2408544 (Refugee)
[2024] AATA 3657
•1 June 2024
2408544 (Refugee) [2024] AATA 3657 (1 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Latifa Al-Haouli (MARN: 1175724)
CASE NUMBER: 2408544
COUNTRY OF REFERENCE: Iraq
MEMBER:Denis Dragovic
DATE:1 June 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Statement made on 01 June 2024 at 1:56pm
CATCHWORDS
REFUGEE – protection visa – Iraq – single Arab tribal woman who has chosen to separate from husband – sole breadwinner for children – will be unable to find work – will be unable to find accommodation – susceptible to harassment – state protection unavailable – unreasonable to relocate – children not fluent in Arabic – westernised behaviour – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), s 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2Any 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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 June 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first three named applicants hold documentary evidence of their Iraqi citizenship. The fourth was born in Australia but due to Iraqi citizenship rules is considered Iraqi by birth.[1]
[1] Iraq’s Nationality Law (Law No. 26 of 2006) >
The applicants applied for the visas on 9 September 2016 under an application with the husband of the first named applicant. Following their separation in March 2024 the first named applicant sought from the Tribunal the separation of their appeal application. As such this application only considers the circumstances of four of the five applicants on the original protection visa application.
The delegate refused to grant the visas on the basis that the claims made by the applicant’s husband did not meet the statutory threshold for triggering Australia’s protection obligations.
The first named applicant appeared by video conference before the Tribunal on 29 May 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The applicants were represented in relation to the review and were supported by a very impressive submission that detailed the applicants’ new claims.
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.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The first named applicant (“the applicant”) was born in Baghdad, Iraq. She is a practicing Sunni Muslim. She started school during [time period] in [year] and finished high school [during time period]in [year]. After graduating from high school, the applicant began studies in [subject] at university in [year] and finished her course in [year].
Regarding her relationship, she was engaged through an arranged marriage in 2008 and married in 2010. At this point in time, she moved in with her husband who was living with his parents. In [year] they had their first child. In [year] their second. Then the husband decided to move to Australia in 2014 for one year to study English while she remained behind living with her in-laws and her children. In 2015 her husband returned and in January 2016 they departed for Australia as a family. In [year] they had their third child.
The applicant said that she had an aspiration to work, and she believes that she could have found work as she finished in the top ten of graduating students. She said that she was formally invited by the university to apply for a teaching assistant position but that she had to seek approval by the central Ministry of Higher Education, but to obtain the required approvals she said that she needed wasta which was translated to mean connections. Without wasta she was unable to obtain work at a university. The applicant continued to apply each year after graduating but wasn’t given a role.
As the applicant had made a joint protection visa application with her husband her then claims were largely tied to her husband’s circumstances according to application form, the evidence that was provided orally at the interview with the Department and recorded in the protection visa decision record. Those few claims that would be equally applicable to her as her husband and were made in the original joint application can be summarised as her being Sunni and as such discriminated against for reasons of her faith and the security situation in Iraq putting her at risk.
Arising from her separation from her husband in 2024 new claims were raised that centre around her status as a divorced or separated woman and sole breadwinner for her children. She has further concerns about her children’s future including whether her husband’s family would gain custody of them and the environment into which they would be growing up.
Central to considering the applicant’s circumstances into which she would return is the societal context. As there is no meaningful concept of a single Iraqi culture but rather society being comprised of multiple cultures, I engaged with the applicant to understand the norms of her community. As became apparent and what aligns with country information, her life would be largely shaped by her tribe. To explain further, the circumstances of how woman are treated in urban Kurdistan will differ to the situation into which a Sunni woman living in rural al-Anbar province would be.
The applicant gave examples of her past experiences. She mentioned that when her husband left for Australia the first time, she was forced to remain in his family house. She said that she didn’t want to and thought her life would be better with her father, but her husband’s father forbade her from leaving. She said that according to tribal customs, when a woman is married, she ‘belongs’ to her husband’s family and in turn they are responsible for her. She said that she asked permission, but her father-in-law refused. Instead, she lived in a single bedroom with her children in their house. She claimed that she wasn’t allowed to even visit her parents. She said that if she had left home against the father-in-law’s wishes his tribe would take the children away from her. For that reason, she chose not to force the issue as she couldn’t leave the children.
