1912249 (Refugee)

[2023] AATA 1605

1912249 (Refugee) [2023] AATA 1605 (6 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Sally Szmerling

CASE NUMBER:  1912249

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Denis Dragovic

DATE:6 March 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

Statement made on 06 March 2023 at 1:10pm

CATCHWORDS
REFUGEE – protection visa – Iraq – land dispute with powerful political figure – passage of time – religion – conversion to Christianity – countryside – harm from the tribe, extended family and militias – internal relocation – Kurdish Region of Iraq (KRI) – complementary protection – reasonableness of relocation – Kurdish bureaucracy – language barriers – support networks – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 46A, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
FCS17 v MHA (2020) 276 FCR 644
MIAC v SZQRB (2013) 210 FCR 505
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 May 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of Iraq, applied for the visa on 17 May 2019. His visa application was made based on the following reasons: his fear of harm because of a land dispute with a powerful political figure, [Mr A]; his conversion to Christianity; and his lifestyle and profile, which could put him at risk as he has been living in the West.

3. The delegate refused to grant the visa on the basis that he did not accept the applicant’s claims regarding the power [Mr A] wielded, and found the land dispute to be without any animosity despite accepting that the applicant’s father was murdered over it. The delegate doubted the applicant’s credibility, finding, for example, that the kidnapping video showing his brother being held hostage in a way common to that period was staged. The delegate did not accept that the applicant had converted to Christianity but accepted that he was a non-practising Shia Muslim. The delegate attached little weight to the argument that aspects of the applicant’s life in the West placed him at risk.

4. Prior to applying for a Safe Haven Enterprise visa (SHEV), the applicant had earlier protection applications considered. The delegate summarised the applicant’s protection assessment history following his arrival to Australia [in] June 2010, which I am reproducing below:

   26/07/2010 Attended arrival interview

   13/08/2010 Lodged a request for a Refugee Status Assessment (RSA)

   09/11/2010 RSA completed – no protection obligations

   07/09/2011 Independent Merits Review (IMR) of negative RSA completed – no protection obligations

   [date]/10/2012 Judicial review in Federal Magistrates Court (FMC) result – Minister win

   14/10/2015 International Treaties Obligations Assessment (ITOA) completed – no obligations

   [date]/04/2018 Judicial review of ITOA in Federal Circuit Court (FCC) result– Minister loss

   23/05/2018 S46A bar lifted

   26/07/2018 Valid application for a SHEV lodged

5. The applicant appeared before the Tribunal on 13 January 2023 to give evidence and present arguments. The applicant’s partner of 10 years, [Ms B], also gave evidence.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

7. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

   CRITERIA FOR A PROTECTION VISA

8. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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.

9. 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.

10. 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).

11. 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.

12. 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

13. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

14. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF Claims and evidence

    Evidence and findings of fact

15. The applicant has provided a copy of an Iraqi identity card and marriage certificate to the Department. Through 13 years of engagement with the Department, there has not been any dispute over his claims of being from Iraq and the applicant’s narration of his life in Iraq was compelling. As such, I find that the applicant’s nationality is Iraqi and his receiving country is Iraq.

16. The applicant resides in Darwin with his Australian citizen partner of 10 years. The applicant has not applied for a partner visa with his current partner because he came to Australia by boat and as such, he is barred from applying under s 46A.

17. Also living with the applicant and his partner is the applicant’s brother, who left Iraq with the applicant and applied for protection at the same time. While the applicant’s brother was granted a temporary protection visa by the Department, the applicant was not.

18. While the brother’s claims regarding what led them both to flee Iraq were consistent with the applicant’s, the reasons for the Department’s grant of the brother’s visa revolves solely around his sur place Christian faith claims. The applicant’s representative provided a copy of the Departmental notes that accompanied the grant of his temporary protection visa. The key passages are:

    In response to questions posed to the applicant in writing regarding his conversion to Christianity the applicant provided information through his agent in a detailed written submission dated 15 January 2018 ([Department file number]). The information provided clearly articulates how the applicant became interested in Christianity and how his interest grew to becoming formally baptised around May 2014. The information before me suggests that the applicant is highly committed to the faith he has chosen and that Christianity plays an important part in the applicant’s daily life.

    I also note from his written application that the applicant has made public on his [Social media 1] page that he has been baptised in Australia. Photos posted on social media also confirm that the applicant is a Christian. I acknowledge that the applicant has stated that should he return to Iraq he would identify as a Christian as being a Christian is important to him.

19. While the applicant embraced Christianity alongside his brother, there may have been differences in the degree of adherence to the faith or belief by the delegates in the genuineness of the conversion that led to one being granted a visa and the other not.

20. This is relevant to the current review in so far as the applicant will be imputed with religious beliefs arising from his brother being granted protection on the basis of his own conversion to Christianity.

21. The applicant spent the first [number] years of his life in Iraq in the town of [Town 1]. He left school after Year [grade] when he started to work as a [Occupation 1] for his father. He has [number] sisters and [number] brothers. Of the applicant’s brothers, one is claimed to have passed away ([Mr C]), and one is in Australia ([Mr D]). [Mr C] has three children who are [age], [age] and [age] years old. The applicant’s brother, [Mr D], has a five-year temporary protection visa and is currently living with the applicant.

