1912319 (Refugee) - [2024] AATA 3999

1912319 (Refugee) [2024] AATA 3999 (12 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Penny Dimopoulos (MARN: 0636233)
CASE NUMBER: 1912319

COUNTRY OF REFERENCE: Iraq
MEMBER:Jennifer Ermert
DATE:12 September 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.

Statement made on 12 September 2024 at 4:19pm

CATCHWORDS
REFUGEE – protection visa – Iraq – religion – Chaldean Catholic – imputed political opinion – opposition to extremist groups – particular social group – returnee from a Western country – forced business transfer – fear of killing – fear of Muslim fundamentalists – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
Guo v MIEA (1996) 64 FCR 151
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Another (1994) 34 ALD 347

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 May 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 19 October 2016. The delegate refused to grant the visas on the basis that the applicants are not persons in respect of whom Australia has protection obligations.
Except for [Applicant 2] and [Applicant 4], the applicants appeared before the Tribunal on 29 July 2024. However, only [Applicant 1] gave evidence in support of their protection visa applications.
The Tribunal also received oral evidence from the applicants’ family friend [Friend A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Chaldean 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 (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case are whether the applicants are persons in respect of whom Australia has protection obligations because they are either refugees or persons who satisfy the complementary protection criterion.
Identity and country of nationality
The applicants claim to be citizens of Iraq. All of them have provided uncertified copies of the biodata page of their Iraqi passports bearing the same first and given names and dates of birth as claimed to the Department in connection with their protection visa applications. In the absence of evidence that the passports for which copies of the biodata page were provided to the Department are bogus documents as defined in s 5(1) of the Act, and given checks of relevant departmental systems did not raise concerns that the applicants have provided false identities, the delegate accepted the applicants’ identities and citizenship of Iraq as claimed.
The Tribunal has considered the copies of the aforementioned identity documents on the applicants’ departmental file. The Tribunal has also had regard to the original of the first and main applicant [Applicant 1’s] Iraqi passport which was sighted at the hearing and a scanned copy of the biodata page of which was provided to the Tribunal. In the absence of evidence that [Applicant 1] and the other applicants are not the persons they claim to be, the Tribunal also accepts their claimed identities and claimed citizenship of Iraq.
The Tribunal finds the applicants’ country of nationality is Iraq.
Personal background and immigration history
As the first and main applicant [Applicant 1] is the only applicant who raised substantive protection claims, for convenience the Tribunal will refer to him simply as ‘the applicant’ for the remainder of this decision record unless otherwise required in order to distinguish him from the other applicants.
The applicant’s personal background and immigration history is comprehensively outlined in a statement of claims provided in support of the protection visa application and in pages 4 and 5 of the delegate’s decision record. In the absence of evidence that the information contained therein is false or misleading, the Tribunal adopts the information as an accurate account of the applicant’s personal background and immigration history.
In summary, the applicant is [an age] year old Chaldean Catholic man from Erbil, Iraq. He has two siblings in Australia who are Australian citizens. He also has [number] other siblings – including a biological twin [sibling] – who are [citizens of other countries].
Before coming to Australia, the applicant owned and operated a [business 1] in Iraq called ‘[name]’. At the hearing, the applicant gave evidence that he was sponsored by his [brother], who also owns a [business 1] in Australia, to come to Australia and work with him on a Class UC Subclass 457 temporary work (skilled) visa. The other applicants also came as his dependents. They arrived in Australia [in] August 2014.
Two years ago, the applicant tried to start his own business. However, it was too difficult and not financially viable to run as an ongoing venture given the uncertainty over his residency status, so he has resumed working for his brother.
The applicant also gave evidence consistent with the information he provided to the Department in relation to the circumstances leading to his adoption as a child, despite his biological parents being still alive at the time. His adoptive parents lived at the same address as his biological parents. His mother had a difficult pregnancy during which she received a lot of care and support from his adoptive parents. As a gesture of appreciation and because his adoptive parents had no children of their own, when his mother gave birth to twins, he was adopted out to his adoptive parents to raise as their own. The adoption is supported by a letter from [an identified church leader].
The applicant gave evidence that his adoptive parents, who also came to Australia seeking protection, have been living with him since arriving in Australia. His adoptive father passed away in 2022. His adoptive mother suffers from advanced dementia and requires round-the-clock care and supervision from him and his family who all live with him in the same household. In support of this, the applicant has provided his adoptive father’s death certificate and a letter from his adoptive mother’s consultant physician in geriatric medicine.
The Tribunal accepts each of the above matters to be true.
Protection claims
The applicant made very detailed protection claims in his application for the grant of a Class XA Subclass 866 protection visa and the accompanying statement of claims, which the delegate has comprehensively outlined in their decision record and which the Tribunal has extracted below.
Application form
- The applicant is seeking protection in Australia so he does not have to return to Iraq.
- He originally left Iraq to come and work in Australia on a Subclass 457 visa.
- He thinks he would be seriously harmed or killed if he returned to Iraq, as the situation for Christians is extremely dangerous due to the rise in extremist groups like ISIS.
- He was threatened in Iraq due to his Christian faith but he did not seek help within the country as the authorities could not and would not help him.
- He did not move or try to move to another part of the country to seek safety.
- He thinks he will be harmed or killed by Muslim extremists and/or ISIS for his Christian religion and because he has lived in Australia.
- As the security situation is unstable and dangerous in all parts of Iraq, he would be at risk everywhere in the country and therefore he would not be able to relocate within Iraq.
Statement of claims
- The applicant opened a [business 1] [named] in 1990 and came to Australia with his family in August 2014 on a Subclass 457 visa while his adoptive parents remained in Iraq.