Another insight into the cultural context to which the applicant will be returning to arises from a translation of a chat message with her [sister] which was provided to the Tribunal:
Wed, 3 April
Voice call
Silenced voice call
Voice call
Missed voice call
Missed voice call
Hey, why don’t you answer the phone?
What is that thing you are saying?
Look, listen to me carefully and keep what I tell you like a ring in your ear.
We (are not kind of people) who (allow) their daughters to divorce and bring disgrace to us.
We are not kind of people who (allow) their daughters to request divorce.
Why do you think this way?
What are people going to say about us? [They say]: Your daughter is divorced! What a disgrace!
Isn’t he your maternal cousin? What are people going to say about us?
You get divorce just to make your brothers feel disgraced!
Missed voice call
Hey you! Answer the phone. Why don’t you answer?
Ok, what about your children whom the father’s family will take from you and leave you alone? They’ll be disadvantaged and denied your care.
Hey you, think about it in a better way.
You believe you’ll be only doing what is in your head.
No! This must not happen. Use your brains better and return to your husband.
Otherwise, we will act differently and give you up.
And keep in mind ...don’t think you’ll be able to return to Iraq if you are divorced. We will not welcome you.
The applicant said that she separated from her husband [in] March 2024 and the communication with her sister was in late March and early April. Since then, she has not had any communication with her family. It is apparent from this chat record that her circumstances are intricately tied to her family’s honour which itself is a part of tribal culture, as is evidenced by the country information examined below.
She said that the same situation happened to [another] sister who wanted to leave her husband because of domestic violence and alcohol. She said that her sister tried to leave but they kept the children. Her father said to her sister that if she wants to separate, she could come and live with the family, but the children would stay with the husband’s family. The sister decided to stay with her husband’s family.
The applicant currently lives in Australia with her children separated from her husband. She has sought a divorce but learned that it requires 12 months of separation.
She takes her children to school, on Wednesdays attends English classes, and on Fridays sewing classes and then she participates in a computer skills course. She has a driver’s license and a car.
In Iraq she didn’t have a driver’s license and was not allowed to drive. She said that married woman would stay in their house, the children would walk to school, and the elderly women or the husband would do the shopping.
She said that she is currently enrolled to begin a [course]. She said that in Iraq woman of a certain age can’t proceed with studies.
She hopes to work in [in that sector] upon graduation. In Iraq, her husband expected her to remain in the home and not to work.
The applicant said that she enjoys more freedoms in Australia including being able to socialise. She said that she goes out for coffee and breakfast with her female friends and attends education courses together. Whereas were she living in Iraq she could only socialise with her female friends in her or their house and only when all the males in the house are out.
We discussed the circumstances of the eldest daughter. She is about to turn [age] years old and is in [grade]. She doesn’t wear a hijab despite being of an age when she would be expected to. The applicant said that when she discussed this with her daughter, she refused to wear one and said that she is free to choose not to. She plays tennis every week, studies and enjoys watching movies. She said that her daughter intends to become a doctor. With regards to her tennis, she plays once a week which was noted as something that she would be unable to do in Iraq. She said that her daughter has an ‘Aussie’ friend, and they go out together for example, to the zoo, birthday parties, or to an indoor playground. In Iraq she would not be able to socialise in this way and instead, according to the applicant, she would go to school and go back home.
The daughter does not speak Arabic well according to the applicant. The applicant said that her daughter learned Arabic when she was young but that they came to Australia when she was [age] and they have been living here since. She said that at home she would speak in a mix of Arabic and English and her daughter would respond in English.
The daughter has not yet learned to pray.
I found the applicant to be a credible witness and as such accept her narration of her life as well her perceptions of the social and cultural expectations that she believes are imposed on her and other women living in the context of her tribal customs in Iraq.
Country information
Considerable country information was provided by the representative on the issue of women in Iraq. The references provided in this decision are from the original documents even when initially identified in the submission. I have also considered other country information independently sourced.
Unfortunately, the information developed for refugee decision makers is all too often generic across ethnic groups, socio-economic status, and geographic location lacking nuance to what are sociologically unique communities. For this reason, in addition to the general review of information available to decision makers I have sought out specific cultural information pertaining to the context of Sunni Arab tribal customs arising from the evidence the applicant provided in that she is from a tribal culture and her reference point as far as societal authority was the tribe and its customs. As such, any future life for her in Iraq will be shaped by the tribal norms of her community. This is not the case for all Iraqis as other social institutions can take precedence in life[2], and for this reason some of the general information may not necessarily apply unless further consideration is given to the specific cultural context into which she would be returning to.
