2004381 (Refugee)

2004381 (Refugee) [2024] AATA 4456 (3 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Jeremy Bayliss (MARN: 1383248)
CASE NUMBER:  2004381
HOME AFFAIRS REFERENCE(S):          CLF2017/33399
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Jennifer Ermert
DATE:3 October 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 03 October 2024 at 5:57pm
CATCHWORDS
REFUGEE – Protection Visa – Iraq – race – religion – an Arab and a Shia Muslim – current and former professions – imputed political opinion – perceived to have views and practices that are contrary to those of the religious extremists and political groups – at risk of harm from Sunni and/or Shia fundamentalists – membership of a social group – an academic who has spent time in a western society – there is a real chance that the applicant will suffer serious harm – satisfied that the applicant is a person in respect of whom Australia has protection obligations – membership of the same family unit – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, r 1.12, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
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 27 February 2020 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 21 December 2016. The delegate refused to grant the visa to the first named applicant, [Mrs A], on the basis that she is not a person in respect of whom Australia has protection obligations pursuant to either s 36(2)(a) or s 36(2)(aa) of the Act.
The delegate refused to grant the visas to the other applicants, who the delegate accepted are members of the same family unit as the first named applicant, on the basis that they do not satisfy s 36(2)(b)(i) or s 36(2)(c)(i) of the Act due to the first named applicant’s failure to meet either s 36(2)(a) or s 36(2)(aa).
The applicants appeared before the Tribunal on 9 September 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 applicants were represented in relation to the review.
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 first named applicant, [Mrs A], is a person in respect of whom Australia has protection obligations because she is either a refugee or a person who satisfies the complementary protection criterion; and
· in relation to the other applicants – whether they satisfy s 36(2)(b)(i) or s 36(2)(c)(i) of the Act as members of the same family unit as the first named applicant, if they do not otherwise engage Australia’s protection obligations in their own right on the basis of claims advanced on their behalf by the first named applicant or the basis of claims arising on the facts.
None of the applicants have claimed to be members of the same family unit as another person in respect of whom Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicants.
For convenience, the Tribunal will refer to the first named applicant, [Mrs A], simply as ‘the applicant’ throughout this decision record, unless otherwise stated to distinguish her from the other applicants.
Identity and country of nationality
The applicants claim to be citizens of Iraq. All of them have provided an uncertified copy of the biodata page of their respective Iraqi passport to the Department in connection with their protection visa application. In the absence of evidence that the passports for which copies of the biodata pages were provided are bogus documents as defined in s 5(1) of the Act, and given checks of relevant departmental systems have not raised any concerns that the applicants have provided false identities, the delegate has 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 applicants’ Iraqi passports sighted at the hearing and scanned copies of the biodata pages of which were provided to the Tribunal. In the absence of evidence that the applicants are not the persons they claim to be, the Tribunal also accept their identity and citizenship of Iraq as claimed.
The Tribunal finds the applicants’ country of nationality for the purposes of s 36(2) is Iraq.
Protection claims and immigration history
The applicant is a [age] year old woman from Iraq. Her personal background and protection claims are detailed in a statutory declaration provided to the Department in support of her protection visa application which the delegate has outlined in their decision record. The Tribunal adopts those claims here, save for any editorial adjustments for formatting purposes and to correct any typographical or grammatical errors and remove redundancy.
Claims before the Department
The applicant, who claims to be an Arab and a Shia Muslim, was born in [a] District, Baghdad, Iraq. She lived there until her family moved to [a] neighbourhood, [a] District in 1991. She remained living there until she got married in 2010 to her husband [Mr B] and moved to [a] District in Baghdad.
The applicant is an academic and she has always been a supporter of women’s rights in Iraq.
The applicant travelled to Australia in March 2014 along with her two daughters to accompany her husband who received a scholarship from the Iraqi government to study [in] Australia.
While the applicant and her family resided in [a] District in Baghdad which is a religiously mixed Shia/Sunni area located in [Baghdad], it had been a regular target for sectarian acts of violence, including bombings and armed attacks. With the invasion of Iraq by Islamic State in 2014, the neighbourhood became highly volatile and riddled by sectarian conflict. The applicant claims that IS and its Sunni extremist supporters targeted Shia Muslims in this region of Baghdad.
The applicant completed secondary schooling in 1999. Following this, she attended [University 1] University to undertake a [degree], followed by a [degree].
From December 2011 the applicant worked for the [Employer 1]. Her role was to perform [specified task]. Prior to this she worked as a [Occupation 1] at the [University 1] University from September 2010 until July 2011. She had taken leave from her position at the [Employer 1] until her husband completed his study in Australia.
