1804619 (Refugee)

1804619 (Refugee) [2023] AATA 2548 (12 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Jeremy Bayliss (MARN: 1383248)
CASE NUMBER:  1804619
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Damian Creedon
DATE:12 June 2023
PLACE OF DECISION:  Perth
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 12 June 2023 at 4:26pm
CATCHWORDS
REFUGEE – protection visa – Iraq – religion, ethnicity, gender and political opinion – Kurdish Shi’a widow with no male relatives living in home country – age, westernised views and dress – fear of harm from militant groups – country information – decision made without decision necessary – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (4)(a), 36(2)(a), 65, 425(2)(a)
Migration Regulation 1994 (Cth), Schedule 2
CASES
MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 February 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant, a [Age]-year-old citizen of Iraq, applied for the visa on 21 December 2016.
The applicant first arrived in Australia [in] September 2016 as the holder of a Visitor (FA 600) visa. The applicant is presently onshore holding a bridging visa pending the outcome of her application for a Protection visa.
Protection visa application:
The applicant’s claims for protection are summarised in her submissions to the4 Tribunal in the following terms (uncorrected):
In accordance with s 5J(4)(a) of the Act, the essential and significant reason(s) why the applicant fears persecution include:
1.    Her religion as Shia Muslim;
2.    Her Kurdish ethnicity;
3.    Her gender;
4.    Her real and implied political opinion as someone who is perceived to be supportive of the Iraqi Government and US-led coalition and in opposition to armed Islamic militant groups and their extremist political and religious agenda;
5.    Her membership of particular social groups, including:
a) Women in Iraq,
b) Single women with no male protectors in Iraq,
c) Single women who have spent extended time in a Western country.
d) Persons in mixed faith marriage.
The delegate refused to grant the visas on 7 February 2018 on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to her receiving country, there was a real risk she would suffer significant harm.
The applicant applied for a review of the delegate’s decision on 21 February 2018.
Application for review:
The Tribunal has had regard to the President's Directions and in particular the direction that members are to take all reasonable steps to complete papers allocated to them as quickly as possible, and that generally in reviewing a decision to refuse the grant of a protection visa members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 425(2)(a) of the Act.
The applicant was represented in relation to the review by her registered migration agent.
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 (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, she or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), she or she may nevertheless meet the criteria for the grant of the visa if she 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 she 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
(a)the applicant’s protection visa application forms;
(b)the applicant’s identity documents provided to the Department, being her passport;
(c)the protection visa decision dated 7 February 2018 (delegate’s decision);
(d)the application for review form dated 21 February 2018, which includes a copy of the delegate’s decision;
(e)Department file [Reference] concerning the applicant’s protection visa application, which includes all documents submitted to the Department in support of her protection visa application;
(f)Copies of documents submitted to the Tribunal in support of the applicant’s review application, including the following:
·Statements of the applicant.
·Pre-Hearing Submissions dated 29 May 2023 provided on behalf of the applicant in support of her review application.
·Document entitled “Mediation Session” dated 19 September 2020, together with a certified translation.
·Certificate of Australian Citizenship issued to [A] dated [June] 2020.
·Australian Passport [Number 1] issued to [Mr B].
·Australian Passport [Number 2] issued to [Mr C].
·Letter of support dated 19 November 2018 under the hand of the ‘Head of [Organisation] Perth’.
The Tribunal has read and had regard to each of these documents; the Tribunal has also had regard to:
a.the Department of Foreign Affairs and Trade (DFAT) DFAT Country Information Report Iraq, 16 January 2023 (DFAT Report); and
b.the United Kingdom Home Office Country policy and information note: humanitarian situation, Iraq, August 2022, (UKHO Note).
Country of reference:
The applicant claims to be a citizen of Iraq. Based on evidence provided to the Department by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that Iraq is the applicant’s country of nationality and also her receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3) of the Act.
Assessment of evidence:
Overview
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
General background
The applicant’s personal details and the general background to her application is uncontroversial and is succinctly set out in pre-hearing submissions. It is consistent with her corroborating materials, and it is convenient to set out its material aspects in full:
[T]he applicant was born on [Date]. [O]ne of the applicant’s daughters is ...currently residing in [Country 1] migrated there on a Partner visa. She is now a citizen of [Country 1]. And while the applicant does have one daughter who worked for [a Country 1] NGO in Iraq, she is not the same daughter who is married to [an Occupation]. The applicant’s daughter who is now residing in Australia and is an Australian citizen worked for [a Country 1] NGO in Iraq prior to fleeing the country. It is the applicant’s one remaining daughter living in Iraq who is the daughter married to [an Occupation].
It is also the case that the applicant did not travel to [Country 1] to visit her second eldest daughter. The applicant travelled to [Country 1] to visit her youngest daughter. Similarly, the applicant did not travel to Australia to visit her youngest daughter, she travelled to Australia to visit her middle daughter.
Regarding Q. 92 and 93 in Form 866C, the former representative noted that the applicant’s eldest daughter and her husband had moved to ‘[Location]’ on account of the threats they faced.
It is not clear what area the former representative was referring to here, but we assume the area referred to is Sulaymaniyah.
The applicant instructs that her eldest daughter and her husband did not move to Sulaymaniyah on a permanent basis. They did in fact move back to the family home in Kirkuk previously occupied by the applicant but had to leave the family home when they were threatened by the applicant’s former husband’s brother. The family home where the applicant formerly resided in Kirkuk has now been vacant because of these threats since around 2019. Attached to this submission is a document which details the conflict between the applicant’s eldest daughter and her husband and the applicant’s former husband’s brother. It was the case that family home where the applicant used to reside in Kirkuk was built on inherited land belonging to her former husband’s side of the family. Following the applicant’s husband’s death, his side of the family have reclaimed the property and land and will not permit the applicant or her children to live there. The document concerns attempts at mediation which to date have not been successful, and confirms the following:
