1927379 (Refugee)

This matter concerned an application for a protection visa by an Iraqi national. The applicant claimed he feared harm from his ex-wife's family members due to a breach of a clan rule regarding cousin marriage. The applicant alleged that his ex-wife's uncles, who adhered to an Al Musawi clan rule granting paternal cousins the primary right to marry, had threatened him with death for marrying their relative when she did not wish to marry her cousin. These threats extended to his parents and siblings, and he asserted that the clan was powerful and the authorities unable to protect him.

The court was required to determine whether Australia had protection obligations towards the applicant under section 36(2)(aa) of the Migration Act 1958 (Cth). This involved assessing whether the applicant faced a real risk of significant harm and whether any of the exclusionary provisions under section 36(2B) applied, specifically whether it would be reasonable for him to relocate within Iraq, whether he could obtain protection from an authority, or if the risk was faced by the population generally. The court also considered the Ministerial Direction No. 84, the Refugee Law Guidelines, Complementary Protection Guidelines, and country information assessments.

The Tribunal found that the applicant was a person in respect of whom Australia had protection obligations. The reasoning focused on the specific threats made by the ex-wife's uncles, stemming from a violation of a deeply entrenched clan custom, which placed the applicant at a personal risk of significant harm. The Tribunal was satisfied that the threats were not faced by the general population and that the applicant could not reasonably relocate to a safe area within Iraq or obtain protection from the authorities, given the power of the clan.

Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(aa) of the Migration Act.