1810016 (Refugee)

1810016 (Refugee) [2024] AATA 1798 (22 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Kirstein Fentiman (MARN: 1068568)
CASE NUMBER:  1810016
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Jessica Henderson
DATE:22 March 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(a)that the first, third, fifth and sixth named applicants satisfy s 36(2)(a) of the Migration Act; and
(b)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 first named applicant.

Statement made on 22 March 2024 at 3:38pm
CATCHWORDS
REFUGEE – protection visa – Iraq – ethnicity, religion and members of particular social group – Kurdish, Sunni Muslim, separated woman – kidnapped, tortured and raped – assaults and threats of ‘honour killing’ by family members – police inaction – new claim of emotional, physical and financial abuse by husband (now separated) – daughters’ claims of fear of harm from genital mutilation – children’s Westernised lifestyles and attitudes – credibility – language and cultural barriers, severe untreated PTSD, unreliable memory and fear of authority figures – genuine attempts, no intentional misleading and no adverse inference drawn – members of family unit sons – country information – fathers automatically awarded guardianship of children – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (b)(i), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 March 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants are citizens of Iraq who applied for the visas on 5 May 2017. The delegate refused to grant the visas on the basis that they did not consider the primary applicant to be a credible witness due to the applicant’s demeanour, written statement and testimony and interview, specifically noting a number of inconsistencies in the first applicant’s evidence.
The first applicant appeared before the Tribunal on 23 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Kurdish (Kurmanji/Sorani) and English languages.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
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 issue in this case is whether the first applicant and any of the second through sixth applicants meet the codified refugee criteria or the complementary protection criteria. If the answer is yes, the issue will be whether any of the remaining applicants are members of the same family unit.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The first applicant came to Australia as a dependent visa holder after her husband was granted a [student] [visa]. Four of their children accompanied them while their fifth child was born in Australia. The applicant’s five children are the second through sixth applicants.
Original claims
The first applicant’s original claims were accurately summarised by the delegate in the following terms:
The applicant is a Kurdish female who was born in Kirkuk, Iraq and is a Sunni Muslim.
• In 2009 two men dressed in black went to the applicant’s house and asked for her husband. She advised that he was asleep. While they went away, in fear of what may occur the applicant and her husband went to stay at her brother in law’s house.
• Two days later she went to the hospital for an appointment. Her husband dropped her off and then left as he had to go to work at the [Workplace] he [worked] at.
• As the applicant was walking back from the hospital a person placed their hand across her mouth from behind, drugged her and she became unconscious. She woke up naked in a house with big blocks of ice on her chest. There were three men in the room with her. The place looked abandoned and the room was small with one light bulb providing some light. It looked like it was powered from an extension cord. There was a dirty mattress and blanket on the floor. There was a phone call and all her captors left the room. She does not know why.
• While they were out of the room the applicant found a greasy piece of cloth to cover herself. While looking she found a mobile wedged between the wall and the mattress. She managed to call her brother in law as his number was the only number she could remember. He told her to escape but there was only one window and it was too far for her to escape from.
• She was the only one captive and was held hostage which lasted for 4 to 5 days and then she was moved to another place. She had her eyes and mouth covered and was placed in the back of a car. She overheard them talking about going to Mosul. The next time she was able to see she was in some rural part of Iraq inside an old building. There were four other women there and a boy who was still a child. They stayed there for a few days. There were three or four men and one woman beating her.
• The next place she was taken to looked like an old military base. Three of the other women were also taken there however she did not see the boy or the youngest of the women.
• There were 30 or 40 men at the location, they tied their hands and raped them regularly and passed them between groups as though they were selling them. They were drugged so they were often in a semi-conscious state and unable to struggle or resist. The men wore black and also wore masks. After about 10 or 15 days her face was covered and she was moved by car to another location. It took a long time and the road was bumpy, they may have driven through bush. When they arrived at the destination the three women who had been at the military base and the boy who she had seen before were there. There were also many other women and children as well. They were tortured and beaten a lot. She was tortured with hot pieces of metal. They were given food that looked like human eyes. When they refused to eat it they were beaten.
