1909335 (Refugee)

1909335 (Refugee) [2023] AATA 4380 (4 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Penny Dimopoulos (MARN: 0636233)
CASE NUMBER:  1909335
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Denis Dragovic
DATE:4 October 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 October 2023 at 3:25pm
CATCHWORDS
REFUGEE – Protection Visa – Iraq – religion – Assyrian Christian tradition – Kurdish region – applicant fears harm from insurgents and Islamic extremist groups – membership of the particular social group – Christian women in Iraq – a widowed female living alone – applicant does not face a real chance of serious harm – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 46, 91, 423, 499
Migration Regulations 1994, Schedule 2
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 22 March 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims, and I accept, to be a citizen of Iraq, applied for the visa on 7 February 2017. The delegate refused to grant the visa on the basis of available country information about the circumstances in Iraqi Kurdistan being supportive of a view that the applicant does not face a well-founded fear of persecution.
The applicant appeared before the Tribunal on 19 September 2023 to give evidence and present arguments. The Tribunal also received oral evidence from her daughter, [name]; another daughter, [name]; and her son-in-law, Mr [A]. The Tribunal hearing was conducted with the assistance of an interpreter.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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 decision under review should be affirmed.
Mental Health
Prior to the hearing and based upon notes arising from the Delegate’s decision which indicated some degree of cognitive impairment that had limited the applicant’s ability to meaningfully participate in the interview the Tribunal wrote to the applicant.
Dated 22 August 2023 the letter noted:
The Member is concerned about the ability of the applicant to meaningfully participate in the hearing scheduled for 19 September 2023, considering the experience of the delegate of the Department, and the expert evidence of a psychiatrist who wrote in 2019 'I believe she is not fit to attend interviews in relation to her application'.
The Member notes that a hearing response was submitted indicating that the applicant will be attending the hearing and indicates that there are no issues that may affect her ability to participate in the hearing.
The Member asks that you turn your mind to this matter, noting the challenges faced by the delegate and the advice of the psychiatrist and, assuming the applicant continues to want to proceed to a hearing, to specifically consider whether the applicant will require any additional support at the hearing including potentially ensuring that she has family support present among other options available.
The applicant’s representative responded on the 23 August 2023:
We met with the client on Monday 21 August and she confirmed that she would like to participate in the hearing.
The client is in the process of obtaining an updated report regarding her cognitive capacity given that a significant time has passed between the interview and the hearing date.
She has confirmed that her two daughters will be present as support persons at the hearing.
An updated reported dated 30 August 2023 was received together with other material in a pre-hearing submission dated 15 September 2023. The psychologist wrote that the applicant had attended 4 telehealth sessions with the applicant’s daughter interpreting and then reached the following diagnosis:
[The applicant] has been diagnosed with anxiety and depression. Her symptoms include:
• Chronic insomnia
• Bouts of weeping
• Loss of appetite
• Cognitive effects, such as momentary confusion and forgetfulness
• Intense negative emotions, including sadness and fear
According to [the applicant], most of her symptoms are related to her anxiety about her family. She describes feeling severe ongoing anxiety about her 4 daughters and their families who live in Iraq. She is highly concerned about her son, who lives on his own in [a country]. She is also concerned about other family members, who were forced to leave Iraq and are now living in different parts of the world. [The applicant]’s symptoms are further exacerbated by her perception of having no country to which she belongs.
Due to her fears for her family, [The applicant] has been under a great deal of stress for years, made worse by the COVID lockdowns. Lately, she has been working on managing her symptoms better through prayer, and by attending church regularly. She has stated that gaining Permanent Residency is of great importance to her, as it would allow her to visit her son and other members of her scattered family, alleviating her distress and her fears for them. Permanent Residency would allow [the applicant] to perceive Australia as her stable home, which is also likely to have a positive impact on her mood.
Based upon the engagement with the applicant’s representative regarding the applicant’s needs, the psychologist’s report and the Tribunal’s Vulnerability Guidelines, I approached the hearing in a manner that allowed the applicant as much time and imposed as little pressure as possible. I provided regular breaks and reinforced the opportunity to ask for a break. I allowed the applicant’s daughters to sit where they thought would be most suitable to support their mother.
Upon reflection, I am satisfied that the applicant had a meaningful opportunity to participate in the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is a [age]-year-old female who is originally from the satellite town and now district of [Town 1], adjoining Erbil, a city in the Kurdistan region of Iraq. She has six daughters and one son and is herself the daughter of parents who had five boys and four daughters. She said that she lived a nice life in [Town 1] until ISIS arose in 2014.
