the pressures from relatives and continue to pursue her dreams in Iraq, the third named applicant stated that it was not possible to do so in Iraq because family members, particularly members of her father’s family, would harm her or kill her because they would consider that she had besmirched the family honour. She added that she could not continue her studies at any level in Iraq because of her lack of Arabic language skills.

25. The third named applicant stated that her father’s family were very religious and considered a woman’s role was to stay home and look after children. She claimed that in Iraq, women are forced to stop their education at around Year 10 level, particularly in regional and rural areas. She explained how she would sometimes speak to her cousins in Iraq by telephone and how shocked she was on one occasion that her cousin, who was younger than her, was about to get married. The third named applicant found it shocking that a child could be forced into marriage by the father and the family. She added that her own father was not very strict with her and allowed her to go out whenever she wanted to. She stated that marriage was certainly not in her current plans, and she wanted to focus on her education and becoming financially stable before she would even consider marriage as an option in her own circumstances.

26. At the end of the hearing, the first named applicant confirmed that the family had lost any right they previously had to reside in Iran as soon as they departed Iran to return to Iraq in 2004. She stated that her family members who were still living in Iran do not have any long-term rights that would enable them to sponsor any of the applicants to seek refuge in Iran.

    FINDINGS AND REASONS

27. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Identity and nationality

28. The applicants arrived in Australia by sea without any passports, without any valid Australian visas and without any other identity documents. This creates some initial doubts about their identity and nationality.

29. However, over time, they have provided copies of their Iraqi national identification cards as evidence of their identity as well as some other identity documents. The documents provided over time have variations in the spelling of the applicants’ names and the applicants themselves have provided various versions of their names to Australian authorities since their arrival in Australia in 2011.

30. The Tribunal accepts the submissions made by the applicants that in Iraq, various tribal, family and religious names are used for the same person, they are not always used in the same order and the spelling of the names can vary, especially when translated from Arabic to English.

31. The Iraqi identity card for the third named applicant has a different place of birth and date of birth than the date and place of birth claimed by the third named applicant herself and her family. The card states that this person was born in Iraq. However, it has been claimed by the family that she was born in Qom, Iran but was taken to Iraq as a very small child before her birth could be registered in Iran. The Tribunal accepts that the third named applicant was born around 2003 and 2004 which was a tumultuous time in the region. The Ba’athist regime in Iraq was in the process of being deposed and after the demise of this regime, neighbouring countries like Iran who had provided support for Iraqi refugees for many years began encouraging, and sometimes forcing, these refugees to return to Iraq. On balance, the Tribunal is prepared to accept the explanation offered by the third named applicant’s mother that during this tumultuous period, which occurred whilst she was pregnant, she decided to stay in Iran to give birth to her daughter and then she returned to Iraq with her baby to join her husband very soon after the daughter’s birth. On this basis and given that the family were living in Iran as refugees, the Tribunal accepts that the child’s birth may not have been recorded in Iran and that it was subsequently recorded when the family returned to Iraq. The Tribunal also accepts that well-meaning officials may have recorded the birth as taking place in Iraq to avoid future complications for the child. It is also a possibility that there are records of the child’s birth in existence in Iran but that the family did not obtain these records before fleeing Iran. However, just like in Australia, the existence of any such birth records in Iran would not alter the nationality of the child.

32. Given the tumultuous events in Iraq at the time, the Tribunal accepts that the birth date discrepancy for the third named applicant has occurred due to confusion between the calendar used in Iran at the time of her birth and the western calendar used in Iraq as well as a well-meaning but misguided desire by Iraqi officials to facilitate an early transition to school in later years for the third named applicant.

33. In determining nationality, given that the family spent many years in Iran, the Tribunal has placed significant weight on the fact that the applicants are Arabic speakers (the primary language used in Iraq) rather than Farsi speakers (the primary language used in Iraq). It has also placed significant weight on the evidence at the hearing of the first named applicant that when she went to Iran as a small child, she attended a makeshift school for refugee children which was staffed by volunteer teachers and where instruction was conducted in Arabic. The Tribunal considers that the language spoken by the applicants is strong evidence that the family are not Iranian but are in fact Iraqi.

34. Accordingly, on the evidence before it, the Tribunal accepts the identity of the applicants as claimed and the Tribunal also accepts that they are nationals of Iraq.

    Claims of third named applicant - [name]

35. The third named applicant is a [age]-year-old young woman who arrived in Australia as a [age]-year-old child and has spent almost all of her formative years in Australia. At the hearing, she provided cogent, direct and persuasive evidence about her life in Australia and her dreams for the future, which include the desire to pursue studies in [a field] after she graduates from high school in the next few weeks. She also clearly stated that English was her primary language. Although she can speak Arabic through interaction with her family, she has had no formal instruction in this language, she cannot read or write it and she therefore cannot pursue further studies in that language, even if she was permitted to do so in Iraq. 

