1906747 (Refugee) - [2024] AATA 4075

1906747 (Refugee) [2024] AATA 4075 (18 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Jeremy Bayliss (MARN: 1383248)
CASE NUMBER:  1906747
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Deputy President Denis Dragovic
DATE:18 July 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the second named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the other applicant satisfies 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 18 July 2024 at 8:19am
CATCHWORDS
REFUGEE – protection visa – Iraq – imputed political opinion – businessman and relative of official of previous government working in Australia – threating phone call and letter to applicant and cousin/business partner, and office vandalised – no harm to relative, cousin or any other family member – relative retained position through change of government – societal Shia Muslim – country information – widespread use of personal connections or influential relationships, and militias’ integration into state structure – widespread, non-discriminatory corruption not refugee ground – no initial separate claim by second applicant wife – traditional values and gender roles, with high risk of official and societal discrimination and gender-based violence – mental health and treatment – limited possibilities of official and social interactions – aspirations in Australia – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (b)(i), (3), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Applicant A v MIEA (1997) 190 CLR 225
EJC18 v Minister for Immigration [2020] FCCA 3171
S395/2002 v MIMA (2003) 216 CLR 473
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 18 March 2019 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. They applied for the visas on 1 February 2016.
The applicants appeared before the Tribunal on 12 July 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The applicants were represented in relation to the review.
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.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Claims of the first named applicant
The first named applicant (“the applicant”) was born and raised in Baghdad. He completed his education in Baghdad and then started a business with his cousin ([Mr A]) in about 2002. The business made [products]. He said that depending on the security situation he could go to work on some days and not on others. He described the years of 2006-2008 as difficult times because of the sectarianism. The business included government contracts, such as at [Venue], and private jobs. It also included some work for foreign governments, for example, [Examples]. He did not do any work for any Western companies or countries.
The applicant’s business closed in January 2016. He claimed that since the followers of Shia leader, Muqtada al-Sadr went to their office, an event discussed further below, he hasn’t gone to check on the status of the business premises. He said that they simply left the equipment there. He didn’t ask someone to have a look because he believed that it could put them in danger. He didn’t try to sell it either as he was worried about the person who would go there to pick up the material.
In 2007 he married the second named applicant.
The applicant has one brother who lives in [Country]; two sisters, one in Australia and one living in Iraq; and one uncle ([others] are deceased) and [aunts] (all living in Baghdad, married with children). The applicant’s uncle, who is also related to his wife, became a [job role] for the then Iraqi [official 1] and in 2009 he was [sent to work in Australia].
The applicant’s uncle is now [working in Country 1]. After completing his [job in] Australia in 2015, he was sent to [Country 2] for two years, and then worked in Iraq for [Official 2] before going to [Country 1] in 2022. The uncle has a son who is about [Age] years old and lives in [Country 3]. He has only once been to Iraq.
The applicant claims that in July 2015 someone called them (the applicant and his cousin-[Mr A]) and threatened them by phone, accused them of being infidels and that their uncle is planning another Western invasion. The applicant said that he couldn’t comprehend what was being said. Most of the time he kept a low profile about his uncle’s role in the government. He understood that when his uncle was in Australia, he was trying to arrange for [people in Australia to do a job task in Iraq] and believes this to be the genesis of the threat.
The applicant claims that the caller said that they will harm him and kill him. Regarding the claim of being an infidel, the applicant explained that it was used in the context of describing whoever supports foreign groups and this was only as a result of his uncle.
I asked what triggered the call 9 years ago, and why would he be remembered today. He said that he wasn’t sure if his uncle accomplished getting [people in Australia] to Iraq, but the point was that some militia were stronger now than before and more involved in the government. He fears that if he goes back, he will become known to them as he’ll need to reengage with the government and go back to his old work.
Were he to return to Iraq he said that he would go back to making [products]. He believes that to get work, he would need to contact his connections, and his uncle’s connections and so people will learn about his return.
I noted that they will find out that he is a cousin to [someone] of a government closely aligned to Iran and no longer related to the West.[1] He said that his problem is with the militia. He said that by going to Australia at the time of the threat it would be seen as a challenge to the militia. He noted that in January 2016 after he had arrived in Australia his offices were graffitied with threats.
[1] [Deleted].
The applicant believes that the threat would still be there because the militia never forget. I asked whether he knew if they use some sort of database to record people’s names who are identified to receive a threat. He said that it is possible but that as he has to register to live there, he’d become known anyway.
I put to him that I haven’t read anywhere that militia maintain a threat database as opposed to being registered in a locality and the militia having access to that information for the reasons of them being intertwined with the government as is described further in the country information below. The applicant did not provide any additional response.
I suggested that without a database the memory of his circumstances is reliant upon individuals. I put to him that maybe the individuals who threatened him 9 years ago are dead, maybe their politics or perceptions have changed, or maybe those who knew of his connection to his uncle have simply forgotten about him. He said that the phone threat was in July 2015 and months later the office was damaged and so that is evidence that they don’t forget.
