1906153 (Refugee) - [2023] AATA 4097

1906153 (Refugee) [2023] AATA 4097 (20 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Jessica Williamson
CASE NUMBER:  1906153
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Denis Dragovic
DATE:20 September 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 September 2023 at 2:41pm
CATCHWORDS
REFUGEE – protection visa – Iraq – young unmarried Kurdish Chaldean Christian woman – workplace harassment and petty crime, claimed to be targeted – physical and mental health – returned failed asylum seeker – support from family, education and employment, including managerial role – information about city and region given greater weight than that for whole country – generally stable and safe region, large Christian community and many returnees – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
BVT20 v MICMSMA [2020] FCAFC 222
CHB16 v MIBP [2019] FCA 1089
CSV15 v MIBP [2018] FCA 699
EZC18 v MHA [2019] FCCA 464; [2019] FCA 2143
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 8 March 2019 to refuse to grant the applicant a protection visa made on 16 April 2018 under s 65 of the Migration Act 1958 (Cth) (the Act).
The delegate refused to grant the visa on the basis that the applicant had delayed applying for a visa and as such disbelieved there was a genuine fear of returning to Iraq. The delegate considered the claims of the applicant being an unmarried female Chaldean Christian and found that her profile did not leave her facing a well-founded fear of persecution.
The applicant appeared before the Tribunal on 13 September 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Chaldean and English languages.
The applicant was represented in relation to the review.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Mental health of the applicant
In pre-hearing submissions, the applicant provided to the Tribunal the following regarding her current mental health status:
a.Letter from [Dr A] dated 6 June 2023 listing the ailments faced by the applicant including ventricular ectopics (described by the applicant as heart palpitations). A diagnosis of extremely severe depression and moderate anxiety based upon DASS scoring administered by the GP. Prescription of medication for this concern which was described as being required, ‘until she navigates through the difficult time, relieve of her mental and physical symptoms and to function effectively’. The letter concludes, ‘She is under enormous stress due to uncertainty of her future. Many of the symptoms could be physical manifestations of her stress and anxiety’.
b.A referral letter from [Dr B], a general practitioner, for counselling dated 13 July 2023 which states that the applicant is not on any regular medications.
c.A mental health assessment undertaken by [Dr B] dated 13 July 2023 which diagnosed the applicant with anxiety and depression.
At the hearing the applicant said that she is not taking any medication and has attended four sessions with a psychologist. She said that these had already helped her such that she has not felt the heart palpitations anymore.
The applicant explained that the reason she turned to the doctors seeking mental health support was because of her stress and heart palpitations. She said that she quit her job in Melbourne due to being unable to function as a result of her mental health symptoms.
I note that general practitioners are not psychologists or psychiatrists and as such any diagnosis from a self-reported test such as DASS is limited in value and as such, I give it limited weight. For this reason, I accept that the applicant experiences depression and anxiety, but do not engage further with the GPs assessment that the depression is ‘extremely severe’ or the anxiety is ‘moderate’.
I asked the applicant to suggest any additional support she would require through the hearing other than regular breaks. She did not suggest any further support.
Upon reflection, I am satisfied that the applicant was given a meaningful opportunity to participate in the hearing.
Evidence and findings of fact
The applicant is a [Age]-year-old female citizen of Iraq of Kurdish ethnicity. She arrived in Australia over five years ago joining her sister who lives in Australia. The applicant has one other sister who is married and lives in the same area in which the applicant was born and raised, [Suburb], Erbil.
The sister who resides in [Suburb] is working as [an Occupation 1] and has [children]. Her husband is [an Occupation 2].
The applicant’s mother passed away in 2008 and her father continues to live in their family home in [Suburb].
The applicant said that she grew up living a very independent life having to work and support her father in the household duties after her mother passed away.
The applicant completed university in Iraq, studying [Subject] at [University]. She then worked in her specialisation within [Employer 1] for two years. While at [Employer 1] she worked together with four to five women alongside other Christians.
In 2014 the applicant took leave without pay from [Employer 1] and joined [a] company where she became [an Occupation 3]. The applicant held the role of [Occupation 3] for two years before being promoted to [Deputy Manager] in the corporate office in Erbil and as a result had to travel regularly to their [ locations].
