1910107 (Refugee)

1910107 (Refugee) [2024] AATA 1141 (4 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Ali Mahmood Alkafaji (MARN: 1386318)
CASE NUMBER:  1910107
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Denis Dragovic
DATE:4 January 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants a protection visa.

Statement made on 04 January 2024 at 12:19pm
CATCHWORDS
REFUGEE – protection visa – Iraq – religion – Kurdish Christian – alcohol shop owner – threats of harm by Muslims and internal security service – Asayish – particular social group – Western oriented Christian women – Christian enclave – prevalence of sexual harassment – inconsistent evidence – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), 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 dependant.
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 8 April 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Iraq, applied for the visas on 21 November 2016.
The delegate refused to grant the visas on the basis that the country information for the situation in the Kurdish region of Iraq was not indicative of a situation in which any of the applicants would face a well-founded fear of persecution.
The applicants appeared before the Tribunal on 21 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [the daughter] of the first and second named applicants who herself is not an applicant as she is an Australian citizen. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic, Assyrian and English languages.
The applicants were 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicants have claimed to be citizens of Iraq. This was not in dispute at the Departmental stage. The applicants used Assyrian and Arabic interpreters which is consistent with the claim of being Kurdish Iraqi, and documents provided to the Department support these claims. As such I find that the applicants are nationals of Iraq.
Country information on the general security situation in Iraq
Throughout the hearing and in submissions the general security situation in Iraq was discussed. In revisiting the evidence available to the Tribunal, 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.[1] This was emphasised within the evidence submitted by the applicant: ‘Iraq is split into two culturally and linguistically distinct areas’.[2]
[1] Page 59 pre-hearing submission
For this reason, in considering the general security situation and other claims throughout this decision, I give greater weight to country information that specifically details the circumstances in Erbil governorate or more broadly Iraqi Kurdistan over generic information that does not distinguish which region of Iraq it refers to or information that conflates the circumstances of people in Kurdistan together with those in the rest of Iraq.
I also note that the applicant’s representative provided considerable information about the security situation reaching as far back as the early 2000s and material relevant to the period when Islamic State was active. While all of this information is relevant contextually, I place greater weight on more recent information as being more representative of the situation into which the applicants would be returning to.
Prior to considering the specific claims of harm the applicants have identified, 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 gender or religion. Such an environment may heighten the level of risk to the applicants where, otherwise, in peaceful circumstances the threats to them would be constrained. To undertake this assessment of the security environment, I shared with the applicants quantitative information as well as qualitative assessments. I also considered country information presented by the applicants and their representative.
Statistics on civilian fatalities in Erbil, a city of about one million people show that in 2021 there were 11 civilian fatalities and in 2022 from January to July 3, civilian fatalities.[3] I suggested that this is indicative of some degree of safety. The first named applicant (“the father”) responded that it was propaganda and fake news as the government wanted such a message to go out. He said that there were many more deaths. The third named applicant said that maybe 11 civilians were killed but many more were kidnapped, tortured, enslaved, and injured. But I noted to the applicants that the murder rate as a proxy for general crime in Erbil is about the same level as the United States.[4] The applicants responded that the authorities don’t publish actual numbers and as such one can’t compare between the United States and Erbil.
[3] UK Home Office:
[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.
With regards to the general security situation, in a letter from the applicants’ Iraq-based lawyer who was representing them over a rental property dispute, the lawyer wrote:
law enforcement and the law in Iraq are quite ineffective as murders and killings are witnessed every day. In each Iraqi city, there is a market for selling arms with a complete absence of security and safety. In Iraq, a general pardon is granted to the prisoners every four years. Hence, this country is no longer a habitable place where one could live in safety and dignity, and [the applicant] and his family are still in jeopardy.[5]
[5] Undated letter, Departmental electronic file, pdf page 283
While I place some weight on the lawyer’s insights, I place greater weight on independent institution’s reporting as it is subject to more rigorous processes and review.
I noted that country information indicates that there are security incidents occurring, but they are targeted at military installations, international troops stationed in the Iraqi Kurdistan Region, US consulate, airbases, and arising from political violence.[6] I added that it is not evident that civilians are targeted. The applicants responded that this reflects that the people would not be safe, inferring that they could be collateral damage. It was put rhetorically, how can US officials be unsafe and Iraqi civilians safe.
[6] UK Home Office op cit
I put to the applicants that the situation in Iraq when they left was different to how it is now as ISIS has lost control of all territory.[7] The applicant noted that people are still seeking refuge in other countries. He referred to a recent explosion in a Christian forum which he claimed led to 300 deaths. When I searched for reporting on the incident during the hearing, I found that it was a wedding ceremony in Ninewah governorate and not Erbil.[8] When this was put to him, he said that it doesn’t matter that it was Ninewa, it was a message being sent to the Kurdish people. I also noted that the same news site reported that fireworks were seen shooting up from the floor and that was the suspected cause of the fire. I asked for evidence that it was a terrorist incident. The applicant suggested that people celebrate using fireworks, however this was planned prior to the event such that an explosion would appear to be fireworks, and that is the way it was covered up. The third named applicant said that there are videos of people walking through the fireworks and hence, she deduced, that the fireworks were not producing heat that could have led to the fire.