The applicant returned to Iraq from April to July 2015 with her two daughters to care for her sick mother. She did not intend to remain in Iraq for an extended period of time, however, upon becoming sick herself and requiring treatment and a medical procedure, she remained in Iraq for a longer period. During this time she took all necessary precautionary measures to ensure the safety of herself and her daughters.
The applicant claimed that she fears returning to Iraq because she is an independent, free-thinking and educated woman. She is also a strong believer in gender equality and the right of all women to live with freedom and independence.
The applicant claimed that whilst she is a Shia Muslim, she considers herself to be a modern and moderate follower and disagrees with Islamist extremists and their conservative views, particularly those concerning women.
The applicant does not wear the hijab whilst out in public, which has become quite symbolic since the end of the Saddam era and which is seen as a commitment to Allah. The applicant does not consider the wearing of the hijab to be essential in order to practise Islam and she believes that women should not be forced to wear the hijab.
The applicant claimed she was threatened and targeted because she does not dress according to the teachings of Islam. She was discriminated against at her workplace and subjected to pressure from many conservative Muslim men who tried to coerce her to wear a veil because they believed that Islamic law demands women keep their entire bodies covered in the presence of men who are not immediate family members. Although her family and her husband’s family have no issues with her thoughts and ideas on gender equality, she lost many friends who disagreed with her promotion of the rights of women in Iraq.
The applicant claimed that she first started facing issues from the Al-Sadr Shia militia whilst she was still studying at [University 1] University. On one particular occasion in April 2004, she was with a group of female students at the university celebrating the completion of studies when students from the Mahdi Army approached them and forced them to stop celebrating. They threatened to violently harm them if they did not stop their immoral behaviour.
The applicant claimed that in her role as a [Occupation 1] at the [University 1] University, she educated her students and colleagues about gender equality and encouraged them to challenge the norm in regards to the rights and opportunities given to men. As a result she was harassed and received threats from the Mahdi Army. In March 2011, she was approached and threatened at the university by a group of work colleagues and students who were followers of the Mahdi Army. However, she continued to spread her message until the threats she received became more serious. In July 2011 she received a telephone call from a man from the Mahdi Army who said that she was a bad example for Muslim women and that she must leave the university or be killed. The applicant claimed she immediately stopped working at the [University 1] University after this.
After ceasing her employment at the [University 1] University, the applicant continued working at the [Employer 1] where she regularly expressed her views to colleagues in a bid to change community attitudes and help advance gender equality in Iraq. She thought that she had escaped the Al-Sadr militia because she was isolated from [University 1] University. However, she began experiencing the same problems from her manager and she was followed by the conservative Al-Sadr religious group.
The applicant claimed that in December 2012 she was verbally harassed by one of her colleagues, [name], at the [Employer 1]. She added that she also began to receive more phone threats from members of the Al-Sadr militia.
In June 2013 the applicant received another telephone call from a man from the Mahdi Army. The call was made to her family home and this scared the applicant because all her problems in the past were at her workplace and not her family home. She claimed that she also received death threat in the form of a letter which was put under the door of their family home in December 2013, two months before she was granted her dependent student visa.
The applicant claimed that whilst working at the [Employer 1] she helped a colleague, [Ms C] who was being forced to marry against her free will. The applicant allowed [Ms C] to remain in hiding in her house and assisted [Ms C] to marry a man she was in love with, followed by assisting the couple to travel to north of Iraq.
When another colleague, [name], disclosed to [Ms C]’s family the assistance [Ms C] had received from the applicant, [Ms C]’s father came to the applicant’s house to search for [Ms C]. When he found out that [Ms C] had left, he threatened to kill the applicant after finding and killing [Ms C] and her husband.
The applicant claimed that as a result of her liberal views on the position of women, she was viewed by the Al-Sadr Shia militia as an infidel for trying to corrupt the minds of women of Iraq. She added that this militia is active all over Baghdad and they actively monitor the people they view as their enemies.
The applicant claimed that the overall security situation in Baghdad was bad when she left in 2014 and it has deteriorated rapidly since then. IS and its supporters had control over much of northern Iraq and it had a presence in Baghdad and surrounding areas. The attacks that occurred against Shia Muslims and the Iraqi Security Forces were designed to kill as many Shiites as possible to provoke fear and unrest and turn the people against each other and the Iraqi government.
The applicant claimed that following the last death threat she received in December 2013, she fled her family home and resided in different places, including her mother’s house, remaining in hiding until she departed Iraq in March 2014. She had hoped that the sectarian conflict tearing up Iraq would end, but is now resigned to the fact that she cannot live in Iraq without risking harm.