During her travel outside of Erbil for the [company] she went to a Kurdish village, ‘[Village]’, which she described as being an hour or an hour and a half out of Erbil. She described the residents as difficult and aggressive in their wanting a greater share of the benefits from the [company’s] work in their area, including, vehicles to be hired through them and local people recruited from amongst them. She said that they were always asking for more despite the company being acquiescing to their demands. She said that she didn’t feel safe. She said that she was worried when going to the site even though she would go as a part of the team together with security. The security they had was a combination of the Kurdish government security (Asayesh) as well as additional private security.
She said that the tension from these visits and the fear that arose led her to resign from the job in August 2017. The applicant explained that her travel to [sites] only began on a regular basis in January 2017 because while in her assistant role she was not required to leave Erbil, she explained that many expatriates had been laid off and as a result she was promoted into the role.
I asked the applicant how she had obtained both of her roles. For the [Employer 1] job she said that her uncle was the head of [Employer 1] at that time and that he had arranged it. As for the [company] job, she said that she attended a job fair, gave her CV and was initially offered a [role] but then as they discussed her interests further, they offered the [Occupation 3] job.
Following her resignation there were two incidents that the applicant encountered which she believes were related to her work for the [company]. She associates both with her work because, according to the applicant, the villagers have a revenge mentality. The first was about a month after she resigned − while walking through a shopping strip in [Suburb], someone tried to snatch her bag. She said that the area was no longer safe as a lot of Muslim people had moved into [Suburb] from other parts of Iraq and Syria. She noted that bag snatching happens to many people. Noting that she had said that it happens to many people I asked whether it could simply have been someone trying to steal her bag and not related to her job; she said that it could have been.
The second incident occurred when she was at home alone and some people knocked ‘roughly’ on the door calling out for the door to be opened. She said that they were loud. She said that she pretended not to be home and then they left. She said that she couldn’t think of it being for any other reason than associated with her earlier work. I said that it could be someone looking for her father, to which she asked why they would knock roughly suggesting that they should leave if no one was at home.
The applicant said that she was the only female in the [company] and that she felt discriminated by her employer. She said that she wasn’t expressing what was happening to her at the time to her employer, so they didn’t understand her. I noted that they promoted her, which suggests that they weren’t discriminatory in their appointments, to which she said that previously expatriates had carried her role of Deputy Manager and only after they left they asked her to do it.
The applicant did not go to the police following any of the incidents or concerns because she claimed that she believes Christians don’t receive protection from the authorities.
If the applicant were to return to Iraq, she said that she would return to live with her father who continues to live in the family home in [Suburb].
In considering the applicant’s claimed recollection of the past, I find the applicant to be credible. I accept the recollection of events including the dates and circumstances as detailed above, though I do not necessarily accept her interpretation of those events which is considered further below. For example, as noted further below, I do not accept that the bag snatching incident targeted the applicant in any other way than as an opportunistic manner and similarly the ‘rough knocking’, I find to be not related to the applicant and not an indication of any intended harm.
Discussion of security situation
Prior to considering the specific claims of harm I will engage with the security situation in Iraqi Kurdistan. The reason for turning to this consideration at this early stage is that a perilous security environment amplifies certain individual risks, whereas a more secure environment mitigates them. When there is chaos that accompanies conflict, violence can occur with virtual impunity including sexual and gender based violence. With greater security these events are constrained if not eliminated. To undertake this assessment of the security environment, I shared with the applicant quantitative information as well as qualitative assessments. I also considered country information presented by the applicant.
I put to the applicant that reports show the type of security incidents occurring in the Iraqi Kurdistan region as being ones that target military installations, international troops, the US consulate, airbases, and broadly can be described as political violence.[1] I noted that in 2021 there were 11 civilian fatalities out of a population of near one million people in Erbil and in the first half of 2022, the latest figures available to me, there were three civilian fatalities.[2] I put to the applicant that this wasn’t a large number relative to the population suggesting that it was indicative of a situation in which security could be considered good. She said that the government can’t guarantee stability and that she was present once when a bomb exploded in [Suburb] and that this leads people to always wonder when or where the next one will come from. She added that it may sound safe but safety can’t be guaranteed and that when rockets hit US bases it is a reflection of the situation and she asked rhetorically, when will we have a safe life?
[1] Country policy and information note: security situation, Iraq, November 2022 ibid