[7]
Among the considerable amount of country information provided by the representative, much of which was peripherally related to the situation facing the applicants’ upon return, was a reference to how ‘UN Security Council had repeatedly throughout 2019 and 2020 highlighted ISIL’s continued targeting of civilians and security forces in Ninewa, Kirkuk, Erbil and Baghdad governorates.’[9] This was extracted from a 2021 European Union Agency for Asylum (EUAA) report. But the more recent 2022 EUAA report does not include this reference.[10] Nevertheless, even was the issue persisting despite no longer being included in reporting, I note that the reference to ‘Erbil governorate’ includes a large swathe of area including disputed areas where other country information provided by the representative suggests ISIL is clashing with security forces.[11] As such I accept that ISIS has a continuing presence but not in the areas the applicants would be returning to or frequenting.
[9] Pre-hearing submission page 27
[10] Pre-hearing submission page 35
When reviewing the entirety of the country information on the security situation in the Kurdistan region in general and specifically Erbil city and Ainkawa town where the applicants have lived and have reason to move around, I find that the general security situation is safe and as such does not amplify any individual risks or harm.
The father owning an alcohol shop
The father ran a [store] since 2001 in Ainkawa, a Christian enclave in Erbil. This [store] was subsequently converted to an alcohol shop in 2013. He claims that as a result he would receive threats because he was selling alcohol. He claimed that the threats came from foreign Muslims who did not accept that alcohol should be sold as well as the Kurdish internal security forces, the Asayish.
The father claimed that in November 2016 while he was in Australia and his nephew was running the store, members of the Asayish and Muslim radicals came and threatened his nephew and conveyed threats via the nephew to him as the owner of the store. The father claimed that they said that if the owner returns, he will be killed. When pressed over the claim that the Asayish and the radicals were working hand in hand, the father provided responses that varied from the radicals made the threat and the Asayish protected them to the Asayish had come alone and threatened his nephew, to the threats came from the radicals while the Asayish were waiting outside.
The outcome was claimed to be that the nephew closed the shop after receiving the threats and that he has since moved to [Country 1] where he has been granted asylum.
I noted that in the father’s statement accompanying his protection visa application he had written, ‘they force my nephew to change the shop from alcohol drink shop to mini market.’ I put to him that this inferred that the nephew had not left immediately and that the shop continued to operate. He said that he doesn’t know about that.
I put to the father that he had departed Iraq only two months before the claimed incident and considering that he had claimed that the threats had been ongoing for many years, the Asayish could have stopped him from departing or harmed him earlier. The father did not respond directly and returned to the claim that the threats were constant. I noted that the nephew could similarly have been stopped prior to his departure to [Country 1], to which the father said that the threat was more to him as the owner and not to his nephew.
The father claims that people from the governing party have since taken over the premises where his shop and home used to be. I asked if he had taken this matter to the authorities, community leaders or the church, to which he said that he had not as he is afraid of the armed people.
I noted that Ainkawa is now a district of its own right and as a result it has more power than before vested with its leaders including in the areas of administration and security.[12] I asked if he has tried since this change of status. He again reiterated that he felt that he couldn’t pursue the dispute due to a fear of threats. I noted that he was living in Australia where he was secure and asked whether he had approached a lawyer to get the property back to which he responded that he had not.
[12] >
I put to the applicant that there are lots of alcohol shops in Ankawa[13] and asked whether they were all getting threats adding that there is no information available to the Tribunal suggesting that any have been attacked, destroyed or someone harmed in Ainkawa. News reports were provided by the representative of threats and attacks on alcohol shops in 2011 in Zakho, a border town in Dohuk governorate (a governorate separate to Erbil governorate) and of attacks in the rest of Iraq outside of the Iraqi Kurdistan Region.[14] The representative also quoted a DFAT report in which it states that ‘Christians who sold alcohol face a high risk from the society’[15]. But this was written in the context of the entire Iraq and is not Iraqi Kurdistan Region (IKR) specific (The Iraqi Kurdistan Region is in some country information included below abbreviated as the KRI or Kurdistan Region of Iraq, both references are to the same region). The information provided to the Tribunal that is specific to the IKR does not indicate a similar threat level.
[13] Google Search and Google Maps search
[14] Rioters attack liquor stores in Iraqi Kurdistan, Reuters, December 4, 2011, provided as an attachment to the pre-hearing submission together with quotations from other sources in the same pre-hearing submission.
[15] Pre-hearing submission page 2
Arising from the importance of understanding the nuance of country information on Iraq, I note that unfortunately the representative in his pre-hearing submission repeatedly conflated the situation in Baghdad, Ninewa Plains and other parts of Iraq outside of the Kurdistan region with the situation facing the applicants in Iraqi Kurdistan Region. As such, to avoid doubt, I have read in detail all of the submissions including country information made by the current and past representatives but have given greater weight to references specific to Erbil and IKR.
When it was put to the applicants that there wasn’t evidence of alcohol shops in Ainkawa being attacked, the father said that the Kurdistan Regional Government is strictly controlling the situation and that people are worried to say that they are receiving threats.
I acknowledge the witness statements submitted with regards to their knowledge of the applicant’s alcohol shop being closed based upon threats being received. None of these include any new information and neither of the authors claim to have been present when the threats were made. As such I place limited weight on these letters.