- On 15 October 2015, the applicant’s adoptive father advised him that [Mr A], a Muslim Kurd from an influential and powerful tribe in Erbil, threatened to kill him if he tried to approach the shop.
- The applicant returned to Iraq to see his adoptive parents and, while in Iraq, he went and saw his business partner [Mr B] who confirmed [Mr A] wanted the shop for free, so he arranged for [Mr A] to meet him.
- [Mr A] came to the shop one morning and threatened to behead the applicant and his adoptive father with a knife if they dared to report the matter to the courts.
- [Mr A] asserted that as the applicant and his immediate family were now living in Australia, he would transfer ownership of the shop into his own name since the applicant is Christian and did not deserve to live in Kurdistan.
- The applicant was very disappointed at receiving this threat from [Mr A] and he returned to his adoptive parents.
- His business partner [Mr B] advised him to give in to [Mr A’s] demands or else [Mr A’s] gang would kill him.
- The applicant’s home is one kilometre from [Town 1][1], which is home to hundreds of extremist Kurdish families and most persecute Christians and threaten Christians with ethnic cleansing.
- The applicant claimed these people have vowed to re-distribute Christian women, property and shops belonging to Christians to [local] Muslim families one day and when it happened, these people would kill their men, rape their women and loot their possessions.
- All the Christians in the area were terrified of the [Town 1] Kurds and that is why they sought asylum in Christian countries.
- The applicant’s children have been mocked and threatened by their Kurdish Muslim peers at school, and the Kurdish government has prevented them from learning Aramaic.
- His wife also suffered sexual and verbal harassment from Islamic extremists, militias and Islamic parties as her dress and appearance distinguished her. She was forced to wear a headscarf and dress as a Muslim, but she was still harassed.
- On 17 April 2015, ISIS bombed a car in front the American consulate in Ankawa and left 13 dead.
- When ISIS approached Erbil, the applicant and his family were terrified that what had happened to Christian villages near Mosul would happen to them.
- There were ISIS cells amongst Kurds, particular residents from [Town 1] and if they had an opportunity to harm Christians, they would not hold back.
- On 2 January 2011, hundreds of Muslim extremist Kurds burned down more than 500 stores owned by Christians in Zakho and Dahouk in Kurdistan.
- When Saddam fell, they hoped the Kurdistan government would protect the Christians and their rights. Things went well for a few years but they continued to be treated like second class citizens by Kurdish Islamists.
The applicant attended an interview with the delegate on 12 February 2019 to discuss his protection claims. Following that interview, the applicant submitted additional documentary evidence of his involvement in the Christian community in Erbil. This included photographs of him posing with several local church leaders and him helping to unveil a [Statue 1] installed in [a location in] Erbil, a receipt dated [in] June 2013 made out in his name showing he paid [amount] to a [company] to commission the statue, a receipt for [equipment] he purchased and donated to the church, a letter of support from [a] Chaldean [church in Australia] attesting to these past donations and his active involvement in the Chaldean Christian community in Melbourne, and news articles from 2019 about ISIS.
The delegate accepted on the evidence provided by the applicant and his testimony at the interview that he is a Chaldean Catholic Christian and that he had been actively involved in the Christian community in Erbil as demonstrated by his donations to the church. The delegate also accepted he was likely to have been known locally as the man who funded the [Statue 1]. However, because the unveiling of the statue appeared to have been a significant public event in [Town 1], the delegate concluded there must have been a certain degree of religious freedom in Erbil to make such unveiling possible. In addition, the delegate did not accept that the applicant’s active involvement in Erbil’s Christian community raised a significant religious or political profile for him as he did not present any evidence to demonstrate he was targeted, threatened or seriously harmed by Islamic extremists for that reason. The delegate therefore rejected the applicant’s claimed fear of persecution based on his religion.
The delegate also rejected the applicant’s claimed fear in relation to [Mr A] and the threats that he made. Whilst the delegate accepted it was plausible that he had a business selling [product 1] in Erbil and that he decided to keep the business running whilst he was in Australia on the Subclass 457 visa by leasing it to [Mr A] who had worked with him for a number of years and who was therefore well-known to their regular customers, the delegate did not accept that [Mr A] posed an ongoing threat in circumstances where the applicant had effectively ceded to [Mr A’s] demands by not attempting to take back his [business 1] and by not reporting [Mr A] to the authorities, even if the applicant’s inaction was the result of his fears that [Mr A] would otherwise carry out the threats as well as his belief in the futility of reporting to the authorities.
Furthermore, the delegate found there was no evidence that Islamist extremists were present in [Town 1] or that they targeted and attacked Christians in the area. Whilst the applicant’s wife may have experienced harassment and was required to wear a hijab, the delegate found on the basis of country information that the dress code applied to women and girls of all religious affiliations, not just Christians, and that the dress restrictions were in any event not persecutory, merely unpleasant. The delegate found the fact that the applicant did not experience any actual harm despite the purported threats from [Mr A] and despite his active involvement in the local Christian community including being known as the man who commissioned the [Statue 1], coupled with his voluntary return to Iraq in November 2015, indicated that his life was not in danger and that he did not have a genuine fear of harm as claimed.
As for the threats of harm posed by ISIS, the delegate found that whilst country information showed the ISIS subjected Christians to serious violence and discrimination in areas under its control (such as Mosul), the threats posed by ISIS in Iraqi Kurdistan (KRI) which covered Erbil were minimal, and that there was no evidence to suggest that Erbil was at imminent risk of being taken over by ISIS.