I noted to the applicant and her representative that much of the country information submitted to the Tribunal was about the security situation in Iraq and not specific to the Iraqi Kurdistan region. I noted that country information about Kurdistan would be given greater weight above generic Iraq information. In response to this the applicant said that while growing up she knew of the security situation being bad and that in some areas of Iraq it continues to be.

In considering the general security situation to which the applicant would be returning to I am satisfied that the terms ‘secure’ and ‘safe’ apply in that the situation for civilians is normal and that the Kurdish government, police and security forces are in control such that there is stability. The applicant’s use of the Asayesh and security forces to travel to and from a village is indicative of the circumstances outside of Erbil and importantly outside of Kurdistan, as [Village] is in Kermanshah Province. That the applicant had her bag snatched once is indicative of general low-level crime that does not make the environment less than safe or secure. For this reason, when considering the applicant’s individual circumstances and how they may be influenced by the general security situation I will consider them in the context of the general security situation being safe and stable.

Considerations

Before proceeding with individual considerations, I note that as mentioned at the hearing, the situation in the Kurdish region of Iraq is substantially different to that of other parts of Iraq. This is not unique, as many countries have sub-cultures that are geographically located with different circumstances relevant to them or conflicts that are contained within certain areas. The situation of the Iraqi Kurdistan region is a model example of this, in which it lies separate from the rest of Iraq due to its culture, history, ethnicity and politics.

As such I give greater weight to country information that specifically details the circumstances in Erbil or more broadly Iraqi Kurdistan over generic information that does not distinguish which region of Iraq it refers to or information that consolidates the circumstances of people in Kurdistan together with those in the rest of Iraq.

This relates, for example, to the references made in the representative’s submissions backed by country information, such as, but not limited to the situation of Christians ‘in Iraq’, returnees from the West ‘to Iraq’, or unemployment ‘in Iraq’.

Furthermore, much of the information references the situation of women or Christians who are not of the same profile as the applicant such as internally displaced women living in camps or Christian converts. In such situations I have given considerably less weight to such analysis.

With regards to the country information submitted alongside the applicant’s application to the Department, I note that it is considerably dated and as such rely instead on the most recent submissions and those discussed at the hearing with the applicant.

Being a female and/or unmarried female

The applicant fears harassment due to being unmarried. She said that Muslim men at work would be the perpetrators. She also mentioned that the harassment could occur while shopping or even driving a car. I asked how someone would know if she was married or unmarried while driving a car, to which she clarified that in such cases it would be because she is a woman.

The type of harassment she fears is mental/psychological arising from aggressive or offensive words which in turn would make her vulnerable.

In addition, she said that women contributing to discussions at work are not accepted by men adding that women without husbands are targeted.

No evidence was available to the Tribunal that suggests that unmarried women in Kurdistan are targeted due to their marital status other than generic information about the Middle East or Iraq, for which, as reasoned above, I place limited weight on. (In page 14 of the representative’s pre-hearing submission there are references to unmarried women in Iraqi Kurdistan but not any reference to harm other than a mention of unmarried women living in IDP camps being vulnerable.)