The applicant described her faith as following the Assyrian Christian tradition.
Of the applicant’s children, two daughters live in Australia and four live in [Town 1]. All of her children in [Town 1] have their own children and are living together with their husbands. The applicant’s son is living in [a country].
The applicant described the rise of ISIS as leading to attacks in [Town 1] involving the throwing of rocks and that people became scared, particularly those who had no male at home. The applicant mentioned women as being kidnapped by ISIS and some subsequently remaining with them. I questioned the applicant’s claims noting that there is no country information that suggests such events occurred in [Town 1]. At a later point in the hearing the applicant’s son-in-law while giving evidence as a witness confirmed that to his knowledge no kidnappings of women occurred in [Town 1]. I accept that there were kidnappings of women from the Ninewa Plains which made international headlines but not from [Town 1] and with regards to stone throwing, I accept that there were some such incidents nearly ten years ago associated with the rise of ISIS as it seems plausible.
The applicant claimed that since the ISIS troubles many refugees have moved to [Town 1] and that there are a lot of strangers and people with Islamic backgrounds. I note that [Town 1] remains one of the largest Christian centres in the Middle [East].[1] The applicant doubted the figures.
[1] [deleted]
The applicant claimed that it is not culturally appropriate for her to live with her in-laws. I put to her that she would not be the only elderly widow in [Town 1] with married daughters who were living with their husbands to which she acknowledged that most widowed women live by themselves.
The applicant described the challenges of living by herself as including financial hardship, but I note that one of the witnesses acknowledged that each of the children could send one hundred dollars a month to their mother and she would be okay. I also note that the applicant acknowledged at the hearing that she is eligible for a pension and that she has a home to return to that currently remains vacant.
The applicant expressed a fear of living alone based upon her vacant home being what she described as ‘ransacked’, twice, over the past several years that she has been in Australia. She said that the first time was in 2016 and the second in 2017. She claimed that the first incident was reported but that no one came to investigate. This claim was supported by a statement submitted by the applicant from [a] neighbour, who reported the 2016 incident to the police. In the report he describes the incident as a group of three men who ‘intentionally damaged the front door of the [applicant’s] house.’
I put to the applicant that many vacant homes have people try to break in and asked whether there was something about the incident that made her think that its anything other than opportunistic. She responded that the key concern was that in Australia the police would investigate but that didn’t happen in [Town 1]. She acknowledged that the reason the house was of interest was because it was empty and the people wanted steal things.
The applicant’s son-in-law explained that ISIS weren’t active in [Town 1] and Erbil, but rather that they came within 20 minutes’ drive in 2014. He said that during this short period there was a flurry of activity including talk of sympathizers of ISIS living in [Town 1]. He said that even the Kurdistan Regional Government (KRG) were frightened and that high-ranking officials escaped Erbil. He said that some in [Town 1] decided to stay and about half fled either moving north or taking flights out.
He also described the more current situation of militia controlling check points out of the Iraqi Kurdish controlled region. He said that these militia were ostensibly Christian, but he noted that at one check point there is a big billboard with Qassim Suleimani (former commander of the Iranian Quds Force). He said that the militia is controlled by ‘fake’ Christian leaders who control several seats in the federal parliament. He said that there is a lot of talk that the leader of the militia, Rayan al-Kildani, plans to work through the Patriotic Union of Kurdistan (PUK), one of two main Kurdish political parties, to gain seats in the Kurdish parliament.
[Name], the applicant’s daughter, said that after their house was ransacked, they became fearful for their mother. She described one Muslim resident living opposite to her mother’s house as being violent to dogs, although he has never been violent to her mother, other than by way of verbal harassment and as the owner of the local electric generator, she claimed that her mother would sometimes be cut from this alternate electricity supply.
The applicant was invited by the Minister’s delegate to give written responses to a series of questions prior to the delegate making a decision. In response to one question the applicant wrote, ‘it would bring to the authorities attention that I am not in Iraq and they would ask her (sic) where did I travel to, therefore more questions will be asked about me and that may put my life and my daughter’s family at risk.’ When this was put to the applicant, she did not recall such a claim. The applicant confirmed that she did not have a fear of the Kurdish or central governments.
The applicant claimed in her written statement of claims accompanying the application for protection that she was harassed as a widowed woman and sometimes received unwanted advances by Muslim men to marry her or to convert her. When this was put to her at the hearing, she said that she couldn’t recall, but she confirmed that she believes that they will harass her suggesting that they will hit her doors and take similar actions. She said that there are a lot of Muslims, estimating it as being four or five houses, among the two streets that she defined as her neighbourhood.
