1927379 (Refugee)

[2022] AATA 1694

1927379 (Refugee) [2022] AATA 1694 (26 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1927379

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Genevieve Hamilton

DATE:26 April 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 26 April 2022 at 3:22pm

CATCHWORDS
REFUGEE – protection visa – Iraq – fear harm from ex-wife’s family members – complementary protection – Bint’amm – breach of the right of cousin marriage – violent dispute – decision under review remitted

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

CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33

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

STATEMENT OF DECISION AND REASONS

BACKGROUND

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

2. The applicant applied for the visa on 20 October 2018. The delegate refused to grant the visa on 23 September 2019. The applicant applied for review on 28 September 2019 and uploaded a copy of the Delegate’s decision with his review application.

   CRITERIA FOR A PROTECTION VISA

3. Under section 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.

4. The criteria for a protection visa are relevantly set out in s 36 of the Act.  An applicant must meet one of the alternative criteria in s 36(2). Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s 36(2)(a)), or on ‘complementary protection’ grounds (s 36(2)(aa)), or be a member of the same family unit as such a person. 

5. Under s 36(3) Australia does not have protection obligations to an applicant who has not taken all possible steps to avail themselves of a right to enter and reside in a third country.

   Refugee

6. Refugee is defined in the Act.  A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) 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).  

7. 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.

8. The criterion in s 5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also imposes an objective standard, that there be a real chance the person would be persecuted.  A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.

9. The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)).

10. A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA).  A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s 5J(3), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation). 

    Complementary Protection

11. If a person is found not to meet the refugee criterion, they may still be a person to whom Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm.  S 36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment.  “Real risk” has the same meaning as “real chance”: MIAC v SZQRB [2013] FCAFC 33.

12. Under s 36(2B) Australia does not have complementary protection obligations where:

    ·it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that they will suffer significant harm;

    ·the applicant could obtain protection from an authority of the countr, such that there would not be a real risk that the non-citizen will suffer significant harm; or

    ·the risk is one faced by the population of the country generally and not by the applicant personally.

    Mandatory considerations

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

    CLAIMS AND EVIDENCE

14. In his protection visa application the applicant said he was born in Iraq on [date].  He travels on an Iraqi Passport issued [in] 2013.   He has an Iraqi identity card issued [in] 2015.  He speaks, reads and writes Arabic.  He was born in Samawah, Muthanna Governorate (in the south of Iraq).  His parents are also Iraqi citizens, living in Samawah.  He has [number of] siblings, and is in contact with his parents and elder brother [Brother A] once a week.  He completed vocational training in 2010 and was employed at a [workplace] from July 2011 to November 2015.  In Iraq he lived in [Suburb 1] of Samawah.  But [from] December 2015 [to]  Feb 2016 lived in Nasiriyah, Dhi Qar Governorate.  His religion is Shi’a.  He arrived Melbourne [in] February 2016 and married in July 2016.  He lived in [Suburb 2] until October 2017, then moved to [Suburb 3]. 

15. The applicant said he fled to [Country 1] with his ex-wife, [from] November 2015 [to] Dec 2015, to get away from her uncle who had threatened him. 

16. In a statement dated 18 October 2018 the applicant noted that he had arrived on prospective marriage visa but they had recently separated and he had asked for his partner visa application to be withdrawn.  He said he left Iraq in fear for his life.  He met his ex-wife as small children.  She was [age] when she came to Iraq [from] November 2012 until May 2013.  They kept in close contact.  In December 2014 her parents consented to their marriage, and her mother and sister came to Iraq for the engagement in 2015.   But her uncles were opposed, one of them wanted her to marry his son.  It is an Al Musawi clan rule that the cousins on the father’s side have the full right to marry as opposed to the mother’s side.  They would have the right to murder him if he chose to ignore this rule.  She did not want to marry her cousin.  They fled to [Country 1] without telling the uncles.  When news of their engagement and departure reached the uncles, they were extremely angry and threatened his life.  They threatened his parents and siblings.  His mother-in-law got sick from the fear and went to hospital.  Then she and the applicant’s brother came to [Country 1].  When he went back to Iraq he stayed with his sister in another province.  But he was unable to resolve the problem with the threats continuing.  The clan is very powerful and the authorities are not able to protect him.  If he goes back to Iraq the uncles will search for him throughout Iraq and he will be murdered by the clan members. 

17. The applicant said that after he came to Australia his ex-wife’s father started making trouble between them.  Preparations were made for the wedding, but they had to wait until her brothers got out of prison.  The applicant felt very uncomfortable in the house and needed to see a doctor.  Eventually he left the house, [in] October 2017.  When the brothers got out of prison they pressed him to separate from [his ex-wife].  This ended in violence.  He went to a religious leader and separated from his ex-wife in March 2018.  During the time he was in Australia the death threats from the uncles continued, to both himself and his family members. 

