1809370 (Refugee)

1809370 (Refugee) [2023] AATA 4667 (29 August 2023)
CORRIGENDUM
DIVISION:Migration & Refugee Division
APPLICANTS:  [First Named Applicant]
[Second Named Applicant]
[Third Named Applicant]
REPRESENTATIVE:  Ms Rebecca Wallace (MARN: 0640179)
CASE NUMBER:  1809370
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Peter Katsambanis
DATE OF DECISION:  29 August 2023
DATE CORRIGENDUM
SIGNED:21 February 2024
PLACE OF DECISION:  Perth
AMENDMENT:  The following corrections are made to the decision:

Paragraph 141 of the Decision record:
‘South Africa’, in the following sentence:
‘Therefore, pursuant to s 5J(2), the Tribunal must consider whether effective protection measures are available to the applicant in South Africa.’
Should be replaced with ‘Iraq’:
‘Therefore, pursuant to s 5J(2), the Tribunal must consider whether effective protection measures are available to the applicant in Iraq.’
Peter Katsambanis
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: [First named applicant]
[Second named applicant]
[Third named applicant

REPRESENTATIVE:  Ms Rebecca Wallace (MARN: 0640179)
CASE NUMBER:  1809370
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Peter Katsambanis
DATE:29 August 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 membership of the same family unit as the third named applicant.

Statement made on 29 August 2023 at 2:24pm
CATCHWORDS
REFUGEE – protection visa – Iraq – Arab ethnicity – religion – Sunni Muslim – particular social group – girls or young women in Iraq – forced arranged or underage marriage – strong tribal influence – lack of state protection available – well-founded fear of persecution now or in the reasonably foreseeable future – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5 (1), 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 March 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Iraq, applied for the visas on 7 November 2016. 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.
The first named applicant appeared before the Tribunal on 23 August 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A], who is the husband of the first named applicant and the father of the second named and third named applicants. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The applicants were represented in relation to the review by a registered migration agent.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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
The applicants are a family. They applied for a protection visa on 7 November 2016.
The first named applicant is a female born on [DOB]in Fallujah, Iraq. She is the mother of the second named and third named applicants. The second named applicant is a male child born on [DOB] in Basra, Iraq. The third named applicant is a female child born on ]DOB] in Basra, Iraq.
All applicants claim to be of Arab ethnicity and Sunni Muslim religion. They are all Iraqi citizens and have provided the Department with copies of their Iraqi passports and other relevant identity documents.
The first named applicant stated in her application form that she commenced a relationship with her husband, [Mr A], [in] December 2005 and that the couple then married [in] June 2006 in Basra, Iraq. The husband was not a party to the protection visa application and is not an applicant for the purposes of this review. The first named applicant’s parents, two brothers and two sisters all reside in Iraq. She is in regular contact with her family by telephone.
On her application form the first named applicant stated that she had last arrived in Australia [in]April 2016 on her valid Iraqi passport and as the holder of a valid Australian student visa, which was linked to her husband’s studies in Australia. This visa had been first issued in April 2014.
All three applicants arrived in Australia [in]July 2014. The first named applicant departed Australia [in]April 2016 then returned [in]April 2016. The first named applicant stated that the purpose of this travel had been to visit her sick father in Iraq. Movement records indicate that the second named and third named applicants have not departed Australia since their arrival in 2014.
The first named applicant listed several addresses where she had lived in the past in Iraq including in Fallujah (for around a year after her birth), Basra and Mosul. She had lived at the same address in Basra from March 2009 to July 2014. She had completed high school in [year]and had then studied [Course 1] at two separate institutes in Basra and Mosul from September 2004 to June 2009. She claimed that she had never been employed.
In her protection visa application form the first named applicant stated that she was seeking protection in Australia so that she did not have to return to Iraq and referred to the claims made in an attached, undated statement.
In this undated statement, the first named applicant claimed that she came to Australia with her children when her husband came here to study to escape serious and significant harm in Iraq due to her faith, her membership of a particular social group namely Fallujah people and her imputed and actual political opinion. She feared harm and mistreatment, including being killed or kidnapped, because of her faith and for being the wife of an [Profession 1]at[Workplace 1]. Many Sunni [Profession 1] had been killed at this [Workplace 1]. These Sunni [Profession 1] and their families had been harmed and received threats to leave the province and move to Sunni areas.
The first named applicant claimed that relocating to other provinces is unreasonable as the Sunni cities and villages are either under ISIS control or under the continuing harm of Shia militia. In Fallujah, where she was born, people were killed for their imputed political opinion or for at least the perception that they supported ISIS. She cannot hide her identity that shows she was born in Fallujah, and she feared that people were killed for identity reasons at checkpoints established by Shia militia. Being Sunni, she was perceived as a Baathist, and Al Qaeda supporter and now an ISIS associate or supporter. Her loyalty to her country was not enough to avoid harm due to her place of birth and her faith.
The first named applicant claimed that living in Basra, which was a Shia dominated province, she suffered from the ascendancy of the militias that controlled everything in the area. Although she maintained a lower profile like other Sunnis in Basra, the militias had killed hundreds or thousands including women and children.
The first named applicant claimed that the authorities either turn a blind eye to this violence or are associated with the Shia militias. Kidnapping, disappearances and forced displacement were used against Sunni people who either continue to live under these risks or forcibly leave the province to save their lives. However, moving to other provinces was not secure.
The first named applicant feared she would be arrested for no reason and kept in detention where she would be subjected to physical and psychological mistreatment, as this had happened to other Sunni people in the past. As a Sunni, she had lived in fear in Basra every single moment from 2003 until now. She had similar fears for her children’s lives.
The first named applicant claimed that the family house in Basra had been ‘exploded’ by Shia militia one night when the family was sleeping. They barely survived and part of the house was destroyed. She could not move to Fallujah because the city was under severe raids from militias who committed massacres against Sunnis. This also happened in other provinces where Sunnis lived.