22. As for the applicant’s sisters, [number] are living outside of Iraq ([Country 1], [Country 2] and [Country 3]) and one remains in Iraq. The applicant’s mother is alive and lives with her daughter in [Town 1].

23. The applicant was married in Iraq and has [number] children. For a period of time he was not in touch with his wife and children as they had travelled to [Country 4], but at the hearing he claimed that he has resumed contact with his children who are now living with their mother in [Town 1].  

24. The applicant’s father was a member of the Baath Party. Despite being a member, the applicant said that during Saddam’s reign the family would face challenges such as having the government forcibly take ownership of property.

    Land dispute

25. In relation to the claim of fearing harm arising from a land dispute, the background to this is that the applicant’s father bought [number] acres of [land], a house and a workshop in approximately 1980. I asked how the applicant’s father could afford to buy such a property as it was claimed that he was a [Occupation 1]. I noted that the purchase was made not long after the Iran-Iraq war, a period with limited economic growth. The applicant said that his father was a [Occupation 2] and that he also worked as a [Occupation 1] and received some money from his mother. I put to him that [Occupation 2] wages were low. He disagreed. I put to him that they were around US$[amount] per month; he subsequently agreed with this.[1] Then he said that they used to make [products], for which they received a lot of income. He added that when his father’s mother passed, she left a large piece of land near the city, which was sold; the proceeds were used to buy the land. In addition, his father obtained a loan.

    [1] [Source deleted].

26. The applicant claimed that with the fall of Saddam Hussein’s regime, a person named [Mr A] came to their family and claimed the land, believing that his family had original ownership, that the applicant’s family were only leasing the land and stating that he wanted it back. I noted that the applicant’s submissions suggested that the original approach was about 2003. At the hearing he concurred.

27. I noted at the hearing that in the applicant’s written submissions he claimed the first threat occurred in 2009. He agreed. I asked what happened during the intervening six years. He said that they tried to work out the dispute through tribal mediation.

28. The applicant and [Mr A] are from different tribes. The applicant described his tribe as being small whereas the tribe of [Mr A] is much stronger. The applicant wrote in his statutory declaration of 2011 that:

    I do not think that this dispute between my father and [Mr A] would have even arisen if they were members of the same tribe…My father and [Mr A] on the other hand were forced to attend mediation between the two tribes which was ultimately unsuccessful.

29. In his prior submissions and at the hearing, the applicant described the circumstances of his father’s killing. In summary, on 29 December 2009, the applicant’s father and [Mr C], his brother, were getting ready to go to the market when a vehicle drove by and fired shots. He wrote that his father was shot twice in his chest and his brother was shot in the leg. His father was killed in that incident but his brother survived as the bullet went cleanly through his leg.

30. Following this incident, the applicant’s family moved out of their home and went to live with the applicant’s sister in a town an hour away from [Town 1]. After a few months of what the applicant in his entry interview described as moving around ‘from place to place’, the applicant and his brother [Mr D] decided to flee Iraq, first travelling to Iran and then from there to [another country] and onto Australia.

31. At the hearing the applicant said that [Mr A] was a member of the Dawa Party, tied to the main office in [Town 1]. He said that he wasn’t sure what role he held, but that it was ‘something big.’ I put to him that the Dawa Party has diminished in its relevance and that it is no longer influential. He disagreed, saying that they are the main controllers of Iraq.

32. I put to him data from the last election which shows that up to 2018, the Prime Minister was from the Dawa Party but since 2018, according to country information, it was losing support.[2] He disagreed, suggesting that Moqtadr Al-Sadr and the Dawa Party are the main groups with influence in Iraq at the moment. I noted that former Prime Minister Nouri Al Malaki is now with another party and no longer with the Dawa Party. He accepted this but said the Dawa Party had split into two parties.

    [2] Iraq’s Dawa Party is in decline, The National, 8 October 2018; Harith Hasan, ‘From Radical to Rentier Islamism: The Case of Iraq’s Dawa Party’, Carnegie Middle East Center, April 16, 2019

33. I asked what position [Mr A] held that gave him such influence. He said that people closely associated with political parties get given high rankings in the military or government but he could not name the position that [Mr A] held. I put to him that in his written submissions he had claimed that he was a Brigadier General. I asked why he wasn’t able to recall that. He said that he just remembers that it was a high position but because he hasn’t been in the military, he couldn’t recall the specific title.

34. The applicant claims that his brother lodged a complaint with the police following the shooting, but they did not pursue the matter. This is supported by the statutory declaration made by the applicant’s brother for the purposes of his application in which he states that he made a complaint but they did not see any action by the police.

35. The applicant said that [Mr A] has not targeted any other member of the family in Iraq as far as he knows. The applicant has cousins in Iraq, but he is not sure if they have been targeted, though he said that it is a personal issue and that there is no reason for them to be at risk.

36. I asked why [Mr A] would care about a piece of land that even a [Occupation 2] could afford to buy if he had such power and was of such a high rank. He said that land is now valuable in Iraq and so [Mr A] would feel he wanted to get his family’s land back.

