1907362 (Refugee)

1907362 (Refugee) [2022] AATA 4279 (7 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Shabnum Cassim
CASE NUMBER: 1907362

COUNTRY OF REFERENCE: Iraq
MEMBER:Genevieve Hamilton
DATE:7 September 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 September 2022 at 2:56pm
CATCHWORDS
REFUGEE – protection visa – Iraq – imputed political opinion – religion – liberal views – conversion to Christianity – particular social group – educated woman – divorced woman – education reform – family violence – fear of honour killing – employment – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
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 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 31 March 2016. The delegate refused to grant the visa on 12 March 2019.
The applicant appeared before the Tribunal on 16 May 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
Criteria for a protection visa
Under section 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.
The criteria for a protection visa are relevantly set out in s 36 of the Act. An applicant must meet one of the alternative criteria in s 36(2). Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s 36(2)(a)), or on ‘complementary protection’ grounds (s 36(2)(aa)), or be a member of the same family unit as such a person.
Under s 36(3) Australia does not have protection obligations to an applicant who has not taken all possible steps to avail themselves of a right to enter and reside in a third country.
Refugee
Refugee is defined in the Act. A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) 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).
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.
The criterion in s 5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also imposes an objective standard, that there be a real chance the person would be persecuted. A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.
The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)).
A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA). A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s 5J(3), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation).
In determining whether the person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless they satisfy the Minister that they engaged in the conduct for a reason other than to strengthen their claim to be a refugee (s 5J(6)).
Complementary Protection
If a person is found not to meet the refugee criterion, they may still be a person to whom Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm. S 36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment. “Real risk” has the same meaning as “real chance”: MIAC v SZQRB [2013] FCAFC 33.
Under s 36(2B) Australia does not have complementary protection obligations where:
·it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that they will suffer significant harm;
·the applicant could obtain protection from an authority of the countr, such that there would not be a real risk that the non-citizen will suffer significant harm; or
·the risk is one faced by the population of the country generally and not by the applicant personally.
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.
Claims and evidence
In her protection visa application the applicant said she was born in Baghdad on [date]. She is an Iraqi citizen, her religion is sh’ia. Her relationship status is married ([in] Feb 1989). Her address is the same as her daughter in [Suburb 1]. Her father is deceased. She has [specified] siblings all living in Iraq. She speaks with her husband and sons daily through [a messaging service], and other relatives weekly. She travels on an Iraqi passport issued [in] 2015. She arrived in Australia [in] October 2015, with a visitor visa valid from 30 June 2015 to April 2016. She has been to Australia before on a visitor visa valid from 9 May to 9 November 2013. The applicant said her [daughter], born [in specified year], is a dual Australian and Iraqi citizen. Her [husband] lives in Iraq with their [children] born [in specified years].
In a statutory declaration in support of her application the applicant said that her father had worked for the [Agency 1]. She studied [Subject 1], has a [Qualification 1] and became a teacher at [Institute 1]. She is a [time period] member of [Agency 2]. Artists in general, but especially female artists, are seen as promoting liberalisation. Her husband is [an occupation 1], with an evening [business 1], he also manages [Agency 3].
In 2013 she started working at [Institute 2], a government run institute where she teaches [Subject 1] and trains teachers. The applicant goes on to discuss her philosophy of teaching and refers to inflexible religious thinking in Iraq; she states that she has published on these topics. The applicant claimed there was tension with her employer in that her hijab was colourful and only covered her hair.
The applicant claimed she had been subject to threats from fundamentalist groups due to her views about fundamentalism and terror, because she is a teacher at the Institute linked to [Agency 4], located in the [named] neighborhood which is hotly contested between opposing fundamentalist groups.
The applicant went to Erbil [in] August 2015 to participate in a conference [reviewing] the national [curriculum], a collaboration between [Agency 4] and [Organisation 1]. There were [number] participants. She was nominated by her supervisor. She advocated broadening religious education to include all religions. Some speakers agreed, some didn’t. When she returned to Baghdad she heard that people were saying she was a communist and an infidel.
A week after the conference, she was leaving work and confronted by an unknown man in a black shirt. He hit her car door on the driver’s side where she was sitting. She got out to find out why he was stopping her car. He approached her in a way that told her he was totally rejecting her and her liberal ideas. He treated her with disrespect. He told her not to continue with the recommendation she had made about religious education and not to spread her ideas. She told him his behaviour and thinking were backward. He said she should adhere to Shi’a Islamic belief. He pushed her and told her she should not be ‘here’. She retreated. She could see he was carrying a gun. She was very frightened and emotionally hurt. He showed complete disrespect for her human dignity and high education. She could not stand up for herself due to her fear. She did not raise a complaint because there was no way she could receive protection. Her manager and her husband advised not to complain because of the effect on the family name and her employer, and because it could put her in more danger.