It was claimed that, because the militias were now controlling everything in Basra, as a Sunni the first named applicant could not express her views or complain about what she was suffering because she was always perceived as a Saddamist or a Baathist. Sunni people, including tribal leaders and politicians, had sought help from the authorities and the security system but they had not received any such help. The judicial system was soft in punishing anyone who killed Sunnis, nobody from the militias had been charged for these crimes and they are simply tolerated because the victims were Sunni.
The first named applicant claimed that to avoid harm in Basra, she and her family moved to Mosul in the south of Iraq but the situation there was very dangerous because the city was under the control of Sunni armed groups. These groups want to murder anyone associated with the Iraqi government, including [Profession 1]staff. Given that the family’s southern accent is different from the people in Mosul, they were easily distinguished which put more pressure on the family. They were perceived as Shia because of their southern accent, and it was difficult to convince other people that they were Sunnis from the south. On one occasion, the first named applicant had to go through a religious and historical test to convince a Sunni armed group that she was Sunni. If she had not been well educated, she would have been trapped and murdered.
The first named applicant claimed her husband temporarily transferred his job, which was the family’s only source of income, from [Workplace 1] to [Workplace 2] because the government refused to transfer him permanently. A few years later the family were asked to return to Basra because the administration of [Workplace 1]threatened that her husband would lose his job if he did not return to Basra.
It was claimed that the first named applicant’s husband received many death threats and lots of her relatives had been arrested for doing nothing. Her grandfather was in his 70s and had [medical condition]when he was arrested. Her brother was also arrested and tortured without any guilt and consequently her father had a [medical episode] that impacted his well-being.
The first named applicant claimed that because of these problems many of her family members had escaped the country and sought asylum in other countries. She feared returning to Iraq because if she went back, she would face serious harm or significant harm where her human rights would be deprived. The authorities in Iraq are discriminative enough to avoid providing any effective protection and she has no access to any third country, so she is seeking protection in Australia.
Interview with Delegate
The first named applicant was interviewed by the delegate on 8 February 2017.
The delegate’s decision record notes that at this interview the first named applicant claimed that after an explosion at a Shia shrine, the army and militia ‘raided our house, bashed us, and arrested my brother’. She also stated that ‘it was around midnight they came to arrest my brother so they arrested my father’. The decision record notes that the applicant claimed that she told the army not to arrest her father because he had [medical] problems. She also confirmed that her father suffered a [medical episode] in 2016, which was the reason that she travelled to Iraq at that time.
It is noted in the decision record that the first named applicant was not able to provide specific dates that these events occurred but claimed that the raid and subsequent arrest of her father and brother happened around 2011 or 2012. She indicated that she had no documentary evidence to support these claims and stated that the family were targeted because of their Sunni religion. The first named applicant claimed that after his arrest, her brother was tortured for one month and was then released. She confirmed that this brother continues to reside in Basra.
At this interview, the decision record notes that the first named applicant claimed that her husband had not made claims for protection in Australia because of fears that the Iraqi government, that was sponsoring his studies in Australia, would threaten him if he changed his visa status. After the interview, the first named applicant provided the Department with documents confirming that Iraqi government officials in Australia would regularly seek confirmation that students they were sponsoring in Australia were continuing to study.
The decision record notes that at the interview the first named applicant confirmed that she and her family had never been involved in any political party or organisation in any way. She also confirmed that she had not experienced any incidents or problems during her return visit to Iraq in 2016. In relation to the delay in applying for protection after the family first arrived in Australia, it is noted in the decision record that the first named applicant stated that when she first arrived in Australia, she hoped that circumstances in Iraq would improve over time, however when she returned to Iraq in 2016, she realised the situation was worse and she then started considering applying for protection.
Further submission to Department
On 22 February 2017, the applicants’ then-representative provided the Department with a written submission (which was dated 24 November 2016 but clearly written after the interview on 8 February 2017). In this submission it was stated that the first named applicant’s husband did not travel to Iraq in 2016 but that he did travel to [Country 1]to attend an [a] conference in the same year. The submission restated the first named applicant’s claims for protection and provided country information in support of these claims from the United States Department of State 2014 International Religious Freedom Report, Amnesty International and other sources.
The second and third named applicants did not make any direct claims for protection to the Department, instead relying on their membership of their mother’s family unit.
The delegate refused to grant the applicants a protection visa on 19 March 2018.
Application for Review
The applicants applied to the Tribunal for a review of the delegate’s decision on 4 April 2018. They also provided the Tribunal with copies of the delegate’s decision record and accompanying notification letter.
First named applicant’s statutory declaration
In a statutory declaration made on 15 August 2023 the first named applicant stated that her daughter, [Ms A], had been born in [City 1] on[DOB]. A separate protection visa application had been made on behalf of [Ms A] on 27 December 2019 but had yet to be determined by the Department. The first named applicant stated that her husband had not applied for protection in Australia. However, after completion of his studies in Australia he had been granted a Graduate (Subclass 485) visa valid until [in] August 2024 and was pursuing alternative pathways for permanent residency in Australia.
The first named applicant claimed that her father had passed away in 2020 after a long illness but her mother [and] siblings continue to live in Basra, Iraq. She does not have any close relatives living in any other part of Iraq. She believed that she may have some extended relatives living in the northern part of Iraq, but she had no contact with them. Her mother and siblings do not feel safe in Iraq because their local area had fallen under the control of Shia militia groups such as Al Haq. Her family members tell her that Sunnis in the area need to keep a low profile and keep their heads down. Her brothers had faced difficulty obtaining employment due to discrimination against Sunnis, so only one brother currently had employment. Her sisters remain unemployed and living with her mother.

