2305331 (Refugee)

2305331 (Refugee) [2024] AATA 1196 (3 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Tara Imrie
CASE NUMBER:  2305331
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Melissa McAdam
DATE:3 January 2024
PLACE OF DECISION:  Sydney
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 03 January 2024 at 10:55am
CATCHWORDS
REFUGEE – protection visa – Iraq – Federal Court remittal – religion – particular social group – single woman – widowed – diagnosed mental illness – former Ba’athist – co-founder of a private school – threats, intimidation and extortion by Shia and Sunni Militia Groups – no effective protection available – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5 (1), 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994 (Cth), 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 Immigration and Border Protection on 1 March 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant was represented in relation to the review.
The applicant, who claims to be a citizen of Iraq, applied for the visa [in] May 2016.
The Tribunal (differently constituted) affirmed the delegate’s decision, and that decision[1] was set aside by the Federal Circuit and Family Court.[2] The matter is now before the Tribunal pursuant to an order of the Court.
[1] AAT Case Number 1704351.
[2] AYZ21 v Minister for Immigration, Citizenship and Multicultural Affairs (SYG618/2021)
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.
Protection visa application
The following is a summary of the claims and information the applicant provided in her Protection visa application:
a.She was born in Baghdad, Iraq in [year]. She submitted a copy of her Iraqi passport.
b.She is widowed.
c.She is of Shia Muslim religion and worked as a teacher in Iraq before she retired.
d.Her [daughter,], is married and lives in Baghdad. Her [son A,] is married and is a refugee in [Country 1]. Her other [son B] is single and lives in [Country 2]. The applicant contacts them by phone. She had another [son C] who was killed.
e.Her mother is deceased and her father lives in Baghdad.
f.She worked as a primary school teacher in Baghdad, Iraq between [year] and June 2013.
g.She departed Iraq legally [in] March 2016 and arrived in Australia [in] March 2016 on a Visitor visa. She previously came to Australia in 2015. She has travelled to Country 3], [Country 4], [Country 5] and [Country 1]for holidays.
With her Protection visa application she submitted a detailed Statutory Declaration in which she outlined the following:
I was married to my late husband, …, who was a [Official]in Iraqi Embassy in [City 1], [Country 6]with the former Iraqi Government; and later worked in the [Government Department 1]as a [job title 1]at the Department.
In about 2004, my late husband was appointed [job title 2]for the Approval Section for the students who were offered scholarship in [Country 7]and [Country 8].
On 14 November 2006, my late husband was kidnapped when some unknown militiamen kidnapped him. Ever since, we heard nothing from him.
My late husband, …, was secular person and not involved in politics at all. He graduated from the University [1]and gained Bachelor Degree in economy and had a Master's degree from the University [2] in Economy as well. Due to his qualifications as mentioned above my late husband was offered a position in the Iraqi embassy in [Country 6], as a [Official]. As a result of my late husband's work with the embassy, we lived in [Country 6] from 1999 up until 2003.
However, following the downfall of Saddam Hussein's regime in 2003 and the American troops liberating Iraq, we had no option but to go back to Iraq.
Following to our arrival in Iraq, my late husband began working in the [Government department 1]as detailed above.
However, [in] November 2006, disaster took place when unknown armed militia men started invading all government building and departments; then they kidnapped about [a number of professionals] into an unknown place, including my late husband.
It was the time when unknown militia men started kidnapping and killing doctors, professors, university lectures and highly qualified people in Iraq.
My late husband …, was among the kidnapped people [in] November 2006 during his working hours by unknown armed militiamen; and ever since we have heard nothing from him.
From the kidnapping date up until May 2014, I searched and looked everywhere for my late husband. I attended different hospitals in Iraq, looking for my missing husband. I experienced a horror and lived in agony by going through dead bodies and corpses in order to locate my husband.
Unfortunately, I could not locate his body. I was living in pain, fear, hour and was always crying and seeking for help. Sadly, there was nobody there to offer help because I am a woman and have no militia to protect me.
It was even harder because we never found out who kidnapped or killed my late husband or killed him. No ransom was asked for his release and we never heard from him or from the kidnappers.
Following my husband's kidnapping, it is commonly known that in Iraq if a person is missing for more than four years, then the court will issue an official death certificate. However, the Iraqi court refused to issue a death certificate for my husband until [May] 2014. This was because I had no male protection or militiamen to back me up.
It is our custom when someone gets missing in the war or gets kidnapped; the court will declare him dead after 4 years. Then the court will issue an official death certificate for the deceased. Hence, the family will collect something valuable from the deceased's belonging and bury it in the deceased's family's graveyard.
The same thing took place in our family, when my late husband was declared dead by the court in Iraq; we had to erect a symbolic grave for him next to my son's coffin grave. In my case, I buried my late husband's hand watch, his hat and his t-shirt in the coffin grave.
After the kidnapping of my late husband, I began receiving frequent threats from the Tarek Al-Hashimi group. This group was declared as a terrorist group in Iraq. They were asking my late son, [C] to join them. Tarek Al-Hashimi group would come to our house pretending that they were there to help us because they alleged that my late husband was kidnapped and killed by the Shiite Militia groups.
They also told me that this was because my husband was of Sunni faith. I said to Tarek Al-Hashimi group that we are not sure who kidnapped or killed my late husband. It could also be the Sunni militia groups in Baghdad, we cannot accuse anyone without evidence, I said to them.
The Tarek Al-Hashimi group were in control of [Suburb 1] and because of this, we used to have a lot of bombs being detonated in the area. It was commonly known that when this terrorist group would request from someone to join their group, and if that person refused, they would usually kill the person for not joining their armed militiamen.
In or about 2007, Tarek Al-Hashimi militia group approached [son C]to join them. Prior to his killing, my late son, [C] said to me words to the effect of: "Mum, Tarek Al-Hashimi militia group came and asked me to join them and they will help me to revenge for my late father. It Is because father was killed by the Shiite militia group, but I said to them no, I am not going to join you or be part of you".
My late son refused to join any militia group, including the Tarek Al-Hashimi militia group.
When my late son [C] had refused to join this terrorist group, someone contacted him and had asked to meet with him at a local billiards place at a shopping centre which was only minutes' walk from our house.
Before my son left the house to go see whoever had contacted him, he said to me words to the effect of 'Mum, I have to go see what they want because if I don't go and meet with them, they will come destroy our house and kill us all. I am not part of them and will never join these criminals, but I have to go and see what they want in order for you and my siblings not go get hurt.'
17 July 2007 was the last day I saw my son [C] alive. That day my son had gone outside when a parked car detonated and killed my son when he left home at around 11am and went to the billiard shop. That day we noticed that the street we were living on was open for other vehicles, not only were we surprised by this but shocked because our street had always been closed off to other vehicles except for that day.
We realised that it was no coincidence that our street had been open to other vehicles and that the only reason it was open was so that the terrorist group could kill my son. My son was only [age] years old when he was killed by the detonated car bomb. It was like a spear through my heart they day he died.
When the police arrived, they told me that this detonated bomb was planned. I said to the police, "my son was never involved in anything at all. He was [was]waiting to join the university".
10 days after my late son [C] was killed, my family and I decided to move to Northern Iraq to the Kurdistan regional government area. This was in order live in peace, and not to kill my other 2 sons and daughters. This also was recommended by the police officer who came to the scene when my late son, [C] was killed. The officer said to me: "Go to the North, you and your family are targeted. You don't know who is your enemy and who is going to come and kill you. I believe that your son was targeted in this operation".
We moved to [City 2] as recommended the policeman. We remained in [City 2], Kurdistan from about July 2007 until 11 November 2010. Circumstances in [City 2] was not easy for us. It was very difficult, especially for Arabs like ourselves. Then we were asked to leave [City 2] and to go back to Baghdad because:
-While we were living in [City 2], we were being discriminated against because we did not speak Kurdish language;
-We were considered the lowest class citizen in Kurdistan and nobody wanted to talk to us because we are Arabs; and
-The Kurdish Regional Government requested us to provide someone to sponsor us in order to remain in [City 2]. This is because we are Arabs and not Kurds. Simply, it was another way for us to get kicked out of the region; and
-When no one sponsored us to remain in [City 2], we were asked to leave Kurdistan and go back to Baghdad.
When no one wanted to sponsor us in [City 2], the Kurdish Regional Government (KRG) requested us to leave [City 2]. It was because we are not Kurds; and for not having someone to sponsor us. On 11 November 2011, we left [City 2] and went back to Baghdad with the hope that situations would be better, so we could go back to our home.
When my family and I arrived back at our house in Baghdad in November 2011, we realised that our house was taken over by a militiaman known by the name of[Mr A], who was a member of the Al Dawa Shiite party.
In order to get our house back, I contacted some well-known and respected people in the area. I asked if they could go and evict [Mr A] out of our property. These people went to [Mr A] and asked him politely if he could evacuate the property so that we could live there. [Mr A] consented to the evacuation of on the condition that I pay him three thousand American dollars.
Being a woman and without male protection, and left with no other choice, and desperate to provide a roof over my family's head, I was compelled to pay [Mr A]the three thousand dollars he asked for. This is because I am a powerless widowed with no man to help or support me. The police also told me to pay [Mr A] because he has people and can harm me and my family. Simply, the police could not provide protection for me and for my family.
When my family and I moved back into our house we were shocked at the state it was left in. The house was left in very poor condition by [Mr A].
I am a teacher and I love my job as a teacher. My aim was to always raise a good generation of kids, especially these days in Iraq. I decided to open an Iraqi school, with the intention to raise a new generation who are not involved in hatred or other negative attitudes. The idea was to also establish a school that is to be built on an educational and secular basis, not on the religious or fanaticism basis.