Her visitor visa was granted and she came to Australia. About a month later her husband called her and told her a large armed group came to the house. He reported it to the local court and the Ministry of Interior and gave them the security footage. An investigation was conducted but there was no result. Her husband and sons left the family home. Her husband was given security guards.
The applicant said liberated women are discriminated against, particularly if they believe in peaceful coexistence and freedom of thought. She also feared harm as a returnee from the West, especially given her ideology and her level of education. Women are subjected to rape, torture and their naked bodies thrown into the streets. As an artist she is at risk of harm and threats. Now she also has a profile as pushing liberalisation and religious reform.
The applicant submitted a number of documents and photographs in evidence of her academic and professional background and her attendance at the Erbil conference.
Shortly after the application was lodged an anonymous allegation was made to the Department that the applicant was not a refugee and that she was wealthy, with a lot of cash and designer clothes and accessories, and a big house in Iraq.
The applicant submitted a report dated 3 Feb 2018 by [Psychiatrist A], a senior consulting psychiatrist. The report echoes the applicant’s claims. She is married to a well-known [an occupation 1], fled Iraq due to threats and intimidation, reports various symptoms of fear, anxiety and panic, and despair at having to return to Iraq. Her husband is well-known, they cannot hide, and cannot relocate anyway because he cannot leave his job. She is sad and apprehensive, but has no abnormalities of thought form or content. She was referred by her GP for management of depression, had been prescribed antidepressant but can’t afford the supply, and Is seeing a psychologist. She has PTSD with major depressive symptoms, and needs long term pharmacology and psychotherapy. Her condition will get worse if she has to go back to Iraq. It is unclear from [Psychiatrist A] how many times the applicant was seen, her first visit was [in] August 2017 and her last was [in] January 2018.
In a further statutory declaration dated 7 February 2019 the applicant reiterated her views concerning religious education. She said she could not go back to pretending to be a conservative Muslim including wearing the hijab. She had never been to a mosque but she had been into churches in Iraq (her brother was [an occupation 2]) and participated in prayers, and her mother had some ancestral association with the faith. She now regularly attends Church. She consulted a priest at [Church 1] and was blessed with holy water but she has not been baptised yet, she doesn’t want to do this without her family around her. She is contemplating becoming a nun. She said one of her sons is living with his paternal grandmother and [another child] with her husband, her husband has resigned from [Agency 3], but is running his [business 1] and lecturing at the [named university]. He travels abroad several times a month because he is scared to remain in one place.
In a covering submission her then representative contended that the applicant was at risk of persecution due to her race, religion, imputed and actual political opinion, membership of a particular social group namely “educated and influential women in Iraq”, (and other suggested iterations of particular social groups). The representative cited country information about the treatment of Shi’a, especially by ISIL, and especially in Baghdad. She is also at risk as a Christian. She will continue to disseminate her liberal ideas. The representative submitted that women in Iraq face violence at the hands of militants, authorities and the broader community, citing the DFAT Country report assessing that women face a high risk of violence in Iraq, and other relevant country information.
The interview
The applicant was interviewed by the delegate on 11 February 2019. She said no one helped her with her statement. She said her religion was Christian. She claimed she was harassed by Ba’athists during their regime, while at [Institute 1]. She started teaching in [year range], until she left Iraq, full time.
The applicant said she decided to apply for protection when the armed group came to the house one month after her arrival; her husband said it was better that she stay in Australia. She waited to apply because she wanted her [children] to come here because [one child] was planning to marry. Also she was worried about leaving her [other children]. When she came here her plan was visiting her daughter. Her husband didn’t come this time because of work and looking after the children. She had money saved, and her husband sent her money, and then she got work. [One child] lives with her husband, [another] with the paternal grandmother. They are split for their safety. One is at school and one goes wherever her husband goes; he moves around, they are currently in Kirkuk. One sister is in [Country 1]. Her husband’s brother was killed by someone unknown because of religion.