I noted to the applicant that his license to sell alcohol, which he had provided to the Department, has expired, and asked what the risk would be as he is no longer legally allowed to sell alcohol. He said that there is low employment in Kurdistan inferring that he would have to work as an alcohol seller. I put to him that he can run [another kind of store] as he did for twelve years. He said that either way, because his family’s religion, they would kill him. Later in the hearing the applicant claimed that those people who had threatened him in the past would know of him and that they would recognise him and kill him for having owned an alcohol shop.

I accept that the applicant had in the past owned an alcohol shop but that his license has since expired. I also accept that those working in the shop would have at some time received some threats whether it was the father while he was working there or the nephew subsequently. I accept this, as it is plausible. I do not accept the claim that Muslim extremists working together with the Asayish specifically threatened the applicant. I do not accept it as the evidence changed without explanation about how this occurred and in addition there is no evidence to suggest that the sale of alcohol is somehow unwanted by the government. On the contrary, country information provided by the representative in his pre-hearing submission states that the Kurdish government has intentionally ignored efforts by the central government to ban alcohol, and as such I find it implausible that the Asayish were threatening him.
Related to this but discussed further below is my not accepting of the claim that the applicant’s Baghdad-based daughter was forced to regularly move houses beginning after the point when the nephew closed the shop and house and that she was living in-hiding during this period but nevertheless continued to go to the same place of work. Not accepting the claim that the daughter was forced to move around during this time lends weight to not accepting that the house along with the shop was confiscated by the authorities following the threat by the Asayish and the Muslim extremists.
As I do not accept that there was some event that brought the Asayish and Muslim extremists together to threaten the nephew such that he shut down the shop, closed the house and fled the country, I do not accept that the house and shop have been confiscated.
In considering the harm the applicant faces upon return, I note that he no longer has a license to sell alcohol and as such he would not be able to sell alcohol into the future. It would be speculative to assume that he would be able to obtain a new license. As I am finding that the applicant will not be selling alcohol into the future then it follows that the applicant and his family do not face a real chance of serious harm or a real risk of significant harm from the sale of alcohol.
I have also considered the claim that those who had threatened him in the past for reasons of selling alcohol will ‘kill’ him if he were to return. I note that the applicant had not experienced any physical violence when he was selling alcohol from his shop over a period of about five years, but I have accepted that he received verbal threats. Although country information was provided of alcohol sellers facing a high level of risk, information which was generic to Iraq, the specific examples relevant to the Kurdish region were limited to a single reference to incidents arising from attacks in 2011 in another governorate. For the reason of the applicant not having experienced any physical violence despite receiving threats and noting the country information, I find that were the applicant to return some eight years after he last sold alcohol, he does not face a real chance of serious harm or a real risk of significant harm from having in the past sold alcohol and received threats.
I note that it was argued in submissions that the nephew having been granted protection in [Country 1] is somehow supportive of the applicant’s claims. That another jurisdiction found another applicant to be owed protection does not weigh in favour of this applicant in this jurisdiction other than where there is relevant evidence available to this Tribunal.
Circumstances of the daughter and son
The father has a daughter and a son who continue to live in Iraq. Their experiences of harassment were described as examples of the life that they would endure upon return and the threats they would face. It was not claimed that the threats that the son and daughter experienced would in anyway carry over to the applicants, nor does this possibility arise from the evidence.
The applicant’s son was claimed to have had a confrontation with individuals who were members of the Asayish. The confrontation followed a car accident. It was claimed that he was bashed as a result. Arising from this incident it is claimed that the son moved to Basra to be away from the men who bashed him. A letter from two of the other men who were with him when he was bashed was provided to the Tribunal.
The father submitted that his son had received numerous threats before the bashing arising from other issues including pressure to convert to Islam while he was working with the US firm, [Employer 1]. I put to the applicant that it seemed fanciful that a part of the reason the applicant moved to Basra was pressure to convert considering he was living in a Christian enclave in a region that is religiously tolerant to Christians, whereas Basra as with the rest of Iraq is religiously intolerant.[16] The father said that [Employer 1] had a compound in Basra, and he could live there safely but he added, now he is working with a different company also in Basra and claims to still be living in a compound. The father said at the hearing that his son had a problem with the Asayish and that is why he can’t return. The father added that not all Christians are at risk, but his family are because they are from a well-known religious family.
[16] Information about the situation of religious minorities outside of the Kurdistan region was provided by the representative in his pre-hearing submission including extensive information on the situation of Christians.
The father’s daughter is claimed to have worked for [the Kurdish government owned Employer 2], which he wrote in a statement was ‘controlled by the Kurdish authorities.’[17] He claimed that she had been propositioned by someone who worked there who also was associated with the Asayish. It is claimed that this man pressured her to change her religion so that he could marry her. Fearing this man, it is claimed that the daughter moved to Baghdad where she continues to work for [Employer 2].
[17] 10 August 2023 Statement
I suggested to the applicant that the Kurdish authorities being a part of the Iraqi government would have reach into Baghdad and that if this man who worked for the Asayish wanted to harm her, whether in Erbil or Baghdad, he could. Furthermore, I suggested that it was difficult to believe that someone could remain in a job with a Kurdish government owned [employer] if the Asayish didn’t want them to be employed. The father responded by saying that his daughter left because of the man who was harassing her. He said that she left in January 2022 and before this she moved around living in multiple places ever since his nephew was forced to close the shop and move from the house they lived in. When asked about where she was living, he said that he didn’t know. I asked how he could not know where his daughter was living for the past five years. He said that she was very worried and felt that she was under surveillance, so she didn’t say where she was living. I noted that she was going to the same place of employment every day and as such it wasn’t plausible that she was changing the place where she was living to minimise the risk to her from a person who was working in the same place she was going to every day. The father repeated that she left because she couldn’t tolerate that he would harass her.