The applicant claimed that if she was forced to return to Iraq, she fears she would be killed, physically attacked, harassed, abducted and/or held for ransom for the following reasons:
·Her religion, being Shia Muslim.
·Her current and former professions and imputed political opinion, as an academic and government [employee] who has spent time in a western society.
The applicant claimed that she has already been threatened in the past because she is a modern, educated and professional woman and she could be easily kidnapped and physically or sexually assaulted in the future. She is at risk of attack and abduction from militia affiliated to religious and political groups, as well as from criminal gangs who would demand a ransom for her return.
The applicant claimed that these sorts of things have happened to other professional females in Iraq and to anyone who is perceived to have views and practices that are contrary to those of the religious extremists and political groups whose militia control the streets in Iraq.
The applicant opposes the extremists who are trying to impose a strict interpretation of Sharia law, where women are relegated to roles in society that limit their right to have an education, to work, to express their opinions freely and to act independently of their spouses, brothers and fathers. The applicant believes that Iraq should establish a secular democracy, with equal rights for women and the right of all people to freely practise their religion. The applicant claimed that this is an opinion she has expressed in public and would continue to express if she returned to Iraq.
The applicant also refuses to wear a hijab, which makes her an easy target for Islamic extremists in Iraq. She has already been threatened in the past by members of the Al-Sadr fundamentalist Shia militia group because of her refusal to wear the hijab and her role in educating Iraqi women about gender equality and freedom of choice. The Al-Sadr militia is a powerful group, given the security crisis in Iraq and the number of followers the group has in Baghdad and the southern Governorates of Iraq.
The applicant also fears she would be subjected to harm by IS and/or other Sunni extremist groups because they specifically targeted and attacked Shia Muslims whom they regarded as apostates. She claimed that she was unable to make pilgrimages to holy sites or attend local markets where large crowds of Shiites gather because Sunni insurgents would attack her. She is easily identifiable as a Shia Muslim through her national identity card which contains the location of issue as [location], a known traditional Shiite area.
She is unable to freely practise her religion as she wishes because she does not comply with the demands of Islamic extremists. Fundamentalist Shiites would attack her because of her modern and moderate religious practices. They oppose the influence of western culture and rights and would perceive the applicant to be westernised and an infidel who has abandoned true Islam.
The Islamic fundamentalists also believe that academics and researchers like her spread anti-religious views and support the US-backed Iraqi government. In particular, those that have travelled overseas would corrupt their students and colleagues by teaching western values or would spy for western governments and their agencies in Iraq. She believes she would be targeted because she would be perceived as un-Islamic and westernised by both the Shia and Sunni insurgents.

In addition, the applicant fears being kidnapped for ransom by people who would perceive her as rich and who want money from her, or who are willing to sell her to militia that target pro-Western Iraqis. Criminal gangs would also target her husband and her children because of their perceived wealth and connections to the west through her husband’s scholarship. The English language and western ways her children have adapted to would attract further adverse attention.
The Iraqi security forces do not have the power to control the country given the ongoing violence. Further, they are corrupted and infiltrated by political and religious groups. The authorities are unable to prevent terrorist threats occurring and assisting people such as her, who are being threatened by militant groups as one of their priorities.
The applicant claimed that after she received the death threat from the Al-Sadr militia, she approached the authorities to report it. The authorities simply made a report and did nothing about it. She claimed she was told that this was her fault and that they would not be able to provide protection to any woman who fails to follow the simplest rule of Islam. She was also warned to stop trying to encourage women to act in ways contrary to established Islamic principles and traditions.
The applicant claimed she would not be able to relocate to any other part of Iraq to seek safety. Wherever she went she would be at risk of harm from Sunni and/or Shia fundamentalists because of her Shia religion, her profession as an academic and a government [employee], her modern and moderate views on religion, her support for gender equality and political views imputed to her because of her link to a western country and professional career. She could not relocate to another part of Iraq without family support and expect to be safe. Wherever she went she would be viewed with suspicion, which would see her exposed to further personal attacks.
The applicant claimed areas south of Baghdad are predominantly occupied by Shia Muslims. The Al-Sadr Shia militia is present and active in these regions. The cities in southern Iraq are full of radical religious followers and the applicant fears she would face the same problem from conservative Muslim men living in Shia areas, if she refused to wear a veil and continued to express her liberal views on women’s rights and gender equality.
The applicant claimed that she and her family would not be able to reside in any Sunni Muslim areas given that they are followers of the Shia Muslim religion and that they would be an easy target for IS and other Sunni extremist groups and their followers.