18. The applicant’s agent provided a submission summarising the applicant’s claims and identifying relevant legal principles, and referring to the generally poor security situation in Iraq.  Text messages were provided as evidence of the threat from the ex-wife’s family, these are referred to further below. 

19. In an interview with the case officer held on 28 February 2019 the applicant said he separated from his wife [in] March 2018.  He said his family in Iraq had been threatened since late 2015 when he eloped with his ex-wife and took her to [Country 1].  Her uncle was very angry because the applicant had breached the tribal code.  They threatened to kill his family if he didn’t return to Iraq, but they also intended to kill him if he returned.  Reputation and honour are important there.  They thought he had disgraced them.  Al Musawi is a big clan across Iraq, with power in the government.  He had breached their sharia, whereby paternal uncles have authority over girls.  Her father wasn’t that keen on the marriage anyway.  A paternal cousin wanted to marry his ex-wife and under the rules she must do so.  Having breached this code they have the right to kill him.  They came to the house looking for him and sent threatening messages to his family when he was in [Country 1].  They still say they will kill him if he goes back.  When he went to [Country 1] the news spread over the province.  His brother and mother in law came to [Country 1].  They asked him to go back and try to solve the problem.  The applicant was afraid.  He asked them not to tell anyone he was going back.  He went to stay with his sister in Nasiriyah, but he didn’t leave the house while he was there. 

20. Although his marriage was now over, her father was against him; by leaving his daughter he had added fuel to the fire and dishonoured the family reputation even further.  Her brothers didn’t like him from the start, and waged psychological war on him.  That is why he decided to separate.  He left the house in October 2017 and had a formal religious separation [in] March 2018.  The applicant said he was lonely, he wished his mother could come and see him but she can’t, and he can’t go back to Iraq.  He still sees his ex-wife’s relations in his mind’s eye.

21. On 15 March 2019 the applicant’s advisers made a further submission addressing allegations made by the applicant’s ex-wife that he had not been genuine or committed to the marriage.  The applicant made a statutory declaration stating that his marriage was genuine and its failure was not its fault.  He supplied a collection of photos of, and messages exchanged by the couple which support this contention.  He said he was seeing a psychologist.  Two friends submitted supporting statutory declarations that the applicant’s marriage was genuine, and about the threats he was receiving. 

22. The AAT received a submission in advance of its hearing of this matter.  The applicant’s agents addressed various issues in the reasoning of the delegate and referred to relevant legal principles.  They noted the UNHCR eligibility guidelines for Iraq which state that honour killings are on the rise, and that many women and girls, and to a lesser extent men and boys, are at risk of death if they are accused of behaviour believed to have bought shame on the family.  They noted also that the Iraqi Penal Code allows lenient sentencing in the case of honour killings. 

23. The applicant has remarried and his new wife provided a letter asking for sympathetic consideration of his case.  The applicant’s psychologist provided a written report stating that they had been treating the applicant since 2020 and that he was suffering from situational depression and anxiety due to the events referred to in his application. 

24. A hearing of the Tribunal was held on 13 April 2022 with the assistance of an Arabic interpreter.  The applicant said his father had a medical supply business and he himself worked there until he came to Australia.  His ex-wife came from the same suburb ([Suburb 1]).  They are related: her mother is his maternal aunt.  He has uncles of his own, on both sides.  One of his sisters is married to a paternal cousin, actually a second cousin.  This is a common tradition.  He is not from Al Musawi, he is from a different tribe.  They have always had some disputes.  His own family were happy with the marriage.  The engagement was attended by his own family including his maternal uncles (his paternal uncle is elderly and lives in another province), his ex-wife’s sister, one of her brothers and her mother came from Australia.  Her father didn’t.  One of her aunts attended.  Her uncles and cousins didn’t go, they didn’t even know about it.  They only found out about the relationship after the engagement.  They started causing problems even before the applicant and his ex-wife went to [Country 1] about 20 days after the engagement.  Her father contacted her mother in Iraq and said that his family were not happy about the marriage because of the cousin’s wishes.  His ex-wife was aware of her cousin’s interest but she wanted to marry the applicant.  When they came back to Iraq he went to his sister and she went to stay with relatives on her mother’s side in a different province.  When he came to Australia, the relationship was ok at first but then issues arose.  Her brothers were in gaol for gun possession. They threatened him from gaol, and even after he separated they approached him in the street and attacked him.  He was afraid to go to the police, or pursue a family violence partner application, because it might exacerbate the situation and get him into more trouble.  He went to a sheik to religiously separate, and the sheik notified her family. 