The father claimed that there had been an investigation into [her as she had highlighted the] corruption and failings of the government. Noting that the applicant remains in her job, I find that this was routine and as it has not led to any adverse consequences to the daughter as such there are no flow-on effects to the applicants.
In considering the father’s claims of the situation of his daughter and son, I am concerned by the implausibility of some of the claims and the apparent contradictions. I do not accept that the daughter was in hiding for five years while living in Erbil for fear of the man who wanted to marry her. I do not accept this as she continued to go to work in the same location and as such living in hiding serves no purpose. I do not accept that she moved to Baghdad because of a man associated with the Asayish who wanted to marry her, and yet she continued to work with the same government owned [employer] which would be pliable to someone who is described as working for the internal security apparatus of the Kurdish government. I accept that the daughter was of interest to a man who wanted to marry her and that the man wanted her to change her religion. I accept this as there is no contrary information and it is plausible.
With regards to the claims pertaining to the son, I accept that the son was involved in a car accident with some people in the Asayish and that he moved to Basra to avoid further confrontation. I do not accept that he moved there for fear of harm because he was Christian, as Erbil has harboured Christian refugees over recent years whereas Basra, as with the rest of Iraq, has been intolerant of Christians.
As there is no claim that the harm the son and daughter encountered will spill over to them what is relevant is the description of the environment to which they would be returning to. As such, arising from what I have accepted to have occurred, I find that there are instances where the internal security forces can abuse their positions of authority, which I take into consideration throughout the decision, and that there are instances of Muslim men who pursue Christian women with an expectation that they convert.
Being Christians
The father’s elder [brother], who was a priest, was claimed to have been shot and killed in 1986. The father believes that his brother was killed because he had provided a ‘good level of service’ to the people. The murderers are believed to be associates of the political party in charge of Sulaymaniyah, one of the three governorates comprising the Iraqi Region of Kurdistan.
The applicant’s daughter who is now living in Baghdad is claimed to have received pressure while at university to convert to Islam in addition to being pressured by a person at work who wanted her to convert so that he could marry her.
We discussed country information about Christianity in Erbil. I put to the applicants that Ainkawa is a Christian enclave. The father agreed, but he added that no one lives at ease and that they fear the Islamic majority in surrounding areas. He claimed that women can’t go out on the streets with a crucifix without receiving threats whether it’s in Ainkawa or in Erbil. I put to him that I find it hard to believe considering that there is a Catholic university[18], Christian schools[19] and many churches in Ainkawa.[20] He responded that even with these institutions, people don’t live at ease and that people are still under threat.
[18] United States International religious Freedom Report
[20] Google search and Google Maps search
I asked whether the Kurdish region has been a place where other minorities have been fleeing to. He concurred that it has been since the arrival of ISIS adding that they came for the purpose of temporary asylum.
I noted that DFAT ‘assesses that Christians belonging to recognised denominations face a low risk of official discrimination’.[21] He responded to this information by saying that the vast majority of refugees who came to Ainkawa had subsequently sought help from Western countries and managed to obtain asylum abroad.
[21] DFAT Country Information Report: Iraq, January 2023 at [3.45]
I read from the 2022 United States International Religious Freedom report[22]:
a.There were continued reports of societal violence by sectarian armed groups across the country, except in the IKR.
The applicant responded by saying that people are subject to killing and extortion despite the protection provided by Americans. They are refugees in their own countries.
b.IKR law forbids “religious or political media speech, individually or collectively, directly or indirectly, that brings hate and violence, terror, exclusion, and marginalization based on national, ethnic, religious, or linguistic claims.”
The applicant said that these are only words.
[22] >
I noted that there are around 7,000 Christian families residing in Ainkawa, making up more than 50,000 people, and according to Warda, a news source, it is the largest Christian community in the Middle East.[23] The applicant acknowledged the size but asked whether it provides any protection and repeated that the majority of people live in fear.
[23] >
Amongst the submissions received by the Department and Tribunal are a considerable number of documents relating to the circumstances of Christians in IKR but from a decade ago or more when Islamic State was present and expanding. I note that the situation has changed since then, and that Islamic State no longer controls territory as it once did.[24] As such I preference current country information over what was provided in earlier iterations of this visa application process.
[24] >
Aligned with the above country information among the material provided by the representative is a summary from a 2019 UNHCR report of which I note the following: ‘Country information indicates that the situation for Christians in the IKR has been relatively better than in other parts of Iraq. Some sources indicate the situation for Christians in the IKR is very stable, and that they are better protected by legal provisions and enjoy equal business and employment opportunities.’[25]
[25] Pre-hearing submission page 15
I also note that some of the country information provided by the applicants references the situation outside of the IKR and in particular the situation in the Ninewa Plains. While providing some context, such information is not directly relevant to the situation the applicants would face returning to Iraq as they have not expressed any need to travel outside of the IKR either in the past or the future.