I put to the applicant that he was in Iraq 3-4 months between the phone threat and coming to Australia and yet nothing happened. He said that they came to his office in October 2015, but he wasn’t there though he would go home every night. I suggested that him going home to the same location indicates that there was no serious threat to his life. He said that the threats were related to his business and as such confined to his business, but had he remained in Iraq he believes that it would have come to his home.
When asked why he believed that the threat first came six years after his uncle was already [a job title] in Australia, he said that he believes that it was triggered by the belief that his uncle was arranging for [people in Australia]. He believes that there was also an element of the militia wanting to get the work contracts that he used to get.
The applicant explained in written submissions that after their office was vandalised his cousin arranged to move his wife and children out of the family home to stay with her parents.
The applicant said that he received a threat letter with a bullet at the same time as the office had graffiti on it. The threat letter, conveyed through a neighbour, states that ‘those who committed injustice shall know what fate they will face’ and ‘woe to you the traitors, the infiltrators.’ The threat was to cut off the heads of the applicant and his business partner, [Mr A].
I noted that only the applicant and cousin appear to be threatened as opposed to other family members related to the uncle. He suspected that it was because they owned the business. I put to him that in such a case when considering the nature of the threats, who was threatened and that nothing happened, it didn’t appear to be for political reasons. He said that he didn’t know but added that it was possible that it was for other reasons.
The applicant’s father has not been harmed. The applicant believes it is because the applicant was no longer living there and in addition his father is old and doesn’t go outside unless he must get something. Nor has the family of the applicant’s cousin who remained in Iraq after the cousin left been harmed, although I acknowledge that they were claimed to be moving between their home and the applicant’s home purportedly for reasons of their safety. The [specified uncle] has not been harmed though the applicant noted, and I accept, that he has substantial security protecting him.
The applicants described the killing of a cousin, a young man who had started to work as a taxi driver. He went to Baghdad Airport but without being part of the militia that controls the taxi work there, he was first threatened and when he refused to join them and refused to pay them, he was killed. The applicants weren’t suggesting that they face harm as a result of that incident but rather that it is an example of how militia control the lives of people.
The applicant also noted that he isn’t religiously committed and that he doesn’t go often to the mosque or hussayniyya (Shia congregation hall) only going sometimes due to societal obligations.
I find the applicant to be credible and as such to accept his account of past events.
Claims of the second named applicant
The second named applicant fears harm arising from her husband’s circumstances. She did not make claims of her own at the protection visa application stage.
At the hearing she explained that she had a sister living in [Country 3], a brother in [Country 3] and her youngest brother in Australia. The youngest brother in Australia is the cousin and business partner of the applicant.
The second named applicant works intermittently with her husband in their Australian factory. She described her work as [deleted].
She graduated from [University] in Iraq with a degree in [Subject] but has not worked or studied since then apart from attending English language courses in Australia.
In addition to working intermittently with her husband she volunteers at [Organisation]. She said that she [deleted], working a few hours a week currently but a few days a week before when her mental health situation was better.
She claimed that she can’t do more work nor volunteering as her mental health is not good.
In Australia she drives, but infrequently, again she claims because of her mental health. In Iraq she did not drive as her husband was worried that something would happen to her, so he prevented her from driving.
Socially the second named applicant has friends here but doesn’t engage much due to her mental health situation. She said that she had a social life before. In Iraq she also had a social life before the threats started.
When asked what she could do in Australia that she can’t in Iraq she noted that although in Iraq she had family members close to her, in Australia she has freedom and can do the type of work she likes, but currently her mental wellbeing is limiting her. She described her aspiration as having a social life and being able to work, but I asked if this is the same as what she could do in Iraq. She responded that in Iraq she can’t do those things freely, only at home as a hobby whereas in Australia there is the freedom to [deleted] and participate in such activities.
The applicant’s husband said that were they to return to Iraq he wouldn’t allow his wife to leave the home because of the fear he has of what could happen to her. He said that him not letting her leave the house would not be contested by anyone. When I asked the second named applicant about this, she said that if leaving the house puts her life in danger then she’d agree with her husband. I asked conversely about the situation if she disagreed with her husband’s assessment, to which she responded that her husband is a flexible man who wouldn’t stop her from doing something unless it could put her in danger.
Considerations pertaining to the first named applicant’s claims.
The applicant fears harm were he to return to Iraq arising from his past experiences, his relationship to his uncle, his lack of public religious adherence and his profile as a businessman.
The applicant’s past experiences amount to threats that he received by phone, a visit to his offices, threatening graffiti on the factory gate and a threat letter. These were received in 2015 and 2016. The applicant believes them to be for reasons of his relationship with an uncle who at the time was [in Australia] and was thought to have been [working on a proposal to people in Australia]. The other reason he believes the threats were made was for extortion and/or to obtain his contracts.