The delegate also rejected arguments advanced by the applicant’s representative based on his imputed political opinion as a Christian who opposed criminal acts by Iraqi extremists and as a member of the particular social group of persons who have lived for a significant period of time in a Western country. The delegate considered there was no substantive basis for finding that the applicant would be imputed with such political opinion, and that available country information does not support a finding that returnees to Iraq from western countries are at risk of serious harm for that reason alone.
Accordingly, on the basis of the aforementioned findings individually and cumulatively, the delegate concluded that the applicant – and by extension his family members – are not persons in respect of whom Australia has protection obligations.
Applicant and witness evidence at hearing
The applicant gave evidence at the hearing which was largely consistent with the information he provided to the Department in writing and at interview with respect to [Mr A’s] lease of his former [business 1] while he was absent from Iraq, and [Mr A’s] subsequent threat if he did not allow his shop to be taken over as demanded. When asked why he thought [Mr A] did this after many years of apparently peaceful working relationship, the applicant claimed [Mr A] realised he had an opportunity to forcibly take over the shop as his own in circumstances where the applicant was in Australia and not in a position to meaningfully or effectively resist his forced takeover. The applicant claimed [Mr A] was also affiliated with other groups who did not like his support for the church, which the Tribunal infers means Islamist groups.

When the Tribunal put it to the applicant that the threats of harm from [Mr A] had dissipated after he got his way and took over the shop, the applicant responded that it does not mean the problem between them has ended. He was forced to sell whatever assets he had in Iraq at reduced prices because of the threats posed by the presence of ISIS at the time. Where he came from, everyone knew everyone else and the locals were all aware of his religious donations including the [Statue 1], even though he did not seek to broadcast that fact. He believes the Islamists might regard it as a form of proselytising which they could not accept. He claimed he received threatening phone calls in Iraq in relation to his donation of the statue, and even though the callers remained anonymous, he knew they were Islamic extremists because of the threats.
The Tribunal asked the applicant why he commissioned and donated the statue to the church if he was being threatened. The applicant responded that he promised himself that he would do it because of his Catholic Christian faith. He claimed that because of his faith, he has even placed a small [Statue 1] in the front yard of his house (in Australia).
The Tribunal asked the applicant what impact, if any, he believed the Iraqi President’s 2023 revocation of the decree recognising the position of Cardinal Louis Sako as the head of the Chaldean Christians in Iraq would have on the position of Christians in Iraq. The applicant claimed it would make the position of Iraqi Christians more tenuous than ever and more Christians would leave. When pressed by the Tribunal on whether this would merely be a reflection on the lack of leadership rather than threats of harm, the applicant said Christians like him do not feel safe in Iraq and the existence of the decree (before it was revoked) made no difference to the Iraqi Christians’ sense of (lack of) safety and security. When he had previously told the Bishop in [Town 1] about his problems and the threats made against him, the Bishop said it was beyond his power to protect him and his family.
The applicant’s family friend, [Friend A], gave witness evidence in support of the applicant. [Friend A] was born in Iraq as a Muslim, although she is no longer a Muslim. She is a professional [occupation 1] who has travelled regularly to Iraqi Kurdistan to [research] the plight of people in that region, including Christians and other persecuted minorities.[2]
[2] This was subsequently independently verified by open source searches on the internet and via links of samples of [Friend A’s] work provided by the applicant’s representative in post-hearing submissions.
[Friend A] gave evidence that she had just returned from Iraq in early July 2024 after spending [period] there, including Erbil, where she was doing [research]. She testified that during this time, she witnessed the region’s continuing instability and the widespread perpetration of discrimination and harassment of Christians by Muslims with extremist views.
Post-hearing submissions
Following the hearing, the applicant provided the following additional material in support of his protection claims:
·Letter from the Chaldean [Leader A] attesting to his personal acquaintance with the applicant and knowledge of the threatening messages and phone calls the applicant received for alleged proselytising of Christianity after he installed the [Statue 1].[3]
·Letter from the applicant’s former business partner [Mr B] (with a colour scan of the biodata page of his Iraqi passport included as evidence of identity). [Mr B] attested to having personally introduced [Mr A], who is from a family with deep connections to the Kurdish Islamic Union pushing for an Islamic Kurdistan, to work for the applicant when he first opened his [business 1] and was looking for someone to help in the shop. The letter expressed regret for making the introduction because of what [Mr A] subsequently did to the applicant (in usurping and taking over the [business 1]) and for threatening to harm the applicant and his adoptive father.
·Letter from [a Chaldean church in Australia] expressing their continuing support for the applicant and his family.
·Statutory declaration from the applicant regarding his children’s ongoing dependence on him for financial support despite the fact that the older [children] are now adults, including one who is now married.
[3] Open source internet searches of the Chaldean [Leader A] and comparisons of [his] photographs on various public websites with photographs provided by the applicant in relation to the unveiling of the [Statue 1] confirm that it is probable that the applicant is personally known to the [Leader A].
The applicant’s representative also made submissions that, notwithstanding the takeover of the [business 1] by [Mr A], he remains an ongoing threat to the applicant’s safety. The fact that he now owns the applicant’s store does not negate the threats he made in the past, nor does it change the fact that he has anti-Christian views. As a member of a family that is associated with the Kurdish Islamic Union and given his political and religious views, [Mr A] is likely to pose a serious ongoing threat to the applicant who is a known supporter of Christianity and an easy target.