I then approached the Iraqi authorities with my application to start the new private school. I lodged my application with the Department of Education in order to obtain the necessary approvals for the said school.
During the time of obtaining the approvals for the school, I was blackmailed by pausing my application unless I pay bribes or they would ask me to provide documents that are not required. My application was put in their draws because I refused to pay any bribes. Simply my application to open the school was in the hands of the most corrupted people on earth together with the militia groups are ruling Iraq and are involved in all the approvals. My application was delayed intentionally. I was told by that my application would never get approved unless I cooperate and pay the militia men who worked at the approval department. I said that I am not going to pay any bribe. As a result of my refusal to bribe them, the fees were massively increased for unrelated matters or registrations. During the process of the approval, I was constantly harassed by their looking, throwing words and by giving me hard time to obtain approvals for the school.
I remember in about July 2013, at the Department of Education, the customer service provider said "Are you married?" I replied and said: "I am a widowed, my husband was kidnapped and killed" The customer service provider said "Let's meet up after work and I finish work and I will get you all approval later". I could not say a word and left the department. As I was too scared to scared to report him; and even if I had reported him, his boss would do nothing because I have had heard so many similar incidents and nothing was done.
I then went home and approached a lawyer do follow up the approval for me. It was because I could not handle the harassments anymore. They intentionally delayed my application for few months. And then I was contacted by my lawyer who asked me to go to the department to sign the necessary documents, as everything was ready to go.
In about September 2013, I went to the department to sign as directed by my lawyer. As mentioned, the militia groups are in control of the government departments. Therefore, they imposed very strict, mandatory and harsh conditions on me in order to provide the approvals, these conditions were as follows: -
That the Shiite militia group would obtain a certain percentage of the schools profits;
That I would be teaching the Shiite Curriculum and faith in my school; and
I should consent to the militia group to come and visit the school whenever they want.
I then had to pretend to be nice with the authorities and militia men. Then in October 2013, I officially opened my school.
In about early October 2013, I started the school with the same intentions as before, to establish a school on an educational and secular basis, so I did not listen to the militia men in relation to teaching their denominations of faith.
I began to teach modern educational books and curriculum which was basically based on the secular and scientific basis. I ignored their requests to teach any certain denominations of faith in a school.
The school gained a very good reputation in [location] and was growing. At the time I had about [a number of] students enrolled in my school. This was because the curriculum quality and also because I hired very good teachers The name of the school is[name].
I continued to focus on the school and teaching normal educational books and curriculum which was acceptable by the department of education in Iraq. I ignored the requests and pressures of both the Sunni and Shia militia groups in my school.
On Wednesday 26 March 2014, [Mr B]who is a well-known person of the Shiite faith, who is a fanatic with numerous followers. [Mr B] has a history of kidnapping, murder and killings. [Mr B] together with some armed men and bodyguards came to the school. Four people came inside the school armed with weapons while the cars and bodyguards were waiting outside. [Mr B] said to me word to the effect of:
[Mr B]: 'Why didn't you apply our instructions at your school, you have failed to meet our conditions; and where is your contribution to our Shiite people. Do you know that we can kill you for not complying with our instructions? I am telling you, if you don't comply with what we have told you, we will knock down the entire school on your head and the heads of the kids in the school' I began to beg and plea with the men not to harm the kids, or me and other teachers"
I said: '[Mr B] please do not do anything / will do whatever you want because there are kids here."
I did my best to avoid any harm to the children because I knew of the evil that these men had inflicted on others, and the men could easily hurt the children, teachers and myself. Due to this event I had no choice but to consent to what they wanted for the safety of the children and teaching staff at the school.
[Mr B] then instructed me and everyone in the school that were female to wear the hijab. I was forced to wear the hijab for the safety of the children and that was the condition if we wanted to stay alive.
Once [Mr B]left, I went to the police officer who was guarding the school and asked him why he didn't stop him. The police guard replied to me:
'Look, these are militia groups, and[Mr B]! Not me nor the government can stop him. They are powerful men and would kill everyone here and no one would be accountable for the killings. You need to follow their demands, exactly, or you all will die."
Following to the above mentioned incident, [Mr B]'s men would come to the school once or twice a week to see whether we were applying their instructions. The men also demanded compulsory donations and contribution of money for their own militia group. I had to constantly come up with excuses to avoid paying them. I would say that I had no money or that I did not have sufficient funds. I told them that once I had the money I would make my contribution.
[Mr B]'s men asked me if I have considered implementing the Shiite curriculum, which was provided and recommended by [Mr B]. [Mr B]'s men asked if have implemented the (hijab policy) in the school.
As usual, I would say to them that once the new curriculum was ready I would implement and teach it to the school. This new curriculum [Mr B] wanted was the Shiite faith curriculum.
The idea was to avoid them and to try make sure the tensions and problems between us did not get worse. As it would have been very bad for the children.
On several occasions, I contacted the police for assistance and was told by the police officers to resolve the matter with [Mr B] because they were afraid of him and his men. The police refused to help us, and being left with no other options we decided that it would be safer for everyone at the school that henceforth all females attending the school will be obligated to wear a hijab. This was to ensure their safety and the safety of those at the school. The police would always tell me words to the effect of: "Please sort out your problem with[Mr B]. We cannot do anything to him, he is very powerful man and they are well-armed".
On Tuesday the 4 November 2014, a group of armed men came into the school without consent of the school or the school guard. I was told by these men who entered the school that they were men of [Mr C], who were of the Sunni faith. A conversation to the following effect took place between me and[Mr C]:
[Mr C]: "You late husband was killed by Shiite because he was Sunni; and therefore you should support the Sunni in respect of your late husband".
I said: "We don't know who killed my late husband and neither my late son. I am here a teacher only"
[Mr C]: "We have heard and we knew that you are going to teach the Shiite Curriculum here, in this school". I said: "I am only teaching what is recommended by the Department of Education"
[Mr C]: "You must teach the Sunni curriculum in this school that is based on the Sunni faith. You should know, that we know, the Shiite Militia attended the school in March this year. We do not want you to listen or cooperate with them."
I was then told that they were also aware that [Mr B] had ordered that I teach the Shiite faith and I was warned that if I start teaching the Shiite faith at the school, [Mr C]would wipe my whole family, and I, off the surface of this earth. I tried to tell them that this school was built for educational and secular purposes, and not religious ones. I was told to keep silent and shut my mouth. One of [Mr C]'s bodyguard pointed his gun at my head and said to me words
to the effect of: "Shut up, if you continue talk, interrupt and argue with [Mr C], I will blow your head up"
I remained silent out of fear, and for the safety of the children, teaching staff and my family. [Mr C]and his three bodyguards, then forced me to open the school safe and take the money out. The safe had about five thousand American dollars inside to which they took and said that this was the donation to the Sunni faith and for the curriculum that they would provide afterwards.
[In] September 2015, I arrived in Australia with the intentions of starting an Iraqi school abroad in Australia. My visa was to visit Australia was for 3 months. While I was in Australia, back in Iraq my son, [A] was taken and was interrogated by the Shiite Militia men. My son was asked to provide information as to my whereabouts and why I was not in Iraq. The men said to my son that they visited the school and I was not there. My son was then brutally bashed by the militia men.
Some days later, my son,[A] contacted me and said that some armed men needed me back home urgently. He also said that the Shiite militia men wanted to talk to me and wanted to know why I was in Australia. He also said that they will kill him and his family if I do not go back to Iraq.
[In] October 2015, the Shiite militia men took my son to the travel agency and forced him to purchase a return ticket for me, from Australia to Iraq. I was scheduled to arrive in Iraq on [in] October 2015. My son called several time and was devastated on the phone. He kept saying that if I do not go back to Iraq, they will kill him together with his family. However, for the sake of saving my son, [1] and his family, I departed Australia [in] October 2015 and arrived in Iraq [in] October 2015.
When I got home, I noticed that my son bad been brutally bashed and still had some bruises on his face and body. My son provided me with a number to call the Shiite militia group.
On 14 October 2015, I called the number and I was told that it was [Mr B]'s group. They were responsible for terrorising my son and family. [Mr B] said that he would prefer to see me at the school in person, and we agreed to meet the following day. As I had no other option, but to listen to what [Mr B] says.
On 15 October 2015 [Mr B] came to the school, he began to ask why I hadn't implemented his instructions and why I wasn't teaching the Shiite Faith in the school. He also said to me: 'Why didn't you tell us about your travel to Australia?" He then ordered me to convert the entire school to Shiite Faith and nothing else. He then told me that if I refused to do so then they would kill my son, his family and everyone, including myself. I begged and said to him: "Please don't do anything here, there are children here and they will get scared. I am willing to do anything you ask".
I was very very scared for the safety of my family, especially after my late son, [C] was killed. I then said to my son that we could no longer live in Iraq. It was no longer safe for any of my family to live in Iraq and we lived with fear in our hearts that any day we would be killed.
On 30 October 2015, my son, his family and I went to my aunty [Ms A] house who resided in [Suburb 2]. We remained with aunty [Ms A] until 5 November 2015. On 5 November 2015 we left aunty [Ms A]s' house and went to stay with my brother who resides on [Location]. We remained at my brother's house until 20 December 2015. While at my brother's house, we applied for an Iraqi passport for my son [A]s' daughter, who is my granddaughter.
I suggested that my son travel to [Country 1] for the safety of his family and himself. Travel to [Country 1] does not need a visa, as this was the best available choice for my son. My son was very concerned and afraid of traveling. He began to have flashbacks about the way he was threatened and bashed by the militia men in Baghdad. My son asked me to accompany them to [Country 1] to which I agreed.