We discussed country information about [Town 1] including that the area has had its designation upgraded to a district which will allow its leaders to elect officials and representatives, be in charge of security and benefit from a mayor with ‘direct authority’.[2] In response, she questioned the veracity of this information and noted that in [Town 1] the authorities couldn’t even pay government salaries. She added that she hasn’t been there for seven years, so she is not sure of the current situation.
[2] [source deleted]
The applicant confirmed that she has not made any public statements about her views towards terrorism or Islamic extremism, which is relevant only in so far as it appears as a claim in various submissions by the applicant’s representative.
In considering the applicant’s narration of her lived experiences I accept them as fact, though to avoid doubt, in the following sections I engage with her interpretations of those facts and how they would impact her upon return.
Other witness statements were submitted but those not mentioned in this decision did not include information pertaining to the matter at hand and instead spoke of her character or contributions to the Australian community.
Discussion of security situation
Prior to considering the specific claims of harm I will engage with the security situation in Iraqi Kurdistan. The reason for turning to this consideration at this early stage is that a perilous security environment amplifies certain individual risks, whereas a more secure environment mitigates them. When there is chaos that accompanies conflict, violence can occur with virtual impunity including general attacks based upon her gender or religion. Such an environment may heighten the level of risk to the applicant where otherwise in peaceful circumstances the threats to her would be constrained. To undertake this assessment of the security environment, I shared with the applicant quantitative information as well as qualitative assessments. I also considered country information presented by the applicant.
We discussed the general security situation as large excerpts of country information from DFAT were submitted as a part of the representative’s submission which included:
Although the KRI is generally regarded as a less dangerous security environment than other parts of Iraq, it is still affected by high levels of violent crime, including kidnappings, murders, robberies and so-called ‘honour’ killings. Gun violence is common throughout Iraq. Gun ownership is among the highest in the world, and most households own at least one firearm. The ubiquity of weapons and a strong ‘honour’ culture mean minor disputes often rapidly deteriorate into violence, including murder.[3]
[3] Department of Foreign Affairs and Trade, ‘DFAT Iraq’, January 2023 at [2.25]
Although the authors of the DFAT report note that ‘gun violence is common’ and that there are high levels of ‘murder’; as just one example, this is not necessarily an indication that the levels of violence are such that the applicant faces a real chance or a real risk of being a victim to the violence. I noted to the applicant that the murder rate in Erbil was about the same as the murder rate in the United States.[4] The applicant responded that one can’t compare between the United States and Iraq, where the latter has Islamic people with an inclination to kill and in the United States there is a lot of criminal activities but there is also the law to protect people.
[4] and Erbil, a city of about one million people saw 79 murders and the United States has a murder rate of 7.8 per 100,000.
I noted to the applicant and her representative that much of the country information submitted to the Tribunal was about the security situation in Iraq and not specific to the Iraqi Kurdistan region, for example references to the Tishreen Movement which was in the Arab regions of Iraq and not in Erbil, the number of landmines spread across the country that is not relevant to the life and movement of the applicant, or the presence of Shia militia who have no presence in the Kurdish areas. I noted that country information about Kurdistan would be given greater weight above generic Iraq information.

The representative acknowledged this but then explained that it was important to provide context. I accept that context is relevant but also note that it reinforces my approach of placing less weight on contextual evidence as opposed to the evidence directly relevant to the applicant.
I also note that the Representative made oral and written submissions referencing the Australian government’s Smart Traveller advice. But this advice is for Australian citizens travelling to Iraq. It is not for nationals returning to their country. This is because there is a different level of risk for people who speak the language, understand the culture, have local connections, and look similar to others in a society than for those who have none of these skills or traits. The applicant would be returning to her home country where she has lived for her entire life other than the limited period which she has spent travelling to Europe, Egypt and living in Australia. For this reason, I place very limited weight on the Smart Traveller advice.
The applicant’s son-in-law returned to Iraq in 2023 for the first time since 2015. I asked what allowed him to return this year. He said that he thought a one-month long trip would not be too high a risk. He said that while he was there, he visited relatives and stayed with them including with the applicant’s daughter’s families. He did not claim that any harm befell him. While the circumstances of a short visit of a male are very different to the permanent return of an elderly female, I place some weight on the assessment of the general security situation that the son-in-law would deem it safe enough to return and remain without encountering an incident.