• One of the female kidnappers pulled out large chunks of the applicant’s hair and she was dragged up and down a flight of stairs. She was beaten for refusing to take off her wedding ring.
• There was a young boy who was crying as he was hungry. She gave him some of her food as she didn’t want it. Some of the kidnappers grabbed the boy and held him in front of the applicant while they decapitated him. He was still reaching for her for help. They then cut the boy’s body up and made them clean it up.
• After this happened she decided that she had to escape. She woke up three other women in the middle of the night. She told them that they needed to escape and if they were killed in the process it didn’t matter as they would eventually be killed anyway.
• They climbed up to a window of the room and jumped out, they then started to run. A guard saw them but did nothing as she believes he didn’t approve of how the boy was killed.
• As they ran dogs barked at them and as they were scared they all ran in different directions and kept running until sunrise. She doesn’t know what happened to the other three women.
• During the time she was held captive she would often hear her captives talk about Erbil, Mosul and Haweeja but she is unsure if she was ever taken to those places as she was always blindfolded when travelling. She also heard at one point that they would be taken to [Country]. She was held captive for approximately one month before she escaped.
• When her family asked her what had happened she told them she had been kidnapped and tortured but did not tell them she had been raped. Her husband is still unaware she was raped.
• When she went to the police to make a report she tried to tell them she had been raped however the officer told her not to continue and not to tell him as he would not be able to protect her. He said he knew what would happen to her in regard to Iraqi culture so it was better not to tell him.
• At the time she knew she was pregnant from being raped and that it wasn’t a child from her husband as they had been using condoms as they had only recently had [children] and did not want more children. After talking to the policeman she decided not to tell anyone. She borrowed $500 from a friend and paid a midwife to help her have an abortion.
• Many other family members believe she has been raped and one of them told her she should have just killed herself while in captivity and after she had been raped, rather than returning to her family and bringing them shame. She wanted to kill herself but she didn’t as she loves her children too much.
• Her uncle kept saying they must kill her and her father stopped talking to her for approximately one month. After one month her father invited her to go to his house without her children. He beat her with a stick to get her to confess to the rape. He didn’t let her see her children for three weeks. She believes he did this as her uncles were pressuring him to kill her.
• She and her father became estranged after this and while she tried to talk to him he ignored her. She once asked him to give her money when she moved to Australia to buy her children some clothing but he refused. Her husband did not know her father was beating her and she does not know what he would have done if he found out.
• Her family suspects that she was raped as it is typical for kidnappers to rape their captives. She continued to receive threatening letters until she left Iraq. Every morning she was the first person up in their house and she would go outside to hose down their yard and water the plants. She would find notes that had been thrown over their wall. Sometimes they were folded very small and sometimes they were in match boxes or in a cone of paper. After she found a few she started looking for them as she was scared that if she didn’t pick them up someone else would find them.
• The notes said horrible things and threatened her, her husband and her children. She knew they were from the kidnappers as they asked how she had escaped and who helped her. They told her that if she didn’t surrender they would kill her husband and throw his body over the wall instead of the notes. She was so scared for his safety that every morning she would start his car for him so that if a bomb went off she would die and not him.
• She got the notes everywhere they moved and she doesn’t know how they knew where she was. Maybe they followed her husband through his work.
• She hid the notes so that no one would find them and then she decided to burn them so they could never be found. She did not want to cause her husband any more worry than what he had already been through and she didn’t want her extended family to find out as she knew it would turn them against her even more.
• The threats against her continue even while she has been in Australia. He husband’s brother told her she will never be safe and said that he can even come to Australia to kill her.
• Her sister told her that she overheard their uncle telling her brother that if they find out that she has been raped and if she ever returns to Iraq they will kill her. Her sister also told her that if it is confirmed she was raped her father will also kill her. She told her a year ago it is better that she stays in Australia. Her husband doesn’t know what her sister has told her.