The first named applicant claimed that her parents originated from Basra, however had relocated to Fallujah after being displaced during the Iraq-Iran war. The first named applicant was born in Fallujah, but after this war ended in August 1988, her family was able to return to Basra in September 1989. Some of her extended relatives chose to remain in Fallujah and they were targeted by ISIS after they captured the city as they were accused of supporting the Shia-led government in Iraq.
The first named applicant claimed that she and her husband faced similar questions about their loyalties when they temporarily relocated to Mosul between 2006 and 2009. Her husband was accused of supporting the Shia-led government or other Shia militia groups operating in southern Iraq and she claimed these were typical experiences of Sunnis from southern Iraq who tried to relocate to the north or vice versa.
The first named applicant stated that she completed her [Course 1]in Mosul in 2009 and then returned to Basra when she felt pregnant with her first child. By the time her children were old enough to be cared for at home by other relatives the situation in Iraq had deteriorated, which made it risky for her to pursue employment as a female [Occupation 1]. She had rekindled her enthusiasm for [Occupation 1]in Australia, which has led to her obtaining a [certain credentials] and completing a volunteer placement at [a] centre.
The first named applicant outlined the life her family had lived since their arrival in Australia in 2014 and highlighted the cultural differences between life in Australia and life in Iraq. She claimed that in Iraq she would need to be escorted by her husband or another male relative if she left home, even if she only went to the doctor or to the market. She would be forced to adhere to traditional roles of wife and mother, unlike the freedoms she experienced in Australia. She had secured a driver’s licence in Australia, which she would find difficult to do in Iraq. In Australia, she could leave her home, meet up with friends, go to the beach for a swim and partake in many other activities.
The first named applicant claimed that in Iraq she would be required to obey her husband and male relatives as well as other tribal members. In her case, her marriage had been arranged when she was only 17 years old, and she had no choice about the decision. After that, all major decisions were made by her husband, and she had no say in things that impacted on her life. Her mother and sister still had to endure these experiences in Iraq.
The first named applicant claimed that she was raised in a moderate Sunni family and that in Australia her family did not strictly adhere to the Muslim faith. She did not force religion onto her children. She was opposed to religious extremism and to those who try to impose their religious ideologies on others. She was not a supporter of Sharia law, which impacted heavily on women. She feared that religious extremism was on the rise in Iraq with many radical Shia and Sunni groups trying to enforce their fanatical ideology. Women and girls remained the biggest victims of this extremist ideology as they continue to face increasing limitations on their day-to-day lives. The situation was worse for Sunni women who faced increased barriers in securing employment and education opportunities.
The first named applicant claimed that her children were native English speakers and had limited knowledge of Arabic. They have limited interest in learning Arabic and would struggle to do this if they had to return to Iraq. The children attend a local public school where they are not exposed to religious teachings and the family rarely speaks about Islam at home. In this way, the children’s understanding of Islamic faith and practices would be significantly different to Muslim children who have been brought up in Iraq.
The first named applicant highlighted the Western culture of her children, especially the third named applicant who she claimed had a talent for being [in a particular area], was vocal in expressing her opinions and talking about dreams for the future, had never worn a hijab in Australia and regularly rides her bicycle. She claimed that this behaviour would not be possible in Iraq.
It was claimed that the third named applicant regularly speaks to boys and attends a mixed school, which is not something that occurs in Iraq. Interacting with boys in this way would not be accepted in the Iraq and would make her a target for harm.
It was claimed that the second named applicant also has a Western outlook and has a personality that is not very masculine, which would be seen as a weakness in Iraq. It was feared that this would make him a target for other men and boys if he returned to Iraq.
The first named applicant then provided arguments against the findings made by the delegate. It was claimed that her family members had faced harassment, had their home raided or had been exposed to violence by Shia militia groups on many occasions in Basra. Most of these incidents had occurred in the period following the fall of the Ba’ath regime in 2003 up to the outbreak of widespread violence between Sunni and Shia in 2006. She and her husband relocated to Mosul at that time and stayed there until March 2009 because of the threats that they were facing. In her interview with the delegate, she had focused on the most recent incident faced by her family which occurred in early 2012. She claimed that her grandfather had been detained briefly with other Sunni men in an earlier attack, however this was a separate incident to the raid carried out on her family home in early 2012.
The first named applicant claimed that in 2012, after an attack on a Shia shrine, armed men had carried out reprisal attacks across her predominantly Sunni neighbourhood where they raided many homes. At the time of the raid, the only men in her family home were her father and her younger brother who was aged around [age] years old. Her older brother was not at home at the time. Despite living in another district at the time with her husband, the first named applicant claimed that she was staying overnight at her family home for a visit and was around [a number of] months pregnant with her daughter, the third named applicant.
It was claimed that the armed men entered the home demanding that the family handover her oldest brother. They then took her father out of the house onto the street where they began to hit him. Due to his[Medical condition 1], the first named applicant was fearful that her father may have a stroke, so she begged these men to leave him alone. One of the men told her to kneel on the floor and kiss his boots so that he could release her father. She complied with this request but was hit on the back of the head with what she believed to be a pistol. These armed men left after her father promised to deliver his son to them when he returned home.
When the older brother returned home, it was claimed that he reported to this group of men where he was held for questioning. Initially the family had been told that after a week the brother would be released once a ransom was paid. However, despite paying the requested funds, the brother continued to be detained. He was eventually released around one month later. The first named applicant claimed that she did not know why her brother had been targeted in this way, but she suspected that it was because the family still had relatives living in Fallujah, who were suspected of being part of Sunni extremist groups in that area. After this arrest of her brother, her father suffered a [medical episode] requiring him to be hospitalised. He also suffered further [medical episodes] and issues with his heart in later years.
The first named applicant argued that her return visit to Iraq in 2016 occurred because she was desperate to see her father for one last time and she acted out of impulse. However, when she arrived in Iraq, her father told her it was not safe to stay there and wanted her to return to Australia. She pointed out that she did not take her children with her during this visit and limited her movement to avoid harm. Things would be different if the family were forced to return permanently to Basra where they would live like prisoners every day. She also pointed out that the situation for Sunni Muslims in Basra had significantly deteriorated since 2016. Restrictions on the movement of women on a day-to-day basis had also increased during this time.
The first named applicant stated that the only direct and personal threat made against her husband had occurred in 2006, which was why they had chosen to relocate to Mosul at that time. This was at a time when a number of other Sunni[Profession 1] , government workers and tribal leaders had been targeted by Shia militias in the local area. They would have preferred to stay in Mosul, but her husband was under pressure from his [workplace] to return to his substantive position. She stated that militia groups continue to target [people at his workplace] in general, but particularly those who were Sunni and things got even worse after the re-emergence of Sunni extremist groups like ISIS in other parts of Iraq from 2011 onwards. This made her husband and the whole family feel unsafe until their departure for Australia in 2014, despite not having received any more direct personal threats.
The first named applicant stated that the family delayed applying for protection after their arrival in Australia because they initially did not intend to remain here permanently and because her husband had committed to returning to Iraq as a condition for securing his [studies] in Australia. However, things deteriorated in Iraq during their time in Australia and it became clear to the first named applicant that she could not take her children back to this environment during her return visit in 2016. She pointed out that her husband himself had never applied for a protection visa and that the student visa held by the applicants did not expire until 2019, which meant that they would not have needed to apply for protection in 2016 if they did not genuinely believe they needed such protection.