The representative also submitted that the applicant is an easily identifiable target whose risk exposure is over and above that faced by other Christians in the area because he arranged for the [Statue 1] to be erected in [Town 1]. If he returned to Iraq, [Mr A] and/or his associates who hold extreme Islamic beliefs would likely seek to harm him for this. Moreover, given current instability in the region and anti-Western and anti-Christian sentiment arising from US support of Israel against Hamas and Hezbollah, the situation may become increasingly dangerous for Christians, particularly for a person of the applicant’s profile. Given ISIS was active in the region only 10 years ago, the views that led to the rise of this extreme organisation continue to be held amongst extremist and ISIS sleeper cells in Kurdistan and present as a source of threat of serious harm to the applicant.
REASONS FOR THE DECISION
For the reasons discussed below, the Tribunal has reached a different conclusion to the delegate and found that the decision under review should be remitted to the Department for reconsideration with the direction that the applicant and the other applicants are all persons in respect of Australia has protection obligations under s 36(2)(a) of the Act.
Credibility
The first step in assessing whether the applicant is a person in respect of whom Australia has protection obligations is to determine the credibility of his claims and evidence. The Tribunal is conscious of the need to take a reasonable approach when making findings of credibility, noting the cautionary comment made by Foster J in Guo v MIEA (1996) 64 FCR 151 at [94]:
“…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.”
The Tribunal also notes the United Nations Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 2019) states at paragraph [196] that “…if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.” However, the Handbook also states at paragraph [203] that:
“The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts.”
The Tribunal is also aware that if it makes an adverse finding in relation to a material claim but is unable to make a finding with confidence, that it must proceed to assess the claim on the basis that it might possibly be true: MIMA v Rajalingam (1999) 93 FCR 220. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out: Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA & Another (1994) 34 ALD 347 at [348] per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The Tribunal has carefully considered the applicant’s claims and evidence. Except for the claim relating to [Mr A’s] association with the Kurdish Islamic Union which the Tribunal rejects, the Tribunal otherwise finds the applicant’s claims and evidence to be credible overall and does not run counter to generally known facts. Accordingly, the Tribunal makes the following findings:
·The Tribunal accepts the applicant was adopted by his adoptive parents in the circumstances he described, although the adoption did not end his connections with his biological family.
·The Tribunal accepts the applicant is a Chaldean Catholic Christian who was actively involved in his local Christian community in the [Town 1] area of Erbil.
·The Tribunal accepts that the applicant commissioned and erected the [Statue 1] in [Town 1], which was publicly unveiled in the presence of prominent local [Christian leaders].
·The Tribunal accepts the applicant previously owned and operated a wholesale [business 1] in Iraq, which he ran with the assistance of [Mr A] who was introduced to him by his business partner and supplier, [Mr B].
·The Tribunal accepts that the applicant entrusted the continued running of the [business 1] to [Mr A] while he and his family were in Australia on Subclass 457 visas by leasing the business to [Mr A].
·The Tribunal accepts that [Mr A] opportunistically and coercively took over the [business 1] business by threatening to harm the applicant’s adoptive father to whom he had up until that point been paying money for the lease, and to harm the applicant if he returned.
·The Tribunal accepts that, upon learning about the threat against his adoptive father, the applicant returned to Iraq to check on his adoptive father and to try and resolve the issue with [Mr A], without success.
·The Tribunal accepts the applicant did not pursue the matter further due to fears [Mr A] would carry out his threats and on advice of his business partner [Mr B].
·The Tribunal accepts that whilst they lived in Iraq, the applicant’s wife and children were exposed to discriminatory treatments and harassments based on their identity as Chaldean Christians.
The Tribunal does not accept that [Mr A] is a member of a family that is associated with the Kurdish Islamic Union, given this claim in relation to [Mr A] is a mere assertion that does not appear to be supported by any credible substantive evidence. The claim that [Mr A] is anti-Christian and holds anti-Christian views because of his association with the Kurdish Islamic Union is also incongruous with his work relationship over many years with the applicant.
Having regard to the findings of fact which are accepted by the Tribunal, the question is whether the applicant meets either the refugee criterion or the complementary protection criterion.
Assessment of refugee status
To be eligible for the grant of a protection visa on the basis of satisfying the refugee criterion in s 36(2)(a), the applicant must show he has a well-founded fear of persecution in Iraq, and owing to that fear, is unable or unwilling to avail himself of the protection of Iraq. This requires an assessment of whether there is a real chance that the applicant would be seriously harmed in the reasonably foreseeable future if he returned to Iraq because of his race, religion, nationality, membership of a particular social group or political opinion.
A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
Risk of serious harm from [Mr A]
For convenience, the Tribunal deals first with the applicant’s claimed fear of serious harm from his former employee and assistant, [Mr A].
The Tribunal accepts that [Mr A] had engaged in coercive takeover of the applicant’s [business 1] business and that he had used threats of violence against the applicant and his adoptive father to dissuade and deter the applicant from taking steps to resist the takeover. However, the Tribunal does not accept that, having succeeded in his endeavour, [Mr A] would seek to cause serious harm to the applicant on account of his Christian faith if he returned to Iraq.
First, for the reasons already discussed, the Tribunal rejects the claims that [Mr A] is a member of a family which is associated with the Kurdish Islamic Union, or that [Mr A] holds anti-Christian views because of that association.
Second, if [Mr A] as a Kurdish Muslim was motivated to seriously harm the applicant because of his Christian faith, the Tribunal considers that [Mr A] could and would have done so before the applicant left Iraq. For example, he could have made up some false allegations against the applicant that caused the applicant to become the subject of targeted adverse attention from Islamist militias or other Islamic extremist groups. The Tribunal considers the fact that [Mr A] had worked with the applicant in the [business 1] business for many years without incident and that the coercive takeover occurred a year after the applicant left Iraq suggests it was more likely to have been an opportunistic criminal act rather than an act motivated by religious hostility.
