1504472 (Refugee)

[2017] AATA 338

1504472 (Refugee) [2017] AATA 338 (20 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1504472

COUNTRY OF REFERENCE:                  Saudi Arabia

MEMBER:James Silva

DATE:20 February 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 20 February 2017 at 5:34pm

CATCHWORDS
Refugee – Protection visa – Saudi Arabia – Religion – Shia – Political opinion – Anti-government activist – Political cartoon – Shia protests – Arrest of family members – Fear of execution – Employment

LEGISLATION
Migration Act 1958, ss 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES
MIMAC vSZRHU [2013] FCAFC 91

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 applicants are a man in his [age range] from Saudi Arabia (‘the applicant’), his wife and their three children. They all claim to be citizens of Saudi Arabia.

2. The applicant first arrived in Australia [in] July 2007 as the holder of the (dependent) Student visa, as the applicant wife was studying in [Australia]. The family remained in Australia until December 2010. The applicant returned to Australia in February 2012, again as the holder of a (dependent) Student visa, as the applicant wife had resumed study. He most recently returned to Australia [in] February 2014.

3. The applicants applied for Protection (Class XA) visas [in] November 2014.

4. The applicant attended an interview with the delegate of the Minister for Immigration [in] February 2015.

5. [In] March 2015, the delegate refused to grant the applicants Protection visas, pursuant to s.65 of the Migration Act 1958 (the Act).

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

7. The applicant appeared before the Tribunal on 9 February 2017, to give evidence and present arguments.

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

   CRITERIA FOR A PROTECTION VISA

9. 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

   Claims

10. The applicant claims to fear that the Saudi authorities will execute or otherwise detain and punish him, because he engaged in anti-government political activities during his most recent visit to Saudi Arabia in January 2014. He has also claimed that he faces discrimination in Saudi Arabia as a member of the Shia minority.

    Background

11. The applicant is [an age] year old man from [Region 1], in Saudi Arabia’s Eastern Province. He is an Arabic speaker, and claims to be a Shia Muslim.

12. The applicant attended a public school. Although his protection visa application gave his employment as a [self-employed], the applicant corrected this at the hearing and stated that he worked as [an Occupation 1] with [agency]. He said that he obtained this work through a contact, and that it was not a formal position.

13. The second-named applicant is his [age] year old wife. When the couple married, she was [studying] a Bachelor degree.

14. The third-, fourth- and fifth-named applicants are two [children] born in Saudi Arabia in [specified years], and a [child] born in Australia in [year]. The applicant wife and the children are included in the application as members of the applicant’s family unit who do not have their own protection claims.

15. The applicant has a widowed mother, [and siblings]. His father had initially worked for a company, but [developed a disability] following an operation and then lived off a pension. The applicant has only limited contact with his [siblings]. Two work as [occupations], and the third is [an Occupation 1] for a [company] (although the applicant was unsure). He has contact with his [other siblings]; one is married to [Occupation 2].

16. The applicant had limited information about his wife’s family background.

17. The applicants[1] first arrived in Australia [in] July 2007. The second-named applicant held a Student visa, and the applicant and the third-named applicant accompanied her as her dependents. From July 2007 to December 2010, when they returned to Saudi Arabia at the conclusion of the applicant wife’s study, they went back for visits on four occasions.

    [1] The first-, second- and third-named applicants.

18. The applicant wife obtained another Student visa in November 2011, and the family[2] returned to Australia [in] February 2012. They made three return visits to Saudi Arabia, in November 2012, December 2012 - February 2013, and [December] 2013 – [February] 2014 (the last return entry into Australia). Earlier in December 2013, the applicants also visited [two other countries], as the applicant wife was attending [an event].

    [2] The first-, second-, third- and fourth-named applicants at that time.

19. The applicant said that, since coming to Australia he studied English for a few months, and then worked for a [company] [doing specified duties].

    Evidence

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

    §The applicants’ protection visa application forms, lodged [in] November 2014.

    §The applicant’s statutory declaration of 12 November 2014, which sets out his protection claims.

    §Photocopies of the applicants’ identity documents (eg. partial photocopies of their Saudi passports). The applicant brought his current Saudi passport to the Tribunal hearing.

    §Copies of correspondence and the Department’s [records] (as of [October] 2013) showing that the applicant (and the children) had a Student ‘temporary resident’ visa valid to [March] 2016.

    §The applicant attended a Department interview [in] February 2015; a copy of the interview recording is on the Department file.

    §The Protection Visa decision record (‘delegate’s decision’) of [March] 2015, a copy of which is attached to the review application form.