The applicant added that they would not be able to relocate to the northern parts of Iraq, including the Kurdistan region. Most Kurds are Sunni Muslims and are suspicious of Arabs, particularly Shia Arabs. In addition, they have never lived in Kurdistan and have no family or social connections in the area. The Kurdish do not accept Arabic people who do not have formal residence permits to live and work there, which cannot be acquired, without a Kurdish sponsor.
The applicant’s husband, [Mr B], was initially listed as a dependant applicant without claims in the protection visa application. On 17 October 2019, the Department was notified by the applicant’s representative on her behalf that her husband’s application was to be withdrawn on account that he had to return to Iraq to attend to urgent matters. It was said that the applicant’s husband had not made any claims and was not personally at risk of harm.
The delegate accepted the applicant is an Arab and a Shia Muslim, and that she was employed by the [University 1] University and the [Employer 1] prior to coming to Australia. However, the delegate did not accept that the applicant has a well-founded fear of persecution in Iraq, on the basis that although women in Iraq face a real chance of discrimination which is higher for women who do not conform to conservative societal norms, the applicant’s profile was not sufficiently public or high level as to cause her to be targeted by extremist groups, despite her liberal views and non-conformity to Islamic dress code. The delegate also rejected the applicant’s protection claims based on her religion as a Shia Muslim and based on her imputed pro-western views arising from her profession and her time spent abroad, finding the applicant’s claimed risk of harm for these reasons was not supported by country information.
The delegate also took issue with the applicant’s three months return to Iraq between April to July 2015 and her husband’s return to Iraq despite not having raised his own protection claims or being personally at risk of harm, finding that this raised questions about the genuineness and the extent of her claimed fear of persecution.
Pre-hearing submissions
The applicant’s representative made pre-hearing submissions consistent with, and which maintain, the applicant’s previous claims based on:
·Her religion as a Shia Muslim.
·Her real and imputed political opinion as someone who is perceived to be supportive of the Iraqi government and the US-led coalition in opposition to the armed Islamist militant groups and their extremist political and religious ideologies.
·Her membership of the particular social groups of:
-Women and women’s rights activists.
-Academics.
-Iraqis who have spent a significant period of time in a western country (in particular a country that was involved in the US-led coalition that invaded and occupied Iraq in 2003 and participated in the US-led campaign against IS).
·Her non-compliance with norms relating to Islamic morality.
In addition, the applicant fears harm for her daughters as women in Iraq, and for all of her children because of their associations with her and because of their appearances and mannerisms that identify them as foreigners in Iraq, and the perception that the family is wealthy.
The applicant has continued to be vocal in her promotion of women’s rights since arriving in Australia. She has written and posted articles on [social media] on topics such as the killing of the women’s rights activists by Shia militia groups in Iraq, and the issue of Iraq’s laws and social customs that condemn women to life of fear, harassment and discrimination. Copies of the applicant’s publications have been provided to the Tribunal.
Although she no longer has her job in the [Employer 1], the applicant has maintained contact with some of her former colleagues. Two of these colleagues have provided written statements attesting to their knowledge of the applicant’s advocacy for women’s rights and that unknown persons have approached them several times at their workplace seeking information regarding the whereabouts of the applicant, despite having been informed that the applicant has departed Iraq and has not returned.
The applicant remains in a committed relationship with her husband with whom she has daily contact. Despite not having his own protection claims, her husband has allegedly received threats from individuals related to the applicant’s former colleague [Ms C], warning that the applicant would be killed if she ever returned to Iraq. The applicant’s husband has also been physically attacked by four individuals who he believes targeted him because of the assistance the applicant previously rendered to [Ms C]. A copy of his hospital report documenting the injuries he sustained during the attack was provided to the Tribunal to substantiate this incident.
The applicant’s husband has also received threatening text messages on 11 August 2021, purportedly from Saraya Al-Salam (Peace Brigades), about which he made a complaint to the police. However, despite a court order which enabled the identification of the person who owns the phone number from which the text messages originated, no action was taken because the owner of the number did not send the messages and the police was unable to identify the person who was actually responsible. A translated copy of the relevant investigations and associated court document was provided to the Tribunal. The applicant claimed that the threats her husband has received have added to her fear of serious harm in Iraq.
Evidence at hearing
The applicant gave evidence at the hearing which was consistent with the claims and evidence she has previously presented. When discussing her views on gender equality and the suppression of women’s rights in Iraq, particularly the proposed legislative change to formally permit Sharia law instead of the national civil law to govern family matters including the legalisation of marriage of girls as young as 9 years old, the applicant became quite passionate and animated, and the Tribunal is persuaded that she is a women’s rights advocate as claimed.
