1502751 (Refugee)

[2016] AATA 4648

1502751 (Refugee) [2016] AATA 4648 (25 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1502751

COUNTRY OF REFERENCE:                  Bahrain

MEMBER:James Silva

DATE:25 October 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 25 October 2016 at 1:56pm

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

1. The applicant is a man in his [age range], who claims to be a citizen of Bahrain.

2. The applicant first arrived in Australia in October 2011, as the holder of a Student visa. He most recently re-entered [in] June 2014.

3. The applicant applied for a Protection (Class XA) visa [in] October 2014. He attended an interview with the delegate of the Minister for Immigration [in] January 2015.

4. [In] January 2015, the delegate refused the application pursuant to s.65 of the Migration Act 1958 (the Act).

5. This is an application for review of that decision.

6. The applicant was invited to a Tribunal hearing on 20 October 2016, but did not attend.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CRITERIA FOR A PROTECTION VISA

8. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. The relevant law is in Attachment A.

   CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

   Background

9. The applicant is [an age] year old man from Bahrain. His father is from Bahrain and his mother from [Country 1]. The applicant’s first language is English. He also knows Arabic and [another language], although not fluently. He is a Shia Muslim.

10. The applicant wrote on the application form that he was born in Manama, although he indicated in his written claims that he is from a village named [Village 1], which has a Shia Muslim majority. He gives detail of two residential addresses in Bahrain, one in [Village 2] (2000-2004) and another in [Village 3] (2004-2011) ([in a specified part of Manama]).

11. The applicant went to school [at Location 1]. He attended kindergarten and school up to Grade [number] in [a specific] school. In [year], he transferred to [a different] school, which his [siblings] were also attending. He used to spend summer holidays, from [year] (when he was [age] years old) until 2010, in in his father’s [product] business.

12. The applicant’s parents and [specified siblings] all live in Bahrain. His father runs [a product] business there. His mother is a naturalized Bahraini who converted to Islam, and now works as [an occupation]. The applicant indicated at the Department interview that he has a number of other half-siblings from his [parent’s] first marriage.

13. The applicant came to Australia [in] October 2011, to study at [education provider 1], as a pathway to [education provider 2], where he hoped to complete [subject qualification]. As noted in the delegate’s decision record, he made [number] return trips to Bahrain since first arriving in Australia. He last returned to Australia in June 2014, and sought protection in October 2014.

14. The applicant holds a Bahraini passport, issued [in] 2011 and valid until [2016]. It has therefore recently expired. The applicant indicated in his protection visa application that he has a right to enter and reside in other Gulf Cooperation Council (GCC) countries.

15. The applicant claims, and the Tribunal is satisfied on the basis of the documentary evidence that he provided, that he is a Bahraini national. Bahrain is therefore the country of reference for the purpose of assessing his refugee claims, and the receiving country for the purpose of assessing whether he is entitled to complementary protection.

16. The applicant’s protection claims are, in summary:

    §  The applicant claims to fear harm in Bahrain, for reasons of his political opinion, religion and racial background.

    §  The applicant and his family took part in the February 2011 uprising. They set up a camp in [Location 1], in central Manama. They shared food with others. The applicant and his family gave speeches and read poetry during the demonstrations, and the applicant posted blogs on [Social media].

    §  During the demonstrations, spies were taking photographs and keeping a record of families participating in the protests. The applicant fears that the authorities have photographs or other records of his involvement in the protests.

    §  The police force and riot police broke up the protests by attacking in the middle of the night. The applicant’s [relative] was trapped in a [venue], and had to pretend that she was a [client].

    §  The crackdown that followed involved mass arrests, mass punishments and civil unrest. The applicant wrote that he and his family, like other protestors, returned to their villages and continued to protest there. Government thugs came to the village, shooting and causing havoc (destroying cars, shops, Shia mosques and the like). The applicant had to hide in various houses, before eventually returning home. During this period, the applicant and his family slept in the dark, fearing further attacks by government thugs. The air was thick with tear gas, and the family was unable to open the windows of their accommodation.

    §  One night, the police broke into the applicant’s home searching for his [Relative A]; the applicant was not there on that occasion.

    §  The applicant also witnessed government abuses of friends and classmates.

    §  The applicant experienced ongoing harassment. For instance, at police checkpoints, he was sometimes taunted, mocked or insulted. For instance, the police once smashed CDs associated with Shias and tore car upholstery during a search.

    §  The applicant fears that the national media and/or government supporters will label him as an evil person or blackmail him. He also fears continued harassment by the police or military at checkpoints.

    §  The situation in Bahrain made it difficult for the applicant to complete his high school studies.

    §  The applicant’s parents encouraged him to leave Bahrain due to the civil unrest and political tension in that country.