36. The third named applicant presented at the hearing dressed in a western style, which she indicated was her usual mode of dress on a daily basis. She was not wearing a hijab and indicated that she did not usually wear a hijab. The third named applicant provided direct and honest evidence to the Tribunal that she had no particular issue with the hijab and she would wear it on rare occasions, particularly during religious festivals, primarily to appease conservative family friends and to preserve her mother’s honour in front of these friends. However, she made it clear that she would not want to be forced to wear a hijab on a daily or ongoing basis because she found it hot and uncomfortable, and because it was simply not her preferred style or form of dress.

37. In relation to her future aspirations, the third named applicant outlined that she was about to graduate from high school and that she wanted to pursue further studies [after] graduation. She feared that she would not be able to pursue these further studies in Iraq, where study for women is discouraged and sometimes totally forbidden within some families. She also indicated that marriage was not in her plans at the moment, but she feared that if she returned to Iraq she would be forced to marry against her will by her family or tribe because this is what is expected of women in Iraqi society.

38. Given this clear and unambiguous evidence from the third named applicant, the Tribunal has considered relevant country information about the role and treatment of women in Iraqi society today.

1. The Department of Foreign Affairs and Trade summarises the deterioration of the situation for women in Iraq over the past few decades as follows:

   For much of the 20th century, women in Iraq made significant progress towards equality, achieving relatively high rates of tertiary education and employment in the professions and civil service. Many of these advances were reversed in the latter part of Saddam’s rule. Since the 2003 US-led military action, armed conflict and resurgent tribal and religious influences have led to a serious deterioration in the situation of women in Iraq. While individual circumstances vary, women across the spectrum of Iraqi society are affected by issues such as high rates of domestic and gender-based violence, low rates of economic participation, unfair laws, abusive cultural practices, exclusion from decision-making and inadequate state protection.[1]

   [1] Department of Foreign Affairs and Trade, DFAT Country Information Report – Iraq, 16 January 2023, p 29, para 3.109.

2. The DFAT report suggests that violence, including domestic violence, against women is endemic in Iraq and that laws to deal with these problems are either inadequate or non-existent:

   Gender-based violence is common in Iraq, and domestic violence is pervasive. According to the UN Population Fund, 46 per cent of married Iraqi women have been exposed to at least one form of spousal violence. The incidence of domestic violence reportedly increased during COVID-19 lockdowns. The legal framework for dealing with gender-based violence is inadequate. Attempts to pass federal anti-domestic violence legislation remain stalled due to opposition by religious leaders and conservative politicians. Although Article 29 (4) of the constitution specifically prohibits all forms of violence and abuse in the family, Article 41 of the Criminal Code stipulates that men may discipline their wives and children ‘within certain limits prescribed by law or by custom’. Federal laws do not criminalise spousal rape.[2]

   [2] Ibid, p 30, para 3.112.

3. The DFAT reports also highlights the inadequacy of state protection for women at risk of violence, and suggests that in instances such as rape, the law may criminalise victims rather than offering them access to some form of protection:

   State protection against rape and sexual violence is inadequate. There is a lack of female police officers and police trained in dealing with gender-based violence and rape. The legal framework and societal norms contribute to impunity for perpetrators of sexual violence. Article 398 of the Criminal Code requires authorities to drop a rape case if the perpetrator marries the victim (the rape prosecution will resume if the husband divorces the victim within the first three years of marriage). Article 394 of the Criminal Code prohibits sexual relations outside marriage, and victims often do not report rape due to fear of being charged under this law, as well as stigma and fear of being killed by family members. Abortion is illegal, including in cases of rape, although the morning-after pill can legally be prescribed for rape victims.[3]

   [3] Department of Foreign Affairs and Trade, DFAT Country Information Report – Iraq, 16 January 2023, p30, para 3.115.

4. Honour killings are one of the more extreme but very real threats that women face in Iraq and the DFAT report suggests that the state offers inadequate protection in such cases:

   So-called ‘honour killings’ remain a serious problem nationwide. The majority of victims are women. Honour killings can be carried out in response to behaviour including alleged adultery, refusing an arranged marriage, forming an unapproved romantic attachment, or ‘shameful’ dress or behaviour, including social media posts. The Criminal Code limits a sentence for murder to a maximum of three years’ imprisonment if a man is on trial for killing his wife, girlfriend, or a female dependant due to suspicion that the victim had been committing adultery or having sex outside of marriage. UNAMI has reported that several hundred women die each year from honour killings, with some families reportedly arranging honour killings to appear as suicides.[4]