The Tribunal asked the applicant why her husband returned to Iraq in 2019, noting that he did not have protection claims of his own and that he was, at least at that time, not at any known or anticipated risk of serious harm. The applicant gave evidence that her husband returned to Iraq because his mother suffered from dementia and was unable to look after herself, and that his brother did not have the capacity to look after their mother. In addition, it was part of the conditions of his [scholarship] that he had to return to Iraq to perform certain services for the government. Her husband’s mother passed away last year, however he has not applied to return to Australia due to anticipated difficulty in getting a visa, i.e. any visa application he makes is likely to be refused by the relevant overseas post due to the applicant having applied onshore for the grant of a protection visa.
The Tribunal asked the applicant what her husband does to protect himself after the attack and the threatening messages. The applicant claimed her husband keeps a low profile and does not leave the house except to go to work. The Tribunal asked the applicant what kind of threatening messages her husband has received, to which the applicant responded that the messages said she must stop publishing things on social media about women’s rights in Iraq.
The Tribunal has considered the applicant’s oral testimony at the hearing together with the claims and evidence she has hitherto provided to the Department and to the Tribunal. The Tribunal finds them to be credible and do not run contrary to generally known information and facts about Iraq. Accordingly, the Tribunal accepts the applicant’s claims and evidence in support of her protection visa application.
The applicant’s daughters [names] (second and third named applicants) also chose to give oral evidence at the hearing. Despite their young age, both girls have clearly and articulately expressed their fears of returning to Iraq because of what they have heard and understood with respect to the limitations on their rights and freedoms as girls if they were to return to Iraq, and their fears of being discriminated against, harassed or harmed on account of their limited Arabic (having been in Australia since they were [age] years old and [age], respectively) and their appearance and mannerism that distinguishes them from other Iraqi children.
REASONS FOR THE DECISION
For the reasons given below, the Tribunal has concluded that the decision under review should be remitted to the Department for reconsideration.
Country information
DFAT Country Information Report for Iraq reports:
“….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.
Article 14 of the constitution guarantees equality before the law without discrimination based on gender. Nevertheless, a variety of laws discriminate against women, including in criminal, family, religious, labour and inheritance matters...
Gender-based violence is common in Iraq, and domestic violence is pervasive…. The legal framework for dealing with gender-based violence is inadequate. Attempts to pass federal anti-domestic violence legislation remain stalled due to opposition by religious leaders and conservative politicians.
………
Communities reportedly often view shelters as brothels and ask the government to close them or they occasionally attack them. Protection workers assisting women to seek shelter from abusers have been charged with kidnapping the women who sought their help. Shelters are subject to unexpected closure by authorities. Some victims, without alternatives, reportedly become homeless. Women leaving shelters are often targeted by sex traffickers.
State protection against rape and sexual violence is inadequate. There is a lack of female police officers and police trained in dealing with gender-based violence and rape. The legal framework and societal norms contribute to impunity for perpetrators of sexual violence. Article 398 of the Criminal Code requires authorities to drop a rape case if the perpetrator marries the victim (the rape prosecution will resume if the husband divorces the victim within the first three years of marriage). Article 394 of the Criminal Code prohibits sexual relations outside marriage, and victims often do not report rape due to fear of being charged under this law, as well as stigma and fear of being killed by family members. Abortion is illegal, including in cases of rape, although the morning-after pill can legally be prescribed for rape victims.
So-called ‘honour killings’ remain a serious problem nationwide. The majority of victims are women. Honour killings can be carried out in response to behaviour including alleged adultery, refusing an arranged marriage, forming an unapproved romantic attachment, or ‘shameful’ dress or behaviour, including social media posts. The Criminal Code limits a sentence for murder to a maximum of three years’ imprisonment if a man is on trial for killing his wife, girlfriend, or a female dependant due to suspicion that the victim had been committing adultery or having sex outside of marriage. UNAMI has reported that several hundred women die each year from honour killings, with some families reportedly arranging honour killings to appear as suicides. The KRG reported 19 cases of honour killings in the KRI in the first nine months of 2021. While arrest warrants are sometimes issued for perpetrators of honour killing, many suspects flee the country or seek protection from tribal groups before they can be brought to trial.
Female genital mutilation/cutting (FGM/C) occurs in Iraq, particularly in rural areas of Erbil, Sulaymaniyah, and Kirkuk. It is illegal in the KRI, but not in federal Iraq. The practice has reportedly declined in recent years due to education and changing attitudes. About 35 per cent of women in the KRI were estimated to have undergone the procedure in 2018, down from about 50 per cent in 2011. FGM/C is rarer outside the KRI, but still occurs.