The following country information was discussed with the applicant:

[C]ompared to other Islamic societies, Kurdish women have at times exercised more freedom. Travelers have noted how Kurdish women usually go unveiled and, although arranged marriages still exist, even in marriage, women can sometimes be wooed and won. Wives, too, have been treated more equally by their husbands compared to other Middle Eastern locales. Kurdish women have had more financial security than women in neighboring societies and can more easily succeed their husbands as the head of a family, even when they have male children…
Iraqi and Iranian Kurdish parties lag behind in such leadership roles. Nevertheless, “compared with women’s activism in the rest of Iraq, Kurdish women’s activism has benefited from a more stable social, political, and economic situation.” In addition, there are currently three gender-based studies centers in the Iraqi Kurdish region: the Gender and Violence Studies Center established in 2010, the Kurdistan Center for Gender Studies in 2014, and the Center for Gender and Development Studies in 2016. A Free Women’s Academy was also established in 2000 to provide training for both female and male militants to improve their political and military competences from a feminist perspective.[3]
[3] December 30, 2019

In response she said that there are women who try to defend women’s rights, but it’s risky for them, adding that some activists have been killed. She did acknowledge that life in Erbil had become more open, and that women don’t wear the hijab compared to before.
I asked if the applicant had acted in defending women’s rights either in Iraq or Australia to which she said that she had not.
I discussed the following information from the Wilson Centre, namely a statement by Bayan Sami Abdul Rahman, the Iraqi Kurdistan regional government female representative to the United States:
There is a quota of 30% female members of parliament, the main political parties include women in their leadership, and there are female cabinet ministers and envoys abroad. The speaker of our parliament is the second woman in succession to hold that post, which is a rarity in the Middle East.[4]
The applicant responded that she was not aware of this.
[4]
I noted that since women’s involvement in the Peshmerga (Kurdish armed forces) against ISIS in the years after 2014 women have challenged their traditional roles and perspectives, ‘broadening their identity from being mere caregivers to protectors’, which is thought to have brought about changes to society.[5] The applicant said that as you go through challenging experiences in life you get stronger, those who fought have gained the strength and yes, that it might have led to change.
[5] Alizadeh, H., Kohlbacher, J., Mohammed, S. Q., & Vaisi, S. (2022). The Status of Women in Kurdish Society and the Extent of Their Interactions in Public Realm. SAGE Open, 12(2)
I noted that there is a female Christian appointed to the judiciary.[6] The applicant said that people who are in political positions have to engage with political parties.
[6]
Conversely, in considering the circumstances to which the applicant will be returning to I note that there is reporting that highlights challenges facing women in the workforce and equality more generally. Sherri Kraham Talabany reported in 2019 that women in the KRG continue to face domestic violence, a low share in the labour market (14%), and low levels of female representation in the Cabinet of government.[7]
[7] ibid
In addition, the applicant’s representative submitted as a part of their pre-hearing submission a series of quotes and references relating to the circumstances of women in Iraq in general and in some instances to the situation of women in Kurdistan which I have read individually and considered each in detail.
I acknowledge the views of [Fr A], the Mission Priest of the applicant’s church in Australia who wrote in a submission, ‘I am aware that Chaldean Christians in Iraq are at risk and they don’t receive protection by the authorities because they are minorities and more particularly the unmarried women because of being vulnerable group in the community that they need a protection by men and a protection by law against violence and persecution’. But without knowing the source of [Fr A]’s insights, whether they are from research he has undertaken or word of mouth, never having set foot in Iraqi Kurdistan, I can only place limited weight on it.
I note that while the country information is indicative of ‘improvements’, this is reflective of a trend and not necessarily relevant to considering whether the current situation could lead to a real chance of serious harm or a real risk of significant harm.
In addition to the country information available to the Tribunal, I place considerable weight on the applicant’s past experiences as they are strongly indicative of the situation she will be returning to. In this regard she had access to university and employment holding two jobs, including a senior role that had previously been held by an expatriate. Her sister is [an Occupation 1] while also raising two children, which indicates that the applicant’s experiences of access to the workforce are not unique.