Despite growing up and living most of her life in Basra, the first named applicant stated that because she was born in Fallujah this would be held against her because the Fallujah area remain suspicious to Shia militia groups. These groups would not seek a long explanation from her about her origins but would simply use her birthplace on identity documents as a starting point for suspecting her of being involved with the Sunni extremists in that area.
The first named applicant pointed out that her local neighbourhood in Basra was a Sunni neighbourhood but it was a very small neighbourhood that was surrounded on all sides by Shia-majority neighbourhoods, which made it dangerous for all Sunni people living in the area. They would still need to leave the area to access work, schools, hospitals or get groceries for the family and would face risks whilst travelling into Shia areas, which would pose a threat to her and her children.
The first named applicant stated that if she and her family were forced to return to Iraq she feared serious harm including physical violence, abduction, severe physical harassment or death. In relation to her daughters and herself, she also feared sexual violence, including sexual harassment. She feared that her daughters and herself would face significant discrimination that would place restrictions on her freedom of movement, their ability to pursue further education or employment and their ability to make decisions about their lives. In relation to her two daughters, she feared they could be forced into marriage against their will, and they would face restrictions on how they dress, who they can talk with and what lives they lead.
The first named applicant expressed fears of harm and physical violence from the various militia groups operating in her local area because of the family’s Sunni religion. This risk would be elevated because of her husband’s more prominent profile in the community as an [Profession 1]who had studied in Australia and had received a [sponsorship]. She also feared her origins from Fallujah would raise suspicions about herself and her family by creating a perception that the family may be supporters of ISIS or the former Ba’ath regime. She also feared that the family may be targeted for kidnapping or abduction because of a perception that they may be wealthy given that they had lived in a Western country and given her husband’s profession. She also feared that her westernised children would make them stand out and place the family on the radar of those who see Sunni families returning from abroad as easy targets. The family would also be at risk of being targeted by Islamist fundamentalists due to a perception that they were supportive of Western governments.
The first named applicant expressed her fears that her daughters would be denied further education or being able to secure employment as well as having severe restrictions imposed on their freedom of movement within Iraq. They would face limitations on how they could dress, including being forced to wear the hijab and other religious coverings as well as restrictions on their interactions with other people. She also feared that her daughters may be forced into marriage at a young age, and she would be powerless to protect them because in Iraq the tribe holds all the power around these decisions. If she refused these arrangements made by her tribe or her husband, she would face isolation from the tribe and may also be subjected to violence.
The first named applicant stated that the Iraqi government was weak and corrupt and would be unable to protect her family from the harm that they feared. The family could not relocate to other parts of Iraq because it was incredibly difficult and dangerous to relocate to any areas within central or southern regions where they remained a marginalised minority without effective ties to that community. As Sunni Arabs they also could not relocate safely to the predominantly Kurdish parts in northern Iraq because of ongoing ethnic tensions between Arabs and Kurds in those areas. The family do not have any links to the Sunni dominated areas in northern Iraq. The first named applicant has not lived in that area since she was a young child, and her husband originates from Basra, so he has no ties to that area. Even if they could relocate to this area, she feared that her daughters would be at particular risk of harm from the Sunni extremist groups that dominate those areas and impose strict Islamic practices. In any case, the harm that she and her daughters would face as Sunni women and girls would extend to all parts of Iraq.
Representative’s submission to Tribunal
In a submission dated 16 August 2023 the applicants’ representative restated the claims made by the applicants over time, provided arguments against the findings made by the delegate, provided arguments in support of the applicants’ claims for protection and submitted more than 230 pages of country information from a variety of sources in support of these claims.
The Tribunal has read and considered this submission prior to making its decision in this matter.
Documents provided to Tribunal
Apart from the country information provided by the applicants’ representative, the following relevant documents were provided to the Tribunal in support of the applicants’ claims:
·A [credential]card for the first named applicant and confirmation that she had completed a short voluntary placement at a [Workplace 3] in Perth.
·Confirmation that the first named applicant’s husband had been awarded a [degree name]from [University 1] [in]March 2020.
·A marriage certificate for the first named applicant and her husband indicating that they had been born on[DOB].
·A birth certificate for[Ms A], born on [DOB]in Perth. The first named applicant is listed as the mother of this child.
·An Iraqi passport issued in the name of[Ms A].
The Tribunal has read and considered these documents and relevant country information prior to making its decision in this matter.
Tribunal Hearing
At the hearing, the first named applicant confirmed her personal details and stated that she was an Arab Sunni. She explained that in Iraq there was a differentiation between Sunni Muslims and Shia Muslims.
The first named applicant stated that, although her family originated from Basra, she had been born in Fallujah in [year] as her family had been displaced from Basra during the Iran – Iraq war. Her family returned to Basra in 1989 when the applicant was an [age], and she grew up in the Basra region. Her mother was still alive, but her father had passed away in 2020. Before the fall of the Ba’athist regime in 2003 her father had worked as a [occupation deleted]based at[location]. After 2003, he had retired and was in receipt of a state pension. Her mother had never worked but continued to receive a state pension as a widow.
The first named applicant claimed that she had [family details deleted].
The first named applicant claimed that she had completed the equivalent of a TAFE course to become a [occupation 1] from 2004 until 2009 and had graduated with [a] qualification. She had commenced her studies in Basra in 2004 but then moved to Mosul from 2006 to 2009. In 2009, she returned to Basra where she completed her studies and received her certificate.
The first named applicant claimed that her husband was also from the Basra region and his family lived approximately half an hour by car from her area. She stated that the two families were not related. Her husband had [a number of] brothers [and] sisters. They all still lived in the family home with their mother because their father had passed away. When asked what work her husband’s father had done in Iraq in the past, the first named applicant initially stated that he did not have a job. When asked how he had managed to raise a family without a job, the first named applicant stated that she was not sure but believed that the father had performed simple work like labouring or manual work. She claimed that her husband’s mother had never worked.
The first named applicant explained that she married her husband through an arranged marriage. Her husband’s mother had met her own family and the two families had then arranged the process of marriage. The couple had only briefly met once before their marriage, and they did not really know each other. When asked if she was happy about this arrangement, the first named applicant stated that she did not give consent to the marriage, but she was also not asked for her consent. Her family decided she should get married even though she was still underage at 17 years old. She was living at her family home before her marriage and the couple married[date]. Her husband was living at his family home before the marriage. After the wedding, the couple lived at the husband’s family home.
The first named applicant stated that she went to Mosul around August 2006 with her husband because of the situation in Basra. She claimed that there had been many assassinations of [staff] from [Workplace 1] at the time and someone had placed a ‘sound bomb’ at the gates of her husband’s family home, which blew up the exterior and the windows of the house. She claimed they then moved to another area, but her husband received a threatening letter advising him to leave Basra or be assassinated, so the couple moved to Mosul. She confirmed that her husband transferred his employment from [Workplace 1] to [Workplace 2]at the time but stated that the process took a few months to complete.
The first named applicant was asked when this incident took place. She initially responded that it was at midnight, and she only heard the sound and saw the dust. When asked if she could provide a date on which this incident happened, the first named applicant responded that it was approximately in August 2006, but she could not recall the exact date. She indicated that she had mentioned this explosion in her statements to the Department and she also believed she had mentioned the explosion in the statutory declaration she had recently provided to the Tribunal. The representative then stated that this event was not included in the statutory declaration because the intention of that statement was to provide additional information rather than repeat information that had been previously provided.