Forced marriage is illegal, and the legal age of marriage is 18 years for both men and women (although with parental consent and judicial permission the age can be lowered to 15 years). Nevertheless, forced, early and child marriages occur in Iraq. Women and girls are sometimes subject to sexual exploitation through so-called ‘temporary marriages’, where a man gives the family of the bride money in exchange for permission to ‘marry’ her for a specific period. Destitute IDP families living in camps are reportedly particularly vulnerable to this form of exploitation. The traditional practice of fasliya, whereby family members (including women and children) are traded to settle tribal disputes, remains a problem, particularly in southern governorates. Another traditional practice, known as nahwa, allows a male relative to forbid a woman from marrying outside her family or tribe.
People trafficking, including the trafficking of women and girls, is a serious problem in Iraq. Da’esh perpetrated widespread sexual trafficking and slavery, and an estimated 2,700 of its victims remain missing. Anti-trafficking laws exist and are enforced. The US Department of State lists Iraq as a Tier 2 country in its annual Trafficking in Persons Report, indicating it ‘does not fully meet the minimum standards for the elimination of trafficking but is making significant efforts to do so’. Internally-displaced women and girls, LGBTI people and victims of gender-based violence are especially vulnerable.
DFAT assesses that the majority of Iraqi women, regardless of ethnicity or socio-economic status, face a high risk of official discrimination and a high risk of societal discrimination. Iraqi women and girls face a high risk of gender-based violence, including sexual assault and domestic violence, while Iraqi girls face a high risk of being forced into early or involuntary marriage. Iraqi women working to advocate for women’s rights face a high risk of violence, including targeted killings.”[1]
[1] DFAT Country Information Report – Iraq, Department of Foreign Affairs and Trade, 16 January 2023, [3.109] – [3.120].
DFAT also reports the following in respect of treatment of NGO and human rights activists:
“Many civil society actors report harassment and violence from armed groups. For instance, in June 2022, three men allegedly from a local militia group stormed a gender-based violence workshop in Basra and demanded the organisers cease their activities. In 2020, a prominent activist’s son was murdered in Basra after the activist had received threats from militias to cease advocating for women’s rights and campaigning against the recruitment of young people into militia groups. In July 2020, prominent academic Hisham al-Hashimi was killed by unidentified gunmen on a motorbike near his home in Baghdad. Al-Hashimi had reportedly received death threats from Da’esh and Iran-backed militias in relation to his criticism of armed groups in Iraq.
…. Local sources report that civil society activists advocating for the rights of women or LGBTI people, providing assistance to persons with perceived affiliations to Da’esh or attempting to work on politically sensitive topics such as security, corruption or the failure of the government to provide adequate services, are at particular risk.
…….
DFAT assesses that NGOs and civil society actors working on non-controversial topics or delivering services or humanitarian aid generally face a low risk of official interference in Iraq. NGOs and civil society actors promoting the rights of women or LGBTI people or working on politically sensitive topics such as human rights, security or corruption face a moderate risk of harassment and violence, including in the KRI. NGOs and civil society actors perceived as acting against the interests of armed groups, including state-sponsored militias, face a high risk of harassment and violence. State protection is often inadequate.”[2]
[2] DFAT Country Information Report – Iraq, Department of Foreign Affairs and Trade, 16 January 2023, [3.105], [3.106] and [3.108].
Human Right Watch’s 2024 World Report similarly reports the following in relation to women and girls rights in Iraq:
“After playing a central role in the 2019-2020 protest movement, women continued to struggle against patriarchal norms embedded in Iraq’s legal system. Iraq’s penal code enables impunity for male violence against women, including provisions that allow the husband to punish his wife, parents to discipline their children, and mitigated sentences for violent acts including murder for so-called “honorable motives.” The penal code also allows perpetrators of rape or sexual assault to escape prosecution or have their sentences quashed if they marry their victim.
Women’s rights groups continued to advocate for an anti-domestic violence law, but efforts in parliament stalled. Survivors of gender-based violence had limited access to shelter or justice, and some survivors of human trafficking were tried and convicted for prostitution. The few government shelters in the KRI only allowed women to enter or leave with court orders. While there were a small number of underground shelters for women in federal Iraq, run by local nongovernmental organizations (NGOs), they were not widely supported, but often criticized, and sometimes attacked by families and raided by authorities.”[3]
[3] Human Rights Watch World Report 2024 (Iraq).

