1906747 (Refugee)

The Administrative Appeals Tribunal considered the protection visa applications of a husband and wife, both originating from Iraq. The central dispute concerned whether the applicants faced a real risk of significant harm or persecution upon return to Iraq, thereby engaging Australia's protection obligations. The first applicant, a businessman, claimed to have received threats due to his uncle's former government role and involvement in arrangements with Australian entities. The second applicant, his wife, raised concerns related to her mental health, societal discrimination, and gender-based violence in Iraq.

The Tribunal was required to determine if the first applicant had a well-founded fear of persecution based on an imputed political opinion, or if either applicant faced significant harm as a necessary and foreseeable consequence of removal to Iraq, pursuant to sections 36(2)(a) and 36(2)(aa) of the *Migration Act 1958* (Cth). Additionally, the Tribunal had to consider whether the second applicant's aspirations and the limitations imposed by her mental health, combined with societal and legal constraints on women in Iraq, constituted a risk of serious harm that could not be reasonably mitigated by modifying her behaviour. The Tribunal also needed to assess the first applicant's eligibility as a member of the same family unit as the second applicant, should she meet the criteria.

The Tribunal reasoned that while the first applicant's claims regarding threats were noted, they did not establish a well-founded fear of persecution for an imputed political opinion. However, the Tribunal found that the second applicant, due to her gender and the pervasive societal and legal discrimination against women in Iraq, faced a real risk of significant harm. This conclusion was informed by country information detailing widespread gender-based violence, discriminatory laws, and severe limitations on women's freedom of movement and participation in public life. The Tribunal determined that the modifications required for the second applicant to avoid harm, such as conforming to traditional gender roles and remaining largely confined to her home, would conflict with characteristics fundamental to her identity and conscience, and therefore were not reasonable steps to avoid persecution.

Consequently, the Tribunal remitted the matter for reconsideration. It directed that the second applicant be found to satisfy the criterion under section 36(2)(a) of the *Migration Act*, and that the first applicant, as her husband and a member of the same family unit, satisfy the criterion under section 36(2)(b)(i). The final grant of a protection visa for the first applicant would depend on the satisfaction of remaining criteria.