The country information extracted in the pre-hearing submission by the representative includes mentions of ‘instances of discrimination…against members of minority groups’ in the Kurdistan region and ‘instances’ where members of religious minorities have been attacked or kidnapped. But the existence of ‘instances’ of discrimination or attacks is not necessarily the same as there being a real chance or a real risk to the applicant. This is not to say that ‘instances’ can’t amount to evidence of a real chance but rather that further information is required, including taking into consideration other sources.
The father also claimed that they are from a well-known Christian family, and I note that he holds the role of a deacon in an Australian church. Having had a brother who was a priest and was murdered leads me to accept the father’s claim that they would have a profile as Christians. But no independent evidence was submitted that would suggest Christians from families that are known Christians or hold some leadership role are targeted and harmed specifically or more so than others. As such, while I accept that the family would be known within the Christian community and possibly beyond, I do not accept that it changes their risk profile.
In considering the applicants’ claims arising from their Christianity, I do so in the context of the applicants living in the Kudistan region and as such relying on the country information that is specific to those circumstances. I also place less weight on the lived experience from an earlier time, specifically the death of the father’s brother in the late nineties and the kidnapping of the second named applicant’s brother when she was a girl. More recently the country information and the lived experience that I have accepted leads me to find that the applicants do not face a real chance of serious harm or a real risk of significant harm arising from their faith.
House in [Town 1]
The father claimed that the family had a house in [Town 1], where his brother was killed, and that [Mr A], a person who was with the Asayish had been squatting in it for several years and not paying rent. He claimed that they had to go to court to have him evicted with the outcome being that they won each of three court cases.
The applicant won the third case in 2012 and [Mr A] was evicted in about 2015. A letter submitted by the lawyer representing the applicant in this matter notes that the court impounded [Mr A]’s salary and deducted 20% of it to pay for the amounts owing. According to the lawyer’s letter in 2015, [Mr A] called him and wanted the monthly deductions stopped and when the lawyer explained that he couldn’t, he was threatened. At the same time, according to the letter, the father was also threatened. As a result, they both went to the police and [Mr A] was arrested, but he was not imprisoned, as according to the lawyer, he is an influential person.
The father claims that it wasn’t until 2018 that [Mr A] took further action and not against him but against his lawyer. It was claimed that the father’s lawyer was beaten and threatened to be killed if he continued with any action to recoup the money. When I asked why it took [Mr A] six years to take physical action, the applicant did not answer directly until I had rephrased the question three times and then he suggested that 2018 was the first opportunity [Mr A] found to harm the lawyer. Later, he suggested that people don’t forget their desire for revenge. Noting that the applicant was in Iraq through to 2016 I asked how he had avoided being harmed, to which the applicant said that he was threatened regularly at his shop and so was his wife and then he went to Australia.
The lawyer in his letter indicated that arising from the threats and being beaten he fled the country and went to [Country 2].
The second named applicant claimed that [Mr A] tried to forcibly enter her home while her husband was away. The third named applicant who was present at the time said that he was calling for the father and saying that he’ll catch him and do what ‘we’ did to his brother, referring to the death of the father’s brother who was a priest.
In considering this evidence I find that the applicant’s claim that [Mr A] was unable to find the lawyer to act earlier is implausible especially if he is a member of the Asayish as he is claimed to be. Instead, I find that [Mr A] is not a member of the Asayish.
I also note that the applicant was not physically attacked for four years after winning the case and the money being required to be repaid, although I accept that he came to the house once looking for the father.
I also accept that he received verbal threats at his shop and home. But were the applicant to return eleven years after the court case concluded and assuming that [Mr A] would know of his return, I find that the father would not be physically harmed but would be verbally abused and threatened as he was in the past.
While verbal abuse and threats can amount to serious harm in some instances, the past in this case is informative of the future circumstances the applicant would face. Noting that the verbal threats he claimed to have endured did not lead him to take any action other than reporting it to the police and it did not lead to any physical harm, accepting that the threats and abuse would be repeated upon return, I find that they would not amount to serious harm or significant harm.
Circumstances specific to the second named applicant
The second named applicant has a bullet wound in her hand arising from when she claims she was shot by ‘Islamists’ who were after her brother some time when she was a young girl.[26] It is not claimed that this incident would lead to the second named applicant facing harm but that it provides context to the circumstances of Christians in Iraq.[27]
[26] Delegate’s interview as reproduced by the applicant’s representative and presented to the Tribunal in the pre-hearing submission. Page 25.
[27] Paragraph [r] of the representative’s pre-hearing submission

Other than the claims arising from the circumstances detailed above the second named applicant did not express any other concerns nor do any others arise from the material available to the Tribunal.
I find that the second named applicant does not face a real chance of serious harm or a real risk of significant harm arising from the past experience of being shot when Islamists came for her brother, nor of any other reason separate to those raised by her husband.
Circumstances specific to the third named applicant
The third named applicant completed her own Part C form for the protection visa application but in the sections that allow for applicants to express their fears of return, she wrote ‘Please refer to my main statement’. Clarification was sought from the applicant as to what was being referred to as no additional statement was on the Departmental file. The applicant’s lawyer responded by email on 5 December 2023 explaining that ‘[the third applicant] did not have a statement of claims of her own and she relied on her parents statements’.
At the Tribunal hearing the third named applicant outlined her fears of returning to Iraq.
These claims were discussed without her father present at her request but with the presence of her mother.