   [4] Ibid, p 30, para 3.116

5. Although technically illegal, forced marriage is another serious issue faced by girls and young women in Iraq, and the DFAT report highlights the powerlessness many of these girls and young woman face in such situations when confronted by the power of their family or tribe:

   Forced marriage is illegal, and the legal age of marriage is 18 years for both men and women (although with parental consent and judicial permission the age can be lowered to 15 years). Nevertheless, forced, early and child marriages occur in Iraq. Women and girls are sometimes subject to sexual exploitation through so-called ‘temporary marriages’, where a man gives the family of the bride money in exchange for permission to ‘marry’ her for a specific period. Destitute IDP families living in camps are reportedly particularly vulnerable to this form of exploitation. The traditional practice of fasliya, whereby family members (including women and children) are traded to settle tribal disputes, remains a problem, particularly in southern governorates. Another traditional practice, known as nahwa, allows a male relative to forbid a woman from marrying outside her family or tribe.[5]

   [5] Ibid, p 31, para 3.1187

6. Based on this information referred to above, the latest DFAT report provides the following overall assessment of the risks faced by women and girls in modern Iraqi society, including those women who advocate for women’s rights:

   DFAT assesses that 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. 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. Iraqi women working to advocate for women’s rights face a high risk of violence, including targeted killings.[6]

   [6] Ibid, p 31, para 3.120.

7. The DFAT report also makes it clear that violence or the threat of violence against people who do not adhere to Islamic standards of dress (such as the expectation that women should wear the hijab) is common in Iraq[7] and that even people from non-Islamic religious minorities adopt Islamic practices such as the wearing of a hijab[8] to avoid harassment.

   [7] Department of Foreign Affairs and Trade, DFAT Country Information Report – Iraq, 16 January 2023, p 18, para 3.36.

   [8] Ibid, pp 17-18, para 3.33.

8. These reports from DFAT are consistent with UNHCR advice that persons considered as contravening strict interpretations of Islamic rules of dress, social behaviour and occupations (including women) are reported to face abduction, harassment and physical attack by various extremist groups and vigilantes[9].

   [9] UN High Commission for Refugees (UNHCR), International Protection Considerations with Regard to People Fleeing the Republic of Iraq, May 2019, pp 79-80.

9. The same UNHCR advice concluded that:

   … persons perceived as contravening strict Islamic rules may be in need of international refugee protection on the basis of their religion or membership of a particular social group, depending on individual circumstances of the case.[10]

   [10] Ibid, p 80.

10. In relation to access to education, the DFAT report makes the following general comments about the lack of education opportunities for girls and young women in Iraq:

    According to a 2018 Oxfam report, enrolment rates of girls have increased in recent decades but remain approximately 6 per cent lower than boys in primary school and 25 per cent lower in secondary school. Girls are particularly likely to be out of school in parts of Iraq formerly occupied by Da’esh, where social attitudes and security concerns are significant barriers to their education.[11]

    [11] Department of Foreign Affairs and Trade, DFAT Country Information Report – Iraq, 16 January 2023, p 9, para 2.14.

11. Based on the third named applicant’s profile and her evidence at the hearing, and based on the role of women in Iraqi society, the Tribunal accepts that if the third named applicant returned to Iraq she would be, and would be perceived by others in Iraqi society to be, a member of various particular social groups being young, single women in Iraq or young women with Western values, dress and culture or young women who do not wear a hijab (or various sub-variations of these particular social groups). In the case of each social group, the members of the group share particular characteristics (being young and single, having Western values, dress and culture or not wearing a hijab respectively). In the case of being young and single, these are innate or immutable characteristics. In the case of the other characteristics, they are the types of characteristics that are so fundamental to their identity or conscience that members should not be forced to renounce them. These characteristics distinguish the members of the group from society and the characteristics are not the fear of persecution itself. Therefore, each of these groups constitutes a particular social group as defined in s 5L of the Act and based on the evidence referred to above, the third named applicant would be a member of each of these particular social groups.

12. The country information referred to above makes it clear that young women in Iraq such as the third named applicant are at risk of being forced into marriage by family members, they are at risk of sexual assault and domestic violence, and they are at risk of violence, abduction and physical attack from religious extremists and vigilantes if they do not wear a hijab or do not adhere to other strict Islamic rules and practices. These women are also at risk of being denied the right to further education. The Tribunal accepts that these types of harm (particularly forced marriage, sexual assault, domestic violence, violence, abduction and physical attack) constitute serious harm for the purposes of s 5J(5).

13. Given the prevalence of such harm as reported by both DFAT and UNHCR and the seeming powerlessness of the state to provide any meaningful protection from such harm, the Tribunal finds that the chance of such serious harm to the third named applicant in Iraq as a member of these particular social groups is more than remote and that it therefore constitutes a real chance for the purposes of s 5J(1)(b).