Therefore, in circumstances where the applicant has ceded the [business 1] business to [Mr A], albeit under threats of violence, and in circumstances where the applicant has no intention to take steps to reclaim the business (again albeit due to his continued fear that [Mr A] would carry out the threats), the Tribunal does not accept there is a real chance that the applicant would be seriously harmed by [Mr A] in the reasonably foreseeable future, if the applicant returned to Iraq now.
Risk of serious harm from other actors
The Tribunal has considered whether the applicant, as a Chaldean Christian who was actively involved in the local Christian community over many years and who was known locally to be the man who commissioned and erected the [Statue 1] in [Town 1], would be at risk of serious harm from other actors.
The most recent DFAT Country Information Report for Iraq (16 January 2023), in relation to Christians, reports:
“It is estimated that there were more than a million Christians in Iraq before the March 2003 US-led military action. Subsequent waves of violence, including sectarian conflict in 2004 and during the reign of Da’esh in 2014-17, killed an estimated 1,200 Christians and displaced many thousands more. As a result, large numbers of Christians left Iraq. There are now thought to be fewer than 300,000 remaining in the country. Most live in the Ninewah Plain and the KRI. Approximately 67 per cent are Chaldean Catholics (an Eastern Rite of the Roman Catholic Church), and nearly 20 per cent are members of the Assyrian Church of the East. Others include Syriac Orthodox, Syriac Catholic, Armenian Catholic, Armenian Apostolic, and Anglican and other Protestants. There are approximately 2,000 registered members of evangelical Christian churches in the KRI and an unknown number (mostly converts from Islam) who practise the religion secretly.
Like other religious minority communities, Christians suffered greatly during the Da’esh occupation in northern Iraq, with many forcibly converted to Islam, abducted, raped or killed. Da’esh also destroyed many Christian religious sites. Once Da’esh was defeated, displaced Christians attempting to return to their homes frequently found Peshmerga, PMF groups and other security forces had taken over their properties. Christians have generally been unsuccessful in reclaiming their former homes from these groups, and the state response has been inadequate. Sources told DFAT the Christian population in Mosul had dropped from 5,000 families to 70 as a result of this violence and subsequent displacement.
Because conversion from Islam is prohibited by law, Christian churches in Iraq refrain from proselytising, and conversions from Islam to Christianity are generally performed in secret. Sources told DFAT that access to Christian evangelical material on social media was leading increasing numbers of young Muslims to convert, but that doing so placed them at risk of violence from their families and communities. Christian churches sometimes turn away would-be converts for this reason. In March 2022, a 20-year-old woman known as ‘Maria’ was murdered by relatives in Erbil for disobeying her family and publicly converting to Christianity.
Muslim businesspeople sometimes use Christians (and other religious minorities) as fronts to apply for permits to sell alcohol and operate liquor stores. These sellers receive threats from PMF groups and individuals opposed to the alcohol trade. Infrequently, Christians have been murdered for selling alcohol. According to the US Department of State, PMF groups carried out a series of attacks on minority-owned businesses in Baghdad in 2020-21, including against Christian and Yazidi-owned alcohol shops. Christians are disproportionately targeted for kidnap-for-ransom and other violent crimes, including by PMF and tribal groups. Sources told DFAT this was because Christians were perceived as both wealthy and vulnerable. DFAT spoke to several Christians whose relatives had been kidnapped for ransom, in one case twice.
DFAT assesses that Christians belonging to recognised denominations face a low risk of official discrimination. Like other minorities, Christians face a moderate risk of societal discrimination and violence in areas where they are a minority, including as targets of violent crime, kidnapping and extortion. Those involved in the alcohol trade face a moderate risk of societal violence. Those living in areas where violence continues or who have been displaced face a risk of societal violence similar to that faced by other groups living in those areas or situations. Muslim converts to Christianity face a high risk of official discrimination, in the form of legal restrictions, and societal discrimination and violence, including from their own family members.”[4]
[4] DFAT Country Information Report – Iraq, Department of Foreign Affairs and Trade, 16 January 2023, [3.41]-[3.45].
The US Commission on International Religious Freedom’s 2024 Annual Report states:
“In 2023, religious freedom conditions in Iraq remained precarious for religious minorities. Both the Iraqi Federal Government (IFG) and the semi-autonomous Kurdistan Regional Government (KRG) made some overtures toward the country’s diverse religious communities. However, Iraqis of many faith backgrounds, especially religious minorities, faced ongoing political marginalization by the government as well as abuse by both government-affiliated and nonstate actors. The IFG and KRG’s continued failure to resolve longstanding jurisdictional disputes over certain northern territories created a power vacuum filled by armed groups, including the Popular Mobilization Forces (PMF), defensive Yazidi fighters and Yazidis groomed into PMF service, and remnants of the Islamic State of Iraq and Syria (ISIS).
The IFG’s lack of ability or will to curb the increasing power of PMF units remained among the most significant threats to religious freedom. In 2023, several of these largely Shi’a Muslim and sometimes Iran-backed militias expanded their influence among top officials in Baghdad and within communities throughout the country. Early in the year, Kataib Babiliyoun, a nominally Christian PMF brigade supported by the Shi’a majority of southern Iraq, accelerated its campaign to control Christian properties in the Nineveh Plains region of the north. In March, members of the indigenous Chaldean, Assyrian, and Syriac churches staged protests in Al-Hamdaniya to resist this takeover. PMF brigades around the country also asserted their power via harassment, physical abuse, detention, extortion, and checkpoint interrogation of religious minorities.