37. I asked why he would care about the applicant returning as he has had control of the land for more than a decade. He responded that his family gave [Mr A] a bad name. In addition, the applicant said that he will ask for his rights to get his land. I put to him that the family has, according to his evidence, exhausted all avenues including the Agricultural Law Court and the police. He said that [Mr A] is full of hatred and could pay someone to just get rid of him. I noted that even if he was full of hatred, the applicant is from a small family within a small tribe whereas [Mr A] is a powerful man and would not appear to have a reason to care about the applicant’s return. He responded that it is because his family told everyone in town about what happened. I put to him that appropriation of land, corruption and murder were widespread in Iraq[3] and asked why anyone would care if his family had accused [Mr A] of this, considering that anyone who has acquired any wealth in Iraq is thought to have done the same. He said that [Town 1] is a small town with one main road, and that the family told the four tribes about what [Mr A] had done to them. The applicant believes that it is important for [Mr A] to respond and to remove the family completely. He said that he is so powerful no tribe would stop him.

    [3] Corruption is Strangling Iraq, The Century Foundation, 14 December 2022

38. With regards to the applicant’s claims that his brother [Mr C] was killed in October 2010 by [Mr A] after the applicant had arrived to Australia, I read back to the applicant what he had written:

    [Mr C] had gone to a local store to buy cigarettes and when he came out he was intercepted and taken by two men who had been waiting in a black car. We know this because the manager of the store witnessed it and later told my sister. My brother’s body was found in the street near my sister’s house around four days later. My family is certain that my brother was murdered by [Mr A] as [Mr C] had offended him at the time of my father’s death, and we do not know of any other enemies.

39. I asked how he could know that [Mr A] was involved based upon the information he had. He simply responded that [Mr A] had destroyed his family. He said that the civil war between the sects occurred from 2005 to 2008, and led to the deaths of people for reasons of their sect, but subsequently the situation improved, and the violence wasn’t as widespread. He said that they did not have any problem with any person other than [Mr A] and it was [Mr A] who was threatening them.

40. A [Social media 2] video was provided that purported to be a video of [Mr C] and the kidnappers who took him. I asked what the point of the video was. He said the purpose was just to show what they do to people. He said that the video was distributed among people but at some point, someone uploaded it to [Social media 2] and the applicant claims that [Mr A] was angered by the release. He said that the video proves that [Mr A] ordered the killing. I asked for clarification on how it proves that [Mr A] was behind it; he responded only that he was the only person that his family had problems with.

41. I noted that the video was posted three and a half years after the applicant had claimed that his brother was killed. He said that there was no internet earlier. At the hearing the applicant said that he is mentioned, with the kidnappers saying, ‘where’s [Mr D] and where’s [the applicant]’. The interpreter at the hearing could not understand what was being said as, according to her, the dialect was different. I note that this claim aligns with a summary of the video he provided in a statutory declaration in 2014 but it is contrary to the finding in the ITOA report, in which the Department notes that their record of the transcript, which is not in the Departmental file, shows that no mention was made of the applicant. 

1. The applicant claimed that a friend of his, [Mr E], posted a story on the internet about their case and that he believes that it has enraged [Mr A]. He claims that a cousin of his found out about this and heard that [Mr A] would kill him and his brother.

2. While the applicant’s evidence was at times vague and lacking detail, I do accept that it has been 13 years since many of the incidents he was asked to describe occurred. For some people, such traumatising circumstances would solidify memories but for others the passage of time and a desire to forget may have the opposite effect. I note that the applicant has clearly made an effort to move on in his life; he has separated from his community and much of his family, and he has sought out a new religion and settled with a new woman. I accept that the applicant’s memory may not recall all of what has transpired and as such I place minimal weight on inconsistencies or vague answers.

3. I accept the applicant’s narration of the events surrounding his father’s purchase of the land, the interest in it by [Mr A] beginning in 2003, and the efforts at tribal mediation and subsequent threats. Land disputes were common in Iraq during this time and many escalated into violence.[4] I accept that his father was assassinated by [Mr A] as claimed. I find it speculative to attribute responsibility for the brother’s kidnapping and killing to [Mr A]. While it is possible that [Mr A] was involved, it is also possible that others did it for different reasons based upon the prevalence of kidnapping in Iraq at the time. While I cautiously accept that the kidnappers mentioned the brothers in the video, this in itself does not tie the kidnapping to [Mr A]. Although the applicant said they had no other enemies, the nature of the kidnapping trade in Iraq was largely based upon financial motivation.[5]

   [4] 'Land, Property, and the Challenge of Return for Iraq's Displaced', Deborah Isser and Peter Van der

   [5] Phil Williams, ‘Criminals, Militias, and Insurgents: Organised Crime in Iraq’, US Army War College, 2009

4. As I have not associated the claimed death of [Mr C] with the land dispute, I have not engaged with the concerning issue of evidence being available to the Department (and responded to by the representative of the applicant at the Departmental stage) that shows the applicant had been sending funds to a person of the same name. In other words, even if [Mr C] remains alive, as the delegate concluded, it does not change the outcome of this decision.

5. I find that [Mr A] would have a low level of interest in the applicant given that it is 13 years since the applicant’s departure from Iraq. [Mr A] has control of the land, he has sent a message to the family of the applicant, and any further messages he may have wanted to send could have been done by way of harm to [Mr C]’s three children or other relatives. I do not accept that [Mr A] would be concerned about the applicant’s return in relation to any legal pursuit of the land by the applicant.