    §The review application, attached to which is a copy of the delegate’s decision record.

21. The applicant attended a Tribunal hearing on 9 February 2017, to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The applicant’s representative was present during the hearing.

    Country of reference / receiving country

22. The applicants claim to be nationals of Saudi Arabia. The first-named applicant presented his Saudi passport at the Tribunal hearing, and there is documentation to indicate that the other applicants have Saudi nationality. The applicant speaks Arabic and showed a thorough familiarity with that country. The Tribunal is satisfied that Saudi Arabia is the applicant’s country of reference for the purpose of assessing his claims to be a refugee, and the receiving country for the purpose of assessing his eligibility for complementary protection.

    Credibility

23. The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole. In the present case, the Tribunal notes that Saudi Arabia has a poor human rights record, and that the Shia population of Eastern Province faces discrimination. However, the Tribunal has significant concerns about the truthfulness of the incidents that the applicant claims occurred during 2014, namely his inadvertent involvement in political activities, and the Saudi authorities’ subsequent targeting of him and family members. The applicant’s evidence lacked detail, context and important peripheral information, which cast doubt over their veracity. The Tribunal’s assessment of these follows below.   

    Political activities in January 2014

24. The applicant claims that during his last visit to Saudi Arabia, in January 2014, he made posters mocking [a government official]. They showed the [official] with [details deleted]. The purpose was to promote the Bahrain protests and political demonstrations against the Saudi Government.

25. At the Department interview and the Tribunal hearing, the applicant confirmed that he had not been engaged in any political activity previously, either while living in Saudi Arabia or during his previous return visits from Australia. The applicant gave the following account of what happened in January 2014

    §  By way of background, he said that the Shia had started protests in Qatif for equal treatment some years earlier, but the government had suppressed these, killing and imprisoning protestors, and monitoring those involved. The applicant was in Australia for most of this period.

    §  The applicant kept in contact with two close friends, [Mr A] and [Mr B][3]. [Mr B] used to keep him abreast of political developments.

    §  In January 2014, the applicant met up with [Mr A] and [Mr B] at a Shia community centre, which is used on religious occasions, and for social and welfare purposes.[4] [Mr A] lived [near] the community centre, which was some distance from the applicant’s home. [Mr A] used a computer there; the applicant thinks that it was [Mr B’s] computer.

    §  The applicant said that [Mr A] has a sense of humour, and suggested that they make a caricature of [a government official].[5] This was a spontaneous idea and, from the applicant’s perspective, not part of any political activism. [Mr A] photoshopped the [the official’s photo], and printed the image out onto sheets of A4 paper. [Mr B] then distributed the sheets to various people, for them to put them up as posters. The applicant said he stood by as [Mr A] worked on the computer, but he did not have further information, eg. whether [Mr A] saved the images to the computer, or how the posters were distributed.

    §  The applicant said that he felt nervous and cautious watching his friends produce this material; he had never seen people do this before. [Mr A] made fun of him, and took a photograph of the applicant standing by the computer. (In light of the applicant’s further claims, he implied that the photograph that [Mr A] took showed both the applicant’s face and the image of the [official] on the computer screen, or other incriminating images.)

    §  The applicant said that he told [Mr A] not to photograph him, and he took [Mr A] at his word that he had deleted it. Later events proved this to be wrong.  

    [3] The applicant provided their full names at the hearing.

    [4] The applicant referred to the Shia observance of Muharram, as a time when people come together over a ten day period. Given that Muharram took place in late October / early November 2014 (not in January/February), the Tribunal understands him to have been referring not to his activities in January 2014, but rather giving a general example of the community’s religious activities.

    [5] [Information deleted].

26. The Tribunal has significant doubts about these claims. The applicant had no prior political engagement prior to January 2014, either directly or through his association with his friends. The Tribunal notes the applicant’s evidence that his friends’ production of the image mocking the [official] started as a kind of prank, rather than political. However, the alleged printing of the images and their distribution clearly took on a political character, and (if true) the applicant must have realised that he was associating himself with dissident political activities.

27. Apart from the basic elements of his account – that [Mr B] or [Mr A] had a computer, or access to a computer, and that he observed them make the photographed caricatures - the applicant had little insight into what else happened. And, aside from the applicant’s mention of [Mr A] being a prankster, there seems to be no context for him taking a photograph that linked the applicant to such an inflammatory image.

28. Given these doubts, the Tribunal is not prepared to accept at face value that the applicant was present during the production of politically sensitive images of the [official], or that a friend photographed him. It considers this claim further below, and makes findings, after considering the alleged events after the applicant’s return to Australia.