Although Iraq’s parliament took some initiatives to advance human rights, such as introducing a draft law against enforced disappearance, it also considered laws that might curtail freedom of religion or belief. The draft Freedom of Expression and Cybercrimes bills contained vague language that prosecutors could use against atheists, Shi’a Muslim theological dissenters, Sunni Muslims, other religious minorities, women, and sexual and gender minorities for defaming religious sects or leaders or expressing opinions deemed contrary to “public morals” or “public order.”
Like their IFG counterparts, leaders in the Kurdistan Region of Iraq (KRI) took some steps in support of religious minorities. For example, in June, the U.S. Consulate in Erbil praised the KRI government’s efforts to find and rescue the estimated 2,700 Iraqi Yazidi girls and women kidnapped by ISIS who are still missing. However, Christian residents of the KRI decried authorities’ refusal to settle claims for confiscated properties, threats to prosecute a blasphemy complaint against a clergy member in Duhok, and tolerance or use of militia checkpoints to harass and restrict the movements of Christians near Alqosh.
At year’s end, the IFG’s implementation of the Yazidi Survivors Law was still inadequate, and the 2020 United Nations (UN)-brokered agreement between the IFG and KRG to stabilize Yazidis’ homelands in Sinjar remained essentially unfulfilled. Some Yazidi survivors of ISIS’s 2014 genocide raised their children in displacement camps for fear of returning to an area ruled by competing militias, subject to Turkey’s periodic military strikes, and lacking crucial infrastructure and employment prospects. In April 2023, a social media campaign spread hate speech against Yazidis, seeking to incite violence against them. The IFG’s 2023 budget law established a reconstruction fund of $38 million for Sinjar and the Nineveh Plains but faced criticism for failing to apportion adequate amounts. Religious minorities continued to cite the perilous security situation as a key reason for their internal displacement and reluctant emigration.”[5]
[5] US Commission on International Religious Freedom Annual Report, May 2024

The UNHCR’s January 2024 report titled International Protection Considerations with Regards to People Fleeing Iraq states:
“The 2005 Constitution provides for freedom of religion and refers specifically in this context to Muslims, Christians, Yazidis, and Sabaean-Mandaeans; no explicit mention is made of other religions nor of atheists. The practice of the Baha’i faith remains prohibited in Federal Iraq. While the Iraqi authorities are reported to generally respect freedom of religion and the election law provides for minority quotas at the federal and governorate level, minority groups report legal political, and economic discrimination and marginalization. Members of minority communities are also regularly faced with hate speech, stigmatization and societal exclusion based on misperceptions and negative stereotypes related to their faith and rituals, origin, lifestyle, professions and clothing.
Depending on their geographic location, economic status and local power dynamics, members of religious minority groups hide their religious identity to varying degrees and seek to assimilate to majority behaviours and traditions. This particularly impacts women and girls of minority groups, who are regularly faced with harassment and violence if they do not abide by prevailing customs. Ethnic and religious minority communities traditionally do not have strong political or tribal networks, which has made them particularly vulnerable to persecution and displacement, including during Iraq’s civil war (2006-2008) and more recently at the hands of Da’esh (2014-2017). As a result, the number of religious minority communities has significantly declined over the past decades, leaving the remaining communities more isolated and vulnerable.
Since 2014, several ethno-sectarian militias have been established as a form of self-protection and to fight Da’esh. They have often had to align themselves with stronger security actors, primarily the PMF and the Peshmerga. This alignment has, however, not resulted in greater political representation for minorities. In some cases, minority groups’ affiliation with these security actors has changed local power dynamics and increased inter-communal tensions. In the ethno-religiously mixed Ninewa Plains, various security actors exercise local control and compete over territory and economic resources. Intercommunal tensions are prevalent, including vis-à-vis Sunni Arabs, Turkmens and Shabaks, and between the Christian and Shabak communities. Leaders and members of minority communities have reported instances of harassment, extortion, physical abuse, abduction and unlawful deprivation of liberty at the hands of the PMF. In mixed Christian and Shabak areas of Hamdaniyah District, Christians accuse the PMF and local authorities of demographic engineering by confiscating and redistributing Christian land and homes to families of Shi’ite PMF fighters.
In areas where Da’esh maintains a presence, especially in disputed territories of Diyala, Kirkuk, Ninewa and Salah Al-Din Governorates, Da’esh targets members of minority groups for kidnappings and killings, and has launched attacks on Shi’ite, Kurdish and Kaka’i villages with mortars and gunfire. The burning of agricultural fields and equipment has also been reported. Furthermore, Da’esh reportedly continues to attempt to launch attacks against Shi’ite pilgrims and mosques in Baghdad and other parts of the country. At least 2,500 Yazidis and hundreds of Shi’ite Turkmens, Shabaks, and Christians, including men, women and children, are reported to remain missing after having been abducted by Da’esh in 2014. Nearly 90 mass graves have been discovered, and many survivors continue to suffer from the long-term effects of the violence they have faced. Yazidi women freed from Da’esh captivity and children born of rape face societal rejection and are at risk of abuse. Minority communities in the disputed territories are also vulnerable on account of these areas’ unresolved legal status and the resulting security gaps and political competition. In Kirkuk and other disputed territories, Kurds assert that since the unsuccessful independence referendum in 2017, local authorities have engaged in the marginalization of Kurdish residents and the renewed “Arabization” of the areas.