On 20 December 2015, my son [1], his wife and his little daughter travelled to [Country 1], where I remained with them for two weeks. Following their arrival in [Country 1], my son registered with UNHCR in [Country 1] and is waiting to be interviewed and settled somewhere.
On 4 January 2016 after the safe arrival of my son and his family in [Country 1], I returned to Iraq with intention to resume my work at the school. I stayed with my friend [Ms B] at her home in [Suburb 3]. While staying with my friend, [Ms B] I did not go to the school at all. I wanted to avoid [Mr B] and did not implement the Shiite or any other faith into my school. It is because the conditions forced on me by [Mr B]were very harsh and I would never be able to fulfil them. I knew that he would kill me for not implementing his recommendations.
It was very hard and difficult for me to survive in Iraq. On one side I had [Mr B]of the Shiite faith forcing me to obey his commands, convert the school to teach Shiite faith, or be killed. On the other hand, I had [Mr C]who was a Sunni demanding the exact same thing, that is to obey his commands, convert my school to teach the Sunni faith or be killed.
I lived in constant fear. My late husband was kidnapped in 2006 and was never found. My late son [C] killed in 2007 in an organised car bombing; and [Son A] brutally beaten; and finally, my son [B] had already fled Iraq and went to [Country 2] in 2012.
All sense of peace, safety and security had been taken away from me and I lived in constant fear of being killed by either [Mr B]or[Mr C]. It is because I realised that I could no longer live under the massive pressure the different militia forces placed on me. The unlimited influence they wielded with authorities, and finally I did not want my students to become victims of these terrorist organisations.
While staying with my friend [Ms B], I was contacted by my neighbour, [Ms C]who told me that I should be careful and to not go back to my house. [Ms C]also said to me words to the effect of:
There have been armed men frequently coming to your house. Things were getting too dangerous here, you'd better not to come back home. They're after you".
From 4 January till 10 March 2016 I remained with [Ms B]. The entire time I was with [Ms B] I was crying. I felt a sense of confusion, fear and the fact that death was imminent. I did not know what to do due to the recent events.
I started thinking to travel to and join my son, [A] in [Country 1]. Unfortunately, [Country 1] closed their borders to Iraqis because of the influx of the Iraqi refugees to [Country 1]. I became even more devastated because of the following reasons:
The realisation that I had lost my school and would no longer be able to go there, nor be able to work to improving our schooling system, and the sad state of our society;
I was separated from my son, [A] and his family who fled to [Country 1];
My other son, [B] had already fled Iraq to[Country 2];
I also remembered when my late husband was kidnapped and later killed;
My [daughter] fled Baghdad to [City 3] with her husband, and
When my son [C] was killed, for no reason, and at a time when he had just began his beautiful innocent life.
When [Ms B] saw me crying all the time, she said to me: Weren't you in Australia some months ago? Why is don't you call the embassy and ask if you can travel to Australia before you get killed here'
In about few days prior to my second travel to Australia, I contacted and asked the Embassy if I was allowed to travel Australia with my current visitor visa. The Australian Embassy told me that my visa was valid and I was still able to come to Australia, but my visa would expire soon.
[In] March, I departed Iraq and arrived in Australia [in] March 2016, I arrived with only 4 days until my current visa expired. When I arrived in Australia for the second time I decided it would be best and safer if nobody knew of my location, other than my friend [Ms B], and only because she was the one escorting me to the airport.
I cannot go back to Iraq because:
I will most likely be killed very soon as explained above. I have no safe haven with both Shiite and Sunni terrorists after me. At the same time, the Kurdish Regional Government did not allow me to remain there because I am an Arab;
The constant threats by both the Shia and Sunni Militia Groups as mentioned previously means both groups will target me and will not stop until I convert the school to their faith, which is against my principles;
If I follow [Mr B], then [Mr C] will kill me;
If I follow [Mr C] then [Mr B] will kill me;
I have nowhere to go, and I have no way of resolving the terror I face;
Both have intentions to kill me, because I refused to fulfil their demands in relation to the school and because I did not convert the school;
I am wanted now by both terror organisations; The militia men have already infiltrated many places including my school, my suburb, my school, the airport in Iraq, and my house. Once I go back, I will get killed;
I cannot go back because once I do, they will kill me without hesitation;
For me to go back to Iraq will be the definite end of my life;
My husband and son were killed. My family is consisted of 4 people every one of us is in a different country. My daughter in [City 3], my son [A] in [Country 1], my son [B] in [Country 2] and I am here in Australia. My family of 4 people have scattered all around in 4 countries;
If I go back to Iraq, I could face same fate and get killed like my late husband and my late son;
I plead with the Australian authorities to save my life, and grant me a visa that will allow me to live is safety, in peace and to only help build a better education system, and a better future for all humanity;
5 days following to my second arrival in Australia, I began seeing psychologist as I was devastated. I am attending sessions and getting treatment for my psychological conditions.
I just would like to say that if I go back to Iraq now, I will get killed for sure because of the current circumstances in Iraq. There is NO law and order in Iraq these days. It is therefore, I could become an easy target for the same people who threatened to kill me because I am a woman and have no male or militia protection in Iraq.
Simply being a woman and without a male protection, would put my life in a great danger for being killed. I have lost 2 of my beloved family members, I cannot afford more loss in the family.
Please consider my application with a favourable outcome as I cannot afford going back to Iraq. I cannot protect myself and my family members from those terrorists who wanted to kill me for not complying with their evil intention.
Recently, there are more detonated bombs, killing and assassinations. The Iraqi government cannot protect the Iraqis, or themselves. This would put my life at more risk. Simply I am asking for your protection for definite death in Iraq because I did not comply with the rules imposed or dictated by the by the terrorists.

The applicant also enclosed copies of the following materials with her application:
-     Certified copy of her Iraqi Passport.
-     Certified copy of her Iraqi Citizenship with translation.
-     Certified copy of her Iraqi ID Card with translation.
-     Certified copy of her Academic Transcript with translation.
-     Certified copy of her Iraqi National Pension Card with translation.
-     Certified copy of her Private School Lease Contract with translation.
-     Certified copy of her Iraqi Ration Card with translation.
-     Certified copy of the translation for a link to a published article about the kidnap of her late husband.
-     Certified copy of the Death Certificate for her husband, with translation.
-     Certified copy of the Court Decree that her husband was deceased, with translation.
-     Certified copy of the Death Certificate for her son, Ahmad, with translation.
-     Certified copy of the Canonical Distribution of a Legacy with translation.
-     Photographs of a Coffin and Grave for the applicant’s late Husband and late Son
-     A Psychological Report for the applicant.
-     Articles about militias, attacks and abductions in Iraq.
-     DFAT’s November 2016 Travel Advice for Iraq.
Departmental Interview, 14 December 2016
The following is a summary of the information provided by the applicant in her Department interview:
a.The applicant has previously travelled to [Country 3], [Country 1], [Country 4] [Country 5] and [Country 9]. She went to [Country 9] for a religious visit to see the shrines. She went there with a friend. She is not that much into her religion. She prays and fasts.
b.[Suburb 4] is an affluent suburb of Baghdad. No one is living in her home there since she came to Australia. No one checks on the house.
c.She moved to [Suburb 5] after her son [C]was killed but later returned to Baghdad. She stayed at home while she was in]Suburb 5]. Her house in Baghdad was rented. For 3 or 4 years she lived off the wages she was paid for her husband. While she was in [Suburb 5]it was an emergency period so government salaries did not cease because someone was absent from work. She receives a pension of $AUD 1700 every two months. She can collect the pension from Australia.
d.Her son [C] was killed in July 2007. The delegate asked why the cause of his death was not on the Death Certificate. The applicant responded that the government doesn’t mention it because they don’t want revenge or problems to take place.
e.Her son [B] went to [Country 2] in 2013. He studies there. [Son A] is married with two children. He is in [Country 1]. He left Iraq with the applicant to [Country 1]. Her daughter has a fixed address in Baghdad but she often travels with her husband to [City 3]. The applicant’s daughter works at [an institution] in administration. She is on leave because she just gave birth. The applicant now has four grandchildren.
f.The applicant’s father is in Baghdad with the applicant’s sister in[location].
g.The applicant has two brothers and two sisters. She will provide their details after the interview. One of her brothers is in [Country 10]. Her other siblings are in Baghdad. The applicant’s father is [medical condition] and does not work.
h.The applicant does not know the whereabouts of her husband who disappeared. Her Iraqi Ration Card still lists her husband after he disappeared. It states that [name] died in 2007 but this is a mistake.
i.The applicant has aunts and uncles. Many of them have migrated from Iraq because it is in turmoil.
j.The applicant opened her private school in 2013 in an area called [name], on the other side of[location]. It is [suburb 5]. [Suburb 5] is a Shia majority area in Baghdad. The applicant’s school had [a of[ staff and about [a number of] students. She has the lease contract and the permit to operate the school which she will provide. She does not know if the school is still operating. She thinks it is. She gave the authority to run the school to a retired principle. She thinks it is controlled by the militia now.
k.If she returns to Iraq she will not be able to return to operating the school.
l.[Mr B] is for the [Group A]. He is a well known leader and wanted by the Americans. The militia wanted the school under its umbrella so it could continue to exercise control on the area.
m.A Sunni militia led by [Mr C] came to the applicant and accused her of adopting a Shia curriculum for the school. They told her that her husband was killed by the Shia militias and it should be her opportunity to take revenge.
n.The applicant’s school was secured by a security guard and a very high gate. Otherwise they put their trust in God. They could not stop the militia entering. There are youtube videos showing [Mr B]getting into any place he wants. The government in Iraq is under the control of the[Group A].
o.The first time the applicant came to Australia it was to open a school here. She had a Visitor visa with multiple entry. She had a very short visit. She met with the Iraqi embassy who advised her of people she should meet who could help her about how to open a school.