[2] >
At a generalised high-level DFAT finds:
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. DFAT assesses that the majority of Iraqi women, regardless of ethnicity or socioeconomic 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.[3]
[3] DFAT Country Information Report Iraq – JANUARY 2023 at [3.109]
This is reflected in the Women Peace and Security Index which ranks countries in terms of women’s inclusion, justice, and security. Iraq is ranked 168 out 177.[4]
[4] >
Similarly, with regards to the laws affecting women DFAT notes:
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.[5]
[5] DFAT Country Information Report Iraq – JANUARY 2023 at [3.110]
The United States Department of State largely agrees:
Law and custom generally do not respect freedom of movement for women. For example, the law prevents a woman from applying for a passport without the consent of her male guardian or a legal representative. Women could not obtain the Civil Status Identification Document, required for access to public services, food assistance, health care, employment, education, and housing, without the consent of a male relative.[6]
[6] United States, Department of States, 2022 Country Reports on Human Rights Practices: Iraq
Specifically, regarding cultural attitudes towards women who live alone a research report finds that it is not generally accepted ‘because it is considered inappropriate behaviour. Women living on their own will often encounter negative attitudes from society and are at a particularly high risk of violence.’[7]
[7] >
With regards to employment, there is considerable general information that indicates that female participation in the workforce throughout the country is limited:
Around 85 percent of women age 15 and up, don’t participate in Iraq’s labor force, putting them at higher risk of falling into poverty — though they may take part in the informal economy doing work like sewing or handicrafts.[8]
[8] type="1">
Similarly, generalising across the country:
Women in female headed households, divorced women and widows are in a vulnerable position economically and in terms of exposure to harassment, and have difficulty finding employment, especially if they lack the protection of a male relative and necessary connections to find employment and sustain dependent children.[9]
[9] >
With regards to Sunni Arab tribal customs, I note a report by Haley Bobseine on Iraqi Arab tribes describes some cultural practices that are harmful to women including:
“al-nahwa” which allows a woman’s male family member to block her marriage plans.
“woman for a woman” allows a man to marry a woman and, instead of paying a dowry, offer his sister to marry the brother of the bride.
“fasliya” marriage, which forces a woman or women to marry a man from an enemy clan or tribe to “rectify” a harm or crime inflicted by the woman’s tribe. Fasliya is more prevalent among Shia-majority tribes in the south. Such marriages are often concealed and underreported.[10]
[10] >
While the applicant is already married and may not necessarily face a second marriage, these customs reinforce the view that for women whose lives are shaped by Arab tribal customs, the tribe is highly controlling of women’s lives.
Considerations
As noted by DFAT in their report, quoted above, circumstances vary through Iraq. The situation for women in the Christian enclave of Ainkawa, in an urban area of Kurdistan, will be different to the rural circumstances of a Sunni Muslim in the rural town of Haditha. Similarly, the situation of a wealthy woman would be starkly different to the challenges faced by someone whose economic status is substantially lower. For this reason, it is important to delve past the generalities and look at the specific circumstances into which the applicants would be returning to. As noted above, due to the evidence provided by the applicant the tribe will play an outsized role in providing protection or contributing to harm.
As Haley Bobseine notes, one of the main purposes of the tribal structures is to maintain community peace, which includes maintaining family honour, but she explains, ‘Family and individual honor are exclusively held by men, who can lose or regain honor depending upon the circumstances. Women, by contrast, can only be a source of family or individual dishonor, and cannot actively bring honor to their family or tribe.’[11]
[11] >
This view is aligned with the Finnish Immigration Services:
The community-based culture in Iraq has a major influence on the individual’s situation. …Although there has been some change in attitudes, women’s lives are restricted by cultural norms…Women who violate these cultural norms can become victims of so-called honour violence.[12]
[12] >
If the applicant was widowed for reasons other than leaving her husband voluntarily and in turn was not rejected by her tribe, then there would be supports provided for her by the tribal structure[13] and in such a case her association with the tribe would be a protective factor. But in the applicant’s case the situation is different. She has cost her family shame, as was detailed in her sister’s text messages, and arises from the country information as explained by Haley Bobseine. The result is that she will not be supported by the tribe and her children would be taken away from her.[14]
[13] ‘Traditionally, sheikhs play an important role in protecting their tribesmen from harm, guaranteeing a basic level of economic well-being, mediating disputes, and making peace.’ DFAT Country Information Report Iraq – JANUARY 2023 at [3.110]
In such a situation, being a single, divorced female without male, family, or tribal protection will lead her to experience various harm. I find that she will be harassed for her status and for the same reason a victim of sexual predatory behaviour. I find that she will be unable to find work that will sustain her in the immediate short term, that she will struggle to find rental accommodation as landlords and neighbours will not want someone of her status. I find that she will need to live in an area unfamiliar to her to avoid humiliation by those familiar to her and this in turn will lead to additional security related risks. When considered holistically, I find that the first named applicant faces a real chance of serious harm for the reason of being a single Arab tribal woman who separated from her husband by her own choice.