At the hearing the third named applicant explained that she can understand Arabic but not speak it and that she can engage in Kurdish but only minimally. She said that her accent now is identifiable as a foreigner or outsider.
She claimed that having lived in Australia for over seven years, arriving at the age of fourteen, that she has adopted Western culture, specifically that she speaks her thoughts openly and that she is used to socialising with men and women. She described this as being Western oriented.
She described past experiences of harassment including sexual harassment while living in Erbil such as being touched and being approached when not accompanied by another man. She claimed that in school even when she was in Year Two other children would force themselves onto the girls and tell the Christian girls that they are halal (permissible). She said that her older sister experienced emotional abuse because of her religion.
When we discussed the regularity of such harassment, she said that in Australia it only happens in certain situations, but in Ainkawa it can happen anywhere, anytime. She said that she is basing her insights on stories of people who are there. She said that one of her friends just came to Australia and that she was petrified of the situation in Iraq based on what her friend described. Another who attends the Catholic university in Erbil, is claimed to have told her that men approach her whenever she is alone, and she said that the women can’t do anything about it.
I noted that in 2021 the Kurdish government changed the designation of Ainkawa from a sub-district to a district which meant ‘residents will be able to elect officials and representatives, run their administrators, be in charge of security and benefit, unlike the past, from a mayor with “direct authority”.’ I noted that the Archbishop said that this change was ‘a “very important decision for Ankawa”,’ and a ‘strategic move to maintain the Christian presence in the region and an incentive for Christians to remain and invest in their community.’[28] In response she said that it is all just pretending and that they don’t really have power. If they had power, there wouldn’t be any Muslims in Ainkawa or at least the type that she has had negative experiences with.
[28] >
We discussed country information about women in Kurdistan, noting that arising from the applicant’s circumstances she would not be confined to Ainkawa, a Christian enclave, and instead would for reasons of education, shopping or socialising move around Erbil and possibly other Kurdish cities. As such, it is relevant to consider information that reflects the situation of Western oriented Christian women living in Kurdistan.
At the hearing I summarised the key points from the below academic article in the Georgetown Journal of International Affairs:
[C]ompared to other Islamic societies, Kurdish women have at times exercised more freedom. Travelers have noted how Kurdish women usually go unveiled and, although arranged marriages still exist, even in marriage, women can sometimes be wooed and won. Wives, too, have been treated more equally by their husbands compared to other Middle Eastern locales. Kurdish women have had more financial security than women in neighboring societies and can more easily succeed their husbands as the head of a family, even when they have male children.[29]
[29] Michael M. Gunter, ‘Gender Issues in Kurdistan’, Georgetown Journal of International Affairs December 30, 2019
The second named applicant said that there is no freedom for women, giving the example of her having taught at a school near where she lived, but then being moved to a school half an hour away and that she was replaced with someone who had connections.
The third named applicant said that while women who attend the Catholic university in Ainkawa do so without a hijab, it is required of them to have a male protector and that without one they are at risk.
I noted that Kurdistan’s representative to the United States spoke of the role of women in her society saying:
There is a quota of 30% female members of parliament, the main political parties include women in their leadership, and there are female cabinet ministers and envoys abroad. The speaker of our parliament is the second woman in succession to hold that post, which is a rarity in the Middle East.[30]
[30] >
The sister of the third named applicant, appearing as a witness, said that this does not show the true situation in Kurdistan saying that women who hold those roles don’t actually have a voice as in Islam the opinion of women is not considered to be ‘logical’ as is a man’s. The third named applicant added that when women have their menstrual cycle they cannot be touched and are considered dirty.
The second named applicant, in her response, reverted to the issue of faith and noted that even those Christians in positions of power have Muslims under them.
We discussed the prominent role of Kurdish women in the Peshmerga, the Kurdish paramilitary forces:
Notably, the IS threat against women’s life in the Sinjar region in August 2014 encouraged more “Kurdish women to join the frontline war effort, challenging their victim role in warfare and broadening their identity from being mere caregivers to protectors” (Nilsson, 2018b, p. 16). This also brought forward some changes in the conservative Kurdish society concerning women’s roles and identities, so that it became easier for women to join the Peshmerga today than it had been before.[31]
[31] Alizadeh, H., Kohlbacher, J., Mohammed, S. Q., & Vaisi, S. (2022). The Status of Women in Kurdish Society and the Extent of Their Interactions in Public Realm. SAGE Open, 12(2).
All three of the women, two applicants and the witness, dismissed such claims questioning whether there were any women who fought as Peshmerga and suggested that it was just propaganda reporting. The witness indicated that women can’t go out of their homes in safety and must be accompanied by males and then rhetorically asked, how could they then fight alongside men.
Noting the academic standing of the authors of the article regarding female Peshmerga and that there are numerous other articles about female Peshmerga from reputable sources including one from the Washington Institute[32] that speaks of a long history of females serving as Peshmerga (albeit originally in support roles), I give greater weight to the independent evidence and do not accept the rebuttals of the applicants and witness. Furthermore, their apparent lack of knowledge of this leads me to question whether their understanding or insight into the true nature of the situation in Kurdistan is not tainted or being misrepresented.