• The applicant believes her sister has told her because of how her family treated her in the past. When she was [a child], her father and mother beat her because someone proposed to her. They asked why he was proposing and accused her of having a relationship with him. She didn’t even know him, he just lived next door and had seen her. As her father reacted like this when someone proposed she believes he will kill her if he knew she had been raped.
• She is certain that if her husband finds out she has been raped he will harm her, probably not while in Australia as he knows the police would punish him, but if they return to Iraq she believes he will allow his family to kill her.
• She does not know who kidnapped her or why she was targeted.
• After the kidnapping she refused to leave the house as she was too scared. She only left if there was a large group of other people and wouldn’t go just with one member of the family. After a while the family went to stay at her in-laws house. The entire family was scared due to her kidnapping as it hadn’t happened to anyone else in the family before. She thinks everyone was worried they might return for her even though they didn’t know about the notes. Her husband and son refused to walk on the streets alone.
• After a while her in-laws house became too small for all the family so they moved to a new house. She once found a lock and chain outside on the gate, it meant she couldn’t leave. When she saw this she was too scared to turn the car engine on in case someone had attached a bomb to it. She had to call her brother-in-law to break the chain open with a metal cutter. They eventually moved back to her in-laws house because they were scared for their safety.
• A friend in Iraq recently told the applicant that someone had been locking their old house with a chain recently. The new tenants have the same car as the applicant so she thinks the kidnappers believe she is back.
• Between the kidnapping in 2009 and when the applicant came to Australia in 2013, they moved around a lot and never stayed in one place as it was not safe for her.
• At one point when they returned to their house for a brief period someone tried to climb the wall into their property. A neighbour caught them and asked what they were doing and they left. She saw it all out of the window. It was the same man who went to their house prior to being kidnapped. The applicant and her husband always wanted to study overseas but after she was kidnapped he decided they had to go as it wasn’t safe for her in Iraq anymore. He applied to study in Australia but it took three years for his application to be approved. This is because he is Kurdish and in Iraq they always give preferences to Arabs, so he was always at the bottom of the [pile].
• Being Kurdish may be one reason the applicant was kidnapped. There are a lot of ISIS in Kirkuk and they target Kurdish people. It would have been easy to tell that the applicant is Kurdish as they don’t usually wear head coverings and she wasn’t wearing one at the time.
• She has worn one ever since she escaped as she is scared after the experience she had. The only other people in her family that have been targeted for being Kurdish are her two of her uncles. They were killed.
• There is a danger from ISIS for Kurdish people living in Kirkuk.
• As the applicant is Kurdish she is limited to moving around the northern part of Iraq. This is what they did for 4 years after she escaped the kidnappers.
• If she left her husband and went elsewhere it would be incredibly difficult without any male protection. She wouldn’t have a job or income to look after her children.
• If her family discover the truth there would be no chance to leave her husband as they’d kill her straight away.
• Her family could find her anywhere because as a Kurdish woman she is limited to the northern part of Iraq.
• In Iraq, ISIS posts videos online of everything it does. Some of her extended family members are still to this day looking for videos of her and what happened when she was kidnapped so they can prove she was raped.
• When she escaped the kidnappers there were police watching their family for 2 weeks. After that though they told them they couldn’t protect them as it wasn’t their job and there were too many other issues they needed to deal with.
• In Iraq it is easy to find people. The police will not interfere if her family killed her, not even afterwards to arrest them. Husbands can kill their wives there.
Submissions to the Tribunal
By covering letter dated 18 February 2024 the applicant sent the Tribunal submissions and associated evidence.
The submissions included that the first applicant and her family are Kurdish, and that their husband/father has left Australia, ceased to support his family, and married a second wife.
The submissions do not resile from the applicant’s claims as made in her original application but indicate that they are not the most pressing matters at this stage in time. Instead, they press that the first applicant has experienced both threats and harm while living in Iraq, at the hands of kidnappers and her family, that she has been subjected to emotional, physical and financial abuse from her (former) husband, and that her children have been subjected to family violence from their father, most recently as when he visited Australia in 2022. The applicant submits that it is a relevant consideration that the violence appears to flow from tension between father and children because of their western attitudes, including the clothes they wear and perceived disrespect when they stand up to their father.