   Conversion to Christianity

6. The applicant claims to have changed his religion. He described his prior practice of Shia Islam as normal. He said that he rarely prayed, and he didn’t go to Friday prayers. However, when he came to Australia, he saw religious freedom, which didn’t compare to the situation in [Town 1], where he estimated that 70 to 80% of the population was Shia and the rest was Sunni. He said that he likes religious freedom. He said that he moved away from Islam as he didn’t get any reassurance from it. He said that it wasn’t a difficult choice for him to walk away from Islam, the religion of his relatives and forefathers.

7. Regarding others’ knowledge of his change, he said that his family knew that he had moved away from Islam. He said that it was very hard for them to hear that he had left Islam and he said that it was hard for him to tell them because they live in a small town and everyone knows that he was a Shia Muslim, but that he had now become a Christian. He said that he tried to talk about it further with his family, but he said that it would lead to greater problems; he fears for example that his parents may disown him.

8. The applicant said that he is not in touch with any of his sisters because he changed his religion, but his mother continues to speak to him. He believes that others in [Town 1] know that he changed his religion. He believes that his sisters told others as he said that their children know about his conversion also. He said that according to them, he has done something wrong.

9. The applicant said that a nephew he continues to communicate with knows that he converted to Christianity. The applicant said that during their conversations the nephew asked if it was true that he had converted. When the applicant confirmed that he had, the nephew asked why but the applicant said that he should not continue with the questions.

10. I asked the applicant about his uncle in Australia. He said that he passed during the COVID-19 period. Before he passed the uncle knew about the applicant’s change in religion but according to the applicant’s evidence at the hearing the uncle didn’t care. He described his uncle as having strayed from believing in Islam and he instead believed only in a god.

11. I read to the applicant a passage from his representative’s submission, which described the uncle as being angry at him and that he had disowned the brothers. I put to him that this was different to what he was claiming at the hearing. The applicant responded that when they first arrived in Australia the uncle did not help them. He said that his brother sought help and when the uncle didn’t want to help, his brother argued with the uncle, but the uncle said that their conversion had brought shame to the family.

12. I asked why the applicant would say that the uncle disowned them if the uncle is not religious himself. He said that it was because they had asked for help.

13. I read what the applicant had written in his statement:

    Our uncle in Melbourne believes that we brought shame to our family and disowned us, he also thinks that it is shameful for the family that I am with [Ms B] an Australian and Christian woman not from our origin.

14. The applicant reiterated that the uncle’s reason for disowning them was that the brothers were asking for help and the uncle didn’t want to help. He said that the uncle justified his lack of interest in helping the brothers by disowning them for changing their religion and because the applicant married an Australian, but he believes the ultimate reason for disowning them was simply that he didn’t want to help.

15. The applicant said that he used to have a social media account, but that he didn’t post anything that could cause him trouble. When I asked if his brother did, he said that he didn’t remember. I prompted him by mentioning [Social media 1] but the applicant still couldn’t remember.

16. In a 2014 statutory declaration, the applicant mentioned some offending posts, providing a link to his brother’s [Social media 1] page with videos and photos of his baptism. He claims that their friends then ‘wrote bad things on [Mr D]’s [Social media 1].’ The Tribunal is not able to access anything that was posted as the account was deleted, nor are there any screenshots available on the files. I note that the applicant’s brother was granted a protection visa in part based on his [Social media 1] posts.

17. In the statutory declaration of the applicant’s brother, which was provided by the applicant to the Department in his own case, he wrote that even in Australia the Iraqi community stopped talking to him because of his conversion and that he would be unable to find accommodation with friends and relatives in Sydney and he couldn’t afford to live alone.

18. Similarly, the applicant, through various submissions of his own to the Department, described how his friends and relatives in Australia and Iraq found out about his brother’s conversion and believed that the applicant had, by association, turned his back on Islam.

19. In his 2014 statutory declaration, the applicant wrote:

    I no longer have much commitment to Islam anymore. I drink alcohol during special occasions if we have friends and family over to our house, and I don’t fast during Ramadan. I have begun to explore Christianity. [Ms B] and her family are Catholic. Her mother goes to church regularly, but [Ms B] doesn’t…[Ms B] is Catholic though and was christened in Darwin with her family when she was a child. The rest of her family goes to church on special occasions. While I was detained in Darwin, a lady called [Ms F] was visiting me. She is an old English lady who used to live in Iraq and knows a lot about Iraq. She is a well-intentioned citizen who is Catholic and I practiced English with her. She began to speak to me about Christianity. I first went to church when I was still in detention in Darwin. After I moved back to Darwin from Melbourne in September 2012 to live with [Ms B], I began to attend church more regularly. I now go a few times each week. I go with [Ms F] sometimes and sometimes with a friend called [Mr G]…I am still exploring the Christian religion and trying to find an Arabic version of the Bible.

20. By the time of his 2018 statutory declaration, the applicant’s practice of Christianity had changed. He wrote:

    I now consider myself to be a Christian. At the moment, I have not been able to go to church as much as I used to. When we lived in [Suburb 1], we used to go to Salvation Army Church regularly, which was close to our house. We now live in [Suburb 2], and I have been quite busy…However, I still go to church with [Ms B] and her mother as well as [Mr D] on regular basis but not every week. We certainly go to church to celebrate things like Christmas and Easter and this has become an important part of my life. I consider myself to be Catholic because [Ms B] and her mother are Catholic.  I have not been baptized yet. At one point, I considered seriously about getting baptized however, [Ms B] tells me that getting baptized is not that important. She tells me that what is important is my faith and to follow teachings from God and be a good person in everyday life. I pray to God all the time for my family and myself. I now have the Bible in Arabic. I read it at home whenever I find time. In any event, everyone, my family and friends, now assume that I also got baptized with [Mr D]. As [Mr D] and I stated previously at ITOA stage, since [Mr D] put some posts on [Social media 1], we have been ostracized from our own family as well as members of Iraqi community in our home area and Australia. Even [Ms H], my big sister who raised me, no longer contacts me. We used to be in regular contact. It makes me really sad to think about this.