[32] >
I note from among the country information submitted by the representative one extensive report, IRAQ: Compound structural vulnerabilities facing Christian women under pressure for their faith, engages with the situation of women in Kurdistan. In many places the reference to the circumstances of women is generic reaching across all of Iraq and conflating the situation in the two areas of the country, but I have extracted some of the sections relevant to the applicant where the report specifically focuses on the situation in the Kurdistan Region of Iraq (KRI):
Iraq is split into two culturally and linguistically distinct areas: the majority of the country is governed by the Iraqi Government, and, in the North East, Iraqi Kurdistan/ Kurdistan Region (KRI) by the Kurdish Regional Government (KRG).
….
Sexual harassment is part of the daily experience of most women in Iraq and KRI. According to a 2015 report by the Iraqi Women’s Journalists Forum, 8 in 10 women [experienced sexual harassment… Increased sexual abuse and harassment are also linked to the sectarian conflict and violence, and are used along with killings to intimidate and humiliate rival communities and settle scores. The weakened rule of law and lack of legislation to recognize the problem and punish perpetrators allows it to grow and continue. Yezidi and Christian women have both fallen victim to this deliberate targeting in Iraq and KRI…Whilst women in KRI are targeted for sexual abuse and kidnapping relatively less than in the rest of Iraq and women’s activism is very strong, general harassment remains a major issue to tackle.
…
While the danger for Christian women displaying Christian symbols and not wearing the hijab is extremely high in some areas, with violent reprisals, organizations in Iraq explain that wearing the cross can in fact be viewed positively at many checkpoints in certain areas of Baghdad and KRI.
…
According to Kaya [a London School of Economics research fellow], women in KRI fare better than those in the rest of Iraq in participation at decision-making level and in terms of legal reform to end discrimination. However, this is still very limited (even compared to some surrounding countries): government officials prioritize security and stability over the rights of women and economic development, and patriarchal attitudes persist towards participation of women in social, political and public life.
…
Change, Kaya argues, is happening in KRI, in large part incentivized by the positive image and relationship the region has with international actors who are considered as a help in their aspiration to statehood. The hope is that by promoting women’s rights to an international standard, this will encourage international actors in turn to promote KRI’s own cause. The combination of better laws and awareness amongst women of their rights is leading to increased empowerment at every level.[33]
[33] IRAQ: Compound structural vulnerabilities facing Christian women under
The Representative also provided an extract along with a link to the European Union’s Asylum Agency report on Iraq which has a section on the situation of Christians in the KRI. Relevantly it notes:
Examples of reported violence against Christians include…rape, (sexual) harassment…especially in Ninewa plains
…
[In the KRI] Christian NGOs have reported that some Muslims threatened and harassed women and girls for refusing to wear the hijab or not adhering to strict interpretations of Islamic norms regarding public behaviour.[34]
[34] Pre-hearing submission page 50: EUAA Country Guidance Iraq 2021
Overall, the country information is indicative of a situation in which women do not enjoy the full level of freedom and gender safety that they do in Australia. But the test that needs to be applied is not one that undertakes a relative comparison against the standards of Australia but rather asks whether there is a real chance of sexual harassment, or gender-based discrimination, and if there is, whether it amounts to serious or significant harm.
As the country information has presented a general view that the situation for women in KRI is not what would amount to persecution or significant harm, I note that a divergent opinion is presented in the representative’s submission based upon the OpenDoors report: IRAQ: Compound structural vulnerabilities facing Christian women under pressure for their faith:
Sexual harassment is part of the daily experience of most women in Iraq and KRI. According to a 2015 report by the Iraqi Women’s Journalists Forum, 8 in 10 women experienced sexual harassment. (italics added)
This figure of 8 in 10 was footnoted. When turning to the source, an Al Jazeera news report, the claim is again quote and referenced through to a report by the Iraqi Women Journalists Forum-2015 titled A new study reveals facts about the phenomenon if sexual harassment in Iraqi society. In this original source there is no claim of sexual harassment being a part of daily life to the IKR. This appears to have been added by OpenDoors. Instead, the reference in the report to 8 out of 10 women experiencing sexual harassment is limited to ‘Baghdad and surrounding cities’.[35]
[35] As noted, references to the situation in other parts of Iraq are not relevant to the Kurdish situation for reasons of its cultural separateness as well as its very different political trajectory that has led to the situation of women living different lives as detailed by the Kurdish representative to the United States and reported in the Georgetown Journal of International Affairs. In addition, I note the lived experience of the daughter who works as a [occupation] for [Employer 2] indicates that important and influential roles can be attained by Christian women.
101. I note that among the country information provided by the representative is a mention of a risk of rape, but it is limited to the European Union report which includes the comment that it is ‘especially in Ninewa plains’ which is outside of the control of the Kurdish government and not an area that either of the two female applicants have reason to travel to into the reasonably foreseeable future. I note that other examples of reported violence in that paragraph include ‘prevention of return’ which is very specific to the circumstances of Christians in Ninewa and as such I interpret the reference to rape ‘especially in Ninewa plains’ as suggesting that while the crime of rape also occurs in the IKR (as it does in other countries), it is not prominent such that it would be referenced specifically. That it is not referenced leads me to conclude that the incidence of rape is not such that the female applicants would face a real chance of it occurring to them. Instead, I accept that sexual harassment does occur and takes the form of verbal abuse for not wearing a hijab or as the applicant indicated it can also include touching, or ‘general harassment’ as the Open Door report suggested.