25. The applicant submitted translations of the aforementioned text messages exchanged between his brother and his ex-wife’s family.  The first set date from the time when the applicant and his ex-wife went to [Country 1].  A cousin addresses the applicant’s elder brother and says that if the applicant does not bring his ex-wife back, he will kill him with his bare hands.  He dares the applicant’s brother to remain in Samawah.  The applicant’s brother asks the cousin to calm down and says he does not know where the applicant has gone.  The cousin says he will not come down and that the applicant will be killed if he returns to Iraq.  The applicant’s brother replies that the couple love each other, and seeks reconciliation.  The cousin replies that the applicant will be killed if he returns to Iraq because he kidnapped the girl; her cousins and uncles will kill him.  A later message (April 2017) is from one of the ex-wife’s brothers in Melbourne, to the applicant’s brother in Iraq, demanding to speak with him about something and threatening violence against the applicant (the context of this timing is unclear).

26. The applicant also submitted a description of a video news item from Samawa referring to the killing of four men in the same family by armed members of another tribe due to a customary dispute.  Although it is not clear in the story itself, the applicant submitted that the background to the case was a similar breach of the custom concerning cousin marriage. 

    Country Information

27. Bint’amm is the right of a male on the paternal side to marry his female cousin.  That is, females are expected to be available to marry the son of a paternal uncle.  It is very commonly referred to in academic sources but the following is a useful summary from Cousin marriage in the Middle East - Wikipedia

    47-60% of marriages in Iraq are consanguine (blood related), according to a 2009 study in the journal Reproductive Health.  In Iraq the right of the cousin has also traditionally been followed as cousin marriage accounts 50%.  The uncle of the girl – or father of the boy – assigns or reserves his niece to his son at an early age, the parents from both families arrange for the marriage usually early. This is usually done to preserve wealth in the family and is more common in rural areas. Among the Jews of Iraq, if the cousin cannot be persuaded to forgo his rights, then he is paid a sum of money by the girl's father. Among the Kurdish Hamawand tribe the paternal male cousin must give his consent for the marriage to take place, though in the southern Kurdish regions the cousin right is not as strongly emphasized. Among Arabs and Berbers in Morocco the cousin right has also traditionally prevailed.  Barth finds in his study of southern Kurdistan that in tribal villages 57% of all marriages were cousin marriages (48% bint'amm marriages) while in a nontribal village made up of recent immigrant families only 17% were cousin marriages (13% bint'amm).

28. DFAT Country Information Report (Iraq) 17 August 2020 states as follows

    Where a person is relocating to avoid violence or the threat of violence at the hands of family, tribe, or community as a result of harmful traditional practices, including on account of preserving family 'honour', there is clear evidence that such actors will pursue the person to the proposed area of relocation, including, for example, through tribal, family or other links. The endorsement of such norms and practices by large segments of society and the limitations of the State to provide protection against such abuses all mitigate against successful relocation.

    FINDINGS AND REASONS

29. Based on the information in his application the Tribunal finds that the applicant is a national of Iraq, and there is no suggestion that he has a right to enter and reside in any other country.

30. The applicant’s claims do not raise fears of harm for any of the reasons specified in s 5J(1).  He is therefore not a refugee as defined in s 5H.  He therefore does not meet the criteria for a protection visa in s 36(2)(a).

31. The Tribunal therefore turned to consider the complementary protection provisions. 

32. The applicant’s evidence was consistent and, in light of the country information, credible.  The Tribunal accepts that the applicant breached the right of cousin marriage by marrying his ex-wife.  While this may not always result in a dispute let alone a violent one, it did in the applicant’s case, as evidenced by the submitted text messages.  He exacerbated the embarrassment to his ex-wife’s family by taking her to [Country 1] after their engagement and before they were married.  He then further dishonoured her family by separating from her.  Based on the text messages sent by her family to his brother, his ex-wife’s family are very hostile towards the applicant.  The applicant’s ex-wife’s brothers have been in goal for gun possession.  The male members of the family in Melbourne did not accept the marriage and basically drove him out of it.  They have been verbally and physically abusive towards him resulting in him requiring psychological support.   

33. If the applicant returns to Iraq this family will be able to target him with the impunity that is not available to the Melbourne side. 

1. Based on the evidence as a whole, the Tribunal is satisfied that as a necessary and foreseeable consequence of being removed from Australia to Iraq, the applicant faces a real risk of significant harm in the form of arbitrary deprivation of life, the carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment. 

2. This risk is one faced by the applicant personally.  The country information indicates that he cannot avoid this risk by relocating within Iraq, or obtain protection from the Iraqi authorities such as to eliminate the risk. 

   CONCLUSION

3. The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

   DECISION

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

   Genevieve Hamilton
   Member