14. Based on the country information referred to above, it is clear that the essential and significant reason the third named applicant would be subjected to this type of serious harm from the perpetrators of this harm is her membership of these particular social groups. The country information also highlights that this conduct is ingrained within society in Iraq and particularly targeted at young women and girls who are members of these particular social groups. Accordingly, the Tribunal accepts that this conduct constitutes systematic and discriminatory conduct towards the women in these particular social groups, in accordance with s 5J(4).

15. The Tribunal has considered whether the third named applicant can relocate to some other part of Iraq to avoid the serious harm that she fears. However, the country information referred to above confirms that the treatment of women in these particular social groups is similar across the entirety of the country. Accordingly, the Tribunal finds that in the third named applicant’s circumstances the real chance of serious harm relates to all areas of Iraq pursuant to s 5J(1)(c) and that relocation is not a reasonable option in such circumstances.

100.   The third named applicant fears serious harm in Iraq from private individuals, including members of her family or tribe and members of religious groups or vigilantes, rather than from state actors. The Tribunal has therefore considered whether there are effective protection measures available to the first named applicant in Iraq to protect her from the harm she fears.

101.   However, the country information referred to above makes it clear that the authorities in Iraq are powerless to stop this type of serious harm from occurring and that it is therefore prevalent across the country. In many instances highlighted above, there are no laws or inadequate laws in place to protect victims from this type of serious harm and the country information also suggests that the power of a family or tribe precludes the state from intervening in some cases.

102.   In these circumstances, the Tribunal is not satisfied that when it comes to providing protection from the type of serious harm that the third named applicant fears that there are appropriate criminal laws in place in Iraq to provide effective protection as envisaged by s 5LA(2)(c). Accordingly, on the evidence before it, the Tribunal finds that in the third named applicant’s personal circumstances effective protection measures would not be available to her in Iraq pursuant to s 5J(2).

103.   Having considered the third named applicant’s claims individually and cumulatively, the Tribunal finds that the third named applicant would have a well-founded fear of persecution if she returned to Iraq now or in the reasonably foreseeable future for reasons of her membership of a particular social group being young, single women in Iraq and for reasons of her membership of a particular social group being young women with Western values, dress and culture, and for reasons of her membership of a particular social group being young women who do not wear a hijab.

104. For the reasons given above the Tribunal is satisfied that the third named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).

Claims of other applicants

105.   Given the findings above in relation to the third named applicant, the Tribunal has not considered the claims of the other applicants in detail.

106. The Tribunal is satisfied that the first named applicant is the mother of the third named applicant and that the second named applicant is the brother of the third named applicant. Therefore, the first named applicant and the second named applicant are members of the same family unit as the third named applicant for the purposes of s 36(2)(b)(i). As such, the fate of their application depends on the outcome of the third named applicant’s application. It follows that these 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.

Can the applicants access third country protection in Iran or another country?

107.   The third named applicant was born in Iran. The first named applicant was born in Iraq but lived in Iran from around 1991 until 2004 when she returned to Iran.

108.   However, as the first named applicant stated clearly at the hearing, she and her family were living in Iran as refugees. The first named applicant held a green card in Iran which gave her a temporary right to reside in Iran and which had to be renewed on a regular basis. She lost any right to reside in Iran when she departed Iran and returned to Iraq in 2004. Her immediate family remain in Iran, but they are not Iranian citizens and need to renew their temporary residency rights on a regular and ongoing basis. There is no indication that these family members of the first named applicant have any ability to sponsor the applicants to obtain visas to live in Iran or to otherwise facilitate their passage to Iran on any legal basis.

109.   Although the third named applicant was born in Iran, her parents were Iraqi citizens at the time and therefore the third named applicant was not entitled to any citizenship rights in Iran. At birth, she may have had the same rights to temporarily reside in Iran as her parents had, but those rights were extinguished on departure from Iran and return to Iraq.

110.   The second named applicant has never lived in Iran and there is no evidence before the Tribunal to indicate that he has any right to enter and reside there.

111.   Accordingly, on the evidence before it, the Tribunal finds that the applicants do not have any right to enter and reside in Iran. In addition, there is no evidence before the Tribunal to indicate that the applicants have any right to enter and reside in any other country apart from Iraq. Therefore, the Tribunal finds that the applicants are not excluded from Australia’s protection obligations pursuant to s 36(3) of the Act.

DECISION

112.   The Tribunal remits the matter for reconsideration with the following directions:

(i) that the third 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 their membership of the same family unit as the third named applicant.

Peter Katsambanis
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.

…