The applicant said she had not had contact with her husband in the last 8 months. He controls her behaviour from a distance. She no longer says yes to everything he says, and was not sure if she would continue the relationship. She is afraid of him. But a divorced woman will be socially rejected. He used to pressure her a lot because of her ideas. Asked if he was physically violent the applicant replied equivocally. They had discussed her interest in Christianity when she was living with him. Her father wasn’t religious and her mother used to talk about Jesus and his miracles. Her husband’s family is rather strict. Asked if she was afraid for his safety she said she worries about his safety and that of the children, but she has been away from her husband for some time. He leaves the country several times a month. Asked if he was threatened again she said he had left the house. The delegated repeated the question. The applicant she said the threat was directed at herself.
The applicant said her life was at risk because she expressed her views about religious awareness during the Erbil conference, to remove the enforcement of Islamic Education in the curriculum. She didn’t like that the non-Muslims were taken out of class. At the time there were a lot of sectarian killings. She used to inject these ideas in every lecture on how to teach children. She will be killed if she goes back. She is well known all over Iraq because she trained so many teachers. The applicant cited instances of well known women including surgeons who had been killed.
Asked exactly who will kill her the applicant said the same group that exists in the Ministry. Asked who they were the applicant said they could be the Mahdi army or they could be the Sunni, she is hated by both because she rejects all Islamic ideologues. She refused to wear the hijab, she refused that a man can have four wives or can control their wives.
Primary decision
In the decision made on 12 March 2019, the Delegate rejected that the applicant was a Christian convert, was unpersuaded about her claims regarding problems in her marriage, and was not satisfied that she was at risk of harm as a public facing female academic. The Delegate noted that the incidents claimed to have occurred after the Erbil conference were highly coincidental with the applicant being granted a visa and departing from Iraq. Her delay in leaving Iraq following grant of her visa, and delay in lodging a protection visa application until March 2016, drew an adverse inference. The delegate was not satisfied she was at risk due to being westernised or a returnee from the West. The Delegate concluded that the applicant’s standing was that of a married woman and nominal Shi’a Muslim.
The review application
The applicant submitted documents indicating she was divorced [in] May 2019, baptised in [Church 2] [in] Jun 2019, and married a man called [Mr A] [in] May 2020. [Mr A’s] friend [named] provided a supporting letter stating that the relationship was genuine.
In a statutory declaration dated 4 April 2022 the applicant reiterated her claim to be at risk of harm from conservative Islamists because she is an educated outspoken woman. She said she spent her life physically and mentally abused by her ex-husband. She was exploring Christianity in Iraq but could not convert because of fear. She will have to return to Iraq alone. She was married to a Christian and had converted to Christianity. She states that her husband organised for her to go to Australia because their marriage was not good and he wanted to marry someone else. She did not want to leave. Then her ex-husband arranged for her to have a [specified] operation before going to Australia. She did not think it was necessary. When she got to Australia she could not make a decision without fear of how it would impact her life and that of others in her life. Her husband told her to apply. She did not talk about her problems with her husband in the protection interview because she was ashamed and in her culture such matters are not discussed with strangers. Her view on this changed when she was divorced and after meeting and marrying her new husband. Noting that the delegate identified her as a married Shia woman in Iraq, the applicant said she was now divorced (she only found out three months later from her daughter), had been baptised into [Church 2]), and married [Mr A] [in] May 2020.
The applicant describes her feelings about Christianity and Islam when she was growing up and during her marriage. Christian women seemed to have more freedom. She states that in the middle of the worst beatings from her ex husband she would think of Jesus coming to save her. She knew Christians and once visited the local church with her sister. She and her husband are both practising Christians. As a Christian convert she cannot return to Iraq.

The applicant referred to her previous claims and said she had made comments about religious tolerance in a lecture to teachers from all over Iraq. She did not remember what she said but an employee of the Ministry came to her afterwards and said she was violating her religion and her colleagues dissociated from her. Then she came to Australia, the armed group came to the house in Iraq, and her ex-husband left the house. Her [children] were not living there at the time. The applicant then recounts the history of her first marriage and claims that her ex husband and his family were very controlling and cruel, they did not approve of her, he hit her throughout the marriage and threatened to divorce her.
Once she was kicked out of the house and went to her own family, but her brother beat her badly. Then her husband’s family kicked them all out, they stayed with her family for a while, then her father rented an apartment for them. Her ex husband is still living in the home that belongs to her. He cheated on her. She was working to save money to buy a house for her independence, and she had to study in secret. Started working at [Institute 1] in 1996. When she came to Australia he called every day to check on her. After two years he ceased contact and divorced her. He has disposed of her belongings.