102. In turning my mind to the question of whether the applicant faces a well-founded fear of persecution, I note that examples of serious harm are given in s 5J(5). They include (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. Importantly, this list is not exhaustive.
103. When considering the evidence given by the female applicants and witness I am concerned by the apparent lack of insight to the situation on the ground and the significant differences in how they described the situation to what is available from country information. When this was put to them their answer was that not everything is reported. But the IKR is a region that has been under considerable NGO attention as seen by the number of reports available to this Tribunal. It is hard to dismiss these reports and favour the evidence of the applicants who have not been in Iraq for seven years, are reporting the views of their friends and may have some inherent biases.
104. Based on the country information available to the Tribunal I find that the applicant would face ‘general harassment’ including verbal harassment including pressure to convert to Islam and some instances of touching into the reasonably foreseeable future. I note that the applicants live in a Christian enclave and as such the verbal harassment from Muslim men would be limited and there is no independent evidence to suggest that the incidence of touching or other similar harassment is common or endemic such that the regularity of its occurrence would amplify its impact. I also accept that she may be pursued romantically by a Muslim man who would expect her to convert, as her sister was, but I find that there is a remote chance of this as she lives in a large Christian enclave and whether she finds work outside or is of interest to a Muslim man who would expect her to convert is speculative.
105. While incidents of touching and similar harassment would be unwelcome, I find that it does not amount to ‘serious harm’ in the context of the Migration Act. As such I find that the female applicants do not face a real chance of serious harm or a real risk of significant harm.
106. That the applicant cannot fluently speak Kurdish or Arabic will be a hindrance to her. It will mean that she may struggle to find work which in addition to the general gender and religious discrimination may lead to the applicant facing economic hardship. But the applicant will have family relations and the support of a Christian community of which her father will continue to be an active member. When considered holistically, I find that this confluence of intersecting discrimination with the impact of limiting her ability in the near term to find employment and contribute to sustaining herself independently does not lead to her facing serious or significant harm.
107. I have also considered the third named applicant’s claims of being Western oriented including how she speaks and who she socialises with. As noted above, it is test that needs to be considered is not whether the applicant will have lesser freedoms than she has in Australia but whether how she lives her life free of fear would lead her to facing a real chance of serious harm or a real risk of significant harm. From this perspective, when considering the country information available to the Tribunal as a whole, noting what has been referenced above speaks of cultural expectations but gives no indication of harm that would amount to serious or significant harm as retribution for breaching these expectations, I find that the risk the applicant would face serious or significant harm as a result of her ‘Western oriented’ thought or actions is remote.
108. I note that while the applicant expressed a genuine fear of the circumstances to which she would be returning to and was expressing her fears with genuine emotion there is no evidence to suggest that she has particular vulnerabilities such that she would be impacted disproportionately by any harm.
Cumulative considerations
109. In considering the situation for the family members cumulatively I note that the father would continue in some role within the Church, that his role and their faith would be known. The two women would have different trajectories in their lives and face different circumstances, but each of their lives would have impacts on the other family members in the sense that any man, for example, who wanted to marry the third named applicant could conceivably react adversely if the parents rejected his advances. There are also circumstances of a cumulative nature individually, such that, for example, the father being a Christian from a high profile family and a former seller of alcohol, whose brother was deemed a threat such that he was killed in the late nineties, could bring him to the attention of Islamic extremists.
110. Running throughout the claims and expressed explicitly by the second named applicant, is corruption or the wielding of undue influence due to connections and the possibility of security forces abusing their positions of power. The applicants’ have variously indicated, and I have accepted instances where this has played a role, for example, with the son’s inability to find justice after a car accident. I accept that Iraq and specifically the IKR is a country and a region that has considerable levels of corruption and that connections can influence the outcome of disputes. But I also note that the applicants went to court to evict a squatter and the justice system delivered a favourable outcome as was the case when the father complained of threats from [Mr A]. Nevertheless, I accept that the presence of corruption and influence of connections marginally increases the risks the family faces and potentially amplifies the harm.
111. But when considering all of the possible permutations both individually and how they interact across the family, noting the impact of corruption and how it may influence risk and harm, I find that none of the situations will lead to any of the applicants facing a real chance of serious harm or a real risk of significant harm.
1. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
113. Section 36(2)(b) of the Act allows for s36(2) to be met if the other applicants are a ‘member of the same family unit’ as the person who is meets the criteria for a protection visa.
114. The definition of ‘member of the same family unit’ is set out in s 5(1) of the Act and states that one person is a member of the same family unit as another if either is a ‘member of the family unit’ of the other or each is a ‘member of the family unit’ of a third person. Relevant to this case, it includes the scenario where a child is the one found to meet s 36(2)(a) and the head of the family and the other parent are a part of the same family unit.
DECISION
115. The Tribunal affirms the decision not to grant the applicants protection visas.
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.
…

pressure for their faith, Open Doors International / World Watch Research Unit, November 2018 available at
Key Legal Topics
Areas of Law
- Immigration
- Statutory Interpretation
Legal Concepts
- Judicial Review
- Jurisdiction
- Natural Justice
- Procedural Fairness
- Statutory Construction

Actions

Download as PDF Download as Word Document

Citations

1910107 (Refugee) [2024] AATA 1141

Cases Citing This Decision

Cases Cited

Statutory Material Cited

[2024] AATA 1141

4 January 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Statutory Construction