2210900 (Refugee)

2210900 (Refugee) [2023] AATA 2387 (4 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Robert Peter McMahon (MARN: 1807830)
CASE NUMBER:  2210900
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Bridget Cullen
DATE:4 May 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 4 May 2023 at 12.17pm
CATCHWORDS
REFUGEE – Protection Visa – Iraq – imputed political opinion – association with her former husband – membership of particular social group –spouses of former translators for the U.S. Forces in Iraq – a divorced woman, and single mother – Applicant would not be able to take practical steps to distance herself from her previous marriage – relationship with her ex-husband will continue to pose a risk for her on return – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5H, 36, 65, 91, 499
Migration Regulations 1994, Schedule 2
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
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 January 2020 to refuse to grant the Applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The Applicant, who claims to be a citizen of Iraq, applied for the visa on 5 July 2016.
At the time the Applicant applied for the visa, she was married to the first named applicant in related matter 2001343. The Applicant and her now ex-husband share a child, who was the third named applicant in the related matter. The Tribunal was notified on 25 July 2022 that the Applicant and her ex-husband are no longer together. The Applicant requested that the review application case 2001343 with the Tribunal be split into two separate cases. After careful consideration of the above request, the Tribunal made a decision on 28 July 2022 to split the review application case and a new Tribunal case – 2210900 - was created. The Applicant is the only review applicant in these proceedings.
The delegate refused to grant the visas in related matter 2001343 on the basis that the delegate considered that the first named Applicant in the related matter (the Applicant’s ex-husband) had embellished parts of his material claims regarding threats from state and non-state actors in Iraq. Following the refusal decision by the delegate, the Applicants then applied for review in the Tribunal.
The first named Applicant in the related matter appeared before the Tribunal on 5 September 2022 to give evidence and present arguments. On 5 April 2023, the Tribunal remitted the related matter for reconsideration, with a finding that the first named and third named Applicants in the related matter satisfied s 36(2)(a) of the Migration Act.
The Applicant appeared before the Tribunal to present her own claims on 27 April 2023, assisted by an interpreter proficient in the English and Arabic languages.
The Applicant was represented in relation to the review. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the Applicant is a person to whom Australia owes protection obligations. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The Applicant last arrived in Australia on [date] April 2016, as a secondary applicant to her ex-husband, on a [visa], which ceased on 12 March 2020. The delegate concluded that the Applicant’s passport was valid, and there is no information before the Tribunal suggesting that the passport is not valid. The Applicant has provided the Tribunal with a copy of her Iraqi passport, now expired, together with a copy of her Victorian Driver’s licence.
The Tribunal therefore accepts that the Applicant is a citizen of Iraq and has had her claims assessed against that country in relation to sections 36(2)(a) and 36(2)(aa) of the Act, and on the basis of her evidence before the Tribunal, the Tribunal further accepts, concludes and finds the Applicant’s identity as is claimed for the purposes of this decision.
The Applicant’s claims are summarised as follows:
·As the divorced wife of [the] first-named Applicant in [2001343], she will be persecuted on the basis of her association with the Applicant, who is a member of the particular social group of persons who are former translators for the U.S. Forces in Iraq. She will be assumed to support the US-led forces, as she will remain associated with her former husband.
·As a divorced woman, and single mother, the Applicant will be subjected to discrimination, violence, and insecurity, were she to return to Iraq.
·She stopped wearing the hijab when she divorced and will not be accepted in Iraq as a Westernised woman.
The Applicant has raised additional concerns relating to her safety, were she to return, arising from events that transpired while she was working in [an] Office in [a] State. The Applicant, in her Statement filed in the Tribunal, traverses a range of events that include her having been kidnapped and subjected to torture of various forms, after she uncovered and reported fraud to her superiors. As the Tribunal has found that the Applicant meets the criteria for protection on the basis of her association with her former husband, as well as her status as a divorced woman and single mother, it has not been necessary for the Tribunal to assess these additional potential claims raised by the Applicant as part of her life history.
The Tribunal found, in the Applicant’s former husband’s matter (Tribunal file 2001343), that the Applicant’s former husband and son were entitled to protection. The basis for the finding relating to the Applicant’s former husband was that the Tribunal found the Applicant’s ex-husband “has a well-founded fear of persecution for reason of his membership of the particular social group of persons who are former translators for the U.S. Forces in Iraq”.