The first named applicant confirmed that she and her husband had two children whilst living in Iraq and had also had another child since their arrival in Australia.
The Tribunal asked the first named applicant to outline what problems she had experienced in the past in Iraq. She responded that being a Sunni Arab who had been born in Fallujah made it hard for her and she had been subjected to harassment at checkpoints. The officers at these checkpoints put her in a difficult position when they checked her documentation because of her birthplace. She added that being forced to marry whilst underage without her consent was also a problem, but this was the tribal law in her area and women like her did not have a say in things. She claimed that the customs and traditions of the tribe included forcing women to not complete their education unless their husband approved of such education. However, the first named applicant confirmed that she had commenced her [studies] before her marriage and had completed them after her marriage. She added that her sister and other people had not been able to complete their studies. She claimed that at home in Iraq it was like a prison because she could not go out without her husband or her parents escorting her.
The first named applicant explained that she had been able to engage in [studies] because her father wanted her to complete her education. When it was pointed out to the first named applicant that this would strongly indicate that her family had encouraged and supported her education rather than following traditional tribal customs that did not permit higher education for women, she responded that it was only her father who did this and not the rest of the tribe. She also confirmed that her husband had also supported her studies after they had married.
When asked if she had experienced any other problems in the past in Iraq, the first named applicant again stated that when she moved around, she would be stopped at checkpoints and she would be treated as a terrorist because she had been born in Fallujah. However, she confirmed that she had never been arrested or detained in Iraq because of her birthplace or because of any suspicion that she was a terrorist or a terrorist sympathiser.
The Tribunal accepted that a person who had been born in Fallujah and was stopped at a checkpoint in Basra would be questioned about why they may be travelling so far from their birthplace. However, given that the first named applicant had never been arrested or detained by the authorities in Basra, this would strongly indicate that the explanation she had provided on each occasion had been sufficient to satisfy the curiosity of the officers at the checkpoints and allow her to get on with her life. The first named applicant responded that it would seem very strange to these people that she had been born in Fallujah but was living in Basra so they would see her as a supporter of ISIS and an enemy.
The first named applicant claimed that the family came to Australia in July 2014 because her husband had been granted a student visa to complete a [degree] at [University 1]. She was uncertain as to the nature of her husband’s studies but indicated that it was something to do with the[name deleted]. She confirmed that her husband completed his studies in Australia in 2020. When asked what her husband currently did for work in Australia, the first named applicant stated that it was something to do with [a particular industry]and he would collect [samples]. She confirmed that she had never been employed since she had arrived in Australia but added that she was now looking for a job. She also confirmed that since she had arrived in Australia in 2014 her visa status had always contained work rights in Australia.
The first named applicant stated that her husband had never applied for protection in Australia because he had to provide five guarantors to the Iraqi authorities before he could obtain an [scholarship] to study in Australia. He was fearful that if he remained in Australia these guarantors might harm his family if they were called on to reimburse the government for her husband’s study costs in Australia.
The Tribunal pointed out to the first named applicant that she had submitted claims that her husband had now applied for a visa that would lead to a permanent resident visa in Australia. On this basis, it would appear that this type of visa would also trigger a demand on the guarantors and would tend to contradict her explanation as to why her husband had not applied for protection in Australia. The first named applicant responded that with the type of visa her husband had applied for, he could return to Iraq but he could not do so if he had been granted a protection visa. She stated that her husband did intend to return to Iraq at some point in the future and added that he gets calls regularly asking him to return. When asked if her husband had any fears about returning to Iraq, the first named applicant stated that he did have fears but his family would be at risk from the guarantors so he would have to return at some point in time. The first named applicant stated that the five guarantors were not members of her husband’s family but added that she did not know who these people were.
The first named applicant stated that at home in Australia she would speak Arabic with her husband. Her children had a limited grasp of Arabic, and they would speak in English amongst themselves. They would speak in a combination of Arabic and English to the first named applicant and her husband.
The first named applicant stated that her son, the second named applicant was now [age] years old and was studying in Year [deleted] at [a]high school. He enjoyed swimming with his siblings at the beach and riding his bicycle. He also liked computers and technology. Her daughter, the third named applicant, was now [age] years old and was studying in Year [deleted] at [a]primary school. Next year she intended to attend [the same] high school with her brother. The daughter liked to draw and was a talented artist. She also liked to write stories, design things and ride her bicycle. She would like to be a fashion designer or architect in the future.
The first named applicant was asked to articulate in her own words why she believed her family were entitled to protection in Australia. She responded that in Iraq she came from a closed environment and was not allowed to leave home on her own because the tribe dominated everything. Even the way she would dress in Australia was not acceptable in Iraq because she would need to be dressed in an abaya. In Australia she had the freedom to make decisions for herself and nobody could tell her what to do or how to dress. She was able to drive on her own in Australia, which would not be allowed in Iraq. She could visit a doctor on her own or she could go to her children’s schools, which was not allowed in Iraq.
It was pointed out to the first named applicant that there was no indication in any country information that had been accessed by the Tribunal or provided by her representative to indicate that women in Iraq were precluded from driving or were not permitted to visit a doctor or were not permitted to visit their children’s schools. In response, the first named applicant stated that these things were not banned by law in Iraq, but her tribe banned them from happening.
The first named applicant claimed that she came from the [name deleted]tribe in Basra. Her husband came from another tribe, but she did not know the name of this tribe because she had never asked him.
When asked if she feared she would experience any other problems if she returned to Iraq now or in the reasonably foreseeable future, the first named applicant stated that she feared the things she had mentioned earlier.
The Tribunal asked the first named applicant to outline what problems she feared her children would have if they had to return to Iraq now or in the reasonably foreseeable future. She responded that she feared her daughters were likely to be forced into a marriage whilst underage. She stated that the third named applicant was now [age] years old and, by the age of [age], members of the tribe would try to marry her off. She claimed that in Basra her daughters would also have to wear a headscarf, which they did not do in Australia.
The first named applicant pointed out that she did not support arranged marriages for her daughters, but she would not really have a say in the process, and she would be forced to accept the outcome. She added that members of her tribe would force her to accept the outcome and she would not be given any say. She then immediately added that another risk in Iran was that the family came from a poor neighbourhood and as returnees from Australia they would be targeted because they would be perceived as being wealthy.
At this point in the hearing, the Tribunal expressed some concern that the applicant was attempting to divert the discussion about the possible forced marriage of her daughters into a discussion about another topic.
When returning to the topic of forced marriage, the first named applicant stated that both she and her husband disagreed with forcing her daughters into an arranged marriage against their will however they would be powerless against the intentions of the tribe because the tribe would have the final say. She added that if someone made a proposal to marry her daughter when she was about [age] years old and the tribe agreed to this proposal, the couple would have to accept it.
When asked who the members of this tribe were, the first named applicant indicated that the tribe was like a very large extended family that elected chiefs on a regular basis. She claimed that she and her husband could not simply refuse an arranged marriage that had been approved by the tribe because it would be against the tribal code that stipulated that the focus of women should be on pleasing their husband and doing chores around the house.
It was pointed out to the first named applicant that both forced marriage and underage marriage were illegal in Iraq. On this basis, she was asked why she and her husband would not be able to seek protection from the authorities in Iraq if their tribe tried to force their daughter into an arranged or underage marriage. She responded that the government would not intervene in tribal business and would simply leave it to the tribe to sort out. When asked why the police would refuse to apply the law of Iraq if asked to do so, the first named applicant stated that nobody would dare to report anything to the police because the tribe might kill them.
It was pointed out to the first named applicant that although not definitive on the issue, available country information would tend to indicate that parental consent was necessary for a forced or arranged marriage to take place. In response, the first named applicant stated that this was only on the surface but in reality, everyone needs to accept and follow the decision of the tribe.
The Tribunal asked the first named applicant what she believed would happen if she really insisted to other members of the tribe that her daughter should not be forced into an arranged or underage marriage. She responded that this would be seen as opposition or dissent to a tribal decision and that she may be physically harmed by members of the tribe or dismissed from the tribe in order to force her consent. The representative added that as a Sunni Muslim the first named applicant was already a minority in Basra and if she lost protection of her tribe this may expose her to further harm.

