1915261 (Refugee)

[2024] AATA 4363

1915261 (Refugee) [2024] AATA 4363 (26 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Leah Radatti

CASE NUMBER:  1915261

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Catherine Wall

DATE:26 August 2024

DECISION:The Tribunal affirms the decision not to grant the first-named applicant a protection visa.

The Tribunal remits the matter for reconsideration with the direction that the second-named applicant satisfies s 36(2)(a).

Statement made on 26 August 2024 at 1:13pm

CATCHWORDS
REFUGEE – protection visa – Iraq – first applicant husband returned to home country and parties now divorced – no response to invitation to comment, not necessary to consider substantive case and decision under review affirmed – second applicant wife’s claim on grounds of religion, membership of particular social groups, and political opinion – progressive Shia Muslim and educated, professional and westernised divorced and remarried woman, returning alone – scholarship debt – conservative mother and brother, and possible revenge by ex-husband and his family – mental health and treatment – young child eligible for Australian citizenship – consistent, credible and corroborated claims and evidence – country information – gender-based harassment and violence, honour killings and inadequate police protection – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), (4)(b), 36(2)(a), 65(1)
Migration Regulations 1994 (Cth), Schedule 2

CASE
Abebe v Commonwealth (1999) 197 CLR 510

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 June 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. [The first-named applicant] is a [Age]-year-old citizen of Iraq. The second applicant is [his ex-wife], also a [Age]-year-old citizen of Iraq. They arrived in Australia [in] February 2015 and applied for the visas on 31 May 2016.

3. The delegate refused the visas on the basis that the applicants are not owed protection by Australia.

4. The second-named applicant appeared before the Tribunal on 6 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages. The applicant was represented in relation to the review and the representative attended the hearing. The Tribunal also took evidence from the applicant’s current husband, [Mr A], and her sister-in-law, [Ms B].

5. The second-named applicant advised the Tribunal that the first-named applicant has returned to Iraq and the parties are now divorced.

   CLAIMS AND EVIDENCE

   First-named applicant

6. Under s 65(1) a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied.

7. So far as is relevant to this matter, s 36(2) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia. This means that a protection visa may only be granted if the applicant is in Australia.

8. Movement records indicate that [the first applicant] is not in Australia. It appears that he left Australia on 10 September 2019. The Tribunal wrote to him advising that its records showed that he is not in Australia and therefore could not be granted a protection visa and inviting the applicant to comment on the information by 21 August 2024. The representative, Ms Radatti, told the Tribunal that she has had no contact with [the first applicant] since he left the country and is not aware of his whereabouts. The applicant has not responded to that letter or otherwise made contact with the Tribunal since the date he departed Australia.

9. The Tribunal is satisfied from the circumstances set out above that the applicant is not in Australia. Therefore, the applicant does not satisfy the requirements of s 36(2) and cannot be granted a protection visa.

10. Having reached this conclusion, it is not necessary to consider the applicant's substantive case for the grant of the visa.

    Second-named applicant

11. The second applicant (now referred to as the applicant) claimed in her protection visa application that her husband was threatened and physically harmed by Shia militia and she was scared for her own safety and had been mentally affected by those events She said that there is no place in Iraq where they can be safe and they cannot rely on the police for protection.

12. Prior to the Tribunal hearing the applicant’s representative submitted the following:

a.A detailed legal submission addressing the applicant’s claims with references to country information.

b.A statutory declaration from the applicant.

c.A statutory declaration from the applicant’s sister-in-law, [Ms B], which outlines the applicant’s family history and the risks she will face in Iraq, both from her social profile as a divorced woman and from her brother [Mr C].

d.Divorce certificate which indicates that the first and second named applicants divorced [on Date].

e.Marriage certificate of the second-named applicant to [Mr A], dated [Date].

f.Letter from [Ms D], Psychologist, dated 23 July 2024, which states that the applicant is being treated for post traumatic stress syndrome (PTSD) and that it is her opinion that forcing the applicant to relocate to a hostile environment, or taking her away from family and supports would represent a significant risk to the safety and wellbeing of the applicant and her child.