Having made this finding in Tribunal file 2001343, it is not necessary for the Tribunal to remake that finding in this review matter. Rather, the Tribunal must consider whether the Applicant has a well-founded fear of persecution, were she to return to Iraq, based upon her association with her ex-husband, who was a former translator for U.S. forces in Iraq.
For the reasons that follow, and considering the country information available to the Tribunal, the Tribunal has concluded that the Applicant has a well-founded fear of persecution on this basis (her association with her ex-husband, with whom she shares a child), as well as a well-founded fear of persecution on the basis of her status as a divorced single mother.
Country information
A recent Country of Origin Information Services Section (COISS) Report on Iraq states the following[1]:
[1] Report dated 29 December 2022 – Department of Home Affairs Country of Origin Service – Iraq.
Cooperation with international community
Those who have cooperated with the international community remain vulnerable to targeted harassment and violence. A large number of Iraqis worked with the international community in the years following the US-led military invasion in 2003, particularly as translators for the international coalition and its military. Many of these persons were subsequently targeted by opponents of the military occupation, although this threat reportedly reduced following the rise of IS as Iraqis redirected their attentions towards that threat. Translators and others working with the international community still, however, face strong societal hostility, particularly in Shia areas of Iraq. During increased US- Iran tensions in January 2020, Shia militia leaders vowed to target and kill Iraqi citizens who cooperated with foreign forces, describing them as enemies who will be ‘eliminated’. In February 2020, Abu Ali al Askari, the security officer for the Kata’ib Hezbollah militia, released a statement on Twitter in which he warned Iraqi contractors to annul their contracts with American forces stationed in the country and referred to unspecified consequences should they not do so. DFAT reported in August 2020 that it was unaware of these threats being acted upon, although more recent reports refer to Iraqis who have previously worked with American and British forces in Iraq being under greater threat. There have also been recent reports of convoys transporting supplies to the US-led coalition, which are operated by Iraqi contractors, being targeted by IED attacks. The US Department of State’s Overseas Security Advisory Council (OSAC) reported in September 2021 that there had been multiple reports of the attempted targeting of American citizens and Westerners in general for kidnapping. In addition, there had been new reports of militia groups kidnapping locals, foreign workers and members of international organizations, and demanding ransoms from either their families or their employers. The US Department of State - Bureau of Consular Affairs’ Travel Advisory for Iraq of 5 October 2022 reported a high risk for violence and kidnapping for US citizens in Iraq. Civil society activists and human rights defenders have also reported that they feel themselves to be at risk from ‘known and unknown groups’ in relation to their ongoing professional contact with international organisations, particularly the US Embassy and the United Nations Assistance Mission for Iraq (UNAMI). On 7 November 2022, a US citizen working for an English language school in Baghdad was shot dead after being ambushed while driving home in Baghdad’s central Karrada district by unidentified perpetrators. DFAT has assessed that Iraqis working with the international community are likely to face strong societal hostility, particularly in Shia areas, that may include violence or the threat of violence.
Additionally, a range of media articles address the issues confronting Iraqi persons who have previously worked as interpreters for the American military. On 23 August 2019, NBC News published an article discussing the difficulties experienced by this cohort of persons, applying for asylum, explaining that:
The interpreters have faced threats, abductions and attacks for their association with American forces, and hundreds have been killed by militants since the U.S.-led invasion of Iraq in 2003.[2]
[2] Dan De Luce, ‘Only 2 Iraqi translators who worked with U.S. troops got U.S. visas last year’, 23 August 2019,
Further, an article by the Washington Post in November 2020[3], highlights the threat of and actual dangers faced by interpreters and translators who, like the Applicant, previously worked with the U.S. Forces in Iraq. The article mentions the dissemination of information identifying this group of people to Iranian-backed militias, highlighting the risks faced by Iraqi translators:
…Iranian-backed militias has so permeated parts of Iraq’s security that the information has, in some cases, become accessible to groups that have taken up arms against the Americans and their support staff, Iraqi officials say.
“It is not a surprise that militias have these documents” said an official in Iraqi Prime Minister Mustafa al-Kadhimi’s office. He added, “They believe it’s going to be a long battle, so they will gather as much leverage over US interests as possible.”