In her 2024 statement, the first applicant gave evidence that she was mutilated when she was pregnant with her eldest son. She says that she did not know it was going to happen and it occurred when she thought she was going to be checked during her pregnancy. Her submissions note that the first applicant suffered this experience when she returned to Kirkuk after having lived in Erbil, Kurdistan, and that it was inflicted on her by her husband’s family.
The submissions attached the following:
·Country information in relation to:
opolygamy and divorce,
ofamily violence,
oif the children are returned to Iraq, including as Westernised persons,
ofemale genital mutilation / circumcision,
ohonour killings,
ocurrent situation in Kirkuk and for Kurds in Iraq,
ohealth care, and
oimpact of trauma on memory and credibility.
·Annexure A-D: Statements of the first and the third through fifth applicants.
·Annexure E: A transcript of video.
·Annexure F: Wedding photos of the first applicant’s husband to another woman.
·Annexure G: Letter of support from [Church organisation].
·Annexure H: Photos of the first applicant’s husband with other members of [Political party].
·Annexure I: Letter from the first applicant’s treating GP.
·Annexure J: Statement of the first applicant – January 2017.
·Annexure K - Letter from Psychiatrist.
·Annexure L - PV decision record for the first applicant.
The Tribunal notes that new claims have been raised for the first time before the Tribunal. The first applicant submits:
110. At the time of the interview with the delegate, the first applicant was isolated in the community, had very little English and had young children to care for. There is now more information on what the home life was like at that time. The non-disclosure of the family violence at the time is not inconsistent with how victims of family violence often respond when interacting with authorities. Non-disclosure of family violence is common in Australia.
111.When in the context of a woman who has a significant trauma background, from a different culture, isolated, lacking English and support networks, and being the primary caregiver for small children, it is not unreasonable that this information was not disclosed during the interview with the case officer. Sometimes all the insistence in the world from persons attempting to assist an applicant is not enough in the face of being scared, vulnerable and lacking trust in authority figures.
112. During an Australian Law Reform Commission inquiry in 2010, a number of submissions were received regarding the reasons for non-disclosure of family violence:
“Stakeholders set out a range of reasons why people who have experienced family violence may not readily disclose it. A victim of family violence may hide the abuse due to feelings of shame, low self esteem or a sense that he or she, as the victim, is responsible for the violence. A victim may feel that he or she will not be believed. A victim may hope that the violence will stop, or might believe that violence is a normal part of relationships. Because of the family violence, a victim may feel powerless and unable to trust others, or fear further violence if caught disclosing it.”
113. The report goes on to note, that in the context of an initial disclosure to an official authority:
“… the victim may then need to provide evidence of the violence to a court … giving evidence ‘can be one of the most intimidating and distressing aspects of the legal system for people who have been subject to family violence’”.
114. Issues with evidence may also impact disclosure.
“Sometimes there will be evidence of family violence incidents—such as a police report or medical records. In other cases however, there may be no evidence available because the victim has not previously disclosed the violence or has, for example, sought to explain it away as ‘accidental’. These difficulties are compounded where family violence is manifested bycontrolling or coercive emotional or economic abuse, rather than physical abuse.”
115. the first applicant’s children are older now and able to provide independent information on not only the family violence experienced by the first applicant, but also their own experiences. In addition, we hope that the video evidence submitted provides the Tribunal with some insight into the behaviour of [the husband/father].
116. The level of violence displayed in the video should be considered in the context of [the husband/father]’s overall behaviour over many years, including the financial abuse of his family. The threats are all about what would happen if the children were to return to Iraq.[1]
[1] Citations omitted; each is drawn from Australian Law Reform Commission, Family Violence – A National Legal Response (ALRC Report 114) / 18.
The Tribunal accepts that those submissions are reasonable, and does not draw any adverse inference from the failure to raise the claims at the earliest opportunity.
Evidence during the hearing
The first applicant gave evidence to the Tribunal about her early life and her marriage during the hearing on 23 February 2024. The first applicant’s family history was traumatic, and included a period spent outside her homeland ‘because of what Saddam did’.
The Tribunal formed a favourable view about the first applicant’s credibility, but her memory is badly damaged. Her inability to recall simple details with little or no bearing on the matters before the Tribunal are consistent with severe PTSD. For example, she said that she knew what her husband had studied and what he was doing at [University] but she could not recall. Her distress at being unable to remember and her concern that the Tribunal would make an adverse credibility finding because of her inability to remember seemed genuine. The Tribunal can see no advantage to the first applicant in lying about knowing her husband’s area of specialty but being unable to recall it; the Tribunal accepts that the first applicant’s memory is unreliable.