Evidence at hearing

1. The applicant outlined her background and circumstances in Iraq. She said that she was born in [Country] but grew up in Iraq and has [siblings]. She married her first husband in 2005. When living in Bagdad she was working in [Employer] and was awarded a scholarship to study in Australia. A condition of the scholarship was that she return to Iraq upon completing her studies. The scholarship was for [Amount] and she was required to pay the full amount if she did not return to Iraq. She has been making regular repayments and currently owes [Amount].

2. While the applicant came to Australia for the purpose of study, she said that she and her husband saw this as an opportunity to escape the threats he had been receiving from the Shia militia, so they subsequently applied for protection. Her husband found life in Australia difficult as he was unable to secure suitable employment and his mental health deteriorated. When their protection visas were refused, her husband returned to Iraq and demanded that she follow him. The applicant refused to go to Iraq and the marriage ended sometime later. The applicant has since remarried and has a [Age]-year old-daughter. She is working in [work sector] and is in the process of establishment her own [work sector] business. Her current husband, [Mr A], is an Australian citizen therefore their daughter is eligible for Australian citizenship.

3. I asked the applicant why she fears harm if she returns to Iraq. She said that she is a Muslim but she disagrees with certain aspects of the Muslim faith as applied in Iraq. She is opposed to the inheritance laws which allocate lesser amounts to women than to men. She objects to the requirement to wear a ‘rigid’ hijab in Iran, as she prefers a ‘more loose’ style of hijab and she sometimes removes her hijab in public when she feels it appropriate. She also opposes the lower status given to women in Iraq and their dependence on men. She is well educated and had a respected government job which is uncommon in Iraq and which resulted in her being criticised and regarded with suspicion by others.

4. When asked about family support in Iraq, the applicant said that her father is now  deceased but he was her greatest supporter. She has never been close to her mother who holds very conservative religious views and disapproves of the applicant’s choices. Since her father died, her brother [Mr C] is head of the family and lives in the family home with his wife, his mother and the applicant’s sister, [Ms E]. The applicant described [Mr C] as holding very conservative views and being aggressive, cruel and authoritarian. He strongly disapproves of the applicant’s values and lifestyle and is critical of her decision to divorce and remain in Australia. She said that she could not live with him in their family home and she has nowhere else to live.

5. The applicant claims that she will face harm in Iraq as a single woman with progressive views, particularly given the time she has spent in a western country.  She has experienced mental health challenges resulting from her anxiety about returning to Iraq and has been diagnosed with post-partum depression.

6. I asked the applicant if she has considered whether she would take her daughter to Iraq if she had to return, or alternatively, if her husband was willing to live with her in Iraq. She said that her husband is unable to live in Iraq because he was previously married and the end of that relationship in Iraq caused significant problems with his former in-laws. She feels that she would be unable to care for her daughter in Iraq as she would have no family support and would have difficulty obtaining employment.

7. The applicant also expressed concern that her ex-husband’s family might seek revenge on her given that she refused to accompany him back to Iraq and then divorced him. She had previously received abusive messages from her former mother-in-law and as a result she fears that her ex-husband and his family may persecute her if she returns to Iraq, as the honour of men and family is such a powerful influence in Iraq. She said that women are often sacrificed to preserve male honour.

8. [Mr A] told the Tribunal that his mother, father and [brothers] all live in Australia. His aunt is his only family in Iraq. He does not know the applicant’s family in Iraq as she does not have contact with them. He said that he cannot return to Iraq because of difficulties with his ex-wife’s family and he is concerned about his ability to look after his daughter if his wife is required to return to Iraq.

9. [Ms B] is married to the applicant’s brother and they live in Melbourne with their [children]. She also described her brother [Mr C] as abusive and said that it would be very difficult for the applicant to live with him. She said that the applicant will be stigmatised as a divorced woman, would find it difficult to get employment and would be socially isolated given that her brother and mother disapprove of her and would not assist her.

   CRITERIA FOR A PROTECTION VISA

10. 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.

11. 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.

12. 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).

13. 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.

14. 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

15. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    ASSESSMENT OF CLAIMS AND EVIDENCE

16. Under s 5AAA of the Act, it is the responsibility of the non-citizen to specify all particulars of his or her claim for protection, and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act; Abebe v Commonwealth of Australia.[1]

    Identity

    [1] (1999) 197 CLR 510.