The applicant did not claim to have faced any physical harm in Iraq at any stage.
With regards to the past threats, as discussed at the hearing, the circumstances in Iraq were different than they are now. Now the applicant’s uncle is [working for] a government that is closely aligned to Iran and has militia deeply integrated into the governance structures. I find that there is less than a remote chance and less than a remote risk that any Shia militia would perceive the applicant’s relationship to his uncle adversely and act upon it under the current political environment and into the reasonably foreseeable future.
The applicant argued that he would be remembered and that his departure to Australia in 2015 would be perceived negatively by those militia men who had threatened him. I disagree. As discussed with the applicant, there is no evidence that militia have some sort of database that manages a threat list or hit list. I accept that nine years later the situation has modified with militia in Baghdad providing, in a semi-official capacity, security in some neighbourhoods and as such would have access to residency records, but this is different to what the applicant is claiming.
Those in the militia that made threats to the applicant nine years ago were not doing so based on knowledge of his residency or some official record which was subsequently updated with information pertaining to his uncle and business. They were doing so because there was a perception that his uncle was negotiating with [people in Australia]. That is why for the five or six preceding years during which the uncle was [in Australia] there were no threats.
As to whether the then motivation that led to the threats would continue today, even if these individual militia men who remembered him were to randomly come across the applicant, the political situation in Iraq has changed and the uncle is now representing a government aligned to Iran with militia embedded in it. The motivation to threaten or harm the applicant has dissipated. I see no reason why the militia would seek to harm him now for political reasons considering that they had not harmed other relatives of the uncle including the applicant’s father or the cousin’s family before they left.
As for the applicant’s claim that by leaving for Australia it was a show of defiance against the militia or a slap in their face, I disagree. If the motivation was for reasons of taking the contracts from him, with his departure their wish was fulfilled. If it was for reasons of a future attempt at extortion, while the opportunity was lost, there would not be a reason for lingering animosity.

Looking into the future and the applicant’s claims of fearing harm for reasons of being a businessman, I accept that he would face a risk of requiring to contribute money to militia for security. I asked the applicant why he wouldn’t pay the fees to militia who are integrated into the government to ensure an ability to continue to operate a business as other businesses do. He said that many others like him, refuse to pay. I asked why he would refuse if they are part of the governance structure in Iraq. He responded that people can’t be expected to do what they feel is not right and that he wasn’t brought up like that. I suggested that’s how the system works in Iraq noting that if you live in Australia and believe that the taxes are too high you can’t just choose not to pay. He said that you can’t compare Australia to Iraq as the tax collection system is legal here. I suggested that there the militia provide part of the government services. He said that they don’t provide any services.
I asked whether this was just a different governance structure that is common in the Middle East and specifically referenced the Arab concept of wasta to highlight differences in how societies operate.
Definition: [wasta] represents the practice of using personal connections or influential relationships to gain advantages, favours, or even shortcuts past administrative roadblocks. These can include securing employment, accessing services, obtaining permits or even bypassing bureaucratic hurdles.[2]
[2] >
I noted that he had indicated that he’d used his uncle’s connections to build up his business and asked if it’s the same morally. He said that there is a difference, trying to get a contract is legal. But he acknowledged that he used wasta to get contacts sometimes. I asked if his moral position was selective. He said that it was different to get a contract through his uncle as it is legal but not to engage with the militia as its illegal.
In considering this issue I refer to the original sources from which I drew upon for the information and propositions put to the applicant in the above passages. In an extensive piece[3] on the relationship between the militia and Iraqi government dated February 2024 the following key messages appear:
[3] Mohammad Salami, "The Role of Militias in Iraq: Evaluating their Impact and Strategies for Mitigation", Centre Français de recherche sur l'Irak (CFRI), 21/02/2024, [ Popular Mobilization Forces [the overarching coordinating body of the various militia]…can be considered as an officially recognized state institution.
…
Militias acquire financial resources through various channels, including infiltrating government business contracts, engaging in smuggling operations, establishing legal business enterprises, and participating in government tenders… By operating checkpoints along key trade routes, they levy taxes on passing vehicles.
…
On a higher, more official level, the PMF is extending its control over state-owned engineering and construction companies.
…
In a significant move, the PMF established a multi-purpose engineering company called the Muhandis General Company (MGC) in 2022, with the government's role in licensing and funding its initial capital being quite evident. This company was established with the approval of the government board with a capital of 100 billion Iraqi dinars ($76 million), 90% of which was the transfer of state property (with unspecified discounts) and only 10 billion dinars ($7.6 million) in cash.
…
Other politically affiliated militias linked to Shia political parties but not aligned with Iran, such as populist Shia cleric Moqtada al-Sadr’s Saraya al-Salam.