21. He said that he chose to embrace Christianity because in Iraq, while being taught about religion in school, he wasn’t allowed to question what was being taught. He said that he learned about Jesus and Mary, but he couldn’t look into it further. However, in Australia he was able to. When he did, he said that he saw that there wasn’t the killing that he knew in Islam.

22. I noted at the hearing that the applicant had described his reasons for walking away from Islam, but he hadn’t described why he embraced Christianity. He said that Jesus always talked about peace and love. I put to him that there is peace in Australia, and that you can practise respect in Australia; I asked why he needed Christianity. He said that he likes Christianity, and that he is in a relationship with a Christian. He said that he likes Christianity because there is nothing in it other than love, hope and peace. He said that he embraced Christianity over time, deciding that it was the right thing to do.

23. I asked the applicant about the requirements of being a Christian. He responded by saying that it is full of freedom. I pressed him, asking if he goes to church; he said not always. He said that he prays and that he goes to a Seventh-day Adventist Church. He recalled that while at church, they have discussions about religion. I asked him if he participates in Holy Communion. He said that he does, at the end of the ‘meeting/discussions.’ I asked him what receiving Holy Communion means to him. He said that he didn’t understand the question. I asked him to describe the experience. He said that people discuss religion, someone in the group will ask what different words mean and another participant will stand up and explain. He said that they then go to another room where they have lunch but not always. I asked if there was someone like a priest who would lead the service. He said that there was. He said that the person tells them stories about how Jesus helps people. He said that he goes to church as he wants to learn more about the Bible.

24. The applicant has not been baptised. I asked why he calls himself a Christian if he hasn’t been baptised. He said that baptism isn’t confirmation of becoming Christian.

25. I asked if he had been involved in any other church or denomination. He said that he had been, but he couldn’t remember the name of it. Upon further prompting, he said that he sometimes goes to a church in [Suburb 3], Darwin, when he feels that he needs to ‘hear something’. Otherwise, he goes to a church in [Town 2]. He doesn’t know the name of the church.

26. The applicant said that sometimes he cooks food at home and brings food to the church to share. He also sometimes helps to clean the church.

27. I asked why the applicant couldn’t become a non-practising Christian who studies the Bible at home in Iraq. He said that one can’t do that in [Town 1] as it is a small town and everyone would know what you are doing. He said that while he didn’t attend Friday prayers, and it is not compulsory, he would still be considered a Muslim. Being known as a Christian will attract retribution regardless of how he prays or whether he doesn’t.

28. The applicant claims to have received threats as a result of his conversion to Christianity, but he was unable to remember when he was threatened or what form the threats took.

29. The applicant submitted a statement from a [Ms I] who states, ‘I have been educating [the applicant] more on Christian religion. He feels a closeness with his faith. It helps him in hard times, and also with helping others, although [the applicant] does naturally have a kindness to want to help people.’

30. The applicant’s partner gave evidence at the hearing. She said that she has not spoken with any of the applicant’s relatives in Iraq nor has she seen him communicate with any of them in Iraq. She is not aware of any of his relatives speaking with him now. She said that she was raised Catholic but isn’t very religious. She said that she doesn’t go to church with the applicant. She said that he usually goes to church alone. She said that she doesn’t know why but believes it to be a personal experience arising in part because he is shy. They celebrate Christmas. It carries with it a meaning of bringing the family together.

31. I accept that the applicant has walked away from Islam. I accept that he would no longer practise it nor identify as a Muslim. I also accept that the applicant sees himself as a Christian. I find that his practice of Christianity is low key and in a manner that involves introspective time reflecting on the meaning of Christianity. The applicant has not identified the outward signs of practising Christianity as important or even something that he understands as being important but simply hasn’t embraced. While his attendance at church is important to him, it is for a mixture of reasons including as a social hub where he can engage with the community and fulfil his understanding of what is right, as well as a place for quiet reflection. However, the church is not the only place where he could participate in this type of social engagement and fulfill any of his religious ideals.

32. I also accept that it is widely known among the applicant’s relatives and friends that his brother has converted to Christianity, and that the applicant has accepted a Christian way of life by, for example, living with a Christian woman and supporting his brother’s conversion. The fact that the applicant has lived in Australia for 13 years would amplify such suppositions. Some people, such as his mother, are accepting of the applicant’s move away from Islam and embracing of Christianity, while others would have reason to believe that he has followed his partner and brother by embracing Jesus as a Prophet and Son of God and turned his back on Islam.

33. I accept that the applicant has in the past received some threats arising from him or his brother’s activities relating to Christianity but as the applicant was unable to recall when or what form they took, I find that they were not of a concerning nature (i.e. they weren’t delivered at the point of a gun but possibly over social media and in a flippant manner) and that they occurred a considerable time ago.