The applicant said she met [Mr A] in August 2019, and that no one knows they are married. Her family in Iraq won’t take her back. He can’t go to Iraq, and she can’t go alone. The applicant describes all the risks of living as a single woman in Iraq including sexual assault, honour killing, having to resume wearing the hijab. The applicant said she had now been fired from her job. She has physical issues related to stress and is being referred to a psychologist who supports refugees.
An [agency] counsellor provided an assessment dated 1 Feb 2022. It said they had been meeting with the applicant since late 2019, and had 36 sessions. The applicant suffers severe anxiety and depression related to her uncertain visa status, and experiences of family violence. She will have no life as a divorced woman in Iraq, will suffer social ostracization and have no way to support herself, and could be killed.
The applicant’s daughter wrote a letter dated 20 March 2022. She said her father was an alcoholic, they had hardly any money, and her mother was working two jobs to put food on the table. He beat them and kicked them out of the house all the time, threatened to get another wife, and had threatened he would turn her mum’s life to hell if she went back to Iraq.
The Tribunal received a further statutory declaration from the applicant dated 2 May 2022 stating that [Mr A] had accidentally answered her phone and identified himself as her husband. The caller was her [child]. [Mr A] hung up the phone. Then her daughter called her demanding to know if she was married. The applicant told her daughter she was not married but her daughter did not believe her and told her everyone would reject her if she had married. She tried to contact [the other child] but [they] did not answer. Her daughter told her [her number has been blocked]. She and [Mr A] had tried keeping the marriage secret even in Australia so the news would not get back to Iraq, as it puts her life at risk. She will be portrayed as a woman who left her family and married a white, non-Muslim man. Her ex husband now has the opportunity to widen the gap between her and her children, and to continue living in her house.
The hearing
The applicant said she was born and raised in Baghdad. She has [specified family members], one is a retired [occupation 3], one [an occupation 4] in a Government Ministry, [an another] also works for the government. Her father used to work in the [Agency 1]. He is now deceased. Asked when her father passed away, the applicant said it was 2016. Then she said it was in 2013. Asked for clarification she said it was before she came to Australia, in her first year of her [Qualification 1]. But she was not able to be clear about the year. The Tribunal put to the applicant that she should be able to remember the year her father died, maybe even the month. The applicant said that she could not do so as many things have affected her memory. [Another family member] was in [Country 1] – [after a family member] had been kidnapped and killed because of his religion (Sunni), and [another] had been kidnapped.
The Tribunal asked the applicant if she had problems due to being from a Shi’a family. The applicant said “of course, we are scared to say we are Shi’a’. The Tribunal observed that her family were employed in high status government roles and presumably known to be Shi’a. The applicant declined to comment on this point.
In 2015 she finished her [Qualification 1], but she had difficulty remembering when she finished her undergraduate degree, or what year she started working. She went to work at [Institute 1] after finishing college and then she worked at [Institute 2 variant] while she studied for her [Qualification 1]. It was submitted by the agent that the applicant genuinely could not remember these dates.
The applicant said her ex-husband was [an occupation 1]. She applied for a protection visa because he told her that a group of armed people had attacked the house. CCTV. The applicant believed him, because of what had happened to her [sibling’s] family.
The Tribunal asked the applicant who the people were who attacked her house, and why there were still a threat. The applicant said she was a teacher trainer who did not side with any religion. Iraq was falling apart and people were being killed for no reason. She wanted everyone to live in peace. Iraqis had already suffered a lot from the war with Iran. Then there was the US invasion and the applicant witnessed the violence of that. Iraq had been a violent country since her childhood.
The Tribunal noted that this viewpoint was not enough to cause the applicant to be attacked by an armed group. The applicant referred to the incident during a conference. She said it was a verbal discussion in which she proposed to remove religious studies from the curriculum. The Tribunal noted that this differed from her written claims in which she stated that she wanted to broaden religious education. The applicant said she wanted to remove it because it didn’t include all religions. The conference was in Erbil. It was for teachers in different fields.
The applicant said that after this she faced a lot of horror. People started treating her differently and staying away from her. A person employed by the Institute, who was armed with a gun, came to her and said she should be supporting the Shi’a.