Her only experiences of physical harm relate to a bag snatching experience that may tangentially be related to her gender, in that the criminal may have intentionally targeted a woman; the second being rough knocking, cannot be seen to be related to her gender as the people at the door did not indicate any knowledge that she was home. While country information was submitted about violence against women and girls ‘in Iraq’,[8] which to some degree would encompass the situation in Iraqi Kurdistan, I nevertheless place greater weight on the applicant’s lived experiences and that is that she has not experienced violence against her other than a bag snatching encounter.
[8] Page 19 of the representative’s pre-hearing submissions
The applicant also identified offensive language and what could be described as a fear of derogatory language alongside a perceived ‘Muslim mentality’ that sees women differently. I accept that this is the case. I accept that there are men in Kurdistan who will in the future use offensive and derogatory language in her presence and possibly direct such attitudes and language at her. This is supported by country information provided by the representative that suggests eight in 10 women in Iraq and Iraqi Kurdistan encounter some form of sexual harassment.[9] I also accept that such behaviour will not be isolated. In other words they act in a discriminatory manner towards her.
[9] Page 14 pre-hearing submissions
I also accept that there will be men who have a particular cultural or religiously inspired view of the role and capacity of women and may not necessarily give her opinion its due whether at work or in a social setting or they may indicate to the applicant that her role in society is not what she aspires it to be.
But in the past, the applicant was able to overcome this adversity possibly because of support from her family members, strong pro-women cultural views among the longer-term residents of [Suburb] and Erbil that go against the claimed ‘Muslim’ view or the transparency and interest of international firms to recruit women. No evidence exists to suggest that any of these extraneous factors will change into the reasonably foreseeable future such that she wouldn’t be able to continue to pursue her life as she had in the past.
The only aspect that has changed is the applicant’s mental health. I note that arising from the evidence before me the symptoms the applicant faces arise from the long uncertainty associated with her visa status. While there is no evidence regarding how this will play out upon return, judging by how quickly the applicant’s psychosomatic symptoms improved following her engagement with a psychologist, it is reasonable to assume that when the underlying cause of her symptom is removed then the situation will revert to as it was before. That is a situation in which the applicant was working and functioning in Erbil having returned to work at [Employer 1]. As such, while there may be a period of transition during which the applicant has a heightened vulnerability, that she has family members and a home to return to during this period, I find substantially mitigates any impact her current mental health may have on her vulnerability to harm.
No evidence was provided that would support the claim made by the applicant’s representative that women living in Kurdistan and in particular within the Christian enclave of [Suburb] but without ‘male protectors’ are at risk as opposed to such a situation being unusual and a hypothetical one[10] or that the information pertains more to the substantially different situation of women in Iraq outside of the Kurdistan region such as the information submitted by the representative of what was occurring in Missan Province.[11]
[10] Page 17 pre-hearing submissions
[11] ibid
Furthermore, even if I were to accept such country information, I note that the applicant said that she would be returning to live with her father which negates any claim of not having a male in her life. That the father’s age is above the average age and as such that he would not be around as a male in the applicant’s life for much longer, as put by the representative in his submissions, is speculative as it is based upon population wide figures and not specific to the circumstances of the father’s health. As such, in addition to finding that the country information presented in support of this claim is marginally relevant to Kurdistan, I find that the applicant’s profile does not align with the claimed profile of a single woman without a male protector and for that reason find that the applicant does not face a real chance of serious harm or a real risk of significant harm on that basis.
Noting the country information about the situation in Iraqi Kurdistan but emphasising the applicant’s lived experience while taking into consideration her mental health, I find that the applicant does not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal arising from her being a female and/or an unmarried female.