The applicant’s son-in-law gave evidence of check points restricting the movement of Assyrian Christians in ‘[an area], which he explained was a few hours’ drive from Erbil. I noted to the witness that if it was a few hours drive then it would be outside of the Iraqi Kurdistan Region. The responded that it was an area that remained under the control of the Erbil faction of the Kurdish government Regardless of whether it is outside or inside the borders, it is beyond the area to which the applicant would be moving to and as such this evidence contributes to the wider context but is not directly relevant to the applicant’s circumstances.
The applicant said that her general movements are limited to [Town 1] and, when necessary and while her husband was still alive, the city of Erbil as well, as such what the situation is like outside of the borders of Iraqi Kurdistan has limited impact to the applicant other than being contextual and can contribute to considerations of the reasonably foreseeable future.
While the situation may change some time in the future, as far as the reasonably foreseeable future is concerned, I am satisfied that there is insufficient evidence to support a view that there is some imminence to a weakening of the KRG as opposed to the continuation of the status quo. For this reason, when considering the applicant’s individual circumstances and how it may be influenced by the general security situation, I will consider her claims in the context of the general security situation in Erbil and [Town 1] as being safe and stable.
Considerations
Before proceeding with individual considerations, I note that as discussed in detail at the hearing, the situation in the Kurdish region of Iraq is substantially different to that of other parts of Iraq. This is not unique, as many countries have sub-cultures that are geographically located with different circumstances relevant to them or conflicts that are contained within certain areas. The situation of the Iraqi Kurdistan region is a model example of this, in which it lies separate from the rest of Iraq due to its culture, history, ethnicity and politics.[5]
[5] >
For this reason, I give greater weight to country information that specifically details the circumstances in Erbil or more broadly Iraqi Kurdistan over generic information that does not distinguish which region of Iraq it refers to or information that consolidates the circumstances of people in Kurdistan together with those in the rest of Iraq.
In addition, I note that the applicant has had little reason in the past while her husband was still alive to travel outside of [Town 1]. Considering that her husband has passed away, noting her age and that her whole family is living in [Town 1], the primary focus of this decision is to the circumstances that the applicant will face in [Town 1] and to some degree Erbil where she may travel to intermittently.
I also note that the applicant is Assyrian Christian. No evidence is before this tribunal to suggest that being Assyrian Christian as opposed to Chaldean or Syriac Christian leads to a difference for the purposes of the relevant considerations in this matter. This approach of considering the Christian denominations collectively is the same approach taken by the submission to this Tribunal from the Australian Assyrian Chaldean Syriac Advocacy Network in which they wrote:
While community members may use different self-identification terms such as Assyrian, Chaldean and Syriac, these three designations reflect and represent the same ethnic, linguistic and national group broadly known as Assyrians, the indigenous people of the historical Mesopotamia (modern day of Iraq, Iran, Syria and Turkey). For the purpose of brevity, this submission refers to all those using the multiple self-identification designations as Assyrians.
As such, for the purposes of clarity, references in this decision to Christian/s are all encompassing of the various denominations.
Harm arising from insurgents and Islamic extremist groups
The applicant’s representative wrote in a submission that the applicant fears harm from insurgents and Islamic extremist groups. This was not evident in the applicant’s claims nor evidence at the hearing. In considering this claim it is relevant to review the country information discussed at the hearing. The applicant and her witnesses explained how ISIS had reached the outskirts of Erbil in 2014 being some [time] away. But as the representative wrote in her submission of 15 September, ‘ISIS no longer has control over any Iraqi land.’ The situation of 2014 is greatly different to the situation of 2023.
There is no evidence before the Tribunal that insurgents and Islamic extremist groups are present in [Town 1] where the applicant has a home nor in Erbil where she might travel to intermittently. While it is possible that there will be opportunistic attacks that breach the security cordon of the Kurdish authorities and that these insurgents will be able to reach into [Town 1] where the applicant will be spending most of her time or the applicant will be in Erbil at the wrong place and wrong time such that she is harmed, I find that this is a remote possibility.
As such I find that the applicant does not face a real chance of serious harm or a real risk of significant harm from insurgents and Islamic extremist groups in Iraq for any reason including but not limited to those listed by her representative in the submissions: (i) her Christian religion; and (ii) her membership of a particular social group including (a) women in Iraq (b); Christian women in Iraq; (c) Christian single women; (d) Iraqis who have lived for significant periods in a Western country and (e) Christians who oppose criminal acts by extremists in Iraq.
To avoid doubt, I have considered whether the applicant’s mental health may impact considerations pertaining to threats arising from insurgents and Islamic extremists. Noting that the harm the applicant fears is not supported by evidence, any mental health condition the applicant bears will not influence this consideration.