The applicant said her ex-husband was persecuting her. Her mother used to talk about Jesus and his miracles. When her ex was violent she used to pray to Jesus and Mary for a miracle. The Tribunal queried this, why would she pray to Jesus and Mary if she wasn’t a Christian. The applicant said she believed in Jesus. The Tribunal noted that the applicant was a Shi’a. The applicant said her mother had a Bible in the house and her brother was involved in Church design. Christians were happy and had beautiful clothes. Her family were not mosque-goers. But her ex-husband’s family was quite fundamentalist.
The hearing turned to the subject of the treatment of women in Iraq. The Tribunal observed that in the photos of the conference the applicant can be seen complying with Islamic dress. The Tribunal noted that it might not consider being forced to dress a certain way as persecution even if it is not preferred and for some women is involuntary.
The applicant said she experienced this in the context of violent and controlling behaviour of her husband. She found the hijab repressed her personality and her ability to speak her mind.
The applicant said she attended some seminars with a priest before the pandemic. She could not remember when. It was at [Church 2] in [Suburb 2]. Not the one in the photos, she had her friends used to go to different churches all the time. That was what her friends suggested she should do. After the lockdown she went to church in the city but she did not know its name. The applicant then claimed that when she lived in Iraq she used to light a candle at home for Mary on Thursdays. Her husband told her she should light a candle for Fatima and Zahra. The Tribunal observed that this was a claim she had not mentioned before.
The Tribunal noted that the applicant had previously claimed to be associated with a [Church 1]. The Tribunal put to the applicant that it might find that she was embellishing her interest in Christianity, and that her recent baptism may have been done only to support her protection claims. The applicant at this point said her ex-husband had controlled the content of her application.
The Tribunal put to the applicant that in her interview with the delegate she had not mentioned anything about family violence as such. The applicant said it was not culturally accepted for Iraqi women to talk about their husbands. She only raised it when her lawyer asked her about it. Her ex-husband did not want her, and she was afraid of being divorced. The applicant said their house was in her name because she bought it with her money. With his earnings he bought a house for his new wife.
The applicant said that her ex-husband had forced her to have an operation she did not need. There was nothing wrong with her despite an ultrasound showing a stone. The Tribunal observed that this seemed to be a simple medical error. The applicant said that she had not wanted the operation and he forced her to have it.
The Tribunal asked what harm her ex husband could do to her now. The applicant said that he wanted her to give him the house. He knows she is re-married. The Tribunal put to the applicant that it might doubt that the applicant would be seriously harmed by her ex-husband now that they are divorced. The applicant said that he had hit her daughter.
The Tribunal asked the applicant why she had delayed making a protection application. The applicant said she was confused and worried about her family.
The Tribunal observed that women in general in Iraq do not face serious harm. The applicant confirmed her claims were particular to herself. She faces death. He will push her kids to kill me and then the kids will be in gaol. The Tribunal expressed reservations about the prospects of such an extreme event.
The Tribunal put to the applicant by way of natural justice that an allegation had been made anonymously that she was not a refugee as she was wealthy. The Tribunal said it would not be giving the allegation any weight as it had no probative value in relation to the claims that she had made.
The applicant’s representative confirmed that the applicant’s ex-husband had controlled her application as she was aware that the applicant’s emails concerning it had been copied in to him. Therefore she was not comfortable to disclose claims about her husband. The application was a religious convert and was also at risk because of her imputed political opinion which was against the paramount state religion in Iraq. She was not claiming to be at a generalised risk but had a profile. She was also at risk from her husband and since her father had died and her brothers did not want to help her she had no one to protect her in Iraq.
The applicant’s husband [Mr A] noted that the applicant had no actual home to go to in Iraq and that he himself could not protect her as their marriage would not be recognised.
Post-hearing submission and other material.
In a submission dated 6 June 2022 the applicant’s representative submitted that the applicant was at risk of persecution due to her religion, imputed and actual political opinion and members hip o particular social groups divorced, single Christian woman in Iraq. The representative made submissions concerning the applicant’s inability to remember key dates during the hearing, contending that this was due to her history of trauma and suffering PTSD as assessed by [Psychiatrist A] in February 18 and [Psychiatrist B] in February 2022.
Regarding the inconsistency in her evidence about the nature of her intervention at the Erbil Conference, the representative submitted that the applicant’s evidence was not inconsistent. Her proposal was to remove Islamic education from the curriculum and replace it with a general religion and ethics education. In a supporting statutory declaration the applicant states that she proposed that Islamic education be removed from schools entirely. That there be instead a religious class that would educate students o the different religions in the world, and not be a class on how to worship or focus on the holy books. The applicant’s representative referred to the DFAT Country Information Report which indicates that actions deemed to be anti-government or anti-Islamic face strong societal hostility which could lead to serious harm. Specifically, the citation referred to by the representative refers to protesters and demonstrators.