[3] Washington Post, ‘They served alongside U.S. soldiers. Now they fear that Iran’s allies in Iraq will strike back’, 12 November 2020, >
The same Washington Post article provides several examples of threats faced by Iraqi interpreters:
“We have interpreters right now who call me to say they have been threatened when they visit the bazaar or even just when they leave their homes,” said an Iraqi translator who coordinates a network of former support staff. Some people have been told: ‘We can’t touch US citizens here, but we can touch you.’
This translator, who lives in the northern city of Kirkuk, recalled a recent evening when he was leaving a busy café. A man he did not recognise approached from behind and tapped his shoulder firmly. “I turned around and he looked at me directly. He told me to leave this city” recounted the translator.
…
Although Iranian-backed militias participated in the US-supported campaign to oust the Islamic State from its self-proclaimed caliphate, these armed groups have recently been escalating their attacks on American interests in Iraq, especially after the US killing of top Iranian commander Qasem Soleimani in Baghdad.
Militias in Iraq have described the translators as traitors.
In August of 2021, Al Jazeera reported on the experience of Iraqis who worked with the US Forces, in the context of the planned withdrawal of US Forces from Iraq:
Aymen is one of thousands of Iraqis who worked with the US during its 18-year presence in the country, and has been waiting for eight years to receive a US visa.
Like many others, he has been personally threatened by Iraq’s Iran-aligned militias, which are opposed to the US presence in the country. And when US influence in the country starts to fade, Aymen fears individuals such as himself will face even more violence at the hands of the powerful militias, as some Afghans experienced when the Taliban took over.
“There is going to be more chaos, more kidnapping, more killing,” Aymen told Al Jazeera.
Having watched the United States fail to evacuate the majority of its wartime allies in Afghanistan prior to the Taliban takeover this month, Iraqis who worked with the US are now more fearful than ever that a similar fate may await them following the planned conclusion of the US combat mission in Iraq at the end of this year.
On 2 December 2022, the online publication ‘Stars and Stripes’ (a publication that purports to provide independent news to the US military community and has done so since World War II) reported on the significant delay in the United States in processing applications from Iraqi interpreters. The article acknowledges arguments made in a class-action lawsuit by the
New York-based International Refugee Assistance Project, on behalf of a group of interpreters from both Iraq and Afghanistan:
Advocates argue that delays in securing visas for interpreters affiliated with the U.S. military put them at risk for violent reprisals from the Taliban and other militant groups.[4]
[4] J.P. Lawrence, ‘US must create new plan for Afghan and Iraqi interpreters stuck in legal limbo, judge says’, 2 December 2022, and academics
A recent Country of Origin Information Services Section (COISS) Report on Iraq states the following[5]:
[5] Report dated 29 December 2022 – Department of Home Affairs Country of Origin Service – Iraq.
Students, academics and academic institutions have been targeted by IS, and students and academics engaged in anti-government activities, political activism, and educational activities deemed objectionable are also subject to mistreatment. IS targeted libraries, museums, and academic institutions in violent attacks and abducted students and faculty staff. Many academic staff from Mosul University were executed by IS during the period that the city was under its control. Several universities closed as a result of IS’s 2014 campaign. Academic freedoms have remained restricted in areas of active conflict with IS. Various groups in all regions of Iraq have also reportedly sought to control the pursuit of formal education and the granting of academic positions. In the KRI, university president, dean and senior professorship positions were easier to obtain for those with links to the two traditional ruling parties, the Kurdistan Democratic Party (KDP) and the Patriotic Union of Kurdistan (PUK). Privilege is also given to those affiliated with political parties in the pursuit of higher degrees. Educators have long faced the threat of violence or other repercussions for teaching subjects or discussing topics that powerful state or non-state actors find objectionable. Reports indicate that attacks against academics in Iraq occurred predominantly in 2006 and 2007, when sectarian violence was at its height. Three academics in Baghdad were, however, killed in targeted bomb attacks during 2016417 and 2017. Another academic was injured in an armed attack in the Abi Gharaq area of Babil in November 2017. In December 2019, a university professor was severely injured when an IED exploded under his vehicle in Karbala. He was likely to have been targeted for his participation in anti-government protests in the province. A university professor was also shot and killed by unidentified gunmen in Amara, Missan Governorate, on 16 December 2020. In response, the Iraqi High Commission for Human Rights (IHCHR) issued a statement warning that this event could herald a return to a ‘series of assassinations’ targeting Iraqi academics and university professors. On 19 June 2022, a university professor at Muqdadiya College was reportedly stabbed and injured by unknown persons in Al-Hasawiya village, Diyala governorate. Academics have been the subject of threats and kidnappings in relation to the recent anti-government demonstrations in Iraq. Political activism by university students can also result in harassment or intimidation. In November 2022, security forces reportedly used excessive force when breaking up student demonstrations at al Sulaymaniyah University. It was also reported that several journalists covering the events were ‘assaulted, detained and forced to delete’ their recordings.