The applicant’s representative provided some footnoted information that also reinforced the integration of the militia into the ‘state security apparatus’ and that ‘militia that were opposed to the former governments are now affiliated with the parties that control Iraq.’[4]
[4] Page 5 of the pre-hearing submission dated 21 June 2024
The representative provided information from the United States government’s Overseas Security Advisory Council about the situation in Iraq and the levels of risk. I noted at the hearing that I would place less weight on such information for the reason that it is tailored specifically for the purposes of advice to United States citizens who are unaware of the culture, language, traditions and ways of the community in Iraq. While the information is based on facts, which I do not dispute, the subjective analysis is less suitable for the purposes of considering the circumstances the applicant will be returning to.
The representative provided the following country information in the prehearing package which aligns with the above assessment of the role of the militia penned by Mohammad Salami:
Iraq’s Iranian-backed militias, self-styled as al-Muqāwama al-Islāmiyya (“the Islamic Resistance”), are no strangers to legal violations. … Not merely violent, the militias also derive income from a host of illicit sources and business activities, while their growing control of elements of Iraq’s government and institutions allows them to exploit the proceeds of checkpoints, border controls, and racketeering ventures. In short, the Muqawama militias have little respect for Iraqi domestic law, regulations governing Iraq’s armed forces and government employees, or any international law.
…
Not so many years ago, militias like Kata’ib Hezbollah and Asa’ib Ahl al-Haq were illegal under Article 9(1)(b) of Iraq’s constitution. That changed almost five years ago, when many of Iraq’s Shi’ite militias – including the Iranian-backed Muqawama – were legally incorporated into the Iraqi security forces through Law No. 40 of 2016, the Law of the Hashd al-Sha’abi (or PMF). The PMF is an umbrella organization of many militias, all nominally subordinate to the Iraqi government chain of command. Membership provides the Muqawama militias with legal and political legitimacy, and this legitimacy has helped militias gain ever-greater political and social influence in recent years. Militias hold seats in parliament, running in 2018 elections with great success, while militia leaders and affiliates occupy senior roles in ministries.
In a state structure where the militia are state institutions that report to the Prime Minister[5], which have established revenue collection mechanisms that are supported by the state, albeit that in some instances these mechanisms are diverting funds from the state, the applicant’s decision to prefer not to deal with them is questionable from the perspective of whether their presence and role in Iraqi society amounts to what would be considered in migration law as coming under a law of general application.
[5] The Role of Militias in Iraq: Evaluating their Impact and Strategies for Mitigation, 2024
The nature of the PMF has been likened to the Iranian model of the Islamic Revolutionary Guard Corp’s military-industrial conglomerates.[6] These are models of state structures that are distinctly different to those found in Western democratic states, but is it the role of this Tribunal to be determining what constitutes an acceptable state structure with a Western model as a template of best practice? The representative’s attempts to deal with this were by labelling Iraq a ‘failed state’ presumably because it lacks the ability to monopolise the use of violence which often defines a state. But having found that the militia are a part of the state leads me to disagree. The PMF may not act in ways that are conducive to the objectives of Western states, it may appear looking through a Western lens that the militia are indicators of a failed state, there may be elements that act extrajudicially, and the Iraqi state may struggle to control all of them, but they have been deemed a necessary feature of Iraqi governance by a democratically elected government. They have been legally incorporated into the state structure.[7] Their members have privileges including access to state pensions.[8]
[6] ibid
[7] >
When considering the circumstances the applicant faces, I note that in the context of the refugee threshold in the case of Applicant A Dawson J agreed with the observations of the Full Federal Court in MIEA v Respondent A and B[9] that,
Since a person must establish [a] well-founded fear of persecution for certain specified reasons in order to be a refugee within the meaning of the Convention, it follows that not all persons at risk of persecution are refugees. And that must be so even if the persecution is harsh and totally repugnant to the fundamental values of our society and the international community. For example, a country might have laws of general application which punish severely, perhaps even with the death penalty, conduct which would not be criminal at all in Australia. The enforcement of such laws would doubtless be persecution, but without more it would not be persecution for one of the reasons stated in the Convention.
[9] Applicant A v MIEA (1997) 190 CLR 225 at [245]
The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook) similarly but more succinctly states:
56. Persecution must be distinguished from punishment for a common law offence. Persons fleeing from prosecution or punishment for such an offence are not normally refugees. It should be recalled that a refugee is a victim - or potential victim - of injustice, not a fugitive from justice.
For this reason, while I accept that the applicant would face serious harm were he to choose not to engage with the militia and not to abide by their terms, I find that the necessity of engaging with them as a businessman is non-discriminatory and as they are integrated into the governance structure the ‘laws’ that establish their operations, as much as they can be described as such, are laws of general application.
While it could be argued that the militia would not be abiding by the law were they to seek payments/bribes, this becomes a question of official corruption no different to any other corruption. Official corruption being widespread in Iraq[10] and being non-discriminatory, leads me to find that the applicant does not face a real chance of serious harm arising from his engagement with militia as a businessman.