17. The applicant’s nationality is not an issue. She travelled to Australia on a valid Iraq passport and has consistently stated in documentation that she is a national of Iraq. The delegate did not indicate any concerns about the applicant’s identity or nationality. Therefore, I am satisfied the applicant is a national of Iraq and I have assessed her claims against Iraq as her receiving country.

    Does the applicant meet the refugee criteria?

18. The issue in this case is whether there is a real chance that the applicant will face serious harm upon return to Iraq.for a refugee nexus reason. For the following reasons, I have concluded that the matter should be remitted for reconsideration.

19. I found the applicant’s evidence to be consistent and credible. She answered questions thoughtfully, without embellishment, and provided independent information in support of her claims. I have had regard to the representative’s submission which states that the applicant is at risk of harm as a member of a particular social group, namely:

oDivorced and single women in Iraq; and/or

oWomen in Iraq who have breached religious, cultural and social norms; and/or

oFemale [profession]s or educated professional women; and/or

oLiberal minded Shia women

1. It is also argued that the applicant faces harm as a result of her actual/imputed political opinions, resulting from being well educated and ‘westernised’.

   Country information

2. I accept that the applicant would, upon return to Iraq, be regarded as a divorced and single woman. I also accept that she is unable to live with her family in her family home given the attitudes of her brother and mother. She would therefore need to find alternative accommodation and would not be under the protection of a man. Country information supports the applicant’s claim that such circumstances would be unacceptable and would subject her to harassment and violence. The 2023 DFAT report concludes that, since the 2003 US-led military action, armed conflict and resurgent tribal and religious influences have led to a serious deterioration in the situation of women in Iraq. While individual circumstances vary, women across the spectrum of Iraqi society are affected by issues such as high rates of domestic and gender-based violence, low rates of economic participation, unfair laws, abusive cultural practices, exclusion from decision-making and inadequate state protection.[2]

   [2] DFAT Country Information Report Iraq, 16 January 2023 at 2.09

3. Women are generally unable to live alone and/or relocate within Iraq without male protection or support. It is not considered socially acceptable in Iraq for a woman to live alone without men.[3] DFAT has assessed that it would be extremely difficult, if not impossible, for a single woman to relocate to a new area where she did not have protection of a male relative.[4] Women who live alone without male protection are reported to be at risk of harassment and a high risk of violence, even death.[5] Reports also indicate that a lack of family connections would leave a woman in Iraq in an economically vulnerable position, expose her to harassment, including sexual harassment and exploitation in the work place,[6] and make it difficult for her to find employment or to obtain housing on her own. According to the UNHCR, women without male support provided by their family or tribal network, including widows, divorcees, and those who escaped situations of domestic violence, ‘honour’ crimes, or forced or child marriage, are reported to be particularly vulnerable to further abuse, exploitation and trafficking. Single mothers and their children are also reported to face social rejection and stigmatisation.[7]

   [3] Trapped: How Male Guardianship Policies Restrict Women’s Travel and Mobility in the Middle East and North Africa', Human Rights Watch (HRW), 18 July 2023, p.4, 20230719091142; 'Country Guidance: Iraq - Common analysis and guidance note', European Union Agency for Asylum (EUAA), 29 June 2022, p.141, 20220704134545;

   [4] 'DFAT Country Information Report: Iraq', 16 January 2023 at 5.20

   [5] The Iraqi YouTube star killed by her father', Gem O'Reilly, BBC News, 6 September 2023, 20230912144610; 'YouTube star's murder: How to end domestic violence in Iraq?', Cathrin Schaer, Deutsche Welle, 07 February 2023, 20231110133253;

   [6] 'Kurdistan Region of Iraq (KRI): Issues regarding single women, documents and illegal exit', Danish Immigration Service, Danish Refugee Council (DRC), 21 March 2023, Section 1.1.6, pp.15-16, 20230322105659

   [7] 'International Protection Considerations with Regard to People Fleeing the Republic of Iraq', United Nations High Commissioner for Refugees (UNHCR), 3 May 2019, p.86, 20190506112913. Also see: ‘You are not honourable anymore’: Shamed and trafficked into Iraq's sex trade', Simona Foltyn, Al Jazeera, 22 August 2022, 20220823131709