- Both parties of the conflict appear before the tribe leader (Sheikh).
- The applicant’s eldest daughter and her husband ([Mr D]) must evacuate the property.
- Both sides must withdraw their legal claims.
- Both sides must wave their legal entitlements concerning their recent conflict.
The applicant does not have a home to return to in Iraq. She is a widow and has no male protectors in Iraq. [All] of her brothers live outside Iraq, with [brothers] living in Australia and one brother in [Country 2]. Her only remaining daughter in Iraq is Sunni and is married to a conservative Sunni man. They now live in a Sunni majority neighbourhood in Kirkuk City where it is not safe for the applicant to reside on account of her Shia faith and her non-compliance with norms relating to Islamic morality.
The Delegate did make an adverse credibility finding against the applicant for using Salafists and ISIS interchangeably in her statement of claims contained within Form 866C. Unfortunately, the previous representative failed to accurately detail the applicant’s protection claim, unnecessarily creating confusion on this point. To be clear, the threats toward the applicant and her husband were made by local Salafists, and those threats increased on account of the invasion of ISIS into northern Iraq. The Salafists who threatened the applicant were linked to ISIS, leading to the applicant fearing harm from both local Salafists, and the wider militant group ISIS. As noted by the applicant at the interview, both groups are essentially the same, and the Delegate accepted that ISIS is a Sunni Salafist militant group. …
Country information:
It is convenient to consider relevant country information prior to an analysis of the applicant’s circumstances.
The DFAT Report notes the following in respect of the situation for women in Iraq:
Women
3.109     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.
3.110     Article 14 of the constitution guarantees equality before the law without discrimination based on gender. Nevertheless, a variety of laws discriminate against women, including in criminal, family, religious, labour and inheritance matters. In some cases, a woman’s testimony in a court of law is worth half that of a man. Female heirs inherit less, and male heirs are required to provide them financial support. While women can initiate divorce proceedings, they are not entitled to alimony, and women seeking a divorce are sometimes required to return their dowry. Fathers are automatically awarded guardianship of their children in divorce cases, although a divorced mother may be granted custody of her children until age 10 (extendable by a court until age 15), at which time the child may choose with which parent to live. Women are required by law to have the consent of a male guardian to acquire a passport. Women enjoy relatively more legal rights in the KRI than in other parts of Iraq.
3.111     Violence and insecurity often constrain Iraqi women to traditional family roles and limit their access to employment and education. Illiteracy is twice as common among women as men. Only 14 per cent of women are working or actively seeking work compared to 73 per cent of men (see Economic Overview). Women are guaranteed 25 per cent of seats in parliament but are rarely appointed to influential roles and rarely participate in the leadership of their parties. As of 2022, there were three women ministers in the 21-person cabinet. About one in 10 Iraqi households is female-headed, including by widows, divorcees and women caring for sick or disabled spouses. These women are highly vulnerable to poverty, food insecurity, displacement, eviction and sexual harassment and abuse. Single mothers and women who live alone face stigma.
Violence against women
3.112 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.
3.113     KRG law criminalises domestic violence, including physical and psychological abuse, threats of violence and spousal rape. The KRG maintains a special police force to investigate cases of gender-based violence, a domestic violence hotline, and a family reconciliation committee within the judicial system. Nevertheless, gender-based violence remains common in the KRI. Four KRG-operated shelters and one privately-operated shelter provide some protection and assistance for victims of gender-based violence and human trafficking in the KRI. Space is reportedly limited and service delivery poor. Authorities generally focus on family reconciliation rather than offering legal remedies or state protection to victims.
3.114     Outside the KRI, ‘Women’s Protection Centres’ operate in Diwaniyah, Kirkuk and Anbar. A centre in Baghdad provides shelter for homeless women but not victims of GBV. Space is reportedly limited and service delivery poor. Communities reportedly often view shelters as brothels and ask the government to close them or they occasionally attack them. Protection workers assisting women to seek shelter from abusers have been charged with kidnapping the women who sought their help. Shelters are subject to unexpected closure by authorities. Some victims, without alternatives, reportedly become homeless. Women leaving shelters are often targeted by sex traffickers.
3.115 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.
3.116     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. The KRG reported 19 cases of honour killings in the KRI in the first nine months of 2021. While arrest warrants are sometimes issued for perpetrators of honour killing, many suspects flee the country or seek protection from tribal groups before they can be brought to trial.
3.117     Female genital mutilation/cutting (FGM/C) occurs in Iraq, particularly in rural areas of Erbil, Sulaymaniyah, and Kirkuk. It is illegal in the KRI, but not in federal Iraq. The practice has reportedly declined in recent years due to education and changing attitudes. About 35 per cent of women in the KRI were estimated to have undergone the procedure in 2018, down from about 50 per cent in 2011. FGM/C is rarer outside the KRI, but still occurs.
3.118     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.
3.119     People trafficking, including the trafficking of women and girls, is a serious problem in Iraq. Da’esh perpetrated widespread sexual trafficking and slavery, and an estimated 2,700 of its victims remain missing. Anti-trafficking laws exist and are enforced. The US Department of State lists Iraq as a Tier 2 country in its annual Trafficking in Persons Report, indicating it ‘does not fully meet the minimum standards for the elimination of trafficking but is making significant efforts to do so’. Internally-displaced women and girls, LGBTI people and victims of gender-based violence are especially vulnerable.
3.120     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 (see Civil Society).
[Tribunal’s emphasis.]