Tensions over housing, land and property issues between Arabs who had been settled in the area by the former Ba’athist Governments and Kurds and other minorities continue in light of the disputed territories’ unresolved status, and at times result in localized acts of violence. Yazidis and other minorities in Sinjar (Ninewa) are also impacted by the uneasy presence of multiple security actors and prevailing regional tensions, which, inter alia, result in Turkish airstrikes and drone attacks against alleged PKK/YBŞ targets. Civilians in the ethno-religiously diverse Bashiqa Sub-District (Ninewa) are reported to have been killed and wounded as a result of attacks on the Turkish Zilkan military base located in the area since 2015. In light of the weak rule of law, impunity for past abuses, and minorities’ vulnerability, there have been instances of various actors, including the PMF, Da’esh, vigilantes and criminal groups assaulting, kidnapping and killing members of religious minorities for sectarian or opportunistic/ criminal motives (e.g., on account of their perceived wealth), or a combination of the two. Since 2003, thousands of properties belonging to Christians and members of other minority communities who had been displaced have been illegally seized by powerful individuals, militias and criminal networks. Since 2021, around 200 properties have reportedly been returned to their rightful owners following interventions by Muqtada Al-Sadr.”[6]
[6] International Protection Considerations with Regards to People Fleeing Iraq, UNHCR, January 2024, Pages 126-134.
The current conflict in Gaza between Israel and Hamas is fuelling further security fears and uncertainty among Christian minorities in Iraq. In an article titled “Christian exodus from Iraq ‘alarming’” published on the Christian website The Catholic Register, it stated:
“A multitude of problems — corruption, discrimination and unemployment at home, exacerbated by the fallout from the Gaza war — are driving an alarming number of Iraqi Christians from their homeland, seeking emigration as a last resort, say Church leaders and advocacy organizations.
At least two prominent Church leaders have raised red flags, appealing to the international community to help their people.
“People in Iraq are really afraid that the violence will spread beyond Gaza,” said Archbishop Bashar Warda, Chaldean Archbishop of Erbil, in a recent interview with Aid to the Church in Need, the pontifical charity that helps persecuted Christians around the world.
“Speaking on behalf of all the people — especially the minorities, who tend to suffer more than others, especially in conflict situations — please God, no more war,” he pleaded.
Describing this renewed impetus towards emigration as “alarming,” Warda told The Catholic Register the threat of the Christian community’s disappearance from its ancient homeland is looming larger than ever.
“We do not want to disappear, but we will, without a strong, determined and ceaseless voice from the international community,” he said.
Fewer than 150,000 Christians remain in Iraq, down from the 1.5 million prior to 2003. Approximately 67 per cent are Chaldean Catholics (an eastern rite of the Roman Catholic Church), and nearly 20 per cent are members of the Assyrian Church of the East. The remainder are Syriac Orthodox, Syriac Catholic, Armenian Catholic, Armenian Apostolic, Anglican and other Protestants and evangelicals.
Unemployment is a major factor in the desire to emigrate, with people still struggling to make ends meet after the destruction of livelihoods by ISIS, Warda explained. Seven years after the military defeat of ISIS, the struggle to make a living goes on.
“Since the right to return was granted in 2017, there have been no livelihood programs for minorities in their own country,” he said. “How can one have dignity without work?”
The war in Gaza — with the growing threat of spilling into neighbouring countries — is fuelling even more fear, he said.
The archbishop’s concerns were echoed in a recent statement by Cardinal Louis Sako, whose official position as the patriarch of the Chaldean Church in Iraq was revoked by the Iraqi government in July 2023. Since then, he has left Baghdad, the capital city, and lives in the semi-autonomous Kurdistan region in the north of the country.
“More than a million Christians have emigrated. Most of them were with qualified scientific, economic and skilled backgrounds, but who cares?” he asked in the statement dated Jan. 10.
The statement further noted that instability and lack of equity have renewed the flow of migration; that 100 families from Qaraqosh immigrated in the past months, in addition to dozens of families from other cities, such as Ankawa in the Kurdistan region, due to anxiety about the future and the failure of employers to pay salaries.
The Cardinal listed several causes that are reinforcing the perception that the only solution lies in emigrating to a safer, more stable country.
“Attacks on Christians are still continuing — on their skills, their jobs, the seizure of their properties, we have documented examples,” he wrote. “Cases of forced conversion by ISIS or others, the Islamization of minors, failure to preserve their rights, an attempt to deliberately erase their heritage, history, religious legacy, expressions of hatred in some religious discourses as well as in education books.”
A recent tragedy, a fire that broke out last September during a Christian wedding reception, killing more than 100 in the northern town of Qaraqosh, was another major setback for the community.
A Human Rights Watch researcher reported that government investigations found local authorities were negligent in their failure to enforce safety regulations. Contractors had used cheap, highly flammable construction materials. The report further noted that corruption allowed violators of building codes to act with impunity, reinforcing the Christian community’s suspicions.
Fr. Adris Hanna, a Syriac Catholic priest and native of Qaraqosh, who visited the bereaved families after the tragedy, wrote a moving account of its impact.
“Exhaustion has taken its toll on the people, and thoughts of migration now loom large. The residents of Qaraqosh have faced persecution and expulsion, driven from their homeland due to their ethnicity and faith. In 2014, the city was completely emptied, with a significant portion left in ruins. Nevertheless, upon the defeat of the terrorists, they courageously returned to their beloved hometown, rebuilding it and adamantly refusing to abandon it,” Hanna wrote.
“However, the scale of this catastrophe is so immense that even the most steadfast, who had previously resisted the idea of migration despite living under constant threats, are now contemplating the possibility.”
