Evidence
Evidence Before The Court
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.
Decision
Reasons for decision
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 DragovicDeputy PresidentATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…
Ratio Decidendi
Legal Principle Established
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 EVIDENCEMental 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’.