p.She had to ask the Iraqi Ministry of Foreign Affairs and Ministry of Education for permission to open a school in Australia. She received approval from the Minister and then had to follow more procedures. It took about one and a half years.
q.She made a mistake and told people she was coming to Australia to open a school.
r.[Mr B] militia people went to her son and asked about the applicant. She returned to Iraq because she did not want to lose another son. She informed the [Mr B]people that she had been in Australia and asked them to leave her family alone.
s.She helped her son and his family arrange to leave Baghdad.
t.The applicant fears the Shia Militia in Iraq, the [Mr B]militia. [Mr B]demanded money from the school. They wanted her school to be a conservative religious school. The applicant did not want her students to graduate with animosity and hatred towards others.
u.The authorities can’t protect the applicant against the militia, they can’t even protect themselves.
v.Because she didn’t comply with the militias’ requests she is considered to have challenged them. They don’t want people to challenge them.
w.The applicant met with [Mr B]in her school. He didn’t do anything to her there but he would insist she changed her curriculum. She bought time by saying that she didn’t have the funds and would comply but just needed time.
x.The applicant cannot relocate to another part of Iraq, like [City 3], because in Iraq you need to prove your residency and where you live. The militias are in control so will know where you are.
y.The applicant lives alone. Her children are all over the place.
z.When a tribe sees you are in danger they are worried for themselves. When she buried her son she went alone. People are frightened for themselves so it is not like here where people will help you.
aa.[Son A] fled to [Counrty 1] but the applicant returned to Iraq and stayed there til March before travelling to Australia. She was hoping things would change after her son was safe. She was alone and it was easier for her to move. But the situation did not change.
bb.She applied for a retirement payment a long time ago. She didn’t need to be in Iraq for this as she could pursue it through a lawyer.
cc.Her school was a primary school. She would show the students videos to promote peace between people.
Post-Interview Submissions
The applicant and her representative submitted the following documents to the delegate after the interview:
-A letter to the applicant on behalf of the Iraqi Ministry of Education, dated 13 October 2014 stating that the applicant had been granted approval to open an Iraqi private school in Australia; and for the Iraqi Embassy in Australia to provide her with necessary assistance.
-A letter from the applicant’s treating mental health clinician, dated 8 December 2016.
-Letters from the Iraqi Ministry of Education to the applicant, dated in 2013 and 2014 regarding the grant of a licence to the applicant to open a private school called ‘[name of school]’.
-A letter from the Department dated 13 September 2015 advising the applicant of the grant of a Visitor visa to Australia.
-A Statutory Declaration from the applicant.
In the applicant’s Statutory Declaration she sets out the following:
MY PARENTS AND SIBLINGS DETAILS ARE:
[Information deleted]
BELOW ARE MY PATERNAL UNCLES DETAILS ARE:
[Information deleted]
ALL MY MATERNAL UNCLES AND AUNTS' DETAILS ARE:
[Information deleted]
…
I would like to explain that during my interview I had difficulty in properly cooperating with you because I was suffering momentary flashbacks and anxiety thinking about my situation. When I was silent during certain times it was not my inability to provide answers, it was because I was scared and feeling hopeless thinking about my life in Iraq and all that had been taken from me. As the questions asked took me back to old bad days.
The importance of the interview to my dire situation struck me in that moment and I was unable to think clearly because all that I could think about was what would happen to me if I were forced to go back to Iraq, which left me feeling really vulnerable and anxious. While my counselling sessions are helping me deal with my experiences, it is a slow process. Because of this, I would like to elaborate things I could not during the interview.
Going back to Iraq after I came to Australia was not a choice I made because I felt I could. It was a choice I made because I had no other option. My family is my life and having lost my late husband and my first-born son at the hands of evil criminals I did not want to have to bear the burden of losing another son to those same criminals. To me, it was not important that I could potentially lose my life, my job or my house. As a mother it was my duty to ensure that I did everything I could to protect my son who was threatened because of my departure to Australia. This does not mean however, that it was a decision I made without fear.
Going back to Iraq to see my son's face beaten and bruised was truly heart breaking. The idea of him being used as a threat and a ploy to force my return to Iraq, I felt guilty and helpless. However, I know that had I not returned, my son would have been killed. So while I did not want to go and face the evil people and their demands, it is for my family and the security of their lives that I returned. In fact, I am willing to sacrifice my life to save my children's lives. As I do not want to experience another death in the family.
Following my return I faced constant threats. I spoke to [Mr B] and his group, the people responsible for terrorising my son and family, after his demands to see me. He forced me to follow his orders and convert my school to the Shiite faith and that if I did not cooperate he would kill my son, his family and everyone, including myself.
Losing a son and husband is a heavy burden. I wish if I sacrifice my whole life for one moment to see my late son again. I am still attending psychologist sessions because of my depression and other medical conditions.
…
Delegate’s Decision
The Delegate accepted that the applicant is a practicing Shia Muslim from Baghdad, a widow and a retired teacher who receives a pension from the Iraqi government.
The delegate did not accept as credible the applicant’s claims that:
-She had experienced verbal threats from Shia and/or Sunni militia in March 2014 and November 2014 as a co-founder of a private school in Iraq.
-That she has no male protection in Iraq.
-That she left Iraq in September 2015 in fear for her life.
-That she returned to Iraq in October 2015 to face [Mr B] in order to save her son[1].
-That she departed Iraq in March 2016 in fear for her safety.
The delegate was not satisfied that the applicant had a well-founded fear of persecution in Iraq or that she was owed complementary protection.
Information to the Tribunal
Pre-Hearing Submission, 23 February 2021
On 23 February 2021 the applicant’s former representative, Mr Samir Shiba, submitted a 2,422 page written submission to the Tribunal setting out and attaching:
-Several sections of the Migration Act.
-The Schedule 2 Migration regulations for a subclass 866 visa.
-The Australian Parliament’s Explanatory Memorandum for a legislative amendment bill.
-The Department’s Procedural Advice Manual 3.
-The ICCPR.
-A Tribunal Decision in case number 1906587.
-Numerous court judgments.
-Country information reports.
-Statutory Declaration by the applicant.
-A Report dated 1 February 2021 by [Dr] (psychiatrist).
-A Report dated 21 January 2021 by Professor[Ms D].
-A Report dated 19 January 2021 by Ms [E] (psychologist at STARTS).
-A Letter of Support dated 21 January 2021 from House of Welcome.
-A Report dated 17 February 2021 by Mr [D] (Psychologist).
-Photographs of [Mr B] in Baghdad.
-A Letter from [Mr E]together with a medical assessment report dated 16 June 2020 and 7 July 2020; and photographs.
-The representative’s 80-page legal submission.
Tribunal Hearing, 1 March 2021
The applicant appeared before the Tribunal (as previously constituted) on 1 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr E]. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The following is a summary of the information provided by the applicant at the hearing:
a.The Tribunal took oral evidence from the applicant’s treating psychologist.
b.The applicant is not in contact with anyone in Iraq apart from her father and her siblings.
c.The Tribunal took evidence from Mr [E]. He came to know the applicant through his friends in Sydney. He is not related to her. When he first met her she was in distress. She started to live at his home. She is very kind hearted and loving and she loves the family. In 2017 to 2018 she would receive calls from Iraq which upset her and he thinks they were threats. When he asked her about them he could tell she was fearful. He does not know who the calls were from. But she is strong and could continue her social activity.
d.Mr [E] spoke about his two children being very close to the applicant. She helps with their care. Mr [E] is single.
e.It was a real trauma having her husband and son being killed in Iraq. The Tribunal put to the applicant that her son was killed indiscriminately in the street. The applicant was too upset to respond.
f.The Tribunal put to the applicant that after the bombing in 2007 which killed her son she moved with her family to [Suburb 5]. She did not have any relatives in that area. Her daughter was in her first year of University and her younger son was twelve and the other [age].
g.While she was in [Suburb 5] her family rented out her house but someone took it over. At the time Bagdad was in a mess. The neighbours found someone who had been displaced and they let him into the applicant’s house. When she returned he refused to go and said he was connected to the armed groups.
h.The applicant’s husband was Sunni and she is Shia but the children are raised as Sunni.
i.The applicant has a brother who is an [occupation] who has been living in [Country 10] since the 90s. The applicant’s uncle has a small [manufacture business] and her brother in Iraq works with him.
j.According to the rules and regulations the names of investors are important and the applicant chose to put the school in the name of her daughter. The applicant’s daughter did not work at the school, she works at a [institution].
k.Part of the earnings for the school had to be paid to the militias. There are many militias in Iraq. Until now they are controlling the country.
l.The Tribunal asked about the difference between the Shia school curriculum promoted by the government and that promoted by the militias. The applicant responded that she could include computers and languages but the militias wanted her to teach the rituals and Iran’s teachings and hatred. The applicant hates sectarianism and terrorism.
m.The school is still operating but the applicant does not have the full details. She thinks the school teaches its curriculum but during the religious occasions the militia interferes.
n.The principal of the school was a lady, [Ms F], who was always there. The applicant was an investor at the school. The other investors were [Investor 1]and the applicant’s [sister]. The applicant was the major investor and responsible for most of the things in the school. The applicant’s sister is in northern Iraq. The applicant spoke to her yesterday. They speak once or twice a month.
o.The applicant lived with friends and family in Baghdad after she returned there. She moved around.
p.She only cares about the safety of her family. The Tribunal put to the applicant that she invested a lot of money in her school so has she been able to sell the school to recoup her money. The applicant responded no she has not been able to and she has lost her money and is a little bitter, but all she cares about is her family’s safety.
q.She applied for retirement before the retirement age. An agent followed it up for her. She has a card she can use to withdraw her pension funds.