100. The first named applicant added that she also feared that her daughter, the third named applicant, was not aware of the culture and traditions of tribes in Iraq. In Australia, her daughter moved around freely and if she came under tribal control she might be at further risk because she would be likely to speak up against the imposition of tribal rules. If she did this, there would be reprisals against her. She added that even her future education would need to be approved by her future husband and this was not guaranteed.
101. The witness, [Mr A], confirmed that he was the husband of the first named applicant and the father of the second named and third named applicants. He was also a Sunni Muslim of Arab ethnicity and his family also originated from the Basra region, around 20 to 25 km from his wife’s area. He had obtained a [degree] in [name deleted] whilst living in Iraq. While studying in Australia, he had completed his [higher education] in [a particular area] with a thesis that focused on[area of interest deleted].
102. The witness stated that in Iraq he had worked as a [Profession 1]at [workplace 1 and 2] and [workplace 4] from 2004 until he came to Australia in 2014. He had lived in Mosul from 2006 to 2009, but for the second half of 2006 he had regularly travelled from Mosul to [City 2] to [work] at [his place of work] because accommodation was difficult to find given that so many people had fled from places like Basra and Baghdad. He claimed that his main [position] was attached to [workplace 1], but he had been temporarily transferred to Mosul and [City 2] after many [Profession 1] had been killed in his area.
103. The witness claimed that whilst he was studying at [University 1] he also worked there as a [Job 1]. He was currently employed as a [Profession 2]with the [Workplace 5]in Western Australia.
104. In relation to his current visa status, the witness stated that he had been granted a temporary graduate visa and was currently in the process of applying for a [another] visa, which would provide him with permanent resident status in Australia. He had secured a nomination for this visa from a [person] at [University 1].
105. The witness stated that his mother had gone to his wife’s family and arranged the marriage between him and his wife. The couple had only previously met for around 10 minutes before the day of their marriage. They were married in January 2006 and after the wedding his wife had moved to live with him and his family at his family home in Basra. He stated that his family were not related to his wife’s family.
106. The witness stated that he moved to Mosul because there had been a lot of problems for Sunni people in Basra. He claimed that at least [a number of Profession 1 individuals] had been killed at [Workplace 1], including friends of his. He added that somebody also put a bomb in the front of his house which scared the family, so they decided to move. The witness also stated that around this time he had received a note which was placed outside the front gate of his house warning him that if he did not leave the area he would also be killed. He claimed that this note had been addressed to him but was sent anonymously.
107. The witness explained that his tribe is similar to a large extended family that has a tribal chief and shares a common surname. He confirmed that membership of the tribe passes through the male linage of a family so that his children became members of his tribe rather than his wife’s tribe.
108. The witness stated that he did not believe it was the right thing for his children to be married in an arranged marriage in the way that he had been married to his wife. He claimed that he felt this way before his own marriage, but he had to follow through with the arranged marriage because that is the only way you can get married in Iraq. He stated that in Iraq you are unable to have a boyfriend or girlfriend relationship. He also highlighted the significant age difference between himself and his wife given that he was [age] years old and she was [age] years old when they married.
109. The witness stated that in Basra people lived in a tribal society. If he refused to allow his daughters to be married in an arranged marriage it would not be accepted by the society. He claimed that he would have no power to refuse the arrangement and his daughters would also have no power to refuse the forced or arranged marriage. He would be forced by everyone around him to follow tribal traditions and social norms within his society even if he really did not want this to occur. He claimed that this is what happened to his own wife and to his wife’s sister. Their own father did not really approve of an arranged marriage, but he was simply forced to accept it.
110. When it was pointed out to the witness that as a[Profession 1], he may have a higher status and more power within his tribe which could enable him to resist such a forced marriage, he responded that this would not be the case because the tribal society forces you to conform to their social norms in relation to the treatment of women. He highlighted that this does not only apply to marriage but also to the way that women dressed in order to comply with traditions and customs.
111. When asked what he feared would happen to him and his family if he simply refused to allow his daughters to be married against their will, the witness stated that they would be rejected by society, and it would then become very hard for them to live where they were not accepted by anybody. When asked what he believed he would do in these sorts of circumstances if he was living in Iraq, the witness stated that he would find himself forced to accept the arranged marriage and, in any event, he would not have the final say because all of his brothers would have some say and his oldest brother would have the final say in the matter. He stated that he was one of [a number of] siblings and had three older sisters and one older brother who worked as an[occupation deleted]. The tribe would accept this older brother’s word as the final say in any matter involving a forced or arranged marriage within the family. The witness and his wife would then be forced to accept this decision in order to remain within the protection of the tribe.
FINDINGS AND REASONS
112. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
113. There is no issue as to identity or country of origin. The applicants arrived in Australia on valid Iraqi passports and as the holders of valid Australian student visas. The Tribunal therefore accepts that the applicants are nationals of Iraq and has assessed their claims accordingly.
Third named applicant – [Ms B]
114. The third named applicant is an [age]-year-old girl who has not made any direct claims or given direct evidence. However, her parents (including her mother who is the first named applicant) have made claims and provided evidence on her behalf.
115. No claims have been made and no claims arise before the Tribunal that the third named applicant suffered any harm in the past in Iraq. In this regard, it is noted that she departed Iraq when she was only [age] years old and has not returned since she departed that country in July 2014.
116. It has been claimed on behalf of the third named applicant that if she returned to Iraq now or in the reasonably foreseeable future she would face serious harm amounting to persecution for reasons of her membership of a particular social group being girls in Iraq or young women in Iraq on the basis that she would be forcibly married against her will or that she would be married under age, or both.
117. The Tribunal accepts that girls or young women within a society such as Iraq would constitute a particular social group, as defined in s 5L of the Act as they share a innate and immutable characteristic, being a girl or young woman, and that characteristic is not the fear of persecution itself.
118. In relation to the third named applicant, she is an [age]-year-old girl, so she shares that innate and immutable characteristic of being a girl or young woman. As the characteristic is not the fear of persecution itself, the Tribunal accepts that if the third named applicant returned to Iraq now or in the reasonably foreseeable future she would be, and would be perceived to be by others in Iraqi society, a member of this particular social group being girls in Iraq or young women in Iraq.