[10] DFAT 2023 at [2.18]
As for complementary protection, that the applicant may at some time into the reasonably foreseeable future become a businessman who is required to engage with militia is not something that would occur as a necessary and foreseeable consequence of removal. In considering this further, I reference the findings of Mercuri J in EJC18 & Anor v Minister for Immigration & Anor [2020] FCCA 3171 (27 November 2020) in which this member heard the case involving a Pakistani man fearing harm arising from a choice he claimed he will make if he were to return to Pakistan, namely, to pursue through the courts a land claim. Mercuri J found at [60] & [62]:
In saying that the applicants had a ‘choice’ as to whether or not to pursue the ‘Cosmic Town Land’ claim, the Tribunal did little more than indicate that the pursuit of land claims was not something that was such an intrinsic part of the applicants that any harm which would follow from pursuing those claims could be said to be a natural consequence of their return to Pakistan. There is much force to this analysis.
I find that the Tribunal did not fall into error in concluding that if the applicants sought to pursue the property claim on their return, any harm that may follow is not a necessary and foreseeable consequence of their return.
Similarly, in this instance, whether the applicant establishes a business or not is a choice that he can make and considering that he has established the harm that he fears would arise from being a businessman, I find that he can choose to earn a living working as something other than a businessman.
This was discussed at the hearing with the suggestion that he could work on his own or work in another lower profile profession. The applicant dismissed this for the reason that even in Australia he has established and runs a business and that it’s all he knows how to do. He said that it wouldn’t be easy to learn something new. When it was suggested to him that he could work as a labourer he said that it would be very difficult for him as he had a business before and now. I asked whether it was pride that was an obstacle. He denied this and explained that as he has been a businessman in the past, he knows what he is doing and where he is headed but doing something different would deprive him of that knowledge. I put to him that at least he would be able to survive without threats. He said that it wouldn’t be like that, as he believes that he would still face threats. For the reason that ultimately, the option of what line of work he adopts is a choice that he can make, I find that the applicant does not face a real risk of significant harm as a necessary and foreseeable consequence of removal.
The applicant suggested that anyone living in a foreign country is seen as being against the militia and for Israel. No independent evidence was provided to support this claim. I suggested that the Iraqi government is not a supporter of Israel, and they appointed his uncle who is living abroad, and I noted that there are hundreds of thousands of Muslims from Arab countries living in the US, Europe and Australia including Iraqis who would not all be perceived as supporters of Israel. He didn’t have anything to add. I find that this claim is unfounded and simply implausible even when considering the reasonably foreseeable future based upon the possible tensions to emerge from further violence between Israel and Hamas. The pro-Palestine views of citizens in the West and within that group of Muslims, both citizens and those living abroad, is widely reported and does not support a view that it could be misinterpreted by any that simply by living abroad one is perceived to be pro-Israel.
The representative submitted that neighbouring a fragile Syria would similarly cause future tensions that would in turn return Iraq to a more chaotic environment. This is speculative. The civil war in Syria has run its course. There are only pockets of conflict remaining.[11]
[11] >
The applicant also identified a fear arising from Sunni extremist groups. When I put to him that they have largely been eliminated by Shia militia and the government he said that it was not a specific threat but rather a general fear.
When considering the geopolitics of Israel and Syria and the remaining pockets of diminished Sunni extremists I find that the applicant does not face a real chance of serious harm or a real risk of significant harm from these geopolitical sources whether the future of the Israel-Hamas war, the fragility of Syria or Sunni extremist groups.
The applicant claims that he doesn’t go to mosque other than to fulfil societal obligations. I noted to the applicant country information that indicates that ‘increasing numbers of young Muslims had become disillusioned with their faith,’[12] and that nearly 30% of people surveyed would not consider themselves religious people.[13] The applicant responded that if one were an average member of the community then it would be fine, but if you have certain privileges and powers and therefore are perceived differently then there are different obligations.
[12] DFAT 2023 at [3.68]
[13] World Values Survey F00011921-World_Values_Survey_Wave_7_2017-2020_Iraq_v3.0.pdf
I suggested that if he returned to Iraq, he may not be perceived to have the same privileges and powers as he won’t be in the same position as he was before. He disagreed suggesting that he will still have privileges as he will start a business and become a successful businessman. I asked if he didn’t attend mosque as many times as expected, what would happen. He said that it’s been a long time since he has been in Iraq and that he doesn’t know what would happen. I put to him from the data I have read it would appear that nothing would happen to him. He said something could happen. I find that based on the large number of Iraqis who no longer identify as religious that there would not be an impact on the applicant were he not to attend mosque as regularly as some others may expect. While I accept that some people in positions of social stature may be expected to publicly fulfil their religious obligations, the applicant would be returning as a normal citizen. That he would become a successful businessman again and that he would as a result hold a higher status in society some time in the future is speculative.