This view is supported by the UKHO Note which provides the following information (references omitted):
The December 2018 UN Women and others ‘Country Gender Profile - Iraq’ stated:
‘Years of repression caused by a strong conservative culture, 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 fully economically, socially and politically. Iraqi women today suffer from insufficient educational opportunities and healthcare and limited access to the labor market, as well as high levels of violence and inequality. These conditions are often exacerbated by misconceptions of traditions, by cultural and social norms, by false perceptions and a lack of awareness of women’s rights and potential, as well as institutional and legal barriers. Violence and lack of security and stability constrain Iraqi women and girls to traditional reproductive roles, limiting their access to employment and education.’
[Tribunal’s emphasis.]
The Tribunal also notes information from the United States, Department of State, 2022 Country Reports on Human Rights Practices: Iraq, which states:[1]
The constitution and law mostly provide for the freedom of internal movement, foreign travel, emigration, and repatriation, but the government did not consistently respect these rights. Law and custom generally do not respect freedom of movement for women. For example, the law prevents a woman from applying for a passport without the consent of her male guardian or a legal representative. Women could not obtain a Civil Status Identification Document, required for access to public services, food assistance, health care, employment, education, and housing, without the consent of a male relative.
[Tribunal’s emphasis.]
[1] See: <>
Finally, the Tribunal notes the current Australian Government Travel Advice on Iraq, updated 2 June 2023, which advises:[2]
We've reviewed our advice for Iraq. We haven't changed the level of our advice, do not travel. The security situation throughout Iraq remains volatile. Due to the security environment and the ongoing threat of kidnappings, you should leave Iraq immediately by commercial means, if it's safe to do so. If you're staying in Iraq, be alert and check media for updates on new threats see ('Safety').
We continue to advise:
Do not travel to Iraq, including the Kurdistan Region of Iraq, due to the volatile security situation and very high risk of violence, armed conflict, kidnapping and terrorist attack.
…
Do not travel to Iraq, including the Kurdistan Region of Iraq, due to the volatile security situation and very high risk of violence, armed conflict, kidnapping and terrorist attack.
[Tribunal’s emphasis.]
[2] See: <>
Based on evidence provided to the Department by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that the applicant is a widowed Shia woman.
In her submissions to the Tribunal the applicant expresses her fear of experiencing serious harm in Iraq in the following terms:
… because she is a mature, widowed woman of Shia faith who does not conform to Islamic dress standards and has pro-Western views following many years living in Australia. …
…[The applicant] will face significant restrictions on her ability to move freely outside of her home. Typically, she would need to be escorted by her husband or another male relative when travelling outside the home, neither of which is an option for the applicant given she is a widow and has no remaining male relatives in Iraq. If she was to travel out of the home alone or with other women, it would lead to being questioned and harassed by men or something much worse could happen.
These concerns, as expressed by the applicant, accord with the country information reviewed by the Tribunal. The country information cited above suggests that women’s lives in Iraq have deteriorated significantly. As assessed by DFAT:
[T]he 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…
The Tribunal finds that the applicant, as a widowed woman, is likely to face discrimination and violence were she to return to Iraq. Without a male guardian, the applicant would be in grave danger of experiencing societal bias, discriminatory treatment, and gender-based violence, including sexual assault.
The Tribunal accepts that the applicant has a well-founded fear of persecution in Iraq for reason of her status as a widowed woman without a male guardian.
For the reasons given above, the Tribunal is satisfied that the applicant 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.
Damian Creedon
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 her 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 her 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 her 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 her 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 her or her religious beliefs, including by renouncing a religious conversion, or conceal her or her true religious beliefs, or cease to be involved in the practice of her or her faith;
(ii)conceal her or her true race, ethnicity, nationality or country of origin;
(iii)alter her or her political beliefs or conceal her 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 her or her sexual orientation or gender identity or conceal her 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 her 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.
…

[2023] AATA 2548

12 June 2023

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