119. Given the specific claims made on behalf of the third named applicant, the Tribunal has considered country information about the treatment of women and girls in Iraq including the prevalence of forced marriages and underage marriages in Iraq. The Tribunal has also considered country information about the way the authorities in Iraq, including the police, respond to these issues.
120. The most recent country information from the Department of Foreign Affairs and Trade (DFAT) highlights the very stark and confronting issues facing women and girls in Iraq. In relation to the position of women within Iraqi society, DFAT reports as follows:
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.[1]
[1] DFAT Country Information Report Iraq, 16 January 2023, p 29.

121. In relation to violence against women and girls in Iraq, DFAT states as follows:
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] DFAT Country Information Report Iraq, 16 January 2023, p 30.

122. The same report discusses the serious problem of so-called ‘honour killings’ in Iraq and highlights how refusing an arranged or forced marriage may be a reason for a person to be subjected to such ‘honour killings’:
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]
[3] Ibid, p 30.

123. In relation to forced marriages and underage marriages, the same report states as follows:
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.[4]
[4] Ibid, p 31.

124. The same DFAT report provides the following conclusion about the risks faced by women and girls in Iraq:
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.[5]
[5] Ibid, p 31.

125. Apart from DFAT, many other international agencies have reported on the problem of forced marriages and underage marriages in Iraq.
126. In 2012, Amnesty International reported a rise in child marriages during the COVID-19 lockdown periods precipitated by the deteriorating economic situation.[6]
[6] Amnesty International, ‘Amnesty International Report 2021/22: The State of the World’s Human Rights’, 29 March 2022, pp 204-205.
127. Save the Children noted in June 2021 that loopholes in Iraqi laws expose children to a range of child protection risks, including the exploitation of girls through so called ‘temporary’ or ‘pleasure’ marriages.[7]
[7] Save the Children, ‘Married by Exception: Child marriage policies in the Middle East and North Africa’, 25 June 2021, p 14.
128. In its report for 2021, United Nations in Iraq stated that ‘33.9 per cent of marriages in Iraq take place outside courts, with 22 per cent of them involving girls under the age of 14’.[8]
[8] United Nations in Iraq, ‘Iraq: Common Country Analysis 2021’, p 18.
129. DFAT explicitly describes the state protection offered against rape and sexual violence in Iraq as inadequate. DFAT also highlights how the legal framework and societal norms do not protect vulnerable women in Iraq and comments as follows:
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.[9]
[9] DFAT Country Information Report Iraq, 16 January 2023, p 30.

130. The same report offers the following commentary of the adequacy and effectiveness of state protection in Iraq more generally:
The ability of authorities to provide state protection varies by location. Several parts of the country are not under the effective control of the state. Impunity for abuses committed by security forces and other officials remains the norm. All state institutions are significantly affected by Corruption, particularly the police. State protection bodies are heavily politicised and subject to sectarian and tribal influences. Territorial and jurisdictional disputes between central authorities and the KRG often impair their ability to provide state protection. Security forces are sometimes reluctant to intervene in violent protests, either through fear of escalation or sympathy with the protesters’ cause, for instance during the 2022 protests and seizure of Parliament by groups loyal to Shi’a cleric Muqtada al-Sadr.[10]
[10] Ibid, p 37.

131. DFAT reports that the Iraqi police force in underfunded and poorly equipped, and also highlights the dangerous nature of policing in Iraq:
The Iraqi Police is generally underfunded and poorly equipped. According to surveys, one-third of Iraqis report having paid a bribe to the police. Many police officers moonlight in other occupations, including as PMF members. Deficiencies in training and resources mean police are often unable to carry out normal policing functions beyond staffing checkpoints and directing traffic. Being a police officer in Iraq is very dangerous: an estimated 14,000 Iraqi police have been killed in the line of duty since 2003.[11]
[11] Ibid, p 38.