It is important to distinguish ‘insurgents and Islamic extremist groups’ such as ISIS from the claims that the applicant has made which arise from the wider society within which she lives including from Muslims who are living in [Town 1] and may not be accepting of Christians and their cultural traditions. While the harm she expressed fearing may in part arise from Muslim residents of [Town 1] or Erbil who are inspired and motivated by extremists this is different to insurgent or Islamic extremist groups and as such I now consider such claims in the sections below.
Being a widowed female living alone
With regards to the applicant’s claims that as a woman she will face harm, noting her age and the unlikely event that she will be seeking employment or access to further education, I discussed with her general information about the status of women. I noted that information suggests that since the prominent role of women in the fight against ISIS some have commented how this has changed the perception of women in Kurdish society moving it away from ‘being mere caregivers to protectors.’ This also brought forward some changes in the conservative Kurdish society concerning women’s roles and identities.’[6] I also mentioned how more women are going into parliament and taking government roles.[7] In response the applicant said that Kurdish women fought against ISIS because ISIS are Muslims. She acknowledged that a lot of women are in parliament but asserted that women can’t show signs of their religion and have to wear clothes suitable for other religions.
[6] The Status of Women in Kurdish Society and the Extent of Their Interactions in Public Realm Ibid and >
The representative also made submissions that included country information about the role of women in Kurdistan. She cut and pasted the DFAT report’s section on Women in which there are generic references to Iraq. For example, it mentions high rates of domestic violence, low rates of economic participation, unfair laws, abusive cultural practices and exclusion from decision-making in the context of the state and inadequate state protection. Even accepting that the information is relevant to the Kurdish areas, I note that most of these do not apply to the applicant. She is[age] years old, and her husband has died. There is no evidence to suggest that into the reasonably foreseeable future she will be entering into a new relationship exposing her to domestic violence, she will not be seeking employment, and there is no indication that she has ever sought or will seek to be included in state decision making.
Regarding the report’s reference to unfair laws, there may be some laws in Iraq that are unfair to women and there may even be some in the Kurdish region that are unfair to women, but no specific evidence was presented to the Tribunal of any such laws impacting the applicant and the applicant did not make any claim of such laws being a reason for her fearing harm. I note that in the same DFAT country report pasted into the submission it states, ‘Women enjoy relatively more legal rights in the KRI than in other parts of Iraq.’ While ‘relatively more’ does not in of itself mean that they are sufficient, without any claim or evidence of relevant discrimination that would impact the applicant, I do not consider this further.
With regards to the report’s references to cultural practices in Iraq that could be considered abusive, this concept may align with the applicant’s evidence in which she claims that Muslim beliefs would be a source of her fear and as such I engage with this further below.
With regards to the report’s mention of state protection, this only becomes relevant if I were to find that the applicant faces a real chance of serious harm or a real risk of significant harm.
The representative provided links to news articles of the situation for women in 2014 when ISIS was active. But as noted above, the situation in 2023 is very different to 2014 and as such I place very limited weight on the information from these links.
As I have shown through the above passages, it is relevant to focus on the circumstances of the applicant in the specific setting to which she will be returning to. For this reason, I place considerable weight on the applicant’s past experiences as they are strongly indicative of the situation she will be returning to. In this regard, the applicant and her daughters live in [Town 1]. She has lived in the town for her entire life. It has been claimed that there were no problems prior to the rise of ISIS and that even when the applicant applied for a visitor visa to come to Australia she had no intention to remain but then in 2016 when there was an attempted break in of her house her family in Australia decided to apply for protection.
As noted above, what was described as the ransacking of her house or alternatively attempted break in, was not targeted at her but opportunistic. Based on the information related to this incident before me, I find that it was related to a vacant property and not to any of the applicant’s traits or the traits of the community that she lives within. As such with her return to living in the house, I find that the same will not occur again.
I note that the applicant explained that other widowed women live alone in [Town 1]. As such it would not be unusual. No independent information was provided that would suggest that it is culturally inappropriate. As other widowed women live alone and there being no reports or evidence of widowed women being targeted, I find that this would not lead her to face any additional level of risk or harm.
The applicant’s son-in-law said that there are conservative elements within Kurdistan and that Erbil is more conservative than other cities in Kurdistan. He said that while there are instances of women being promoted to public offices, it remains conservative and that as a result there continue to be honour killings and gender-based violence. The son-in-law did not suggest that the applicant would be facing either but rather was making the point that it remains a conservative society. Nevertheless, to avoid doubt after having turned my mind to it, I find that the applicant’s circumstances are such that she will not be facing a real chance or a real risk of honour killings and gender-based violence as an elderly widow.