Being Christian
The applicant said that Christian people don’t have any protection or rights, that they can’t defend themselves and that there is discrimination by the government. She fears the ‘Muslim mentality’ which she sees as being against Christians.
The applicant referenced at the hearing the situation of the Patriarch of the Chaldean Church which is a current situation where the President of Iraq has rescinded a decree by a predecessor recognising the Chaldean Cardinal as the head of the Chaldean Church in Iraq. The Chaldean Church sees this as a back door approach to shifting control of assets while the President of Iraq argued that his predecessor never had the authority to recognise religious heads. The matter is now being brought before the Iraqi courts.[12] While I acknowledge that the central government may not necessarily act in the interests of the Christian minority the ramifications of such decisions are peripheral to the applicant. In response, the applicant noted that there is always something happening in Iraq.
[12]
The applicant acknowledged that [Suburb] is a Christian enclave, but she said that over recent years many refugees have been migrating there from other parts of Iraq including Syria, but she acknowledged that it remains a majority Christian area.
The applicant claimed in her written submission that ‘Many officials at low and high levels are corrupt and associate or are known to collaborate with extremists’. I asked what evidence she had of this to which she simply said that its known. She added that society is based upon who you know, and the Muslim community have a tribal mentality, they all know each other, and even if they commit a wrong, they are protected.
I put to the applicant some country information about [Suburb] and more broadly the Iraqi Kurdistan region:
a.‘DFAT assesses that Christians belonging to recognised denominations face a low risk of official discrimination’.[13] The applicant responded that most incidents are not reported as minorities try to live with it and avoid confrontation.
b.‘The Kurdistan Region is considered as home to one of Middle East’s largest Christian communities. [Suburb], situated on the northern edge of Erbil, is home to a large Christian population, several churches, and a Catholic university…There are around 7,000 Christian families residing in [Suburb], making up more than 50,000 people, and according to Warda it is the largest Christian community in the Middle East’.[14] The applicant responded that this is getting to be less and less the case due to all of the people coming from Mosul and Baghdad.
[13] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Iraq’ January 2023 at [3.45]
[14]
I acknowledge the country information submitted by the representative, some of which includes:
a.‘Christians in KRI have reported that they were subjected to politically and territorially motivated movement restrictions. Violence against Christians in the KRI has been less common, but Christians in the region have faced discrimination in the form of intimidation and denial of access to services. Christian NGOs have reported that some Muslims threatened and harassed women and girls for refusing to wear the hijab or not adhering to strict interpretations of Islamic norms regarding public behaviour’.[15]
b.‘Assyrian Christians have complained of land appropriations by ethnic Kurds, which may have occurred with the ‘blessing, or tacit consent’ of Kurdish officials. Complaints about appropriation of Christian land by ethnic Kurds have been long-standing and originated mainly from Dohuk and Erbil governorates. A law was issued in 2015 by the Kurdistan parliament to address the issue, however sources report that the law has not yet been enforced’.[16]
[15] European Union Agency for Asylum, 2.15.3 Christians, | European Union Agency for Asylum
[16] ibid
No claim was made nor does any evidence arise from the material that being a Chaldean Christian as opposed to a Christian of any other denomination would differentiate the treatment she would encounter.
I acknowledge the country information provided by the applicant’s representative regarding Christians in Kurdistan including for example, ‘As conservative Islamic ideology seeps further into the culture as a result of instability and radical influences, those who are neither Muslim nor male will inevitably end up at the bottom of the hierarchy’[17] but note that this process is a process of gradual change and it is not inevitable as other forces, particularly ties to the West and liberal cultural views, pull the other way. As such I place only limited weight on such claims and only when considering the reasonably foreseeable future.
[17] Page 12 pre-hearing submissions
The applicant is a Chaldean Christian who lived in the Christian enclave of [Suburb]. She was able to practise her faith there and find work and live a largely normal religious life. The fear that she experienced relating to her faith arose from her interactions with angry villagers far from [Suburb] and Erbil. Arising from these experiences she associated other events to the villagers including the bag snatching and the rough knocking, though, there is no evidence that any of this arose from her being Christian and other reasons for such events are far more plausible. That the applicant claims to associate her experiences to her faith does not necessarily make it so. I do not accept that either event arose from any association with her religion.