r.The Tribunal put to the applicant that no one would have any further interest in her because she has no involvement with the school. She retired as a public school teacher but not as a private school teacher. At the time public school teachers were not allowed to have involvement in private schools. The militia kept looking for the applicant and asking where she was. In Iraq people care for their own safety only.
s.The applicant’s sister-in-law and brother lived in [Suburb 2]in north Baghdad. It was about 15 minutes from her home, by cab. She had other relatives in [Suburb 2] and could also stay at their homes. She thought she should not continue to put others at risk. If there was a chance to leave why not. Militias are scattered all over. She could not continue to stay in hiding.
t.When her son was killed she buried him by herself. She did not want anyone else put at risk. She also did not know who was a friend and who was an enemy.
u.She has been subjected to a lot of traumas and is now alone. She is looked on as an alone and vulnerable women, known to have money, in Iraq. She lived in Iraq and had a good life and work. She gave up all these things when she found out her and her children’s life was at risk. She did not see her son graduate from medicine in[Country 2]. He is on his own there and she did not have a chance to be with him then. She has not seen her children for so long.
v.The applicant has left Iraq for good. She lost her son, her husband and her career. She is not returning to Iraq.
w.The Tribunal put to the applicant that she has her father and brother and son in Iraq to protect her. The applicant responded no one in Iraq is able to protect anyone. They can hardly protect themselves.
x.The applicant receives a pension on behalf of her husband.
y.The militias will continue to target her because she did not do what they asked.
z.She does not have any idea about her school, maybe they have taken it but she has no idea.
aa.Mr [E] spoke about his family being killed in Iraq. He blames the coalition for all the killing and deprivation in Iraq.
Tribunal Hearing, 18 October 2023

The applicant appeared again before the Tribunal (as currently constituted) on 18 October 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The following is a summary of the information provided by the applicant at the hearing:
a.The applicant is feeling very sad. She has a health problem with her [body part]. She continues to see her psychologist, Dr [A].
b.She has no family or relatives in Australia. She has been moving from one place to another in Australia. Sometimes an organisation provides for her and sometimes another family helps her. Life in Australia is very expensive. She no longer stays with Mr [E]’s family. She sometimes sleeps at the home of an Egyptian lady. The applicant cleans for her. She also stays sometimes at the home of an Iraqi friend in [Suburb 6].
c.The applicant supports herself in Australia with the help of organisations and friends. When she feels okay she does cleaning work. She has not received her husband’s pension from Iraq since 2019. She applied late and the lawyer in Iraq arranged for her children to receive it. She does not receive income from the school she established in Baghdad. The school has been gone a long time.
d.Her school venture in Australia failed because the Iraqi investors pulled out when their circumstances changed. It was a big project and everyone’s circumstances became difficult.
e.The applicant’s father is in Iraq. He is very old and is [has a medical condition]. Her brother is in Iraq with a large family. They move from area to area because of the conditions.   She has another brother who lives in [Country 10]. Her two sisters are in Baghdad, one is in [location 1]the other one is[in location 2].
f.The applicant’s son [C] is still in [Country 2] where he studied medicine. He is now studying a Masters’ course to [specialise]. He has never visited Australia.
g.Her son [A] is still in[Country 1]. He has a tourist visa which he renews every two years. It is not a student visa. He does not have to leave [Country 1]to renew his visa. The applicant will submit a copy of[Son A]’s visa to the Tribunal. She will try to submit a copy of his UN documents to the Tribunal too.
h.Her family in Iraq are in a very hard situation and are all waiting to get out. The main hardships are the risk and tension they face. Militias can enter a house at any time. Someone can be killed for any reason. There are no services or no legal system in Iraq.
i.She practices Sunna Islam. She believes Islam is all one religion but people use it for division. Her husband was secular. Most Iraqis were secular but the militias started using religion to divide people. Her husband was very open to all religions. He was not a fundamentalist. He was more interested in studying. The applicant feels similarly. She believes religion is the relationship between humans and God. In life it is about how we deal with others and help other people.
j.The Tribunal referred to Professor [Ms D]’s report and asked the applicant if she had ever been kidnaped and tortured and the applicant responded no. The Tribunal asked further whether her son was ever kidnapped and a ransom paid for his release and the applicant responded no.
k.The applicant’s school in Baghdad was [a] school. There is a school still operating in Baghdad with the same name as her school but it is [a]school, it is a different school with no connection to the applicant’s former school.
l.There were two other investor-partners named in the records for her former school. They were her sister and a person[Investor 1]. But they had not invested anything, it was just a formality as three people had to be named.
m.[Mr B] is still in Iraq, with Muqtada Sadr. He lives just one street away from her former school.
n.The applicant does not know where [Mr C] is now. He keeps moving around.
o.The militias will cause her death if she returns to Iraq. Iraq is built on religion and extremists. It started in Saddam’s days when all good positions were given to the Sunnis.
p.The applicant’s family is not connected to Saddam Hussein or his tribe. But they were associated with him because her husband was [an official]. The applicant’s husband was one of Saddam Hussein’s men and a well-known[official]. He was highly educated. People would call the applicant ‘[name]’.
q.The applicant challenged the militias as they wanted her to talk about their divisions. But she could not go against her beliefs.
r.Even if [Mr B] and [Mr C] are not in Baghdad their militias are all over Iraq. [Mr B]’s militia work at the airport and everywhere. One tweet from Moqtader Sadr and they could enter the Green Area, government buildings, or anywhere.
s.If she got to the airport the taxi that would take her to her house will know she is a single woman all alone. Now she is single every bad man will be greedy to attack her.   She would face rape and other persecution. If a woman complains the police will take money and rape her.
t.The Tribunal asked the applicant why the militias would remember her after eight years since her departure from Iraq.   She responded because she married a Sunni and a Saddam Hussein man. Her area is well-known to belong to Saddam Hussein’s side, who live there. Being married to a Sunni is like an insult to Shias. The Tribunal put to the applicant country information indicates that in the past during Saddam Hussein’s regime marriages between Shias and Sunnis were not uncommon. The applicant responded yes but she was targeted because her husband was [an official]. Saddam Hussein would choose and appoint them personally.
u.The militias would still be interested in her because she was stubborn with them. They won’t forget that thing because they identify her with the Saddam Hussein regime. Ninety percent of Saddam Hussein supporters have migrated from Iraq.
v.She owned a home in Baghdad but she doesn’t know what has happened to it. Her father and brother are too scared to check on it. It is a house not an apartment. Houses are more common in Iraq.
w.In Iraq she would have a pension but it is not enough to live on there. She receives it with a keycard. Sometimes the people in Iraq responsible for payments stop it for a year or six months and they don’t compensate for this. It is supposed to be $700 per month. The Iraqi Dinar is close in value to the Australian dollar.
x.It would not be possible for the applicant to work as a teacher or operate a school again in Iraq because it is not safe there. On the news a female principal was beaten. A female militia beat her in front of the group. The principal said she didn’t do anything wrong. The schools have no seats so the kids sit on the floor. Militias control the schools. A teacher who is now with the militia threatened the parents that she would send her husband to hurt them if they contact her at night. Militias control all the schools. Schools are an important part of the community so that is why the militias try to control them. The central government runs most of the schools but the militias visit them regularly and check on everything.
y.People in Iraq will think the applicant is wealthy because she had a school. They also imagine a money tree in Australia that will give people money.
z.The applicant won’t get mental health support she needs in Iraq. Psychologists and medication are not available in Iraq. People will disrespect her. She is broken inside so she doesn’t mix with many people. The community in Iraq won’t support her because they have their own stress.
aa.She thinks people will not rent a home to her because they will think she is crazy. She will face rape and people will steal from her and beat her.
bb.She will not be able to get employment in Iraq because she is not mentally well. To employ someone they want someone who will make good decisions.
cc.In Australia she is free to go in and out as she pleases, she can work and study, with the law to protect her freedoms. In Iraq there is no freedom. She won’t be able to live by herself, all the men will be looking at her. Even to go out by herself the men will surround her in a group and be very abusive in the way they talk to her. There is no freedom in Iraq to say or do what she wishes or how she dresses.
dd.She would have no support from her family in Iraq. She had to bury her son by herself as her family were scared to support her. They are scared for the safety of themselves and their children.
ee.The applicant’s agent submitted that the applicant is in the particular social group of women in Iraq. Country information shows that women with vulnerabilities, such as widows or women with mental illness, are unable to support themselves. There is discrimination, harassment and exploitation, rape and other violence and it is not conditional upon having male protection. There is stigma about mental health. Psychological institutions are linked to inhuman treatment and degrading situations.
Post-Hearing Submission, 22 November 2023
On 22 November 2023 the applicant’s representative submitted the following materials to the Tribunal:
-A [Counrty 1] internal travel ticket to [distination] in the name of the applicant’s son [1], dated in October 2023.
-A [Counrty 1] Residence Permit in the name of the applicant’s son [1]. It has no expiry date.
-A photograph of a building, the [Counrty 1]Government Migration Management office.
-Email messages between the applicant’s representative and UNHCR officers requesting confirmation that the applicant’s son is registered with the UNHCR in [Counrty 1].
-A psychological report by Dr[A], dated 23 October 2023, regarding the applicant’s mental health.
-A written statement by the applicant’s son.
-A written submission by the applicant’s representative.
In his written statement the applicant’s son writes the following:
I am [Son 1]born on [DOB], on the 14/11/2006, my deceased [father] was kidnapped from the [a government department]and that day was like a thunderbolt that descended upon us, a very difficult day, sadness, fear, and anxiety fell upon us all. My mother, siblings and I were crying because of the kidnapping of my father and did not know what is coming next for him and us, and my mother used to go with my brother, the martyr [Son C]to search for my father’s corpse, and when they would come back home sadness and misery will be clearly visible on their faces due to the presence of corpses and martyrs at that time in hospitals, and Iraq was living difficult days of killing and destruction and we don’t know until now the fate of my father.