Following his evidence, the eldest daughter also inferred that Erbil society was conservative in the sense of holding traditional Muslim norms including noting that her mother used to wear a skirt when she was at school but now, the witness estimated, 90 per cent of women wear a hijab in Erbil.
With regards to the evidence indicating that the Erbil society is conservative relative to other cities in Kurdistan, I accept that, but note that this is a part of the environment of recent years and as such the quantitative and qualitative country information discussed at the hearing reflect the impact such conservative beliefs have on individuals.
In addition, accept that the applicant’s mental health situation will exacerbate any harm she may encounter as a widowed woman living alone, especially as she has been diagnosed with anxiety and depression. But conversely, the applicant has support structures in place including four daughters and their families who all live in the vicinity and one or another will be in a position to provide her some type of emotional or psychological support that would mitigate the impact of her mental health situation.
Having reviewed the country information provided by the applicant’s representative alongside what was presented to the applicant at the hearing and placing particular emphasis on the applicant’s lived experience while noting that she will be returning to a safe and secure [Town 1], I find that even considering her mental health, the applicant does not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal arising from her being a widowed female living alone.
Being Christian
With regards to the treatment of Christians I read to the applicant from the most recent DFAT report which states, ‘DFAT assesses that Christians belonging to recognised denominations face a low risk of official discrimination.’[8] I asked the applicant if it was correct that the government doesn’t discriminate against Christians. She said that it was true of the Kurdish government. While I acknowledge the post-hearing submission by the witness, Mr [A] regarding Christians being second class citizens, this is not the view of DFAT and nor is it the claim of the applicant. As such I do not adopt that view.
[8] DFAT at [3.45]
The applicant noted the situation of the Chaldean cardinal, referred to as a bishop by the applicant, who she claimed has been stripped of his position. I noted that this was not the case and instead explained that he had chosen to leave Baghdad based upon the broader issue that involves the President of Iraq rescinding a decree by a predecessor who recognised the bishop as the head of the Chaldean Church in Iraq.[9] The concern by the Chaldean community is that they see this as a back door approach to shifting control of assets away from the bishop and instead to the group run by Mr Kildani, who was referred to in the evidence provided by the applicant’s son-in-law.
[9]
While I acknowledge that the central government may not necessarily act in the interests of the Christian minority in Kurdistan, the ramification of this decision or other similar ones by the President of Iraq or of the bishop’s to move his residence from Baghdad to Kurdistan, is peripheral to the applicant and as such lends very limited weight towards the consideration of the risks she faces.
I noted at the hearing that only recently a [University] was established in [Town 1].[10] The applicant was aware of this and acknowledged that the international Christian community was supportive of the Christian [enclave].
[10] [source deleted]
I acknowledge the submission made by [the] President of [organisation]:
We believe [the applicant] and Christian widowed women like her face inevitable persecution and harassment in Iraq… Through our work, we have encountered countless accounts of harassment and outright aggression towards vulnerable widowed women in similar situations due to their religion and age.
I accept that some of the people who go to the President of the [organisation] have encountered harassment and aggression. I also give some weight to the view that the applicant’s profile may on the surface appear similar to those who have experienced such harm, but I note that ultimately it is up to the Tribunal to determine whether the applicant’s specific circumstances meet the threshold obligations of Australia to provide protection. That a witness by way of a letter has a view that the applicant would inevitably face persecution and harassment in Iraq is given only minimal weight as there is little evidence indicating the extent of the author’s knowledge of the applicant’s circumstances, to what degree this was taken into consideration, what knowledge the author had of the situation into which she would be returning to and whether there is some protocol to distinguish the group’s role as an ‘advocacy network’ from providing unbiased information in cases before the Tribunal. As such I place limited weight on this piece of evidence.
The applicant claimed that Christians cannot exhibit signs of their religion and have to wear clothes suitable for other religions. But this does not align with the country information we discussed at the hearing including specifically about wearing the hijab, which country information indicates is not expected of Christian women in the Iraqi Kurdistan region[11], that [Town 1] is a large Christian enclave, and that the Kurdish government does not discriminate against Christians.
[11] Office of International Religious Freedom, ‘2021 Report on International Religious Freedom: Iraq’, United States Department of State, 2021

As noted above, no claim was made nor does any evidence arise from the material that being an Assyrian Christian as opposed to a Christian of any other denomination would differentiate the treatment she would encounter.