4. The Women, Peace, and Security (WPS) Index 2023/24342 has ranked Iraq 168 out of 177 (with 177 being the lowest ranking country, and 1 the highest).[8] Violence and insecurity often constrain Iraqi women to traditional family roles and limit their access to employment and education. Illiteracy is twice as common among women as men. Only 14 per cent of women are working or actively seeking work compared to 73 per cent of men. Women are guaranteed 25 per cent of seats in parliament but are rarely appointed to influential roles and rarely participate in the leadership of their parties. As of 2022, there were three women ministers in the 21-person cabinet. About one in 10 Iraqi households is female-headed, including by widows, divorcees and women caring for sick or disabled spouses. These women are highly vulnerable to poverty, food insecurity, displacement, eviction and sexual harassment and abuse. Single mothers and women who live alone face stigma.[9]

   [8] Women, Peace and Security Index 2023/24', Georgetown Institute for Women, Peace and Security, Peace Research Institute Oslo, October 2023, p.2, 20231026120342

   [9] DFAT Country Information Report Iraq, 16 January 2023 at 3.111

1. It is thought that most violence against women remains unreported due to high levels of stigmatisation, societal perceptions that domestic issues should be dealt with as family matters, lack of police and judicial personnel trained to deal with gender-based violence cases…. as well as a lack of protective legislation and adequate support services.[10] On 18 September 2023, Iraq’s Interior Ministry was reportedly receiving 100 domestic violence reports per day in Baghdad alone, with spousal abuse against women representing the majority (57%) of those cases. Activists, however, pointed out that the real number of cases may be several times higher because victims often do not report abuses due to fear of reprisal or stigma and that these figures do not take into account reports submitted to other relevant government agencies, such as the Community Police service.[11]

   [10] 'KRG urges greater attention for women shelters with domestic violence cases high', Rudaw (Iraq), 29 November 2022, 20221129171903; 'International Protection Considerations with Regard to People Fleeing the Republic of Iraq', United Nations High Commissioner for Refugees (UNHCR), 3 May 2019, pp.86-87, 20190506112913

   [11]  'ISHM: September 14 – 21, 2023', Enabling Peace in Iraq Centre (EPIC), 21 September 2023, p.8, 20230922125518

2. DFAT reports that the Iraqi Police is generally underfunded and poorly equipped and that the police have been involved in human rights abuses including arbitrary detention, beatings and torture. Human rights observers report that police frequently physically abuse detainees in police stations, driven in large part by pressure to produce results in the confession-based judicial system. Police are almost never held to account for these abuses.[12]

   [12] DFAT Country Information Report Iraq, 16 January 2023 at 5.8-5.9

3. In relation to the applicant’s fear that she may be harmed by her ex-husband’s family because of the divorce, it is widely reported that honour killings remain a serious problem nationwide in Iraq, with the United Nations Assistance Mission for Iraq (UNAMI) reporting in November 2022 that several hundred women die each year from honour killings in Iraq.[13] ‘Honour’ is recognised in the Iraqi Penal Code as a mitigating factor in crimes involving violence by men against women.[14] Violence committed by family members to protect the honour of the family or tribe reportedly remains widespread. ‘Honour’-based violence can occur for a variety of reasons, including a friendship with a man, a premarital relationship, adultery, loss of virginity (even by rape), the refusal of an arranged marriage, attempt to marry someone against the wishes of the family, or for demanding a divorce.[15]

   [13] 'Country Reports on Human Rights Practices for 2022 - Iraq', United States Department of State, 20 March 2023, Section 6, p.53, 20230321154319; 'DFAT Country Information Report: Iraq', Department of Foreign Affairs and Trade, 16 January 2023, Section 3.116, p.30, 20230116100315. Specific examples of honour violence and killings can be found on CISNET: 'The Iraqi YouTube star killed by her father', Gem O'Reilly, BBC News, 6 September 2023, 20230912144610; 'Iman killed wearing school uniform', Layla Ahmed, KirkukNow, 17 October 2022, 20221028111608; 'Erbil court sentences victim’s brother to 15 years in prison in ‘honor killing’ case', van Wilgenburg, W, Kurdistan24, 20 September 2022, 20221221201452 ‘Woman stabbed multiple times by brother in Erbil', Karwan Faidhi Dri, Rudaw (Iraq), 19 May 2022, 20220520122134; 'Woman killed by her cousin in Zakho: police', Chenar Chalak, Rudaw (Iraq), 1 April 2022, 20220406135228