    Considerations

34. The applicant fears harm for reasons of: his conversion to Christianity; a perception that he is Christian arising from his brother’s conversion and his relationship with a Christian; his family’s long-standing conflict with [Mr A]; and that it is known that he drinks alcohol. In addition, the applicant fears harm arising from his father’s former membership of the Ba’ath party.

35. No claims were made by the applicant arising from the family of his wife in Iraq.

36. The applicant had earlier claimed that he feared having to join a militia. He explained that this was a claim he had at earlier stages due to the call for jihad against ISIS by the senior Ayatollah in Iraq, Ali Sistani. As ISIS is no longer a threat and the fatwa is no longer being encouraged, the applicant rescinded this claim at the hearing.

    Fearing harm due to his conversion to Christianity

37. Explaining why he feared harm as a result of his Christianity, the applicant wrote in his most recent statutory declaration:

    If I were forced to return to Iraq, I am sure that I will get killed for this. There is no way that I can hide my Christian faith; firstly because I want to continue keep practicing, but secondly because everyone knows that I have now became Christian, because of [Mr D] and my partner, [Ms B]. As I stated previously, [Mr D] and I have been called “Kaffir”, meaning infidel, and I am fearful that I will be targeted by any religious extremist groups or Iraqi authorities.

    As I previously stated, our uncle in Melbourne believes that we brought shame to our family and disowned us. He also thinks that it is shameful for the family that I am with [Ms B], an Australian and Christian woman, who are not from our origin. Our cousin who is in Melbourne, my maternal aunt’s daughter, also called us when she found out that [Mr D] was baptized. She was so offended by what we have done. It is no longer possible for us go and live in Melbourne or Sydney because there are Iraqi communities there.

38. Overall, there are several possible threats facing the applicant, being harm: from within the tribe to ensure adherence to its rules and norms; from militias motivated by the teachings of the more severe interpretations of Islam; from the extended family to recover honour; and from the state in the form of official discrimination.

39. Country information regarding the situation of Christian converts aligns with the applicant’s narration of his family disowning him:

    People who convert from Islam to another religion (especially women) may face problems with the local community and their family, such as being disowned, receiving death threats or even being killed. Possible consequences of converting religion vary between tribes and individual families with reactions being harsher in the countryside.[6]

    [6] UK Home Office, ‘Country Policy and Information Note Iraq: Religious minorities,’ Version 3.0, July 2021 at [2.4.16]

40. A UK Home Office report notes that, ‘Instances of open conversion are rarely reported and converts keep their faith secret for fear of ostracism and violence.’[7] That is because, according to the UNHCR, ‘Open conversion would likely result in ostracism and/or violence at the hands of the individual’s community, tribe or family as well as Islamist armed groups.’[8]

    [7] Ibid [2.4.17]

    [8] UNHCR, ‘International Protection Considerations with Regard to People Iraq’, May 2019

1. The European Asylum Office noted:

   Apostasy is uncommon in Iraq and is generally seen as unnatural. Despite its acknowledgment of religious diversity, the Personal status laws and regulations prohibit the conversion of Muslims to other religions. Whilst civil laws provide a simple process for a non-Muslim to convert to Islam, conversion of a Muslim to another religion is forbidden by law. Article 26 of the National Identity Card Law affirms the right of non-Muslims to convert to Islam but does not grant the same rights to Muslims. Converts from Islam to other religions cannot change their religion on their identity cards after conversion and must continue to be registered as Muslims. Children born to a Muslim and a non-Muslim parent are legally deemed Muslim.

   According to COI sources, people who convert from Islam to Christianity may be at risk of being killed in Iraq. While converts may encounter difficulties with the authorities, the main source of problems is usually the community and family, with reactions varying from one family to another. In some cases, family members are open-minded and do not react to the conversion in any way. In others, the convert may be disowned, receive death threats or even be killed. According to some sources, problems typically arise within the extended family… There are also regional differences, with reactions being generally harsher in the countryside.[9]

   [9] EASO, ‘Country Guidance: Iraq’ (page 83-84), January 2021

2. In addition, the UNHCR reports:

   Converts are reported to keep their faith secret given the widespread animosity towards converts from Islam in Iraqi society and the fact that families and tribes would likely interpret conversion by one of their members as an affront to their collective “honour”. Open conversion would likely result in ostracism and/or violence at the hands of the individual’s community, tribe or family as well as Islamist armed groups.[10]

   [10] UN High Commissioner for Refugees (UNHCR), International Protection Considerations with Regard to People Fleeing the Republic of Iraq, May 2019, HCR/PC/IRQ/2019/05_Rev.2, available at: [accessed 27 February 2023]

3. Apart from the direct harm the applicant may face, there are wider repercussions. According to the US Department of State, converts from Islam to another religion cannot register their marriages, enrol their children in public schools, acquire passports or obtain government services.[11]

   [11] 'US State Department International Religious Freedom Reports: Iraq', United States Department of State, 15 July 2017, p.7

4. A 2012 UNHCR report found that:

   Given the widespread animosity towards converts from Islam and the general climate of religious intolerance, the conversion of a Muslim to Christianity would likely result in ostracism and/or violence at the hands of the convert’s community, tribe or family. Many, including (Sunni and Shi’ite) religious and political leaders, reportedly believe that apostasy from Islam is punishable by death, or even see the killing of apostates as a religious duty. Additionally, Christian converts risk being suspected as working with the MNF-I/USF-I or more generally the “West”, which in the opinion of some has fought a “holy war” against Iraq. Converts and children of converts may face harassment at their place of employment, or at school. The reporting of harassment to the authorities, may, according to some observers, result in further harassment or violence at the hands of government officials and police.