On the 17/07/2007, another calamity occurred, and it was more powerful on us (my mother, siblings and I), my eldest brother[Son C], was killed by a booby trap car, and then a hell broke loose, as this brother was like a father, and how dreadful it was, I saw him at the scene of the accident and blood, his external appearance exposed to many wounds, and the internal organs were outside his body, terrifying scene which I cannot describe it, It caused deep sadness, fear, and anxiety, and increased the level of sadness in our hearts, my brother [Son B]was present at the time [Son C]was dying, and inserted his organs and viscera to his stomach horrible sight, raised deep sadness and fear in our hearts and increased my pain and my mother was in shock, and I was crying and looking at her afraid that she will die too out of pain, it was a tragedy until now the family cry for what happened to us, all these calamities and overwhelming sadness and fear befell upon us all, and we felt even sadder when none of our family or friends supported us for fear of being killed, and 10 days later we left everything and went to [Suburb 5]in the Kurdistan region of Iraq, the horror of killing and destruction was indescribable and very painful.
May God have mercy on my father and brother they passed away and left us sadness, pain, fear and anxiety.
My mother is a director of a private school called ([name]) which is [a]school, and the militias were interfering in every small and big matter as my mother was the wife of a man of Saddam's followers, a [Offical]and Sunni, and her children are Sunni too, my mother struggled a lot from the blackmail of the dirty militias imposed on her tainted religious ideas that neither reason nor humanity accepts, ideas that incite violence, backwardness and sectarianism.
All of this was a revenge on her because she was married to a Sunni man and of Saddam’s followers, so they considered her as a Baathist, especially since she was a widow and does not have a husband to protect her, so she used to pay them to avoid their ignorance and their ruthless hearts.
Especially that Iraq lives under the control of militias, and all my mother’s concerns were to keep us away from danger and she used to suffer from many problems especially she used to hide the impact of pain and fear on us.
In 2015, my mother travelled to Australia to study the possibility of opening a private school after she received all the official approvals and after a few days of her travel, I was surprised by the entry of the militias around twelve o’clock in the evening to our house and I was present at home, they hit and kicked me, there was someone with them asking questions about my mum, I told them that she is outside Iraq while another person was kicking me, Someone else said, "Where is it outside Iraq?" I told him she’s in Australia, he said, “Why didn’t she tell us?” and he swore at her in front of me.
He said why did she travel without us allowing her to travel, and they insulted my mum again, and one of them kicked me on my chest and these militias were crazy and terrified me by pointing the gun at my face, I was asked to call her and ask her to come back to Iraq immediately and they detained me in one of the rooms in the house as a hostage until my mum come back, so I booked a return ticket for her and she returned to Iraq and she faced cruelty, harsh words, intimidation, and death threats for me and her and if the orders are not carried out and the money is not paid, she is forced to pay a ransom this time and next time it would be death. They told her, “You know that we can reach you quickly, so don't try to be clever, you Ba'athist you partisan. My mum said yes, she said I will obey whatever you want, and apologized to them, and the days were terrifying and full with anxiety, fear and panic, and I know that my mum is discreet and does not reveal every pain or injury that happens to her out of fear for us and our feelings and especial that they are brutal and ignorant, low life, and dirty.
So, we decided to leave quietly without informing anyone or raising suspicions, so I obtained a passport for my child [name]through a lawyer, the papers were completed, we booked travel tickets, and we set off to travel from Iraq to [Country 1] and the reason was to get treatment, and this was in 2016.
After that I rented a house and then I went to [a city in Country 1]to get a temporary protection for me and my wife and my daughter to register and obtain UNHCR asylum in any country, to get rid of the pain and horror that was inflicted on us in Iraq. After that, my mum returned to Iraq, so that they will know that she is back and present before their eyes and to keep the attention away from me and to assure them that she is under their orders and service. When she left me, I felt pain of separation, loneliness and fear for my mum and the idea of my mother getting killed by these dirty Militias because they have no religion, mercy, or humanity, may God curse them. They filled our hearts with fear, anxiety, and terror, so I suffered as much as I suffered until now, I have a problem sleeping and I take some sedatives to sleep, after a few months I changed my temporary protection status for two reasons:
Firstly, from fear that the militias will know my place, especially they know that many Iraqi people are in [Country 1] and they know the story of the temporary protection that everyone who applies for temporary protection have a fixed address, so I changed my status to a Tourism residence and I moved around in the [Country 1]’s governorates looking for work and everywhere I went I felt the danger on my children, wife and me.
In addition, to the great anxiety of the last threat and the fear for my mum and my suffering which made my life very difficult.
After a while, my mum contacted me, and she said that she had travelled to Australia, so I thanked and praised God my mum survived from the malicious people and left to a safe country.
As for my mother she can’t return to Iraq because of the influential militias as Iraq is under their control and you know this very well and this won’t be forgotten even after 20 years as their hobbies are killing, destruction and obtaining money in any way possible because they have no religion or humanity and my mum was exposed to torture and sexual harassment and beatings and rape because she was alone and had no protection from a husband, and she could get killed in Iraq.
My mum refused to stay in [Country 1]because the Militias can reach us in [Country 1] so they can come after us and assassinate us and she was very worried and stayed quiet because we know the control of the Militias especially in [Country 1] as it is a neighbouring country to Iraq, and they can enter to [Country easily and can kill us all.
When she returned to Iraq she was present in front of them, the important thing that she was there, but she left the house because she was sick and tired from moving many times, until
she had the opportunity to escape from the militias, and thank God she was able to get to Australia, as Australia is very far from the reach of the militias and away from the fear and horror, especially as a family we lived in very difficult circumstances of the kidnapping of my father to the death of my brother and we were exposed to threats, blackmail and displacement , thank God for my mother’s safety.
I did not return to Iraq as I was a target to incitement and murder and they will control my mother and she will be humiliated and destroyed, and the militias will torture, beat, and rape her and possible they will photograph her while being raped and they will say what they want to say about her. This is their dirty ways, and all her fault is that she’s the wife of a man of Saddam’s followers, and for being a Sunni and a [offical] and they consider her a Ba’athist and did not carry out their orders and what she was supposed to do, and I have many marks of injuries and most of them are prominent.
I don't want to live in Iraq, because of the militia's point of view, I'm gay so I will be killed, even if the government change and the Militias are destroyed they have stolen my childhood and I don’t want anyone to steal the childhood of my sons and daughters and I want safety for my family and myself, they stole my mother from me, they stole my father and my brother.
They left me struggling with pain, fear, sadness, terror, and the pain of being away for 8 years, if only I could see my mum and my heart cries every night as I miss seeing her, However, I'm assured that she’s in Australia and this thing gives me patience a little bit that she’s safe, and each one of us in a different country and we haven’t met for a long time and in my heart the pain of longing is known only to God.
My mum is the beautiful hope in our life, and we endure separation and estrangement for the sake of her safety, she is the father, brother, friend, and we all share the same pain in our hearts. When we hear her voice laughing this gives us hope in our hearts, we must progress and live in peace on this earth.

Dr [A] report states the following:
[The applicant] is a client of this service; I have been seeing her for psychological counselling over the last few years following a referral from her GP. She suffers from post-traumatic stress disorder and has been prescribed anti-depressant medication. It appears that [the applicant] had a relapse of her mental illness during the Tribunal interview.
[The applicant] has been seeing Dr [B], Mental Health Clinician since December, 2016 for Depression and Post Traumatic Stress Disorder. Prominent Symptoms:
Flash-back memories of seeing her son’s dead body;
Unable to enjoy life at all.
Often disorientated and confused.
Unable to concentrate on anything.
Erratic sleep patterns including small naps of about 15 minutes duration and then awake and distressed again.
Markedly diminished interest or pleasure in all activities of life;
Unable to socialise.
Loss of energy, motivation on a daily basis.
Feelings of guilt, hopelessness and worthlessness.
Severity of Symptoms: DASS 21 psychology assessment.
• Depression: Extremely severe.
• Stress: Extremely severe.
• Anxiety: Extremely severe.
[The applicant] suffers from Post Traumatic Stress Disorder, Depression and Anxiety. She constantly suffers a deep despair since loss of both her husband and son. She experiences relapse episodes where she sits and cries non-stop and feels that she can’t do anything because of the psychological pain. She has no support, and she is unable to have any motivation and has a general disinterest in everyday life but is unable to overcome these negative feelings because she has lost her ability to find emotional stability in making Australia her home.
[The applicant] reported that during the interview, she was greatly devasted and was in no psychological state to proceed with the process. [The applicant]’s thoughts have been compromised due to her severe psychological trauma of losing her son, which has broken her heart. [The applicant] reported that she has memory lapses and consequently, at times, vital information was omitted and thus leaving out the details of the trauma and persecution [the applicant] endured.
[The applicant] suffers constant flashback memories of the terror she endured. She realises that it was not her fault in any way but still can’t overcome her sense of revulsion and despair at her weakness and inability to protect herself. Often, women are intensely ashamed [the applicant]is also suffering from symptoms of PTSD, high levels of anxiety and trauma with feelings of hopelessness. She feels culturally sanctioned because she is perceived to be associated with these opposing militia groups. [The applicant] views herself as being very low for not being there to protect her [son C], from being killed by a bomb planted by the militia group.