The representative in his submission suggested that Iraq will continue to endure ‘social, political and religious violence’ into the future. I agree but the question is whether such violence will lead to the applicant facing a real chance of serious harm or a real risk of significant harm separate to the reasons already discussed above. And even if this is found to be the case, whether any such harm he faces is discriminatory or intentional. The evidence before me does not support this claim.
The only country information available to the Tribunal that may have some indication that the security situation which allows the militia to operate may impact civilians is that people perceived to have contrary political views will face problems[14], but the applicant does not fall within this category even when considering his association with his uncle as the uncle is now a part of a government that is intrinsically intertwined with the militia. As such I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from any general perceptions of his politics.
[14] Pre-hearing submission quoted from DFAT 2023 at [3.71]
Regarding the general security situation the country information provided included, ‘While there have been dramatic attacks killing hundreds, more frequently its smaller and less dramatic day-to-day violence that kills one or two people at a time.’[15] This random but low level violence in the context of a city the size of Baghdad or a country the size of Iraq reduces the risk the applicant faces to less than a real chance and less than a real risk.
[15] Referenced in Pre-hearing submission, original citation The Conversation, ‘Pope Francis in Iraq: visit highlights recent history of atrocities against Christians’ dated 6 March 2021, >
When considered cumulatively, noting the applicant’s exposure to the militia and the general security situation, I find that the risks the applicant faces are less than a real chance of serious harm and less than a real risk of significant harm.
Considerations pertaining to the second named applicant’s claims.
The second named applicant fears harm arising from the threats her husband encountered but I have engaged with the additional question of the discrimination she would encounter for being a woman in the form of culturally reinforced norms and the general security environment for women.
The Department of Foreign Affairs and Trade in its most recent 2023 report on Iraq notes the following regarding the situation of women in Iraq:
DFAT assesses the majority of Iraqi women, regardless of ethnicity or socio-economic status, face a high risk of official discrimination and a high risk of societal discrimination… including sexual assault.’[16]
The 2020 DFAT report notes:
Long-standing traditional values and gender roles continue to restrict significantly the participation of women in the community and workforce, in both the public and private sectors.[17]
[16] Department of Foreign Affairs and Trade, DFAT Country Information Report: Iraq, January 2023 at [3.120]
[17] Department of Foreign Affairs and Trade, DFAT Country Information Report: Iraq, 17 August 2020 at [3.132]

That the 2023 report does not include the 2020 quote from above is not given weight as ‘long-standing’ along with ‘traditional’ values are not so quickly dispensed with and as such something that was the case in 2020 would continue to be the case in 2024.
The DFAT report defines ‘high risk’ as a ‘strong pattern of incidents.’ That there is a strong pattern of gender-based violence including sexual assault arising from societal discrimination is relevant, but not so far as assessing the level of risk as opposed to there being a pattern lending weight to there being systematic and discriminatory actions (5J(4)(c)).
I first turn my mind to official discrimination. Official discrimination is defined as ‘legal or regulatory measures applying to a particular group that impede access to state protection or services that are available to other sections of the population… behaviour by state employees towards a particular group that impedes access to state protection or services otherwise available, including by failure to implement legislative or administrative measures.’[18] The applicant’s evidence of how she chooses to live her life presents limited pathways by which she will be engaging with the state. Due to her mental health, she will be limited in her engagement with the outside world. I find that the applicant will have rare interactions with official entities and as such does not face a real chance of serious harm or a real risk of significant harm by way of official discrimination.
[18] DFAT 2023 p5
The DFAT report defines societal discrimination as ‘behaviour by members of society (including family members, employers or service providers) that impedes access by a particular group to goods or services normally available to other sections of society …ostracism or exclusion by members of society.’[19]
[19] Ibid p7
With regards to societal discrimination, this arises from the culture and as such it is relevant to consider whether the applicant’s choices, free from fear, align with the culture and would not expose her to harm or alternatively, she would face harm in the form of physical or emotional harm through to a loss of liberty. As an example, if a woman chooses to wear the hijab and abaya, she will not face societal discrimination, but were she to chose not to, then she would face discriminatory treatment in the form of abuse and harassment and potentially violence. Other instances of discrimination may include limitations in job opportunities, but this would be dependent upon an applicant wanting to seek work.
Living as a part of a community we consciously or subconsciously abide by cultural norms to varying degrees, and some may choose to accept many, and others may seek to deviate from some. In the second named applicant’s case, the evidence before me did not indicate that she had a history of acting in a way contrary to Iraqi cultural norms. In Australia where the cultural impositions on women are far less than in Iraq, the applicant appears not to have grasped the opportunity.
She spoke of her hopes and aspirations, which I engage with further below, but acknowledged that she hadn’t grasped the opportunity that is presented to her by living in Australia because of her mental health situation. It is important to grapple with how this impacts her claims in the context of her failing to grasp opportunities in Australia. The applicant submitted reports pertaining to her mental health.