There is clearly a competing view about the situation facing Christians in Erbil among the country information. DFAT makes the generic statement spanning all of Iraq that Christians face a low risk of official discrimination, which would only be even less a risk in the Christian enclave of [Suburb] or the city of Erbil. Yet, it would appear from the European Union Analysis of Iraqi Kurdistan that authorities are imposing movement restrictions and discrimination and denial in accessing services. From the plain reading of the two documents, it appears that the European Union document refers to instances of reports and instances of Christians having faced discrimination. Instances in of themselves are of note but may not be indicative of there being a real chance or a real risk of such instances occurring to the applicant. Noting the specific purpose of the DFAT report is to consider all of the information available before them as outlined in page 6 of their report and considering the country information the Tribunal presented to the applicant and referenced at [69] and giving considerable weight to the applicant’s lived experience, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm.
I have also considered harm arising from the community including such circumstances as noted above where, ‘some Muslims threatened and harassed women and girls for refusing to wear the hijab’ I accept that the applicant may face such harm and other verbal harassment arising from her faith particularly when outside of [Suburb] and minimally while inside [Suburb]. I accept that the applicant’s mental health situation in the short term upon return may exacerbate the harm considering her vulnerability, but even under such circumstances I find that, while problematic, such harassment does not amount to serious or significant harm.
Noting that I have earlier found that the situation in Iraqi Kurdistan is safe and stable and considering that the applicant had not claimed to have experienced any harassment arising from her faith during the period that she lived there, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm from the community arising from her faith.
Returning from the West
The applicant also believes that having spent five and a half years in Australia that returning from a Western country poses a risk to her. She believes that it would lead to increased harassment or sexual abuse. She did not have any evidence to support her claims other than saying that it was based on her understanding of the mentality in the community based upon her past experiences and what she hears is happening there now.
I noted that she had travelled to Europe twice before coming to Australia and asked whether upon her return from Western Europe she was treated differently. She said that she can’t remember any examples and returned to emphasising that she knows how ‘they’ think.
I noted that Western Europe has a large Kurdish diaspora.[18] I suggested that this indicated a widely spread diaspora in Western countries and that with direct flights from Amsterdam and Vienna to Erbil[19] it is indicative of regular movements between Western countries and Erbil. I put to her that it is hard to believe that she would be harmed for coming from a Western country considering thousands interact and move between the two regularly. She said that she has a different mentality and that she would be seen as having a different mentality. As a result, she believes that she would face offensive comments.
[18]
[19]
There is considerable interaction between the West and Kurdistan including, as was discussed with the applicant, direct flights and a large diaspora. In addition, the applicant’s own experience was that she worked with a Western [company] and that there are Western military bases in Kurdistan. This represents a substantial interwovenness. In addition, there is no evidence before the Tribunal that suggests returnees from the West are differentiated or harmed in some manner, which in of itself is evidence that it is not an occurrence. For this reason, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from her return from a Western country after having lived there for nearly six years.
To avoid doubt, I have considered whether the applicant’s mental health may impact considerations pertaining to threats arising from her being a returnee from the West. Noting that the harm the applicant fears is not supported by evidence including past lived experience, any mental health condition the applicant bears will not influence this consideration.
Health care
The applicant identified the quality of health care in Iraq as a reason why she fears returning. She said that there is no awareness of mental health as an ailment and that people just make fun of it.