17. The evidence before the Tribunal includes the following relevant material: -

    §The applicant’s protection visa application form completed and lodged [in] October 2014, including a statutory declaration signed [in] September 2014

    §Supplementary Form 80 ‘personal particulars for assessment including character assessment’, lodged [in] October 2014

    §Documents relating to the applicant’s identity and nationality:

    -Copy of the applicant’s birth certificate

    -Copy of the applicant’s Bahraini passport, including stamped pages showing travel to and from Australia between October 2011 and June 2014

    -Australian Federal Police (AFP) national police certificate

    §The applicant provided a large volume of country information about Bahrain

    §A Protection visa interview (‘Department interview’) held [in] January 2015, which the Tribunal has listened to in full

    §The delegate’s decision record of [January] 2015

    §The review application, lodged on 25 February 2015, has attached to it a copy of the delegate’s decision record.

    §A submission received on 18 October 2016, in which his representative conceded that the applicant has a right to enter and reside in [Country 2], but contends, with supporting country information, that he has a well-founded fear of persecution and/or faces a real risk of significant harm.

18. On 23 September 2016, the Tribunal wrote to the applicant advising that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited him to give oral evidence and present arguments at a hearing to be held on 20 October 2016. The letter advised that if he did not attend the scheduled hearing and a postponement was not granted, the Tribunal may make a decision on the review without further notice or taking further action to enable him to appear before the Tribunal. The letter was sent to his authorised recipient, by email, in accordance with the applicant’s instructions in the review application.

19. The Tribunal received no direct response to the hearing invitation. However, on 11 October 2016, the representative wrote to the Tribunal to submit a copy of the delegate’s decision and a range of country information relevant to an assessment of whether the applicant would be at risk of serious or significant harm (in particular, persecution on religious grounds) if he were to enter and reside in another Gulf Cooperation Council (GCC) country, in particular [Country 2]. The representative wrote: ‘At this stage I advise that I have no further instructions in respect of my client’s appearance at the hearing of his application by the Tribunal. I have forwarded to him the Form MR19 but that has not been returned to me’.

20. The applicant did not appear before the Tribunal on the day and at the time and place he was scheduled to appear. As of 25 October 2016, the applicant has failed to contact the Tribunal to seek a postponement of the hearing, or to provide any reason why he could not attend at the scheduled time. The Tribunal has also received no further communication from his representative. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make a decision on the review without taking any further action to enable the applicant to appear before the Tribunal.

    Consideration of claims and evidence, and findings

21. The Tribunal has before it the applicant’s statement of claims as set out in his protection visa application form, and his oral evidence at the Department interview held [in] January 2015. There is a range of other material, including country information on the political and human rights situation in Bahrain, the human rights situation in [Country 2] (which the delegate identified as the place where the applicant could most likely avail himself of safe third country protection) and some sample Tribunal decisions. These provide relevant background material, but do not directly address the applicant’s own claims, and are therefore of limited assistance in the Tribunal’s fact-finding.

22. The delegate’s decision to refuse the application was based on his assessment that the applicant has a legally enforceable right to enter and reside in any GCC country, including most relevantly [Country 2][1]; that the applicant has not taken all possible steps to avail himself of that right[2]; that he does not have a well-founded fear of Convention-related persecution and there are no significant grounds for believing that there would be a real risk of significant harm in relation to [Country 2][3]; and that the applicant does not have a well-founded fear of being returned to a country (Bahrain) (and that he has a well-founded fear of Convention-related persecution or faces a real risk of significant harm there)[4].

    [1] Ss.36(3)(a) of the Act

    [2] Ss. 36(3)(b) of the Act

    [3] Ss. 36(4) of the Act

    [4] Ss. 36(5) and 36(5A) of the Act.

23. During the course of the Department interview, however, the applicant provided some further information about his personal circumstances and his claims vis-à-vis Bahrain, which the Tribunal takes into account in the assessment below.

24. The material before the Tribunal about the applicant’s personal experiences and profile in Bahrain, and the Bahraini authorities’ (potential) adverse interest in him, is limited to his statutory declaration and his statements at the Department interview. The Tribunal notes that these contain some detail and are broadly consistent with each other. Nonetheless, it was sometimes difficult to distinguish in the applicant’s accounts between his own (claimed) actions, those of other family members, and more general observations and statements. Also, because the Department interviewed tended to focus on the availability of safe third country protection, some of the applicant’s statements about his and his family’s experiences and fears in Bahrain were not explored or tested. Finally, the Tribunal notes that more than 18 months have passed since the Department interview; as a result, the information that he presented in the past may not be current or complete. As a result, the Tribunal has an incomplete picture of the applicant’s circumstances in Bahrain, other relevant factors (such as the situation for his family) and his current fears in relation to that country.