The European Union Agency for Asylum’s Country of Original Information Report (Iraq) – Targeting of Individuals, states that human rights defenders in Iraq were reported to have been targeted with assassination attempts, attacks, abductions, and arbitrary arrests and detentions, with numerous incidents cited to demonstrate the dangers faced by activists, including but not limited to the attempted killing of Lodya Remon Albarti and the killing of Riham Yaqoub in August 2020.[4] Individuals who are perceived as westernised or ‘amoral’ are subjected to systematic discrimination and harassment particularly online through social media, and women activists are harassed to a much higher degree and their photos and addresses could be shared online alongside messages calling for their rape or assassination.[5] Violence against women and girls are prevalent throughout Iraq, with domestic violence, so-called honour crimes, child marriage, trafficking in women and girls and female genital mutilation being the most common.[6]
[4] Country of Origin Information Report Iraq – Targeting of Individuals, European Union Agency for Asylum, January 2022, [5.3] and [5.4].
[5] Country of Origin Information Report Iraq – Targeting of Individuals, European Union Agency for Asylum, January 2022, [6.1].
[6] Country of Origin Information Report Iraq – Targeting of Individuals, European Union Agency for Asylum, January 2022, [7.2].
Although Iraq’s Personal Status Law sets the legal age for marriage at 18, the law also allows a judge to permit girls as young as 15 to be married in ‘urgent’ cases. According to the latest available UNICEF data on child marriage, as of 2018, 24.3% of women were first married or in union before the age of 18. During 2020, traditional early, so-called temporary marriage and forced marriages of women occurred throughout the country. In a June 2021 report, Save the Children noted that due to loopholes in laws, children in Iraq are exposed to a wide range of protection risks, including the exploitation of girls through temporary marriages. Under the so-called temporary or pleasure marriages, a man can marry a girl for a limited period of time in exchange for dowry money to her family. The traditional practices of nahwas and fasliya, whereby women are traded to settle tribal disputes, continued to occur especially in areas where tribes have more influence than state institutions.[7] On 4 August 2024, a bill proposing amendment to Iraq’s 1959 Personal Status law was officially introduced in the Iraqi Parliament which could potentially see marriage of girls as young as 9 years of age legalised.[8] [9] [10]
[7] Country of Origin Information Report Iraq – Targeting of Individuals, European Union Agency for Asylum, January 2022, [7.2.3].
[8] A Gordon, ‘Proposed Bill amendment in Iraq could allow girls as young as 9 to marry. What to know.’, Time, 16 August 2024.
[9] Z Al Mashat and O Al Jaffal, ‘Draft Iraqi law allowing 9 year olds to marry would ‘legalise child rape’, says activists.’, The Guardian 10 August 2024.
[10] E Ochab, ‘The rights of women and girls in Iraq on a downward spiral.’, Forbes, 17 August 2024.
Assessment of refugee status
To meet the refugee criterion in s 36(2)(a) of the Act, the applicant must have a well-founded fear of persecution, and owing to that fear, is unable or unwilling to avail herself of the protection of Iraq. This requires the Tribunal to be satisfied that there is a real chance the applicant would be seriously harmed in the reasonably foreseeable future if she returned to Iraq for reasons of 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.
The Tribunal has carefully considered the applicant’s claims and evidence against relevant and available country information. The Tribunal is satisfied that because of the applicant’s profile as a woman and an academic with liberal views who has consistently advocated for gender equality and women’s rights in Iraq, and who has continued to do so publicly via online and social media platforms, that she would face a real chance of serious harm amounting to persecution if she returned to Iraq. The Tribunal finds that the sources of harm are both general and specific, and include conservative elements of the society such as the fundamentalist militia as well as members of the family of her former colleague [Ms C] who the Tribunal accepts bear a grudge against the applicant for bringing perceived dishonour to [Ms C]’s family by facilitating [Ms C]’s escape from an arranged marriage and elopement with the man she loved.
The Tribunal notes the reasons the delegate gave for rejecting the applicant’s protection claims. The delegate accepted that the applicant holds liberal views in relation to women’s rights which she shared with other women, but rejected the suggestion that those views were publicly known or that the applicant was sufficiently prominent to have her views come to the adverse attention of fundamentalist militia. The delegate also doubted the seriousness of the threats posed by [Ms C]’s family because the threatened harm did not eventuate.
With respect, the Tribunal does not agree with the delegate. Whilst it may be readily accepted that human rights defenders with prominent profiles have a considerably higher risk of serious harm, it does not follow that human rights defenders with lower or less public profiles do not face a real chance of serious harm. Similarly, the fact that [Ms C]’s father or other family members had not caused actual physical harm to the applicant before she left Iraq is merely a guide that informs the assessment concerning the chance of something bad occurring to the applicant in the future, but it does not necessarily follow from the absence of actual physical harm in the past that there is not a real chance that the threatened harm would occur in the reasonably foreseeable future.