132. The country information above highlights that both forced marriage and underage marriage are a serious ongoing problem in Iraq. In fact, the DFAT reports assesses that ‘Iraqi girls face a high risk of being forced into early or involuntary marriage’.
133. In the third named applicant’s case, both her parents stated at the hearing that they are personally not supportive of their daughter being forcibly married or being forced to marry whilst underage. They would prefer their daughter to continue her studies and make her own choices in life, including when to marry and who to marry. However, they both gave consistent and credible evidence at the hearing that in the context of Iraqi society, especially in the southern city of Basra where they originate from and where their families currently live, their views and opinions on issues such as this would be overridden by accepted social norms, the views and opinions of their tribe and the views of other members of the father’s family.
134. As supported by country information referred to above, these prevailing cultural norms and strong tribal influence in Iraq would make it practically impossible for the parents to resist the insistence of tribal superiors and family members that the daughter be married, even against her will. If they did resist, the country information supports the evidence of the parents at the hearing that they and their daughter would be subject to reprisals and ostracism from the tribe, which may threaten their capacity to subsist. Although not directly raised by the parents at the hearing, the country information indicates that the types of reprisals the family would at risk of suffering for refusing a forced or underage marriage would include the threat of ‘honour killing’. In addition, the country information referred to above discusses how is some southern areas (where Basra is located) women and children can be traded in order to settle ongoing tribal disputes.
135. Accordingly, based on the parents’ evidence at the hearing and the country information referred to above, the Tribunal accepts that the third named applicant’s parents would not be able to protect the third name applicant if it was proposed by other family members or members of their tribe that she be forcibly married or married whilst underage in Iraq. In making this assessment, the Tribunal has also taken into account the consistent and credible evidence the parents provided at the hearing about their own arranged or forced marriage where both indicated that they were not overly thrilled or enthused by the prospect of marriage to each other but felt that, in the context of the society in which they lived in Iraq, they had no choice but to accept the partner chosen for them and go ahead with the marriage regardless of their own views and regardless of the significant age difference between them at the time.
136. The country information makes it clear that the incidence of such marriages is not remote in Iraq and that they happen far too frequently. In the case of the third named applicant, the way her own parents were married strongly indicates that her own broader family and tribe in Iraq adhere to the cultural norms and traditions of such marriages. Accordingly, based on this country information and the third named applicant’s own individual circumstances, the Tribunal finds that if she returned to Iraq now or in the reasonably foreseeable future there is a real chance that she would be subject to a forced marriage or would be subject to an underage marriage for the purposes of s 5J(1)(c).
137. The country information makes it clear that the essential and significant reason for this harm, pursuant to s 5J(4)(a), is the third named applicant’s membership of a particular social group being girls in Iraq or young women in Iraq as it is expected that girls or women in Iraq living within their tribal customs and traditions will be married in this way.
138. The Tribunal accepts that the harm envisaged, being forced marriage or underage marriage, can be categorised as significant physical harassment (s 5J(5)(b)) or significant physical ill-treatment (s 5J(5)(c)) and therefore constitutes serious harm for the purposes of s 5J(4)(b).
139. Given the prevalence of the practices of forced marriage and underage marriage in Iraq and given the societal norms and expectations around these practices, the Tribunal accepts that this conduct within Iraqi society is systematic and discriminatory against the cohort or particular social group of girls or young women it is directed against, which satisfies the requirements of s 5J(4)(c).
140. Section 5J(3)(c)(v) of the Act expressly provides that acceptance of any such forced marriage or underage marriage cannot be an acceptable form of behaviour modification for the purposes of s 5J(3). Accordingly, s 5J(3) does not apply to the third named applicant.
141. The Tribunal has found that the third named applicant would face a real chance of serious harm if she returned to Iraq now or in the reasonably foreseeable future for her membership of a particular social group being girls in Iraq or young women in Iraq. This serious harm, being forced marriage or underage marriage, would not be harm caused by the authorities of the state of Iraq but would instead be caused by private actors not directly associated with the state. Therefore, pursuant to s 5J(2), the Tribunal must consider whether effective protection measures are available to the applicant in South Africa. The definition of ‘effective protection measures’ is exhaustively defined in s 5LA.
142. Based on the country information above, the Tribunal accepts that the state of Iraq has enacted laws that set the age of 18 as the legal age of marriage. However, these laws allow for marriage from the age of 15 with parental consent. There is no mention in any country information accessed by the Tribunal that the consent of the underage person getting married is also necessary or even sought in such circumstances.
143. Despite the existence of these laws, the country information referred to above makes it clear that is a society like Iraq, where long-standing customs and traditions are observed and where tribal power often supersedes state power, the practices of forced marriage and underage marriage continue in large numbers with no apparent consequences and with no action taken against perpetrators of such events. DFAT highlights the inadequate state protection offered to women against rape and sexual assault. The country information from DFAT points out the lack of resources and corruption within the police force as well as the apparent impunity of some criminals. There is also reference to the politicisation of state protection bodies and their susceptibility to outside influences, including tribal influences.
144. In addition, the parents of the third named applicant highlighted at the hearing how these tribal influences would guide their own behaviour and that of their daughter in circumstances of forced or underage marriage. They stressed how they would be unwilling to seek state protection because of a fear of reprisal from their tribe, who they considered more powerful than the state. As discussed above, country information highlights that one form of reprisal in these circumstances is so-called ‘honour killing’. The Tribunal considers that this type of threat and the country information about tribal influences over state protection bodies in Iraq more generally, make it reasonable in the circumstances for a potential victim to be unwilling to access any available protection.
145. Accordingly, on the evidence before it and given the second named applicant’s personal circumstances, the Tribunal is not satisfied that when it comes to providing protection from the type of harm that the third named applicant fears that there is a reasonably effective police force available in Iraq to provide effective protection as envisaged by s 5LA(2)(c). In addition, for the reasons outlined above, the Tribunal is not satisfied that the third named application would be able to access any available protection given her fear of reprisal from her tribe, including the fear of an ‘honour killing’ as envisaged by s 5LA(2)(a). Accordingly, on the evidence before it, the Tribunal finds that in the applicant’s personal circumstances effective protection measures would not be available to the third named applicant in Iraq pursuant to s 5J(2).
146. The country information referred to above makes it clear that the risks relating to forced or underage marriage for girls and young women is similar across the whole of Iraq. In fact, the country information highlights that displaced people and those who are enduring substantial economic hardship would be at even more risk of such practices than the already-high existing risk to the general population. Accordingly, on the evidence before it, the Tribunal finds that the real chance of persecution relates to all areas of Iraq pursuant to s 5J(1)(c) and therefore relocation within Iraq is not an option available to the third named applicant.
147. 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 girls in Iraq or young women in Iraq.
148. 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).
Other applicants
149. Given the findings above in relation to the third named applicant, the Tribunal has not conducted an extensive analysis of the claims for protection made by the first named and second named applicants. However, as discussed with the first named applicant and the representative at the hearing, the Tribunal has some concerns about the claims made by and on behalf of these applicant and some of the evidence provided over time in support of these claims.
150. On the evidence before it, the Tribunal is not satisfied that the first named applicant and the second named applicant are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa).
151. However, 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 Tribunal is satisfied that 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.
152. There is no evidence before the Tribunal to indicate that any of 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
153. 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 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.
…

[2023] AATA 4667

29 August 2023

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