25. Among the claims on which the Tribunal has insufficient evidence are the following:

    §  Further details of the applicant’s own involvement in the uprising in 2011, including: - whether he can provide further details or corroboration of his claimed attendance at the camp in central Manama, his family’s public speeches during this period (he suggested at the Department interview that his [specified relatives] spoke out, and he ‘supported’ them), his contributions to social media; and any other activities.

    §  Details of the applicant’s (and his immediate family’s) experiences as a direct result of his (claimed) participation in and prominence at the protests at [Location 1], and the crackdown that followed. For instance, there is insufficient evidence as to what happened when the police attacked [Location 1] camp; details of the family’s claimed refuge in local villages (and its impact on his education and his father’s business during this period); the applicant’s location and activities during his period away from home; the abuses of others that the applicant claims to have witnessed; and the alleged threats towards him and his family.

    §  More generally, the applicant’s experiences of ongoing discrimination and harassment as a Shia, as a person of (part) indigenous background (and if relevant, whether his part-[Ethnicity 1] ancestry plays any role), and the extent of any political targeting (on the basis of his actual or imputed political opinion). This would include details of the claimed insults, humiliation, property damage (breaking CDs or tearing up seat covers) and threats (including holding a gun to the applicant’s head on one occasion) that Bahraini officials subjected him and family members to at checkpoints; any ongoing official scrutiny or harassment that he (or family members) face; and the extent of any societal or other discrimination.

    §  The impact of such experiences and discrimination on the applicant and his family, such as his education in Bahrain, his father’s business, his mother’s employment and his siblings’ activities.

    §  The timing of the applicant’s departure from Bahrain and his conduct in travelling back to Bahrain on [number] different occasions after his initial visit to Australia, in the light of his protection claims[5].  

    §  The basis for the applicant’s fear that Bahraini intelligence agents may have taken his photograph or made a record of his participation at the protests, leaving him vulnerable to official sanctions at any time.

    §  Any materials that the applicant has posted on [Social media sites] or other social media that might demonstrate his past or ongoing interests, and that might be relevant to an assessment of his protection claims.

    §  Any update on the applicant’s current political or related interests; whether he would have any motivation in expressing these if he returned to Bahrain; and, if so, whether he would be at risk of persecutory or significant harm if he were to act on such interests (or, conversely, whether he would have to refrain from any such expressions for fear of persecution or significant harm).

    §  An update on the applicant’s family’s circumstances. This includes clarification of his claim (at the Department interview) that his [Relative B] is in jail for [an offence]; that he ([Relative B]) was treated unfairly (that he was slapped, and given a longer than usual prison sentence as an example of others); and the suggestion that he was singled out as a Shia and/or because of his suspected support for the dissidents. It is unclear, also, whether this is related to the applicant’s claim that the police once raided the family home at night, looking for his [Relative A], which he implied was part of the post-protest crackdown.

    §  The applicant’s current fears in relation to his return to Bahrain, and whether these form the basis for a well-founded fear of Convention-related persecution or put him at a real risk of significant harm.

    §  (Depending on the outcome of the above enquiries, potentially, whether the Bahraini authorities perceive the applicant to have committed a criminal or other offence that would, in light of current country information and practice, render him subject to being extradited from [Country 2] or other GCC countries to Bahrain, to face prosecution or other punishment.) 

    [5] The Tribunal draws on information contained in the delegate’s decision record, a copy of which was attached to the review application and also sent to the Tribunal in the submission of 18 October 2016. The delegate mentioned this travel in the context of the applicant’s repeated transit through [Country 2].

26. The Tribunal accepts on the available evidence that the applicant is a Shia, of part indigenous (Bahraini) ethnicity, and that he may disapprove of current Bahraini government policy and practices. It also accepts that he and his family face some degree of discrimination and suspicion from the Bahraini authorities and Sunni minority. Having regard to country information, it accepts that this may involve occasional verbal abuse and intrusive searches at checkpoints. However, the Tribunal is unable to be satisfied on the available material that these actions involved death threats or more significant abuse. Nor is it able to be satisfied that this discrimination, even cumulatively, amounted to persecutory harm or significant harm.

27. The Tribunal is also unable to be satisfied that the applicant and his family were active during [the Location 1] and related protests in 2011; that they were subject (individually or collectively) to violence from the police or military during the protests or in the crackdown that followed; that he was in hiding for some time; or that he observed at close range the mistreatment of family members, Shia protestors, friends and classmates, or others.   

28. The Tribunal accepts that the applicant left Bahrain due to general conditions in that country – including civil unrest and political tension – but it is unable to be satisfied that he did so in fear for his personal safety, that is, in response to a threat of persecutory harm or significant harm.