Women
For much of the 20th century, women in Iraq made significant progress towards equality, achieving relatively high rates of tertiary education and employment in the professions and civil service. Many of these advances were reversed in the latter part of Saddam’s rule. 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. In some cases, a woman’s testimony in a court of law is worth half that of a man. Female heirs inherit less, and male heirs are required to provide them financial support. While women can initiate divorce proceedings, they are not entitled to alimony, and women seeking a divorce are sometimes required to return their dowry. Fathers are automatically awarded guardianship of their children in divorce cases, although a divorced mother may be granted custody of her children until age 10 (extendable by a court until age 15), at which time the child may choose with which parent to live. Women are required by law to have the consent of a male guardian to acquire a passport. Women enjoy relatively more legal rights in the KRI than in other parts of Iraq.
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 (see Economic Overview). 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.
Violence against women
Gender-based violence is common in Iraq, and domestic violence is pervasive. According to the UN Population Fund, 46 per cent of married Iraqi women have been exposed to at least one form of spousal violence. The incidence of domestic violence reportedly increased during COVID-19 lockdowns. 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. Although Article 29 (4) of the constitution specifically prohibits all forms of violence and abuse in the family, Article 41 of the Criminal Code stipulates that men may discipline their wives and children ‘within certain limits prescribed by law or by custom’. Federal laws do not criminalise spousal rape.
KRG law criminalises domestic violence, including physical and psychological abuse, threats of violence and spousal rape. The KRG maintains a special police force to investigate cases of gender-based violence, a domestic violence hotline, and a family reconciliation committee within the judicial system. Nevertheless, gender-based violence remains common in the KRI. Four KRG-operated shelters and one privately-operated shelter provide some protection and assistance for victims of gender-based violence and human trafficking in the KRI. Space is reportedly limited and service delivery poor. Authorities generally focus on family reconciliation rather than offering legal remedies or state protection to victims.
Outside the KRI, ‘Women’s Protection Centres’ operate in Diwaniyah, Kirkuk and Anbar. A centre in Baghdad provides shelter for homeless women but not victims of GBV. Space is reportedly limited and service delivery poor. 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.
* * *
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 (see Civil Society).
Assessment of claims of the Applicant

The Applicant married her former husband in Iraq on [date] October 2008. They resided together, as husband and wife in Iraq for approximately 7-years. During this time, the Applicant gave birth to their son, [name], now [age]-years old. The Applicant and her son travelled together to Australia, to join her ex-husband, arriving on [date] April 2016.
The Applicant divorced her ex-husband while in Australia, and the divorce proceedings were finalised [in] October 2022. Given that the Applicant shares a child with her ex-husband, the Tribunal thinks it would be practically impossible for her to distance herself from her previous marriage to her ex-husband. Were the Applicant to return to Iraq, she will continue to be associated with her ex-husband, as her son will continue to be related to his father, and his father’s extended family. As such, the Tribunal finds that the Applicant would not be able to take practical steps to distance herself from her previous marriage, such that her relationship with her ex-husband will continue to pose a risk for her on return.
The Tribunal accepted that the Applicant’s former husband’s work as a translator assisting U.S. Army Forces in Iraq made him an identifiable group of persons with a social presence in Iraq, set apart from other members of Iraqi society, and united by a common characteristic, attribute, activity, belief, interest, goal, aim or principles.
As such, the Tribunal accepted that as a former translator for US Forces in Iraq, the Applicant’s ex-husband is a member of a particular social group.
The Tribunal accepts that the Applicant, having been married to her ex-husband during the time that he worked for the U.S. forces as a translator, will also be imputed with the same characteristics. That is, she is likely to be questioned and potentially treated with suspicion on return home from a Westernised country, thereby compounding the risk that her association with her former husband (a known “infidel” in his role as a translator) becomes known. The Tribunal thinks it more likely that, given the length of time the Applicant has now spent overseas, and returning without a male companion, that the Applicant is likely to be extensively questioned in relation to her past history.