The report dated 21 June 2024 by [Ms B], Clinical Psychologist, notes that her mental health ‘has significantly deteriorated since our last contact (15/11/2023), primarily due to the lack of therapy and the ongoing delay in the processing of her visa application.’ The November 2023 report is the first that was provided by the applicants. She was diagnosed as having severe anxiety, depression, and PTSD. In the June 2024 report these were found to have intensified from the 2023 assessment. The psychologist, [Ms B], concludes by writing in her 2024 report, ‘Overall, it is clear that [the second applicant]’s symptoms are of severe nature and would likely worsen if she were forced to return to Iraq, where she perceives a high risk.’
Looking into the reasonably foreseeable future it would be speculative of me to assume that she would somehow overcome the mental health challenges she faces. That is not the nature of the burdens of mental health, especially when the psychologist believes that her condition would worsen upon return to Iraq.
This was discussed at the hearing and covered in a post hearing statement by the second named applicant. The applicants’ representative articulated a view that despite a large source of the second named applicant’s condition deriving from the uncertainty arising from her visa, other uncertainties and fears would lead to similar if not greater mental health challenges. In her statement she emphasised that the reason for her deteriorating mental health is the fear of returning to Iraq.
When looking at the applicant’s circumstances in Australia where cultural norms are less imposing, the applicant has struggled to motivate herself (see November 2023 psychologist report) to work, volunteer or engage socially. She has a driver’s licence and some independent mobility, which she would not have in Iraq because, as she explained, her husband did not allow her to drive.
With regards to the impact of cultural norms from which societal and official discrimination stem, would the difference in her life that she lives in Australia where she is free from fear compared to what her life in Iraq would be lead her to face serious or significant harm? I find that it would not. Women in Iraq study, as the applicant has done, they work, and undertake other roles in society. That the applicant’s mental health would prevent her from living the life that she wants is not a basis upon which Australia’s protection obligations are triggered for reasons of there being a lack of external discriminatory treatment as opposed to internal choices, as much as they can be described as a choice, that limit her participation in society such that it exposes her to societal or official discrimination.
It appears that her husband’s actions limiting her freedom would curtail her liberty but to a marginal degree as she has said that she only drives infrequently in Australia. When considered overall, in the context of societal discrimination, I find that the applicant faces less than a real chance of serious harm and less than a real risk of significant harm.
It was noted earlier that the DFAT report identifies women as facing a high risk, meaning there being a strong pattern, of sexual assault. Some surveys indicate that it is widespread:
A recent survey conducted by one women’s rights organization showed that 38.8 percent of women in Iraq had been subjected to physical sexual harassment and 30.6 percent had faced verbal harassment.[20]
[20] >
Noting that the applicant’s mental health will see her engagement in the community limited, but acknowledging that sexual harassment is wide-spread, I find that she will face some physical sexual harassment and verbal harassment. This in of itself does not amount to serious or significant harm. But the applicant is mentally frail. Harassment on the applicant would have a greater impact on her than on others.
At [86] I noted the second applicant’s hopes and aspirations. What place do an applicant’s unattained hopes and aspirations have in these considerations? That in Australia she could one day have [deleted], socialise freely and on her own, go to work and volunteer more often is the life she hopes for. From that standard, considering a return to Iraq would require turning my mind to whether it would be appropriate for her to modify her behaviour such that she would lose all of those freedoms. In the above passages I didn’t engage with this because I found that practically, based on evidence before me, her mental health has limited her and will continue to limit her and as such there is no modification of behaviour such that she would lose any liberties of substance. But is this the right approach? Upon reflection, I think not.
To use a blunt analogy, a man who has lost the use of their legs and is wheelchair bound will have a different concept of a loss of liberty to someone who has an ability to walk but is bound to a wheelchair. The applicant’s mental health is not permanent as paraplegia but nor is it imposed by another; it lies somewhere in between. The second named applicant knows that she can embrace the freedoms that Australia offers, they are not quite within her reach, but still tangible and accessible. In Iraq, no effort will help her embrace those freedoms she hopes and aspires to. While it remains speculative as to whether she will be able to overcome her mental health challenges, which I do not dispute, in considering whether she will need to modify her behaviour upon return to Iraq, I find that she will, based on her genuinely hoped for life as opposed to the life she has lived.
I now turn my mind to consider whether a modification of the applicant’s behaviour such that she would not face serious harm is reasonable. The modification is that she would accept the cultural expectations of Iraqi society such that she would remain in her home substantially more so than her hopes and aspirations are for how she would want to live her life and that when she would leave her home she would have to be accompanied by her husband. In addition, other country information outlines the constraints placed upon women that would constrain the second named applicants hopes and aspirations.