The Tribunal accepts the first applicant’s submission that the inconsistencies in her past history are the product of her cultural and language barriers, severe PTSD, and her fear of recounting intimate details of the egregious crimes committed against her person to authority figures relying on interpreters of unknown quality or origin. The Tribunal accepts that the first applicant was the victim of kidnapping and that she was raped, and that she suffers from PTSD that has been almost entirely untreated.
The Tribunal did not ask the first applicant to traverse all of her traumatic reported history for the sake of checking for inconsistencies but asked directed questions to verify sources of external corroborating evidence. The Tribunal is satisfied that the first applicant genuinely tried to assist the Tribunal and did not intentionally mislead the Tribunal in any respect.
The Tribunal was persuaded by the first applicant’s tone and demeanour that she is subjectively afraid of returning to Iraq.
Objective fear of family violence
On 12 February 2024 the applicant submitted a video to the Tribunal in MP4 format. The language of the video is not English, and the applicant submitted a written transcript for the Tribunal’s aid in understanding what is happening.
The video shows a man (who appears to be the husband of the first applicant and the father of the other applicants) approach a teenage girl (the third applicant). The girl is sitting on a chair, and the man stands over her, speaking to her in a derogatory and angry manner. It is evident without the translation that the scene being played out is an annoyed father ‘telling off’ a teenage daughter. It looks like a fairly ordinary scene, until the father reaches over casually and lifts his daughter’s dress up and looks underneath it. He slaps her twice in the video.
The translation provided by the applicant indicates that the father is telling his daughter off for dressing inappropriately. The Tribunal notes that there is nothing inappropriate about the daughter’s outfit by western standards – she wears a reasonably conservative three quarter length dress, cut high on the chest.
The translation indicates that the father is looking under his daughter’s dress in a theatrical gesture ostensibly ‘to check that she is wearing underwear’ but from the body language of both it is actually designed to belittle and control. The daughter’s mild response suggests that this is a regular occurrence. She does not demonstrate shock or disgust at the invasion of her person and her privacy.
The man then turns to a boy sitting near by (the fourth applicant) and speaks angrily to him. The transcript indicates that he is telling the boy that if they were in Iraq he would have his feet whipped for speaking badly to his father.
The Tribunal accepts that it is persuasive evidence of family violence, and that it is consistent with claims that the first applicant’s husband believes he has and actively exercises control over the bodies of his wife and daughters.
Objective fear of FGM
The applicant gave evidence to the Tribunal of the circumstances in which she was forcibly subjected to female genital mutilation at the hands of her mother in law. The Tribunal is satisfied that the first applicant was recalling genuine memories.
The Tribunal summonsed the first and sixth applicants’ medical records from [Hospital], and observed the following:
-Concerns were raised on at least two occasions that it had not been possible to complete domestic violence screening because of the husband’s presence and role in interpreting for her;
-The husband resisted efforts on the part of nurses and doctors to talk to the first applicant about post-natal depression, and they were not permitted to provide her with information about sources of help; and
-The husband resisted independent interpreters being made available to the first applicant.
The [Hospital] documents do not show any evidence that staff detected FMG or complied with FMG protocols. That is not fatal to the first applicant’s claim, however, because a review published in 2019 concluded that in the period studied (2014; the year prior to the first applicant’s admission) there were gaps between local recommended guidelines and care being documented in clinical notes.[2] The review stated:
[Deleted].
[2] [Source deleted].
The review continued:
Caregivers are generally not given any guidance or training on how to ask such questions in a sensitive and inclusive manner, which may explain why some caregivers avoid asking. It is notable that 17% of women with FGM/C, when asked about their status, were unsure or denied a history of FGM/C, underpinning the importance of health care providers asking the question in a non- judgemental and sensitive manner. Encouraging the use of interpreters is also fundamental.14 Although 14% of clinical notes documented those women had refused an interpreter it is notable that this means only 72% had an interpreter present to discuss the sensitive issues around the topic of FGM/C. Only 23% of women with disclosed FGM/C were examined before labour or referred to senior doctors. As per the Clinical Practice Guideline, disclosure of a history of FGM/C should result in an antenatal examination (specifically, an inspection of the genitalia) so that there is adequate time to discuss a plan for labour, if the FGM/C is likely to obstruct birth. Referral to the social work department was particularly inadequate – this not only potentially deprives these women of extra social supports, but also denies these women another opportunity to discuss the legalities of FGM/C in the Australian context. [emphases added]
Country information
DFAT indicates that pursuant to Iraqi law “[f]athers are automatically awarded guardianship of their children in divorce cases, although a divorced mother may be granted custody of her children until age 10 (extendable by a court until age 15), at which time the child may choose with which parent to live”.[3]
[3] DFAT Country Information Report Iraq 16 January 2023 at 3.110.