5. The above country information notes that circumstances in the ‘countryside’ are worse for converts than in urban areas. While [Town 1] is a town, it is small, and the applicant is from the outskirts where his father owned a swathe of farming land. I consider that the applicant’s circumstances align with being from the countryside.

6. I note that the reference to tribes is relevant to the applicant as he is from the south of Iraq, where tribal law and influences retain considerable sway. I asked if the perception of the two brothers converting has affected the tribe’s reputation. He said that it hasn’t. He said that every tribe has a leader and that it is the responsibility of the leader to discipline those who transgress. He said that his punishment at the hands of the tribe would be death. He said that in small cities, the tribe controls community life, unlike in Baghdad. He said that the punishment is for the individual and not the family.

7. Overall, although the applicant’s practice of Christianity is limited and his lacklustre approach to the sacramental obligations of Christianity would minimise his exposure to risk, the fact that his brother’s conversion is known and his relationship with a Christian woman is also widely known leads me to conclude that the applicant would be of interest to the community for reasons of his conversion. Based on the family’s ostracism of him and the Australian based Iraqi community’s similar response, I accept that in the social context of southern Iraq, the view towards apostasy and conversion is overwhelmingly negative. This interest would expose him to possibilities of harm arising from the tribe, his extended family and militias.

8. If this was the applicant’s only claim and he was an Iraqi from an urban centre, then it may not expose him to a real chance of serious harm, but the applicant has a long-standing animosity with [Mr A] who I have accepted is a figure of some influence in the small town of [Town 1]. While support for the Dawa Party may be diminishing, it nevertheless remains a substantial political party and the rank that [Mr A] holds would give him some influence.

9. The applicant’s return to [Town 1] would be known first to neighbours and then friends and eventually by [Mr A]. Even if he did not want to order that the applicant be harmed out of a desire not to mobilise limited resources, or for fear of being arrested or facing retaliation from others, simply spreading or amplifying word of the applicant’s conversion would increase the likelihood of the applicant being harmed.

10. As the applicant is from the south of Iraq, which is more conservative and retains tribal laws and is home to Shia militias, I find that the applicant does face a real chance of serious harm for reasons of a perceived conversion to Christianity. The harm could be from the tribe as described in the UNHCR report. Alternatively, it could come from the extended family as noted by the European Asylum Office report.

11. I find that the essential and significant reason for the fear of persecution is religion and as such s 5J(4) is met as religion is one of the reasons mentioned in s 5J(1)(a).

12. I also find that the harm he faces is systematic and discriminatory in that it is targeted at the applicant and not others, as required by s 5J(4)(c).

13. I have considered whether there is another part of the country where the real chance of persecution does not exist (s 5J(1)(c)). Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].

14. I note that the Kurdish Region of Iraq (KRI) has its own security, does not have members of the same tribe as those in [Town 1] and would not be within the reach of [Mr A] and the Dawa Party, as the party is not present in the KRI, unlike other parts of Iraq. The general security situation in KRI is better than the rest of Iraq, which in turn imposes a greater level of deterrence for anyone who may consider undertaking a personal vendetta against the applicant.

15. In addition, country information indicates that the Kurdish Regional Government is more tolerant of converts to Christianity, as is society generally, a situation that would prevent harm arising from the state or see the state withhold protection from the applicant.[12]

    [12] EASO, ‘Country Guidance: Iraq’ (page 83-84), January 2021

16. I note as per [94] that consideration must be given to whether the KRI region can be lawfully accessed by the applicant, that he can access it safely and that it is habitable.

17. Country information indicates that Articles 44(1) and (2) of the Iraqi Constitution guarantee Iraqis freedom of movement, travel and residence inside and outside Iraq.[13] Separate country information indicates that relocation is possible, albeit challenging depending upon the specific circumstances of the individual. Specifically, it is the norm for single Arab men to obtain a one-month entry permit but ‘Holders of a one-month residency permit face difficulties to finding regular employment due to the short duration of their permits. Single Arab and Turkmen men who have proof of regular employment and a support letter from their employer can apply for a one-year Asayish-issued residency permit, but few of those who do so are successful in obtaining one.’[14] This assessment indicates that it is case specific. Further discussion in the same source revolves around a difference between Sunni and Shia men, noting that ISIS, who fought against the Kurds, were Sunnis. Noting that the applicant can access a one month stay and considering the applicant’s specific circumstances of being Shia from the south and not Sunni from the northern regions where ISIS was active, I find that the applicant is likely to be able to remain for at least a year and continue to renew his residency permit thereafter. As such, I find that the applicant has lawful access to the KRI.