In her written submission the applicant’s representative outlines the following:
… [The applicant] has a well-founded fear of persecution in Iraq due to her real and perceived political opinion (links to Ba’ath party; educators who have opposed militia groups); her Shia religion; and her membership of particular social groups (women without genuine family support; people suffering from mental ill-health). …
… DFAT reports that law and custom do not generally respect freedom of movement for women. They require a male guardian or legal representative to access services such as identity documents, public services, food assistance, health care, employment, education and housing. DFAT assesses that it would be extremely difficult, if not impossible for a single woman to relocate within Iraq without the protection of a male relative. UNHCR notes that:
In light of the serious human rights situation for women, as well as social and religious norms that restrict women’s freedom of movement and the generally low employment rates for women, UNHCR considers that an IFA/IRA is not reasonable for women, who do not or who are perceived not to have male protection through members of their family, including female heads of household.
…
According to Country Advice for the Australian Refugee Review Tribunal, Shia militias have been known to systematically attack people affiliated with the Ba’ath party (whether that be by membership, or as a result of their functions or profession), particularly as a result of personal revenge. Militants in southern areas of Iraq reportedly attempted to “exterminate” former members of the Ba’ath party, despite the fact that many people were obliged to join the party, causing hundreds of families to flee their homes. Many low-level Ba’ath officials have been targeted at a community level. Further, the term Ba’athist is reportedly widely understood to refer to Sunni Arabs in general.
[The applicant] has perceived links to the Ba’ath party as her deceased husband was a Sunni and a [official] for Saddam Hussein. It is suspected that both he and [the applicant]’s son[C], were murdered as a result of this profile. This is supported by UNHCR, which notes that former members of the Saddam Hussein government continue to be targeted and killed. According to DFAT, those with links to the Ba’ath party face a moderate risk of violence by armed groups.
[The applicant] fears harm from militia groups in Iraq, such as the Shia militia group run by [Mr B], an accused mass killer and death squad leader in Iraq. He has been suspected of torturing and killing, burning homes and displacing families in Baghdad with impunity. [Mr B] has been labeled a symbol of Iraq’s sectarian strife. He has acted under the instructions of and expressed his allegiance to religious cleric and Shia militia leader Moqtada Al-Sadr. When [Mr B] made this statement in 2015, Moqtada Al-Sadr had tens of thousands of followers. In 2022, the BBC reported that he had millions of followers. Militia groups in Iraq have been known to frequently engage in killing, kidnapping and extortion throughout the country.
Consistent with [the applicant]’s fears, teachers and civil servants have been known to be threatened, abducted, tortured and executed by militia groups such as Daesh for refusing to implement their preferred curriculum in schools. A female teacher who argued against a militant curriculum was reportedly killed. As militia groups in Iraq are known to act violently with impunity and target people who defy them and/or have tenuous links to the Ba’ath party, we submit that it is plausible that [the applicant]would be at risk of revenge from militia groups in Iraq, particularly as her immediate family has been targeted several times in the past, resulting in the deaths of her husband and son, the kidnapping and torture of another son, and threats towards [the applicant]herself. She believes she is targeted for various reasons, including her marriage to a Sunni man who was a [official]for Saddam Hussein and her refusal to teach the preferred curriculum of militia groups. We submit that her risk would be exacerbated due to her vulnerabilities (woman without genuine family support, person experiencing mental ill-health).
…
Women without genuine family support
We submit that her status as a woman, particularly a woman without genuine family support, places [the applicant]at a high risk of violence and discrimination.
UNHCR identifies women without genuine family support, including widows, as a risk profile that may be in need of international refugee protection. [The applicant]and her [son A] have both given evidence that they do not have genuine family support in Iraq.
DFAT reports that women in Iraq are affected by 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. Laws discriminate against women in Iraq in various areas such as criminal, family, religious, labour and inheritance.
UNHCR reports that women in Iraq face legal and societal discrimination and violence on account of their gender, such as sexual violence, trafficking, and sexual exploitation. Widows are particularly vulnerable to further abuse, exploitation, and trafficking. Most cases of violence against women remain unreported due to high levels of social stigmatisation and a lack of adequate state protection.
As [the applicant] has no genuine family support in Iraq, she may have no choice but to live in a homeless shelter. DFAT notes that there is a centre in Baghdad that provides shelter for homeless women, however space is limited, and service delivery is poor. Communities often view such shelters as brothels, and occasionally attack them and try to close them down. Shelters are subject to unexpected closures by authorities, leaving the women homeless and a target for sex traffickers.
People suffering from mental ill-health
As noted in [the applicant]’s recent mental health report, dated 23 October 2023, [the applicant] suffers from Post Traumatic Stress Disorder (PTSD) and extremely severe depression, anxiety and stress. She experiences episodes where she cries non-stop and is unable to do anything due to the psychological pain. She is currently treated with counselling and medication.
DFAT notes that the “overall quality and availability of healthcare in Iraq is low.” There is a nationwide shortage of doctors and nurses, waitlists are long, and hospitals often lack essential supplies. 26 Mental health services are known to be inadequate, and there are only two psychiatric hospitals in the country. There is an absence of community based mental health care, and psychiatric institutions have been known to be linked to inhumane treatment and degrading conditions.
UNHCR notes that “public health facilities are often poorly maintained and recurring shortages of medicines are a major concern, as is the lack of qualified health workers,” and there are “significant gaps in the provision of mental health and psychosocial support […] including, inter alia, as a result of an acute shortage of psychiatrists and mental health professionals.”
There is a cultural stigma against people suffering from mental ill-health in Iraq, and people suffering from mental ill-health can be seen as dangerous or unable to work. Some Iraqis blame mental ill-health on personal weakness or divine retribution. The mental health report dated 23 October 2023 refers to [the applicant]’s revulsion and despair at “her weakness and inability to protect herself.” In addition to the societal stigma preventing her from working, this is further exacerbated by her symptoms. As noted in the mental health report, she suffers from an inability to concentrate, sleep or do anything due to her mental ill-health, which would be a significant barrier to her ability to rejoin the workforce in order to support herself.
We submit that [the applicant] would be unable to support herself in Iraq and would not have adequate access to mental health services or medication. She would also be returned to an environment where she experienced significant trauma in the past. Therefore, her mental health may further deteriorate, putting her at greater risk. This would threaten her capacity to subsist and make her vulnerable to degrading treatment.
On 21 December 2023 the applicant’s representative submitted documentation from UNHCR noting that the applicant’s son[A], had arrived in [Country 1]and registered with UNHCR there in December 2015, and that his file was inactivated due to lack of contact.
Country Information
DFAT’s most recent ‘Country Information Report, Iraq’, published in January 2023 contains the following information:
Ongoing sectarian tensions fuelled the rise of Da’esh (also known as Islamic State), a militant Salafi jihadist group that captured large parts of Iraq in 2014-15. During its occupation, Da’esh committed numerous atrocities. Eventually Iraq’s regular forces, supported by a US-led coalition and Kurdish and other forces, succeeded in wresting back control of Da’esh-held territories. Many of the Iraqi forces were incorporated into a state-sponsored umbrella organisation known as the Popular Mobilization Forces (PMF), which has become influential in Iraq’s economy, politics and security. While the government declared victory over Da’esh in 2017, the terrorist group remains a security threat today.
…
Although classified as an upper middle-income country by the World Bank, Iraq’s social
indicators, including on health, education and poverty, are poor. There is significant inequality, and 19 per cent of the population lives below the national poverty line of approximately AUD 110 per month.
Unemployment is high, and labour force participation is among the lowest in the world. Women and young people are particularly likely to be unemployed; women make up just 13 per cent of the labour force, and more than a fifth of working-age young people do not have a job and are not engaged in education or training. The public sector is the largest employer but demand for public service employment outstrips supply of jobs. The World Bank’s Spring 2022 Iraq economic Monitor assesses Iraq will continue to struggle to attract foreign investment due to its volatile security environment, high levels of corruption, and administrative inefficiencies.
…
Health
The overall quality and availability of healthcare in Iraq is low. There is a nationwide shortage of
doctors and nurses, a situation made worse by prolonged conflict and a long-term brain-drain of medical professionals. The Ministry of Health (MoH) is the primary health care provider. Chronic underinvestment and corruption have undermined its capacity to deliver quality healthcare. Waiting lists are long and hospitals often lack essential supplies such as cancer drugs. Iraqis who can afford to use private hospitals and clinics prefer them but, because private health insurance is unavailable, this can be expensive. The quality and availability of healthcare is slightly better in the Kurdistan Region of Iraq (KRI).
…
Mental health
Mental illnesses such as depression, anxiety and post-traumatic stress disorder are common in Iraq and frequently linked to experiences of conflict and displacement. Mental health services are inadequate. There are two dedicated psychiatric hospitals in the country, Al-Rashad Psychiatric Hospital and Ibn Rushd Hospital, both located in Baghdad. There are psychiatric wards in some general hospitals, as well as some out-patient clinics, often run by international non-government organisations (NGOs) such as Medicins sans Frontieres. The absence of community-based mental health care means that often the only care available is family-based or in psychiatric institutions, which have been linked to inhumane treatment and degrading
conditions. There is significant societal stigma against people with mental illness. People with mental illness are often perceived as dangerous and unable to work, and some Iraqis blame mental illness on personal weakness or divine retribution. These attitudes result in under-reporting of mental illness and under-utilisation of the services that are available.
…
Education
Public education is free at all levels, but is generally poor quality. Education is compulsory until the end of grade 9 in the KRI and the end of grade 6 in the rest of Iraq. Although there were no private schools prior to 2003, there are now approximately 1,200 operating with licenses from the Ministry of Education.