The Tribunal’s attention has been drawn to published country information that female genital mutilation was very common, including in KRI and Kirkuk, at around the time the first applicant says that she experienced it.[4] According to a report by Finnish Immigration Service, “it is usually a female family member who requests the … procedure. These are traditionally-minded women – mothers, aunts and others who want what is best for the girl”.[5] The purpose of the practice is to ensure the girl’s honour in the eyes of the Kurdish community.[6]
[4] Assyrian International News Agency, Iraq: Study shows female genital mutilation is common in Kirkuk, Iraq,
[5] Finnish Immigration Service, Overview of the status of women living without a safety net in Iraq, Country
[6] Human Rights Watch, “They Took Me and Told Me Nothing”: Female Genital Mutilation in Iraqi Kurdistan,
DFAT reports that ‘honour killings’ remain a serious problem across Iraq, that the majority of victims are women, and that honour killings can be carried out in response to “’shameful’ dress or behaviour, including social media posts.” [7]
[7] DFAT Country Information Report Iraq, 16 January 2023 at 3.116
Country guidance from 2022 provides that:
Transgressions of family honour, linked to cultural beliefs about women’s virginity or purity, have led to families and tribes carrying out honour-based violence against family members, usually females. Perpetrators are often male relatives or family members, who carry out honour killings for a range of ‘crimes’, which span from sexual relations outside marriage, including instances of rape or other forms of sexual violence, refusing to marry a man chosen by the family or marrying against the family’s wishes, to inappropriate appearances or unacceptable contact or dating with males outside the family, among others. Honour killings are rarely investigated and punished.[8]
[8] European Union Agency for Asylum, Country Guidance Iraq 2022 – 2. Refugee Status, Analysis of particular
Refugee criteria
The first applicant is an Iraqi Kurdish single mother, married into a deeply conservative family with a demonstrated history of family violence, who has raised westernised children in Australia.
It appears from her own FGM that the first applicant’s husband’s family were concerned about her honour. Her evidence during the hearing was that she was married into the family as a young child and that subsequently she was taken by her family to live abroad. Her family did not subject her to FGM and their lifestyle was less conservative than her husband’s family’s in many respects. This was known to them because of the intertwining of the two family trees, which resulted in many common cousins who were able to pass reports about what the families were doing.
The first applicant has now raised children in Australia, in circumstances where it is clear from the video footage they are dressing in unconservative ways. The very fact that her children comfortably recorded that video footage of their father’s abuse in case their mother needed it tells the Tribunal that they have Western habits of using modern technology (and by inference also social media) to protect their interests.
The Tribunal accepts that there is a real chance that the first applicant will be perceived by her husband’s family to have dishonoured them. She is owed protection as per s 36(2)(a) of the Act on the basis of her membership of a particular social group. Country information demonstrates unequivocally that she would be subjected to selective and discriminatory persecution if she is returned to Iraq without any possibility of state protection or relocation (given her husband’s automatic guardianship over at least some of her children).
The children are members of the particular social group of Westernised returnees, and / or persons who have not lived in Iraq since they were young (or never lived in Iraq). The girls have not experienced FGM. It is clear from the first applicants’ evidence that they will be subjected to it by their paternal family if they travel to Iraq. Further, their formative years have been spent in Australia, and their behaviours are consistent with Western women and not traditional Iraqi female roles.
For the reasons given above the Tribunal is satisfied that each of the female applicants is a person in respect of whom Australia has protection obligations. Therefore the female applicants satisfy the criterion set out in s 36(2)(a).
The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). There is nothing to suggest that the level of violence that might be directed by the applicant’s partner or his family would rise to the level of serious or significant harm. If they witnessed violent treatment of the first, third, fifth or sixth applicants that might distress them then that would amount to family violence, but there is limited evidence from which the Tribunal could conclude that they would be a witness to such treatment.
However, the Tribunal is satisfied that they are members of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i). Only the second applicant is over the age of 18, and he is clearly still co-dependent with his mother and reliant on her in the requisite ways. As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the 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.
The Tribunal remits the matter for reconsideration with the following directions:
a.that the first, third, fifth and sixth named applicants satisfy s 36(2)(a) of the Migration Act; and
b.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 first named applicant.
Jessica Henderson
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.
…

Evidence of Family Violence / Difficulties in giving evidence, 10 November 2010, at, 18.4,

11 April 2012,

Information Service, 22 May 2018,

2010,

profiles with regard to qualification for refugee status, 2.13 Individuals perceived to transgress moral codes,

[2024] AATA 1798

22 March 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Remedies

Statutory Construction

Jurisdiction