Applicant’s well-founded fear
The Tribunal has focussed on the available country information, as set out above. In related matter 2001343, the Tribunal said the following about the Applicant’s ex-husband’s circumstances:
“In the current government climate, following the withdrawal of U.S. Forces from Iraq, the Tribunal cannot discount the very real possibility that the Applicant would be at risk of serious harm on the basis of his status as a former translator to U.S. Forces. The Tribunal finds that the Applicant is an identifiable member of a particular social group, that being former translators for the U.S. military in Iraq.
In Chan v MIEA the Court held that a ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Dawson J noted that the phrase ‘well-founded fear of being persecuted…’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.
Further, to hold a ‘well-founded fear of persecution’ on an objective basis, the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J stated:
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation…”
In MIEA v Guo, the Court stated that:
“Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is ‘well-founded’ when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed, or it is mere speculation…”
The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is whether an applicant has a genuine fear is a question of fact. In this case, based on the evidence of the Applicant, the Tribunal accepts that the Applicant has a subjective fear of being persecuted if he is returned to Iraq given his former work as a translator for U.S. Forces.
The Tribunal also accepts that the Applicant has an objective fear of being harmed were he to return to Iraq. The Tribunal notes that the delegate’s decision pre-dates the worsening security situation in Iraq following the withdrawal of U.S. troops. The Country Information now available to the Tribunal clearly establishes that the Applicant’s fears of being identified as a former translator are not fanciful, but appreciable and realistic, in Iraq’s current geopolitical context.”
As the ex-wife, and particularly given the Applicant’s ongoing role as the mother of the son she shares with her ex-husband, the Tribunal finds that the Applicant will continue to be associated with her ex-husband. The Tribunal thinks it likely, in the context of country information, that the Applicant would be imputed to support her ex-husband’s work during the time they were married, and therefore face the very real risk that she would also be seen as a supporter of the U.S. Forces and their involvement in Iraq. Accordingly, the Tribunal finds that the Applicant has a well-founded fear of persecution for reason of her membership of the particular social group of persons who were spouses of former translators for the U.S. Forces in Iraq, at the time they were engaged in their translating work for the U.S. Forces.
The Tribunal additional finds that the Applicant, as a divorced woman and single mother, is likely to face discrimination and violence were she to return to Iraq. The country information suggests that women’s lives in Iraq have deteriorated. Without a male guardian, the Applicant would be in grave danger of experiencing societal bias, discriminatory treatment, and sexual assault.
The Tribunal heard from the Applicant, who described her palpable fear, based upon historical experiences, that her return to Iraq would result in her demise. These concerns were genuinely expressed. The Tribunal accepts that the Applicant has a well-founded fear of persecution for reason of her status as a divorced woman and single mother.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia, there is a real risk that he will suffer significant harm?
As the Tribunal has determined that the Applicant is a refugee in accordance with s 36(2)(a),
it is not required to consider whether, on the evidence before it, that there would be a real risk that the Applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Iraq. Further, as the Tribunal has determined that the Applicant is a refugee in accordance with s 36(2)(a) on the basis of her membership of the particular social group of persons who were spouses of former translators for the U.S. Forces in Iraq, at the time they were engaged in their translating work for the U.S. Forces, as well as on the basis of her status as a divorced woman and single mother, it has not considered whether she is owed protection on the basis of any other reason.
Conclusion: Refugee Criterion
Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is a real chance that in the reasonably foreseeable future the Applicant will be persecuted for reason of her membership of the particular social group of persons who were spouses of former translators for the U.S. Forces in Iraq, at the time they were engaged in their translating work for the U.S. Forces, as well as on the basis of her status as a divorced woman and single mother. Her fear of persecution is well-founded as required by s 5J of the Act and therefore she is a refugee within the meaning of s 36(2)(a).
Conclusion: Complementary Protection
As the Tribunal has determined that the Applicant is a refugee in accordance with s 36(2)(a),
it is not required to consider whether, on the evidence before it, there would be a real risk that the Applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Iraq.
Overall conclusion:
For the reasons given above the Tribunal is satisfied that the 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
The Tribunal remits the matter for reconsideration with the direction that the Applicant satisfies s 36(2)(a) of the Migration Act.
Bridget Cullen
Senior 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.
…

[2023] AATA 2387

4 May 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies

Standing