The representative made submissions in relation to the applicant’s Christian conversion, which have been noted, including citing relevant country information. With the submission was a letter from [Father A] of [the Church 2] in [Suburb 2], dated 25 May 2022. [Father A] states that the applicant is a constant presence in the Church and a member since 2016, that she had six months of Christian doctrine and spiritual growth before her baptism, he had given blessing for her marriage to [Mr A], and after the pandemic prevented members from attending Church she kept in touch with him regularly for advice and updates on her life.
In her supporting statutory declaration the applicant said that the reason she had been to different churches during her time in Australia was that she would offer to drive her friends to their churches and it was natural for her to go in with them. And that when she moved away from [Suburb 2] and couldn’t always make the journey out there for weekly worship she would, and still does, go to a local church (unnamed). It is not wrong to go to a non-Orthodox Church and does not mean her conversion is not genuine.
The applicant reiterated her claims to fear harm from her ex-husband. The applicant’s representative noted that she her marriage would not be recognised in Iraq and she would be going back as a single divorced woman. She had been beaten by her brother when she sought support from her ex-husband’s violence. The representative cited country information including the DFAT Country Report, the UNHCR, and EUAA, concerning the vulnerability of single or divorced women in Iraq to harassment, sexual violence, and difficulty finding employment risking an inability to subsist.
The representative concluded that the applicant faced cumulative risks of persecution and also significant harm enlivening the complementary protection provisions of the Act.
The DFAT Country Report on Iraq contains the following information
Iraqi women head approximately one in 10 households – 80 per cent of these female heads of households are widows, divorced, separated or caring for sick spouses. This group tends to be more exposed to poverty and food insecurity because of lower overall income levels, and is particularly disadvantaged in terms of access to education, employment and adequate shelter. According to international organisations, only 2 per cent of female heads of households are employed and have a steady salary, while a further 6 per cent work informally and do not have a regular income.
…
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. 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. DFAT assesses Iraqi women and girls face a high risk of gender-based violence, including sexual assault and domestic violence, while Iraqi girls face a high risk of being forced into early or involuntary marriage. Iraqi women working to advocate for women’s rights face a high risk of violence, including targeted killings.
…
The practice of seeking asylum and then returning to Iraq once conditions permit is well accepted among Iraqis, as evidenced by the large numbers of dual nationals from the US, Western Europe and Australia who return to Iraq. There is considerable evidence that Iraqis who are granted protection by western countries often return to Iraq, sometimes only months after securing residency abroad, to reunite with families, establish and manage businesses or take up or resume employment.
Iraq Common claims COISS includes the following:
Women are generally unable to live alone in Iraq without male protection or support. It is not considered socially acceptable in Iraq for a woman to live alone without men. Women who live alone without male protection are reported to be at risk of harassment and violence. Reports also indicate that a woman in Iraq with a lack of family connections would be in a situation of significant vulnerability, as this would leave them in an economically vulnerable position, expose them to harassment and make it difficult for them to find employment. According to the UNHCR, women without male support provided by their family or tribal network, including widows, divorcees, and those who escaped situations of domestic violence, ‘honour’ crimes, or forced or child marriage, are reported to be particularly vulnerable to further abuse, exploitation and trafficking. Single mothers and their children are also reported to face social rejection and stigmatization.
FINDINGS AND REASONS
Based on the information in her application the Tribunal finds that the applicant is a citizen of Iraq.
The applicant or her representatives have put forward a claimed risk of persecution due to her race, religion, political opinion and membership of particular social groups variously iterated but particularly around the status of women, including educated or liberal or westernised women. It is not clear how she is at risk due to her race and the applicant herself did not make such a claim. The Tribunal does not accept that she is at risk due to her race.
In assessing the evidence, the Tribunal has taken note of the reports of the psychologist and the counsellor. The Tribunal accepts that the applicant has suffered episodes of depression and anxiety. The Tribunal observes that the applicant self-reported the causes of her trauma and psychological symptoms and that these professionals have not examined their credibility. The Tribunal therefore gives these reports limited weight as evidence of the truth of her claims.
With regard to the applicant’s difficulty in remembering certain time lines at hearing, the Tribunal attributes this to nervousness rather than due to evasiveness or past trauma.