The applicant’s representative in her oral submissions referenced a section of the DFAT report which states, ‘Christians are disproportionately targeted for kidnap-for-ransom and other violent crimes, including by PMF and tribal groups.’[12] I noted to the representative that there are no PMF (Popular Mobilisation Forces, which are Shia militia) in Kurdistan and suggested that the sentence and section read in context refers to other areas outside of Erbil and [Town 1]. The representative disagreed and noted the word ‘including’ as being indicative of the meaning being that Christians are disproportionately at risk throughout the country and that the threat is not just from the PMF but from other groups as well.
[12] DFAT [3.44]
The applicant’s representative provided oral submissions backed by the cut and pasting of a large section of the DFAT report regarding the diminishing size of the Christian population in Iraq over the past couple decades. While this is relevant for context, and I acknowledge that many Christians living in Baghdad and other parts of Iraq have being killed or have fled, for the applicant’s specific circumstances this information is only peripherally relevant.
I note that in post hearing submissions the representative submitted numerous hyperlinks making statements about those links which were not necessarily accurate. For example, in reference to the United States human rights and religious freedom reports she wrote, ‘The reports do not distinguish between the situation in Kurdistan as opposed to Iraq, insofar as the treatment of a person with my client's profile is concerned.’ This is not the case, both distinguish the circumstances not only between the Kurdish Regional Government area but also other provinces as well as the policies of the Kurdish government relative to the Baghdad government including for persons of the applicant’s profile.
To avoid doubt, I have reviewed the country information links provided by the representative in her post hearing submission and taken them into consideration even though not specifically incorporating, referencing or rebutting each.
In considering the circumstances to which the applicant would be returning to I place considerable weight on her past experiences and country information including the DFAT assessment that Christians face a low risk of official discrimination, which would only be even less a risk in the Christian enclave of [Town 1] or the city of Erbil for the reasons already discussed. But I note in the representative’s pre-hearing submission that there are some references of relevance that should be addressed individually:
a.A 2019 report by the UK Home Office was quoted as stating ‘There have been reports of isolated incidents where members of religious minorities have been killed by gunmen in both the IKR and Baghdad, as well as others being targeted by criminal gangs, albeit not necessarily always on the basis of their religion.’
b.A 2019 European Asylum Office report that states, ‘Violence against Christians in the KRI is less common, but Christians in the region continue to face discrimination in the form of intimidation and denial of access to services. Christian NGOs have reported that some Muslims threaten and harass women and girls for refusing to wear the hijab or not adhering to strict interpretations of Islamic norms regarding public behaviour.’
Similarly in the post-hearing submission:
a.Although the KRG is praised for promoting religious coexistence and serving as a refuge for over two million displaced, religiously diverse, Iraqis and Syrians, some indigenous Christian groups from the Nineveh Plains raised concerns, the report says. It cited the KRG’s failure to resolve long-standing grievances, such as lack of funding and support for Assyrian-run schools, discrimination in employment and municipal services, and unresolved “misappropriation” of Christians’ land, businesses, and other property.
The existence of ‘isolated instances’ that may be for reasons of the victim’s Christianity such as described by the UK Home Office is not necessarily the same as there being a real chance or a real risk to the applicant, by the very nature of such incidents being isolated. This is not to say that isolated incidents can’t amount to evidence of a real chance but rather that further information is required including taking into consideration other sources.
Regarding the issue of discrimination and denial of services, I note that the applicant has explicitly said that the KRG is not discriminating against Christians, and I note that the applicant lives in a Christian enclave that has been elevated to the status of a district with its own administration and elected officials as discussed at the hearing. In addition, some of the matters, such as a lack of school funding, discriminatory business regulations or lack of employment are not matters that are relevant to the applicant’s circumstances other than being peripherally indicative of a certain stance, which I have taken into consideration as the wider context.
The representative provided in her pre-hearing submission four links to ‘recent event’s’ that she suggested are indicative of the risk the applicant faces. One was from 2018 when three Kurds attacked a government office and killed a Christian. The second also from 2018 refers to Turkish government airstrikes on rural Christian villages who were perceived to be supporting PKK fighters whom the Turkish government has designated as terrorists. The third also from 2018 speaks of an increase in security incidents in Iraq and in the ‘disputed territories’ between Kurdish areas and Baghdad controlled areas. The last is no longer accessible through the web link provided. Despite the representative’s suggestions, none of these articles provide relevant information to the circumstances of the applicant other than providing context.