I now turn my mind to consider whether such harm is for one of the reasons in s5J(1)(a) namely religion, race, nationality, political opinion, or membership of a particular social group.
The relevant reason is membership of a particular social group. This is defined in the Act:
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.
The harm I have identified the applicant faces is for reasons of being a single Arab tribal woman who has chosen to separate from her husband. This harm arises in the context of the tribal community to which she’ll be returning to. I accept that women who chose to separate from their husbands in a tribal context can be a common characteristic of a possible particular social group. It is clear from the evidence that the applicant shares and would be known to share this characteristic because there would not be a husband living with her and yet she would have children. It would also be known that her husband did not pass away because were this the case she would be living with his family. The characteristic is immutable as she has already left her husband, a fact that I am satisfied would already be known in the tribal community and as such has marked her. The characteristic is not a fear of persecution. For these reasons, I find that the applicant is a member of a particular social group, namely Arab tribal women who have chosen to leave their husbands.
I accept that the harm the applicant faces is systematic and discriminatory as the cultural values that underpin the harm she faces are a part of the rules and customs of the tribal society into which she would be returning to.
It could be asked whether the applicant could change her behaviour and return to her husband. Even in such a circumstance it would not change the known fact that she left him in the first place and as such has already brough shame to her and her family. Nevertheless, assuming that some degree of diminished harm would result from her returning to her husband and seeking to undo the damage, I now turn my mind to consider whether such change would be reasonable.
Section 5J(3) of the Act states:
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:
…
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(v) enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
For the reason that remaining in a marriage is not a reasonable modification of behaviour, I find that the applicant can’t be expected to change her behaviour so as to reduce the level of risk she faces.
I also do not accept that the applicant can seek protection from the state because country information indicates that the state is accepting, if not dependent, upon the tribes in certain aspects of society. Haley Bobseine notes that in circumstances where the state withdraws its power or is weak, then other authority centres rise. In the case of the community into which the applicant would be returning to, it is the tribe that complements or supplants the role of the state where the state is weak or absent.
I do not accept that the applicant can relocate to another part of Iraq without facing a real chance of serious harm arising from the same reasons but presenting slightly differently. While she may not face humiliation and social ostracism in the same way as she would in her community other facets of her profile would be a reason for her to face harm including the social standing of a woman living on her own and the risk to predatory sexual behaviour or the inability to find work.
Country information clearly articulates this view:
Law and custom do not generally respect freedom of movement for women. Women require the consent of a male guardian or legal representative to apply for a passport, and for identification documents necessary for accessing public services, food assistance, health care, employment, education and housing. It would be extremely difficult, if not impossible, for a single woman to relocate to a new area where she did not have the protection of a male relative.[15]
[15] DFAT Country Information Report Iraq – JANUARY 2023 [5.20]
Based on the country information and the specific circumstances of the applicant, I find that she cannot relocate.
For the reasons given above I am satisfied that the applicants is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).
I am satisfied that the first named applicant is the mother of the second, third and further named applicants and as such the three children are members of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i).
The fate of the children’s application depends on the outcome of the first named applicant’s application and specifically whether the first named applicant meets the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
I have also considered whether according to s 36(3) the applicants have a ‘a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.’ There is no evidence before me that citizens of Iraq such as the applicants have a right to enter and reside in another country apart from Australia. As such I find that the exception to Australia’s protection obligations under s 36(3) is not met.
Conclusion
For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).
I am also satisfied that second, third and further applicants are members of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i). As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii) that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Denis Dragovic
Deputy PresidentATTACHMENT - 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.
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36 Protection visas – criteria provided for by this Act
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(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.
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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Remedies
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Statutory Construction
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Citations2408544 (Refugee) [2024] AATA 3657
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