The applicant is fortunate to have a family and a husband who accept her liberal views and who are therefore not likely to be her persecutory agents. However, noting the country information regarding the prevalence of serious and systematic discrimination and violence against women generally and against those who advocate, or are perceived to advocate, for women’s rights (and other human rights) or who are perceived to act contrary to religious and social mores specifically, the Tribunal finds the chance of the applicant being seriously harmed in Iraq in the reasonably foreseeable future is not so remote, insubstantial or far-fetched that it could be discounted as not being a real chance.
On the basis of the country information, the Tribunal is also satisfied that the serious harm (physical violence, kidnapping, attempted killing etc.) that the applicant has a real chance of suffering from in Iraq is for the significant and essential reason of her membership of the particular social groups of ‘women in Iraq’ and ‘academic and women’s rights advocate’. It is possible that the applicant also faces a real chance of serious harm for reasons based on her real or imputed (pro-Western) political opinion arising from her human rights advocacy and from her residence in a western country that was part of the US-led coalition which invaded Iraq, or for reasons based on her Shia religious beliefs in a country that is beset by sectarian conflicts despite the dominance of Shiites. However, it is not necessary for the Tribunal to make a finding in relation to these reasons, having already found that the applicant’s membership of the aforementioned particular social groups is the significant and essential reason for her real chance of serious harm.
In finding there is a real chance that the applicant would suffer serious harm in the reasonably foreseeable future if she returned to Iraq, the Tribunal has also considered whether the applicant’s real chance of serious harm could be avoided by internal relocation, availability of state protection, and behaviour modification. The Tribunal is satisfied on the available country information that internal relocation is not viable, and that state protection is inadequate.
The Tribunal is also satisfied that it is not possible for the applicant to avoid the real chance of serious harm through behaviour modification. Whilst the applicant could stop advocating for women’s rights and start acting consistently with societal expectations (e.g. wear the hijab when in public), the Tribunal considers that requiring the applicant to do so would be unreasonable insofar as it would conflict with a characteristic that is fundamental to her conscience or involve alteration or concealment of her true religious and political beliefs. Further, being a woman is an innate and immutable characteristic of the applicant which she cannot be expected to take steps to change.
For all the reasons discussed above, the Tribunal finds that the applicant meets the definition of ‘refugee’ because she has a well-founded fear of persecution in Iraq, and that she is therefore a person in respect of whom Australia has protection obligations pursuant to s 36(2)(a) of the Act. The Tribunal finds s 36(3) of the Act does not apply to the applicant, as there is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in a country apart from Australia.
Member of the same family unit
Having found the applicant is a person in respect of whom Australia has protection obligations pursuant to the refugee criterion in s 36(2)(a) of the Act, the Tribunal turns its attention to the other applicants.
Section 5(1) of the Act provides that a person is a member of the same family unit as another person if either is a member of the family unit of the other or each is a member of the family unit of a third person. ‘Member of the family unit’ has meaning set out in reg 1.12 of the Regulations, which provides the following in relation to protection visas:
(4)A person is a member of the family unit of another person (the family head) if the person is:
(a) a spouse or de facto partner of the family head; or
(b) a dependent child of:
(i)the family head; or
(ii)a spouse or de facto partner of the family head; or
(c) a dependent child of a dependent child of:
(i)the family head; or
(ii)a spouse or de facto partner of the family head; or
(d) a relative of the family head or of a spouse or de facto partner of the family head, who:
(i)does not have a spouse or de facto partner; and
(ii)is usually resident in the family head’s household; and
(iii)is dependent on the family head.
Under s 5(1) of the Act, ‘dependent child’ of a person means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-child who:
(a) has not turned 18; or
(b) has turned 18 and:
(i)is dependent on that person; or
(ii)is incapacitated for work due to the total or partial loss of the child’s or step-child’s bodily or mental functions.
The second, third and fourth named applicants, [names], are the applicant’s[age] year old, [age] year old and [age] year old children in respect of whom the applicant has full parental responsibility. They are clearly members of the same family unit as the applicant who satisfies s 36(2)(a).
Accordingly, the Tribunal finds that the second, third and fourth named applicants satisfy s 36(2)(b)(i) of the Act. It is not necessary, therefore, for the Tribunal to separately assess whether their individual circumstances are such that they engage Australia’s protection obligations in their own right, either on the basis of claims advanced by the applicant on their behalf, or on the basis of claims arising on the facts, even though it is the Tribunal’s preliminary view, particularly with respect to the second and third named applicants – that they would likely also engage Australia’s protection obligations.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
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.
…

[2024] AATA 4456

3 October 2024

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