Furthermore, the representative relied upon a UK Home Office report from 2011, a report from the United States Commission on International Religious Freedom from 2011 and another from the US Bureau of Democracy, Human Rights and Labor report from 2010. It is difficult to fathom why these reports were referenced. All three reports have been superseded by other reports from the same organisations providing more relevant and up to date information, as such I have not given them weight other than as general background.
With regards to this background and contextual information I acknowledge that there is considerable pressure upon Christians living in Baghdad, Mosul and other areas of Iraq outside of the Kurdistan region. This pressure may over time extend onto the Kurdish government administered areas, potentially driven by the Muslim community in Erbil and [Town 1]. But at the same time, as the applicant acknowledged, there is considerable international support for the Christian community and the KRG has historically been a protector of minorities. How these two competing forces will play out into the reasonably foreseeable future is difficult to ascertain. Overall, in considering this situation I find that what has been the case to date will continue to be the case into the reasonably foreseeable future, that is that into the reasonably foreseeable future there won’t be an increase in harassment or anti-Christian sentiment relative to the past several years for which the country information discussed at the hearing has covered.
As noted above, I accept that the applicant’s mental health will exacerbate any harm she may encounter but conversely, the applicant has support structures in place including four daughters and their families who all live in the vicinity and some will be in a position to provide her some support that would mitigate the impact of her mental health situation.
Considering all of the above and the various aspects of the risk she claims to fear but especially noting that [Town 1] is a large Christian enclave nestled under a Muslim Kurdish regional government that the applicant said does not discriminate against Christians, which also has a history of tolerance towards minorities; and that the applicant had not experienced any serious or significant harm arising from her faith during the period that she lived there; I find that even when considering her mental health, the applicant does not face a real chance of serious harm or a real risk of significant harm arising from her faith.
Other considerations
With regards to the discussion about financial hardship, considering the daughter’s evidence and noting that the applicant has children living and working in Australia and [a country] who can send her money and that she is eligible for a pension and that she has a home to return to, I find that the applicant will not face financial hardship such that she will encounter serious or significant harm.
Regarding the possibility that the applicant will have her generator electricity supply sometimes cut by her neighbour who owns it, I note that there is government electricity albeit intermittent (hence the need for a generator). I find that even without constant access to generator electricity to buttress the supply available to residents through the government provided electricity network, the applicant does not face a real chance of serious harm or a real risk of significant harm.
With regards to her neighbour making verbal comments that harass her, I note that this is reported to have occurred before the applicant deemed it necessary to submit a protection claim, which was instead was claimed to have been triggered by the attempted home invasion. Noting that the applicant and her neighbour live in a Christian enclave in a neighbourhood that remains predominantly Christian, which now has its own district level authorities, that there are only four to five Muslim families in the area, that it wasn’t deemed serious enough to have claimed protection earlier, and that she has the option of spending time with her daughters in other parts of [Town 1], I find that the verbal harassment of one neighbour does not amount to serious harm or significant harm.
The same conclusion applies to harassment from other Muslims unknown to her who may make verbal comments. Having found that the attempted home intrusions were opportunistic and not for reasons associated with the applicant’s profile, and the applicant not having experienced such situations before, I find that she will not be faced with Muslims hitting her doors and undertaking similar actions as she expressed a fear of.
To avoid doubt, as the applicant confirmed that she has not made any public statements opposing extremists the applicant does not face a real chance of serious harm or a real risk of significant harm arising from her non-expressed views opposing extremists.
I repeatedly gave the opportunity to the applicant and her children to explain to the Tribunal whether there were other reasons for her to fear returning to the Kurdistan region of Iraq. None were raised. I note that no other claims arise tolerably clearly from the material available to the Tribunal relevant to someone returning to the Kurdistan region of Iraq.
Cumulative considerations
In considering the applicant’s circumstances cumulatively including that there are insurgent and Islamic extremist groups operating in Iraq whose ideology will continue to influence the approach towards Christians in the same way it has for the past several years and within this context the applicant being a Christian, widowed woman living alone will encounter harm from similar potential persecutors. As the harassment she fears will come from the same individuals and will not include discrimination from the government or local authorities, when considering cumulatively the harm she faces there is little additional risk or impact. This is not a situation where multiple different groups would concurrently be harassing her as opposed to the same people who may one day refer to her faith and the next day her living alone or being a woman. As such, even when considered cumulatively and noting the applicant’s mental health and the additional vulnerabilities that arise, I find that the applicant does not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION

100. The Tribunal affirms the decision not to grant the applicant a protection visa.
Denis Dragovic
Deputy President

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 4380

4 October 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Statutory Construction