The applicant did not apply for protection until several months after arriving in Australia, including months after the alleged armed attack on her home. She did not provide a persuasive explanation for this, considering that she claimed to have experienced threats and intimidation. This has been a relevant factor in evaluating the credibility of the applicant’s claims.
The Tribunal has given no weight to the anonymous allegation against the applicant, as it has nothing to do with the substance of her claims.
Education, political claims
The applicant’s claims concerning political opinion and membership of certain social groups centre partly on her participation at a teaching conference in Erbil.
The Tribunal does not accept that the applicant made a controversial intervention at the Erbil conference challenging the state religion. Her description of the nature of her proposal, as between her written claims (to include all religions in religious studies) and at hearing (remove religious studies from the curriculum) were importantly inconsistent. It was contended subsequently that what she had proposed had the intended effect of removing Islamic instruction (as she stated at the interview), but the Tribunal found this explanation convenient rather than persuasive. The proposal as originally described did not refer to doctrinal instruction per se but to the scope of religions studied. The lack of clarity in the applicant’s accounts of the nature of her proposal sat at odds with her claim that she faced a lot of horror as a result. This claim that she faced a lot of horror was itself exaggerated, even on her own claims, and created doubts about her credibility.

Implicit in the claim about the Erbil conference was that it was the cause of her being accosted by an official and then her house was approached by an armed group. As the Tribunal has not accepted that the applicant made an unacceptable intervention at the Erbil Conference, it follows that the Tribunal does not accept that the applicant was subsequently accosted by a member of staff of the Ministry in relation to having unorthodox beliefs.
It follows also that the Tribunal does not accept that an armed group came to the applicant’s home. The applicant claimed that there was CCTV images of this but the Tribunal cannot be satisfied that this is the case on her claim alone. The finding is reinforced by the fact that the preponderance of the applicant’s evidence was that her husband is living at her house, and he has never been harmed and has continued most of his professional work without any apparent difficulties. It was claimed that he travels about Iraq and abroad to avoid harm, but the Tribunal is not satisfied that these journeys are anything other than professional.
The applicant claimed to be well known throughout Iraq because she had taught so many teachers. The Tribunal is not satisfied that the applicant’s profile was anything other than that of a well connected teacher educator in that niche network. She has not been a protester or a demonstrator. The applicant had no political profile when she left Iraq; she and her husband lived an assimilated and privileged life well-employed by public institutions. Yes she wore the hijab but the Tribunal is not satisfied that she experienced this as serious harm. The applicant portrays herself as having been a liberal intellectual promoting religious diversity but there is no evidence to support that she actually did so or was so perceived.
The Tribunal does not accept that educated Iraqi women in general face a risk of persecution, and the applicant could cite no other instances of this in her own life other than the claims the Tribunal has already rejected. She claimed that artists in general are at risk of being persecuted but submitted no country information supporting this claim, and the Tribunal does not accept it. The applicant herself said that, other than comments on her dress and some altercation with Ba’athists during the regime, she had no difficulties until the Erbil Conference.
The applicant claimed she was fired from her job in connection with her claims. She presented no evidence of this and the Tribunal is not satisfied that this is what occurred, if anything, in relation to her employment.
The applicant has lived for a number of years in Australia. Only in that sense can she be described as westernised. The Tribunal is not satisfied that the applicant will be motivated to go against social and religious norms or political orthodoxy on return to Iraq.
The Tribunal is not satisfied that the applicant faces a real chance of serious harm in connection with her education status or her opinion on any matter, or membership of any particular social group related to these claims.
Religion
The applicant claimed she and her family used to be afraid to say they were Shi’a. The Tribunal is not satisfied that the applicant ever experienced harm in relation to her Shi’a background. Although sectarian violence does still occur in Iraq, including in Baghdad, the risk of the applicant being harmed in this connection is no more than speculative.
Just prior to the interview the applicant contended that she was a Christian convert, which the Tribunal will also treat as a claim that she is an apostate from Islam. The Tribunal does not accept that the applicant is genuine in these claims. The applicant’s protection visa application stated that she was a Shi’a Muslim. She claimed that she had an association with Christianity in Iraq but initially it does not go beyond her mother having a Holy Bible and her having been inside Christian Churches due to [occupations] of her family, and found them appealing. The applicant claimed that she was thinking of becoming a nun, which was implausible given her minimal religious instruction at that time.