    Does the applicant meet the refugee criterion?

29. The Tribunal has reviewed the applicant’s claims and evidence, including country information. It is not satisfied that his Shia faith, his ethnicity (as a person of part indigenous Bahraini, part-[Ethnicity 1] origins), or his disapproval of current Bahraini government policy and practices - either individually or cumulatively - establish him as a person who faces a real chance of Convention-related persecution in Bahrain. However, the Tribunal is unable to be satisfied that the applicant’s disapproval of the Bahraini government extends to a political opinion that has in the past, or that will in the reasonably foreseeable future, motivate him to engage relevant conduct, such as expressing his views or engaging in political activities. It follows that the Tribunal is also unable to be satisfied that the applicant has a political opinion that he will be unable to express or act on if he returns to Bahrain, for fear of being subject to persecutory harm.

30. Furthermore, the Tribunal’s inability to be satisfied about the applicant’s past experiences (such as his involvement in political protests and whether Bahraini intelligence agencies have information about him), the basis for his past conduct (including the timing of his departure from and his return visits to Bahrain, which the delegate referred to in the decision under review) and his current circumstances reinforces the Tribunal’s lack of satisfaction that he has a genuine or well-founded fear of Convention-related persecution from the Bahraini authorities, Sunnis or anyone. While the Tribunal considers that the applicant may be apprehensive about returning to Bahrain due to its political and security problems, and general living conditions, it is not satisfied that these conditions involve serious harm, or involve systematic and discriminatory conduct.

1. The Tribunal is therefore not satisfied that he as a well-founded fear of Convention-related persecution, now or in the reasonably foreseeable future, if he returns to Bahrain.

2. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

   Is the applicant entitled to complementary protection?

3. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).

4. Based on the limited information before the Tribunal, its factual assessment above, and its review of country information, the Tribunal is not satisfied that the applicant’s Shia faith, his ethnicity, or his disapproval of the current Bahraini government - without more - put him at risk of significant harm. It is also unable to be satisfied that he faces a heightened risk due to any other factors, such as past activities or profile. While the Tribunal accepts that the applicant has concerns about Bahrain’s overall political and security environment, under s.36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. The Tribunal is not satisfied that the applicant’s concerns relate to any risk faced by him personally; it is also not satisfied that the feared harm involves significant harm as defined in s.36(2A) of the Act: s.5(1).     

5. The Tribunal is therefore not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bahrain there would be a real risk that he will suffer significant harm.

6. The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

7. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

   Does the applicant have safe third country protection?

8. The decision under review focused on whether Australia is taken not to have protection obligations in respect of the applicant because he has not taken all possible steps to avail himself of safe third country protection in the GCC countries, pursuant to s.36(3) of the Act, which is subject to the exceptions in ss.36(4), 36(5) and 36(5A).

9. In light of the Tribunal’s conclusions above - that it is not satisfied that the applicant has a well-founded fear of Convention-related persecution in Bahrain, and that there are no substantial grounds for believing that there would be a real risk that he will suffer significant harm in Bahrain – it is not necessary to determine whether, additionally, Australia is taken not to have protection obligations towards him on the basis of safe third country protection. The Tribunal notes that an assessment of safe third country protection would require, among other things, further information on whether the applicant has renewed or replaced his now-expired Bahraini passport, or whether he has other identity documents that would confer on him a legally enforceable right to enter and reside in other GCC countries.   

   DECISION

10. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    James Silva
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

    Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

    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 a protection 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 the applicant 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’).

    Protection Obligations

    Subsection 36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by subsections 36(3), (4), (5) and (5A) of the Act. They provide as follows:

    Protection obligations

    (3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of 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.

    (4) However, subsection (3) does not apply in relation to a country in respect of which:

    (a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or

    (b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.

    (5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that

    (a) the country will return the non-citizen to another country; and

    (b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.

    (5A) Also, subsection (3) does not apply in relation to a country if:

    (a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and

    (b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.

    This means that where a non-citizen in Australia has a right to enter and reside in a third country, Australia will not have protection obligations in respect of that person if he or she has not availed himself or herself of that right unless the conditions prescribed in either s.36(4), (5) or (5A) are satisfied, in which case the s.36(3) preclusion will not apply.

    The Full Federal Court in MIMAC vSZRHU [2013] FCAFC 91, has held that the term ‘right’ in s.36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question.

    In determining whether these provisions apply, relevant considerations include: whether the applicant has a liberty, permission or privilege lawfully to enter and reside in a third country either temporarily or permanently; whether he or she has taken all possible steps to avail himself or herself of that right; and whether s.36(3) does not apply because of the operation of s.36(4), (5) or (5A).

    In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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.