   [14] 'Country Reports on Human Rights Practices for 2022 - Iraq', United States Department of State, 20 March 2023, Section 6, p.53, 20230321154319 'DFAT Country Information Report: Iraq', Department of Foreign Affairs and Trade, 16 January 2023, Section 3.116, p.30, 20230116100315; 'International Protection Considerations with Regard to People Fleeing the Republic of Iraq', United Nations High Commissioner for Refugees (UNHCR), 3 May 2019, p.92, 20190506112913

   [15] 'Dozens rally in Erbil on Women's Day against femicide surge', Rudaw (Iraq), 8 March 2022, 20220321142639; 'Father allegedly kills daughter for 'going out' in Soran', Layal Shakir, Rudaw (Iraq), 18 March 2022, 20220321142004; 'Woman killed by her cousin in Zakho: police', Chenar Chalak, Rudaw (Iraq), 1 April 2022, 20220406135228; 'Wife allegedly strangled by husband leaves a child behind', Layal Shakir, Rudaw (Iraq), 10 May 2022, 20220517125735; 'International Protection Considerations with Regard to People Fleeing the Republic of Iraq', United Nations High Commissioner for Refugees (UNHCR), 3 May 2019, p.92, 20190506112913; 'Overview of the status of women living without a safety net in Iraq', Finnish Immigration Service, 22 May 2018, p.23, CIS7B839419159

4. Honour violence may take the form of physical violence, house arrest, restrictions on movement, prevention of education, forced marriage, murder, forced suicide or public shaming.[16] Honour crimes take place in all areas of Iraq and cut across ethnic and religious lines, and in practice are seldom punished, or if punished, the received sentence is often not proportionate to the crime.[17] In Iraqi society, women are considered the holders of ‘honour’, to be protected by men whose role is to protect and uphold their family’s honour and reputation.[18] Great value is placed on a woman’s ‘purity’ or virginity, and women’s behaviour is expected to align to community expectations of honour. It is the role of the male members of a family to control that behaviour, and to take ‘necessary steps’ to restore any lost honour.[19] Although an ‘honour killing’ is usually perpetrated by one person, the act is frequently the result of a collective decision taken after family or tribal consultation.[20]

   Assessment

   [16] Overview of the status of women living without a safety net in Iraq', Finnish Immigration Service, 22 May 2018, p.23, CIS7B839419159

   [17] 'The Iraqi YouTube star killed by her father', Gem O'Reilly, BBC News, 6 September 2023, 20230912144610

   [18] 15-year-old Kirkuk girl looking for safe haven', KirkukNow, 18 April 2023, 20230509115410

   [19] 'Supplement to the International Protocol on the Documentation and Investigation of Sexual Violence in Conflict: Guidance for Practitioners in Iraq', Institute for International Criminal Investigations (IICI), March 2018, p.32, CIS7B83941747; 'Kurdistan Region of Iraq (KRI): Women and men in honour-related conflicts', Danish Immigration Service and Landinfo, 9 November 2018, p.9, CIS7B839411011

   [20] 'Why hasn’t Iraq adopted any laws against domestic violence?', Al Jazeera, 15 February 2023, 20230220134719; 'Banaz self-immolated or burnt?', KirkukNow, 3 November 2022, 20221107143523; 'Teenage girls: main victims of cyberbullying', Laila Ahmed, KirkukNow, 26 October 2022, 20221028113247; 'Maria, 20, killed in Erbil by relatives for converting to Christianity', AsiaNews, 9 March 2022, 20231031142948

5. I note that the delegate was not satisfied that the claims relating to [the first applicant]’s political views and harassment by militia were such that the applicants faced serious or significant harm upon return to Iraq. The issues before the Tribunal now are significantly different from those before the delegate. As the applicants are now divorced and [the first applicant] does not satisfy the criteria for the visa, I have considered [the second applicant]’s specific claims and find that her circumstances have changed considerably since she has been in Australia.