Later the applicant claimed she prayed when her husband beat her, to Jesus and Mary. It was not explained why she would do so when she was Muslim at the time. (The Tribunal addresses the underlying family violence claim below.) She also claimed she weekly lit a candle for Mary. Again, this is not readily plausible given that she identified as a Muslim at the time. The applicant’s evidence was not credible in this regard.
The applicant attended Christian churches in Australia and in due course was baptised. Her priest considers she is a genuine convert. This is the impression she has given him, but the Tribunal gives it limited weight in the context of an assessment of the overall credibility of her evidence in relation to religion.
The Tribunal does not accept that the applicant will practice Christianity or behave as an apostate on return to Iraq.
The Tribunal finds that the applicant has only associated with Christianity in Australia to strengthen her claim to be a refugee. Her conduct is therefore to be disregarded for the purposes of her application, under s 5J(6). In any event, there is no evidence that people falsely claiming to be Christian are persecuted for associating with Christianity in order to support the claim, on return to Iraq.
Family violence, marital status
The Tribunal notes DFAT has stated that Iraqi women face a high risk of violence. However, The Tribunal is not satisfied that this applies to all women in Iraq. Some women are at risk, some are not.
The Tribunal does not accept that the applicant was a victim of domestic violence or controlling behaviour in any way claimed by the applicant. There was only a hint of difficulty in her marriage by the time she was interviewed by the Delegate. The applicant opportunistically pursued this line of claim and increasingly exaggerated it to the point of contending that it caused her to pray to Jesus and Mary (when she was not a Christian), that she had had a forced surgery (as part of her husband’s sadism), and that her sons might be persuaded to kill her to avenge the family’s honour, which a late and far-fetched claim. Her daughter’s letter alleged that her father was also an alcoholic and that they had no money, which was not even part of the applicant’s claims. That the applicant submitted this as evidence reinforced the impression that she was willing to say or have anything said in support of her protection application.
The applicant argued that she did not raise family violence earlier, because it was culturally unacceptable. Yet her written claims up to that point not only failed to make any allusion to fear of her ex-husband but presented a positive theme that he was an important educated man. If the applicant had a genuine fear of returning to Iraq due to family violence the Tribunal would expect her to make this claim earlier in the piece. Instead, as she stated in the hearing, she made the claim when asked about family violence by her lawyer. That is, she followed what she interpreted as a suggestion.
It follows from the foregoing that the Tribunal does not accept that the applicant was rejected by her brothers or any other family member due to attempting to escape her husband. It does not accept that she was sent to Australia to free her ex husband to remarry. It is not satisfied that her divorce or property arrangements in Iraq are involuntary. It emerged that the applicant’s ex-husband actually helped her with her protection application, and conveniently when she was found by the Delegate to be a married Muslim woman, she was shortly divorced and baptised. So little of what the applicant has said in the course of her claims was credible, that the Tribunal cannot be satisfied as to what her domestic situation will be on return to Iraq. It does not accept that she will be a female head of household in Iraq or that she will be living alone. It is not satisfied there is a real chance that her status as legally divorced will cause her to be seriously harmed.
The applicant’s marriage to [Mr A] would not be recognised in Iraq, but there is no information before the Tribunal that having entered into such a marriage in itself creates a risk of serious harm. The applicant claimed it was kept a secret because it puts her at risk of serious harm from her ex-husband and her sons, and now they have found out. As stated above, the Tribunal does not accept the applicant’s evidence as to her ex-husband’s attitude to her, or the attitude of any of her family members. It also does not accept her statement as to her motive for keeping her marriage secret.
Returned asylum seekers
To the extent the claim is implied, the country information also does not support that failed asylum seekers or returnees from the West are at risk of persecution due to that status.
CONCLUSION

100. It follows from the foregoing that the Tribunal does not accept that the applicant faces a real chance of serious harm for the reasons specified in s 5J(1). The applicant therefore does not have a well-founded fear of persecution as required by s.5J(1). The Tribunal finds that the applicant is not a refugee as defined in s.5H(1).
101. The Tribunal considered the application of the complementary protection provisions. The Tribunal has already found that there is no real chance of the applicant experiencing serious harm. On the claims as presented, the Tribunal is similarly not satisfied there are substantial grounds to believe that there is real risk that the applicant will suffer significant harm of the types referred to in s 36(2A) on return to Iraq.
102. 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) or s 36(2)(aa).
decision
103. The Tribunal affirms the decision not to grant the applicant a protection visa.
Genevieve Hamilton
Member

[2022] AATA 4279

7 September 2022

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