The Women Peace and Security Index ranks countries in terms of women’s inclusion, justice, and security. Iraq is ranked 168 out 177.[21]
[21] >
With regards to the laws affecting women DFAT notes:
Article 14 of the constitution guarantees equality before the law without discrimination based on gender. Nevertheless, a variety of laws discriminate against women, including in criminal, family, religious, labour and inheritance matters. In some cases, a woman’s testimony in a court of law is worth half that of a man. Female heirs inherit less, and male heirs are required to provide them financial support. While women can initiate divorce proceedings, they are not entitled to alimony, and women seeking a divorce are sometimes required to return their dowry. Fathers are automatically awarded guardianship of their children in divorce cases, although a divorced mother may be granted custody of her children until age 10 (extendable by a court until age 15), at which time the child may choose with which parent to live. Women are required by law to have the consent of a male guardian to acquire a passport.[22]
[22] DFAT Country Information Report Iraq – JANUARY 2023 at [3.110]

100. The United States Department of State largely agrees:
Law and custom generally do not respect freedom of movement for women. For example, the law prevents a woman from applying for a passport without the consent of her male guardian or a legal representative. Women could not obtain the Civil Status Identification Document, required for access to public services, food assistance, health care, employment, education, and housing, without the consent of a male relative.[23]
[23] United States, Department of States, 2022 Country Reports on Human Rights Practices: Iraq

101. With regards to employment, there is considerable general information that indicates that female participation in the workforce throughout the country is limited:
Around 85 percent of women age 15 and up, don’t participate in Iraq’s labor force, putting them at higher risk of falling into poverty — though they may take part in the informal economy doing work like sewing or handicrafts.[24]
[24] I now turn my mind to what changes she would need to make to live in Iraq in a way that she would not face a real chance of serious harm. Section 5J(3) defines the considerations for decision makers when considering the reasonableness of a modification of behaviour:
(3)  A person does not have a well - founded fear of persecutionif 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.
103. The modification that would be required for the applicant to face less than a real chance of serious harm would be for her to conform to the norms of life for women as they have developed over recent years in Iraq. Would such a modification of behaviour conflict with a characteristic that is fundamental to her identity or conscience?
104. In the Explanatory Memorandum accompanying the amendment that introduced the new subsection 5J(3) it was noted that the ‘Government considers that [it] is not inconsistent with the principles enunciated by the majority in the High Court‘s finding in S395.’ This is relevant as S395/2002 v MIMA (2003) 216 CLR 473 offers some further insight into the approach to be taken towards modification of behaviour.
105. In the case of S395 the High Court grappled with a situation in which the Tribunal had determined that as the appellants had not suffered harm in the past by acting discretely, they can similarly avoid harm in the future by acting discretely. This line of thinking was summarily dismissed in S395 by noting that living a discrete life because of fear is not a ground upon which a decision maker can set aside protection obligations. While that case involved homosexual men, in this instance the second named applicant would similarly be required to act discretely.
106. In S395 Justices McHugh and Kirby noted at [40] that, ‘Persecution covers many forms of harm ranging from physical harm to the loss of intangibles, from death and torture to State sponsored or condoned discrimination in social life and employment.’ (Italics added) They then explain in the same paragraph that, ‘persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality.’
107. The situation of the second named applicant in this case can be informed by principles from S395. The applicant’s ability to navigate the cultural norms of Iraqi society by wearing an abaya, remaining largely in the home, accepting a chaperone when exiting the home and playing a secondary role in society would lead to her avoiding harm but this line of reasoning is fraught as it is dependent upon changing her behaviour due to a fear of harm. As Justices Gummow and Hayne noted in S395 at [80], it would be wrong to ask the question ‘could the applicant live in that country without attracting adverse consequences’ by living a discrete life.
108. In reflecting on the applicant’s unique circumstances, her hopes and aspirations form a part of her conscience. They are what she aspires to be and more deeply can be considered that that they are what she is was it not for the barriers that her current mental health challenges present. As such I find that it is not reasonable for the applicant to modify her behaviour and as such I find that the applicant faces a real chance of serious harm for reasons of her gender.
109. I also do not accept that the applicant can seek protection from the state for the reason that country information referenced above identifies the state as being a potential persecutor and certainly one that reinforces cultural norms which are central to the harm she fears.
110. I do not accept that the applicant can relocate to another part of Iraq as women are constrained by societal norms and official stances throughout the country and not just in Baghdad.
111. For the reasons given above I am satisfied that the second named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).
112. The Tribunal is not satisfied that the other applicant is a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that the first named applicant is the husband of the second named applicant and as such a member of the same family unit as the second named applicant for the purposes of s 36(2)(b)(i). As such, the fate of his application depends on the outcome of the second named applicant’s application. It follows that the applicant 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.
113. I have also considered whether according to s 36(3) the applicants have a ‘a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.’ There is no evidence before me that citizens of Iraq such as the applicants have a right to enter and reside in another country apart from Australia. As such I find that the exception to Australia’s protection obligations under s 36(3) is not met.
DECISION
114. The Tribunal remits the matter for reconsideration with the following directions:
(i) that the second named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii) that the other applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
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.
…