I asked if there was any discriminatory treatment in the way that health care is provided. She said that there isn’t discrimination and that there are private health facilities where you can pay for access alongside a public health system.
I note that the country information provided by the applicant’s representative in submissions supports the applicant’s views as it highlights the problem as being a lack of resources and not any discriminatory treatment.
With regards to the applicant’s perspective on how society does not acknowledge mental health ailments, one example provided in submissions that supports this view was of young men kidnapped by ISIS who faced severe trauma and are afraid of accessing support, as their trauma remains deeply stigmatised.[20] But I note that this is wholly differentiated from the circumstances the applicant faces. The applicant held a job while in Iraq even after resigning from the stressful role in the [company]. She was then able to hold a job in Australia for a number of years and otherwise function in society without needing the support of a psychologist until recently. The assessment of her general practitioner was that the recent depression and anxiety she was experiencing was as a result of the uncertainty arising from her visa status. This would not be a factor were she to return to Iraq. The applicant’s circumstances are very different to the stigma that is preventing men who faced severe trauma battling ISIS.
[20] Page 24 of the pre-hearing submissions
Furthermore, I note that among the representative’s submissions one report notes that, ‘trends highlight that affected persons are beginning to feel more comfortable in speaking out about mental health needs’.[21] This in of itself does not indicate that there isn’t an ongoing stigma or that the environment is not harmful but rather when looking into the reasonably foreseeable future it is indicative of a positive trend.
[21] ibid
When considering the applicant’s concerns about her health and mental health I note that she will face some differences in the quality of care and the availability of care including fewer psychologists, but this has long been recognised as not being a basis upon which Australia’s protection obligations are triggered for various reasons including the need for there to be an intention by someone to inflict harm under refugee and complementary protection claims (arbitrary deprivation of life (s 36(2A)(a)) does not require an actual subjective intention, but the need for an intentional or deliberate act or omission that results in another person being deprived of their life has been read into the definition). In this case there is no evidence that supports a view that anyone would seek to harm the applicant as a result of her mental health nor is there any evidence before the Tribunal that the state is withholding medical resources from mental health support for some discriminatory reasons.
I also note that psychosomatic harm such as the applicant’s heart palpitations do not have an individual, other than the person claiming protection, as a persecutor (see for example: EZC18 v Minister for Home Affairs & Anor [2019] FCCA 464 and upheld on appeal: EZC18 v MHA [2019] FCA 2143, and also CSV15 v MIBP [2018] FCA 699 and CHB16 v MIBP [2019] FCA 1089). While it may be argued that the applicant’s psychological state is as a result of the actions of certain past events which may have been persecutory and as such a return to Iraq triggering past memories amounts to harm for s 5J and complementary protection considerations, this is not the same as it being future harm caused by those same individuals (see for example: BVT20 v MICMSMA [2020] FCAFC 222). For this reason, I do not consider further any harm that arises from the applicant’s own psychology.
With regards to the applicant’s fears of a stigma attached to mental health, the evidence provided was that the community in Kurdistan does not approach mental health in the same manner as the Australian community. When asked about the type of harm she fears it was offensive words or dismissive jokes along with a lack of understanding of the challenges she is facing, for example, by her employer. I accept that this is problematic. But I note that there is no expert evidence that supports a view that this would somehow lead to her life being inhibited such that it could amount to serious or significant harm nor was the applicant able to give examples of others facing similar circumstances. Similarly, her own past lived experiences are not indicative of having experienced serious or significant harm. As such, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm from the Kurdish community’s perceptions of mental health.
While I have found that the applicant’s mental health situation will not lead to her facing a real chance of serious harm or a real risk of significant harm in of itself, I am satisfied that her mental health does make the applicant more vulnerable. As a result, I am satisfied that the nature of the harm she faces and whether it amounts to serious or significant harm carries a different impact than what would otherwise be the case were she not to bear the same mental health challenges. This finding becomes relevant when considering the applicant’s claims cumulatively.
I have also considered whether there is a real chance or a real risk that the applicant will have her bag snatched again or another similar low-level crime to occur to her. Noting that this occurred to her only once and that I have found the environment to be safe and secure, I find that she does not face a real chance or a real risk of experiencing low-level crime. Even if I were wrong, I find that low-level crime such as bag snatching does not amount to serious or significant harm even considering the additional vulnerabilities the applicant bears as noted above. To be clear, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from low-level crime.
Cumulative considerations
When considering the applicant’s claims cumulatively, namely that she is an unmarried female Chaldean Christian with some mental health challenges that have in the past also led to psychosomatic ailments, I turn my mind specifically to circumstances where these traits and circumstances overlap such as where an Islamic extremist may object to not only Christians but to an unmarried Christian woman unaccompanied by a man shopping alone.
I note country information provided by the applicant that women in Iraqi Kurdistan face ‘compounded vulnerability to persecution at the intersection between cultural and societal inequalities on the one hand and religious persecution on the other’.[22]
[22] Page 11 within pre-hearing submissions
I acknowledge the representative’s oral submissions as noted above that the circumstances of the applicant are such that her vulnerability makes her more sensitive to any possible harm. I accept that offensive remarks and derogatory comments or a lack of acknowledgement of her opinion and other harm that she raised through submissions and orally at the hearing will have a greater impact on her wellbeing than would otherwise be expected.
But even when considering all of the possible combinations and permutations of the applicant’s circumstances were she to return to Iraq together with her vulnerability, I find that she does not face a real chance of serious harm or a real risk of significant harm.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Denis Dragovic
Deputy President

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.
…