Private schools are often superior to public schools but charge extremely high fees, putting them out of reach of all but the wealthy elite. According to a 2018 Oxfam report, enrolment rates of girls have increased in recent decades but remain approximately 6 per cent lower than boys in primary school and 25 per cent lower in secondary school. Girls are particularly likely to be out of school in parts of Iraq formerly occupied by Da’esh, where social attitudes and security concerns are significant barriers to their education.
…
Security incidents occur often and without warning, including rocket attacks, mortar attacks, attacks with improvised explosive devices (IEDs), grenade attacks, small arms fire and assassinations. Targets have included security forces, government offices, diplomatic missions, US-led coalition forces, Iraqi and Turkish military facilities, checkpoints, police stations, recruiting centres, airports and public transport centres, places of worship and religious gatherings, markets, non-government organisations, schools and universities, and civilian infrastructure. Violent crime is common, including kidnapping, murder and robbery. Other
serious crime includes drug and people trafficking, prostitution and illegal organ harvesting. Organised criminal gangs, militias and armed tribal groups are significant threats. … Gun violence is common throughout Iraq. Gun ownership is among the highest in the world, and most households own at least one firearm. The ubiquity of weapons and a strong ‘honour’ culture mean minor disputes often rapidly deteriorate into violence, including murder.
Despite the territorial defeat of Da’esh in December 2017, Da’esh continues to launch attacks on security forces and civilians in Iraq, including suicide bombings and IED attacks. The group operates from safe havens in the Western Desert and along the disputed territories between federal Iraq and the KRI, supported by Da’esh fighters based in Syria. In 2021, Da’esh carried out more than 1,000 attacks in Iraq, killing or injuring over 2,000 people. These included a suicide bombing in Teyeran Square that killed 32 people in January 2021 and an IED attack in Madinat al-Sadr that killed 35 people in July 2021. Both attacks targeted Shi’a populations. According to the US Department of State, Da’esh also attacked electricity and water infrastructure, and abducted and killed civilians and security personnel, throughout 2021.
…
No laws prevent marriage between Sunni and Shi’a couples. Such marriages have reportedly
increased in prevalence as sectarian tensions reduced over the past decade, although would-be couples sometimes face opposition from their families, which in extreme cases can extend to violence.
…
Persons accused of links to the Ba’ath Party
After the removal of the Saddam regime in 2003, the US-led transitional administration established a High Commission for De-Ba’athification to steer efforts to remove the influence of the Ba’ath Party. This led to the dismissal of thousands of predominantly Sunni individuals from the public service and military. Most senior Ba’athists are now dead, in prison or have left Iraq. A broad societal consensus reportedly exists in Iraq that sanctions against the Ba’ath Party should not apply to former party members as individuals, based on a recognition that the dominance of the Ba’ath Party in all aspects of government forced millions of Iraqis to join the party.
DFAT is aware of reports that accusations of association with the Ba’ath Party have been used as a threat against Sunni government workers, particularly in Shi’a majority areas of southern Iraq, and as a pretext for violence or legal action against tribal or political rivals. Accusations of association with the Ba’ath Party have also been directed at Tishreen activists (see Security situation, Protesters and demonstrators). In September 2022, PMF forces detained and allegedly tortured four prominent Tishreen activists in Diwaniyah whom they accused of being part of a ‘Ba’athist plot’. Two of the activists died shortly after being released.
DFAT assesses that former Ba’athists whose involvement with the party did not extend beyond mere membership of the party are unlikely to face significant official or societal discrimination on the basis of party membership alone. People accused of current Ba’ath Party involvement face a moderate risk of official harassment, in the form of arbitrary detention or dismissal, and a moderate risk of violence by state-sponsored armed groups.
…
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

The Tribunal also accepts the applicant has no employment in Iraq.
The applicant has a father, daughter, brother and two paternal uncles in Iraq.
The Tribunal accepts that the applicant’s father is elderly and blind and that her two uncles are elderly. The Tribunal accepts that they would not be able to provide the applicant with support in Iraq.
The applicant gave evidence which the Tribunal accepts that her brother and daughter both have their own families and do not want the responsibility for care of the applicant too in Iraq. The Tribunal acknowledges that culturally, the applicant’s elder son would usually have the responsibility for his mother’s accommodation and care. However he is no longer in Iraq. The Tribunal also accepts it is customary for a married woman take on responsibility for her husband’s parents. Therefore it is plausible the applicant’s daughter’s husband would presumably be reluctant to take on the additional family burden of providing care and support to the applicant. The Tribunal also accepts that the applicant’s daughter and her family move between Baghdad and [City 1]frequently and that it would be difficult for the applicant to continually accompany them.
Mental Health
The applicant has provided psychological reports regarding her poor mental health. They state she suffers from a post-traumatic stress disorder. The Tribunal notes there are events in the applicant’s past in Iraq as well as her struggles in Australia which could readily give rise to such a disorder.
The psychological reports are reasonable detailed and reasoned and the Tribunal accepts them to the extent they provide an opinion about the applicant’s diagnosis and prognosis.
The Tribunal finds the applicant’s reported statements to Dr [A] about her mental state during her last hearing potentially unreliable given the lack of indication during the hearing that the applicant had lapses in memory or that her memory was flawed. Nor did the applicant convey psychological or emotional difficulties participating in the hearing. She was able to readily provide details of her past experiences in Iraq and Australia and there did not appear to be any gaps in her recall of any of the claims she has presented to date. The Tribunal does however accept that at her first Tribunal hearing there were indications the applicant was distressed and had some emotional or psychological difficulty responding to questions and statements put to her.
The Tribunal accepts Dr [A]’s diagnosis that the applicant suffers from Post-Traumatic Stress Disorder, Depression and Anxiety.
Fear of Harm in Iraq
The Tribunal has accepted that the applicant’s husband was kidnapped and presumed killed; the applicant’s eldest son [C] was killed; the applicant ran [a] school in Baghdad; the applicant and her school were subjected to adverse attention including threats, intimidation and extortion by a Shia militia group and by a Sunni militia group; the applicant suffers from mental illness, and the applicant lacks forthcoming family support in Iraq.
It has been almost seven years since the applicant last departed Iraq. She has had nothing to do with the school since her departure. She believes her primary school may no longer be operating. The Tribunal therefore is satisfied that there would be no adverse interest in the applicant now by a militia group because of any current connection to the primary school.
The applicant claims that her past failure to implement the militia’s wishes in regard to the school’s religious curriculum would cause them to maintain a desire for revenge against her, even after her years away from Iraq. However there is no indication that the militia groups threatened or took any action against the school or anyone in the applicant’s family following her final departure from Iraq.
The Tribunal accepts that the applicant has a local profile in her neighbourhood in Baghdad. The Tribunal also accepts that if she encounters anyone from the militia groups who participated in threats against her in the past they would likely recall who she is and the nature of their past interaction with her. However given the length of time she has been away, and her lack of involvement now in a school or anything the militias may have a particular interest in, the Tribunal does not consider that there is a real chance the militia groups would purposefully target her with serious harm.
The Tribunal notes that the applicant will be returning to Iraq as a single, elderly, widowed woman with diagnosed mental illness. She likely no longer has her home in Iraq and no longer has employment.
The Tribunal considers it would be unreasonable for not one of the applicant’s family members in Baghdad to take the applicant in and provide her with support and accommodation there. However, the Tribunal notes the available country information which indicates this does happen and that the elderly and widows can be considered a burden too great during times of hardship, so that they are left to fend for themselves. Further, if the applicant did try to live with her daughter or even her siblings it is likely that she could not rely upon this arrangement lasting indefinitely or even for any specific period of time. The Tribunal is therefore satisfied there is a real chance, albeit not a high chance, that the applicant would find herself without family support on return to Iraq, within the reasonably foreseeable future.
The Tribunal therefore accepts there is a real possibility that the applicant would not be able to live with family members in Iraq, within the reasonably foreseeable future. This means that there is a real chance the applicant will be on her own in Iraq.
The applicant has given evidence that she struggles in Australia. She does not have stable accommodation and is only able to work as a cleaner occasionally when she is sufficiently mentally well. The applicant has also stated that she would not be able to live on her own in Iraq as it is not culturally or religiously acceptable for women in Iraq to do so. She stated that she would be vulnerable to attack, robbery and home invasions if she lived alone because she would be identified as a weak woman who could not protect herself. The available country information, as set out above, supports her statements. For example, the 2022 EUAA report refers to women living on their own often encountering negative attitudes from society and being at a “particularly high risk of violence”.
The Tribunal considers that the applicant’s vulnerability to harm, as a woman living alone in Iraq, is heightened by her mental health issues, as well as by her age, given her ability to successfully navigate confrontation or dangerous situations would likely be markedly decreased. The Tribunal considers that the applicant’s past adverse profile with the local militia groups further increases her vulnerability to harm and opportunistic assault in Iraq from those associated with the militias.
The Tribunal is therefore satisfied that there is a real chance that the applicant will be physically assaulted, threatened, robbed and her home invaded if she returns to Iraq. The Tribunal considers these harms are serious harm. The Tribunal is satisfied that the reason for the harm is the applicant’s membership of the particular social groups, single women in Iraq, women living alone in Iraq, and elderly women in Iraq. The Tribunal considers that the harm is a result of systematic and discriminatory conduct in that it will be done to the applicant selectively and intentionally. The Tribunal is satisfied that the chance of harm to the applicant as an elderly woman alone, exists in all areas of Iraq and that there is no effective protection available to her.
The Tribunal is therefore satisfied the applicant has a well-founded fear of persecution in Iraq as defined by s.5J of the Act.
Section 36(3)
There is no evidence or indication that the applicant has a right to enter and reside in any other country. The Tribunal accordingly finds she has no such right and that she is not excluded from Australia’s protection by s.36(3) of the Act.
Conclusion
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under 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.
Melissa McAdam
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 1196

3 January 2024

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