6. Given the consistent and persuasive country information, I find that there is a real chance that the applicant will face serious harm upon return to Iraq because she will be a single, divorced woman without male protection and because she will be regarded as well-educated and having liberal western views (because of her education and because she has lived in Australia)  I also accept that there is a real chance that she will face serious harm resulting from honour killing, as she has brought shame upon her ex-husband and his family by divorcing him. She may also face honour killing by her brother and mother who are so critical of her decision to divorce and remarry while in Australia.

7. On the evidence before me I find that the applicant’s profile is that of an intelligent, well educated, independent and liberal-minded woman. I am satisfied that this profile will make her extremely vulnerable to serious harm or even death in a country where women have low social status, minimal legal protections and are dependent upon men for their physical, psychological and financial security. Country information confirms that police protection is inadequate and it is accepted that families and religious communities deal with female digressions in their own way and are seldom held accountable.

8. I have also taken into consideration the fact that the applicant has not fulfilled the conditions of her scholarship by failing to return to Iraq, and that a debt to the government remains, even though she has been making repayments. I find that this increase the likelihood that she will be subject to scrutiny by the authorities, and others, and that such scrutiny would intensify her profile as a ‘liberal woman’ returning from a western country. Without male protection and family support this would make her very vulnerable.

9. Having considered the issues individually and cumulatively, I find that, if the applicant returns to Iraq now or in the foreseeable future, there is a real chance she will face serious harm from Iraqi society and/or her family and/or her ex-husband’s family, as required by s 5J(4)(b) of the Act, in that it involves a threat to her life or liberty or significant physical harassment or ill-treatment. I find that the applicant’s gender, and her divorced/single status, is the essential and significant reason for the persecution she fears, as required by s 5J(4)(a).

10. I am also satisfied that the harm the applicant fears involves systematic and discriminatory conduct, as required by s 5J(4)(c), in that it is deliberate or intentional and involves her selective harassment for reason of her gender and status as a single/divorced woman.

1. Given that country information refers to legal and police protections for women as inadequate, I am not satisfied that the effective protection measures per s 5LA are available to the applicant in Iraq provided by the state, party or organisation. It follows that I do not accept that the applicant would be able to access effective protection if returned to Iraq for the purposes of s 5LA(2).

2. As the religious and cultural attitudes and practices which the applicant fears exist nationally, I am not satisfied that there is any part of Iraq where she would be safe from the persecution that she fears based on her gender and actual or divorced/single status. I am satisfied the applicant would face a real chance of persecution in all areas of Iraq as required by s 5J(1)(c).

3. Section 5J(3) states a person does not have a well-founded fear of persecution if the person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in the receiving country, other than a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience or conceal an innate or immutable characteristic. In this case, I am satisfied that the modification would require the applicant to alter her gender and divorced/single status which is impermissible as per s 5J(3)(c)(ii) and (iii) of the Act.

4. Accordingly, and for the reasons above, I find that the applicant faces a well‑founded fear of due to her gender and her divorced/single status if she returns to Iraq now or in the reasonably foreseeable future therefore she satisfies s 5J.

5. There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in a third country for the purposes of s 36(3) of the Act.

   CONCLUSIONS

6. As he has departed Australia, the Tribunal finds that [the first-named applicant] does not satisfy the criteria for a protection visa.

7. For the reasons given, the Tribunal is satisfied that [the second-named applicant] is a person in respect of whom Australia has protection obligations. Therefore the applicant satisfies the criterion set out in s 36(2)(a).

DECISION

1. The Tribunal affirms the decision not to grant the first-named applicant a protection visa.

2. The Tribunal remits the matter for reconsideration with the direction that the second-named applicant satisfies s 36(2)(a).

   Catherine Wall
   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.

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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.

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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.

1. 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.

2. 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:

1. 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;

2. conceal his or her true race, ethnicity, nationality or country of origin;

3. alter his or her political beliefs or conceal his or her true political beliefs;

4. conceal a physical, psychological or intellectual disability;

5. enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

6. alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

1. 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.

1. 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.

1. 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:

1. the first person has ever experienced; or

1. 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:

1. the characteristic is an innate or immutable characteristic;

2. the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

3. 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:

1. the relevant State; or

2. 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.

1. 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.

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36  Protection visas – criteria provided for by this Act

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1. 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:

1. is mentioned in paragraph (a); and

2. 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:

1. is mentioned in paragraph (aa); and

2. 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.

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