The reasons for the accelerated emigration of Iraq’s Christians were documented by a 2023 report entitled “The Elephant in the Room: The Forgotten Plight of Christians in Iraq and Syria.” Produced by A Demand for Action (ADFA), the Sweden-based charity that advocates for Middle Eastern Christians, it features the stories of several Christians from the region who have already fled to Lebanon, but are languishing there in poverty and uncertainty, lacking access to health care and other fundamental human rights.
“Behind the statistics and the term ‘refugee,’ there are the human stories of individuals torn apart by conflicts, religious persecution and atrocities, desperately seeking safety, family reunification and hope in a foreign land,” Nuri Kino, ADFA’s president, told The Catholic Register. “We produced this report to give them a voice and a face. We will be presenting it this week at the International Religious Freedom Summit in Washington, D.C., to spur international law makers to take urgent action to support this vulnerable group.”
Warda said the disappearance of the Christian presence in Iraq would be an irreparable loss to the country.
“Of course, we don’t want our people to leave, and they don’t want to leave either, but feel they must, out of necessity,” he said. “We carry the name of Christ and His light in this country. It is our duty to uphold the flame of faith and bestow blessings through our presence. If we were to migrate entirely who would proclaim His name to the people?”[7]
[7] S Korah, “Christian exodus from Iraq ‘alarming’”, The Catholic Register, 1 February 2024, available at >
Having carefully considered available country information against the applicant’s individual circumstances, the Tribunal finds that the situation for Christians in the KRI appears more stable and comparatively safer than elsewhere in Iraq, as the sectarian violence and the reported harassment, extortion, physical abuse, abduction, and unlawful deprivation of liberty of religious minorities including Christians seem to occur mostly outside of the KRI. However, it does not necessarily follow that the applicant’s hometown of Erbil in the KRI is safe, or that the risk of harm facing the applicant as a religiously active and relatively well-known Christian locally if he returned would be less than real chance.
The Tribunal is aware of the Court’s observation in Guo at [57] that “…In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future.” However, just because the applicant has not claimed to have suffered harm in Iraq before coming to Australia on a Subclass 457 visa, it does not mean that the harm he now fears would definitely not occur in the future. The Tribunal must consider whether – and how – the introduction of other events or factors affects the probability of the feared harm occurring.
Furthermore, as the Court found in Chan, ‘real chance’ excludes things that are remote or insubstantial or a far-fetched possibility. Given the consistently reported systematic harassment and discriminatory treatments of Christians even after ISIS has been defeated, including in the KRI albeit to a lesser extent than in other parts of Iraq, the Tribunal is satisfied that there is a real chance – in that it is not remote, insubstantial or far-fetched – that the applicant would be harmed for reason of his Christian faith. Moreover, even though the applicant does not have a prominent profile in the same way that a religious leader might be said to have a prominent profile, the Tribunal accepts that his commissioning and donation of the rather sizeable [Statue 1] to the Chaldean Catholic [Church] and the statue’s unveiling which publicly associated him with the statue, places him at a higher risk than other ordinary Christians of being targeted and harmed with impunity for perceived proselytising; yet his profile is not high enough to conversely moderate his risk of harm due to the controversy and outrage that might otherwise ensue.
The Tribunal has also considered whether the harm that the applicant has a real chance of suffering from if he returned to Iraq is serious harm amounting to persecution. ‘Serious harm’ is not defined, although s 5J(5) of the Act provides a non-exhaustive list of instances that are considered ‘serious harm’ for the purposes of s 5J(4)(b).
In the present case, even if the harm that the applicant has a real chance of suffering from in the reasonably foreseeable future on his return to Iraq does not involve actual or significant harm to his person such as threats to his life, liberty or physical safety, noting in particular the comparatively ‘safer’ situation for Christians in the KRI, the Tribunal is nonetheless satisfied that the harassments and the discriminatory treatments described in the various country information reports which the applicant is likely to suffer from, whether in the form of verbal abuses, denial of capacity to earn a livelihood or restrictions in movements, can constitute serious harm amounting to persecution when they are relentless and sustained over an extended period.
Further, the Tribunal is satisfied on the basis of country information that the applicant’s religion is the essential and significant reason for the real chance of serious harm he faces, that the persecutory conduct is systematic and discriminatory, that the real chance of serious harm relates to all areas of Iraq, and that any state protection available to him is not effective to reduce the risk of harm to less than real chance. The Tribunal also considers that it is not possible for the applicant to avoid the real chance of harm by modifying his behaviour, for example by acting in ways that conceal his Christian beliefs, because such behaviour modification would conflict with his identity or conscience in a manner that is expressly excluded under s 5J(3) of the Act.
For all the reasons discussed above, the Tribunal is satisfied that the applicant meets the definition of ‘refugee’ and that he is therefore a person in respect of whom Australia has protection obligations pursuant to s 36(2)(a) of the Act.
For the same reasons discussed and analysed in relation to the applicant, the Tribunal is also satisfied that the other applicants, as Chaldean Christians, have a well-founded fear of persecution in Iraq and that owing to that fear, are unable or unwilling to avail themselves of the protection of Iraq. Accordingly, the Tribunal also finds the other applicants are refugees who meet s 36(2)(a) of the Act, and that it is not necessary for the Tribunal to assess whether the other applicants are members of the same family unit as the applicant pursuant to s 36(2)(b)(i) of the Act.
Finally, the Tribunal finds that none of the applicants have a right to enter and reside in any country apart from Australia and Iraq, and as such s 36(3) of the Act does not apply in their circumstances.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.
Jennifer Ermert
Member

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.
…