    [13] DFAT Country Information Report: Iraq, 2023 [5.18]

    [14] Ability of Persons Originating from Formerly ISIS-Held or Conflict-Affected Areas to Legally Access and Remain in Proposed Areas of Internal Relocation, 11 January 2021: >

    I note that there are flights that take passengers directly into two cities in KRI without going through Baghdad, making KRI safe to access.[15]

    [15] ‘Iraq - 20190711142248 - Entry Procedures - Airports - Kurdistan Region of Iraq (KRI)', Country of Origin Information Services Section (COISS), 14 July 2019, 20190715141426

100.   In total, the KRI region has a permanent population of over six million people and as such I find that it is habitable.[16]

[16] Dr. Magued Osman, Kurdistan Region of Iraq: Population Analysis Report, Egyptian Center for Public Opinion Research “Baseera”, February 2021

101.   As I have found that there is an area in Iraq where the applicant does not face a real chance of persecution, I find that the applicant does not meet the test of a well-founded fear of persecution.

102. I now turn my mind to the complementary protection test. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.

103.   As I have found that the applicant faces a real chance of serious harm amounting to being killed, similarly I find that the applicant faces a real risk of significant harm.

104.   I now turn my mind to whether the applicant can relocate. I note that unlike the amendments to the codified version of the former Refugee Convention test, there remains a reasonableness test. Under s 36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. The Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC, which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

105.   In considering the reasonableness of relocation I note that the applicant has children but he hasn’t seen them for many years and does not appear to have a relationship with them. At the hearing he explained that his children are with their mother in [Town 1]. I put to him that in his earlier submission he wrote that they went to [Country 4] and that he wasn’t sure where they were. He said that the mother doesn’t want the children to be in touch with him so they went to [Country 4] with their aunt but when they returned his nephew told him about their return. The oldest is [age] years old and the youngest [age] years old. As the applicant has not had any relationship with his children for many years, I find that they will not be accompanying him to a new location in Iraq and as such do not take them into consideration.

106.   Regarding relocation, a 2020 DFAT reports that:

Successful relocation in Iraq will typically be dependent upon the availability of and access to social networks, consisting of the person’s family, extended family or tribe. Many Iraqis, especially IDPs, are reliant upon social networks for support. To relocate beyond the reach of existing support networks is a difficult proposition, doubly so if it is the person’s tribe or extended family from which the person seeks to escape. In a time of a global recession caused by COVID-19, worsened by the dependence of the Iraqi economy upon oil, the capacity of someone to subsist in a different region of Iraq may be further diminished.[17]

[17] DFAT Country Information Report: Iraq, 2020 at [5.37]

107.   The updated 2023 DFAT report emphasizes the risks and challenges faced by someone whose relocation would be due to personal threats.[18]

108.   In the applicant’s case, I accept that he does not have networks that reach beyond [named governorate], the governorate in which [Town 1] is located. This lack of relations will make relocation difficult as DFAT’s generic summary of the situation for all of Iraq notes. That he has existing enmity with a powerful figure in the south of Iraq lead to further challenges in relocating.

109.   The European Union Asylum Agency (EUAA) reports on the situation of relocation to KRI specifically, noting that:

because public institutions in Iraq and KRI are highly influenced by corruption, nepotism, and patronage networks, ‘obtaining basic services and performing simple administrative tasks in government offices is extremely difficult without personal or family connections… According to Kurdish officials interviewed by DIS/Landinfo, rejected asylum seekers who return to Iraq ‘would have difficulties in returning, if they do not have a network to support them… Reintegration is easier for those with good family relations, while returnees without family would have difficulty due to the high cost of living.[19]

110.   In considering the reasonableness of relocation for the applicant to the KRI specifically, I note that the EUAA highlights how difficult it is to navigate the Kurdish bureaucracy and that this would be additionally difficult as the applicant does not speak Kurdish. The same report notes the difficulty for those moving to the KRI without network support or family relations as is the case with the applicant. While I found earlier that the applicant would be able to access a one-year residency permit, the difference between accessing a permit for non-residents and engaging with all of the other bureaucratic aspects required to relocate is vastly different. I find that it would not be reasonable in the sense of ‘practicable’ for the applicant to be expected to relocate to the KRI where a different language is spoken and networks to provide support are required.

111.   I have also considered whether the applicant 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. Considering that the state of Iraq is dominated by Islamist parties and that the laws do not allow for leaving Islam and adopting another religion, and noting that the applicant’s father is a known member of the Ba’ath Party, I find that the state will not protect the applicant from any harm the tribe or extended family seek to impose on him. In addition, regarding the role [Mr A] may play in mobilising action against the applicant and any possibility of the applicant seeking out protection from him, I note that in the past the applicant’s father and brother had sought out support from the state and that subsequent to their deaths the remaining family members had sought help from the police to no avail; as a result, I find that the applicant cannot obtain protection from the state authorities.

112.   I find that the risk of harm the applicant faces is not a risk that is faced by the population of the country generally as the harm is faced by the applicant personally for reasons of his conversion and his family’s past relationship with [Mr A].

113. For these reasons, given the above reasoning, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

[18] DFAT Country Information Report: Iraq, 2023 at [5.21]

[19] EASO Country of Origin Information Report Iraq: Internal mobility, February 2019. p.25

1. I have also considered whether, according to s 36(3), the applicant has a ‘a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.’ There is no evidence before me that citizens of Iraq such as the applicant have a right to enter and reside in another country apart from Australia. As such I find that the exception to Australia’s protection obligations under s 36(3) is not met.

   DECISION

115. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

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.

…

Auweraert, United States Institute of Peace, 01 April 2009