    Saudi authorities’ adverse attention

    Claims in original statement

29. The applicant claims that the Saudi authorities have now discovered his involvement in the production of the posters.

    §  [In] October 2014, the applicant’s [Relative 1] telephoned him to say that the authorities had arrested two of his brothers ([named]). At that stage, the family did not know why.

    §  Family members went to security headquarters looking for the brothers. The authorities humiliated and abused the family members, without telling them what happened to the brothers.

    §  [Several days later], his [Relative 1] telephoned again to inform the applicant that the brothers had been released. The family learned that the authorities had arrested them after discovering a photograph of the applicant ‘doing posters to give them to demonstrators’. (The applicant took this to be a reference to the photograph that [Mr A] took of him.) The authorities also accused the applicant of distributing the offensive images of the [official], as well as political posters promoting the Bahraini revolution and autonomy for Eastern Province. They also accused him of selling Shia religious books.  

    §  The authorities took the brothers’ biometrics, and threatened to execute them if they found their DNA on the posters.

    §  The applicant’s family warned him that the Saudi authorities want him because of his political agitation, namely the slogans and posters that he made in January 2014, and his insults against the [official].

    Further details

30. The applicant departed Saudi Arabia in early February 2014, returning to Australia. According to his claims, there were no further developments until October 2014, when he learned about his brothers’ arrests and the Saudi authorities’ accusations.

31. At hearing, the applicant told the Tribunal that he did not have any contact with [Mr A] and [Mr B] after his return to Australia in February 2014. This is despite his claims that they were close friends, that [Mr B] used to keep him abreast of political issues, and that he had witnessed their politically risky activities during his last visit. At the hearing, the applicant said [Mr A] and [Mr B] were not his ‘closest’ friends, and he did not keep in touch with all his acquaintances back home.

32. The Tribunal asked about the applicant’s contacts with family members, including the two brothers who had been detained and threatened. The applicant said that he has spoken to them briefly on the telephone, but dares not discuss their experiences with them, for fear of getting them into more strife. He mainly speaks with his [Relative 1]. He added that his [Relative 1] [is] at some risk in contacting him. During the exchange, the Tribunal gained no sense of the applicant having turned his mind to issues such as whether his brothers’ detention had disrupted their livelihoods, or had other effects on their lives.

33. The Tribunal asked for any further information about [Mr A’s] and [Mr B’s] whereabouts, and the applicant’s efforts to obtain details.

    §  The applicant said that he has no further information about them.

    §  In response to questions, he said that he has mutual acquaintances with [Mr A] and [Mr B], but did not feel it was safe to make enquiries through them. The applicant said that he can only ask his family to make enquiries. There is no scope for him to initiate enquiries through the Shia community or the men’s families (in part because [Mr B] has no [specified relatives]). The applicant said that he had looked on the internet, without success. He had seen a report on two men from [Region 1] having been killed. But news reports typically did not name the person involved. Or they would give an innocuous cause of death, like a heart attack.

    §  In response to the Tribunal’s surprise at his lack of enquiry, the applicant emphasised that he did not wish to put his family, his friends or their families at risk, by making contact with them (in other words, by allowing the Saudi authorities to see them assisting a ‘wanted man’). In any event, he doubted that they would be able to give him truthful answers, given the extent of government surveillance.

    §  The applicant said that he asked acquaintances returning from Australia to Saudi Arabia to make enquiries on his behalf. He did not feel that there was any other safe avenue of enquiry. The applicant did not offer details of such requests to friends, and the Tribunal did not press him on this.

    Findings

34. The Tribunal has numerous concerns about this claim. There is a lack of context and detail in the applicant’s account of how he came to witness his friends’ political cartooning; what his friend photographed; and what precisely led the Saudi authorities to perceive the applicant to be a dissident. The Tribunal also found the applicant’s evidence about his friends’ disappearance to be unpersuasive. It formed the view that he had not explored avenues to find them, or even turned his mind to this issue. Similarly, it found the applicant’s account of his brothers’ experience, and his reluctance to discuss with them the consequences of their detention, to be unconvincing. The Tribunal does not believe that the applicant was speaking from personal experience at all. Taking these concerns cumulatively, the Tribunal finds that there is no truth at all to these claims.

35. The Tribunal therefore does not accept that the applicant watched his friends produce political pamphlets or posters (even spontaneously or inadvertently)[6]; that one of them took an incriminating photograph of the applicant; that the Saudi authorities later came to associate the applicant with these activities, after discovering a photograph of the applicant; that his friends have now disappeared; that the authorities arrested the applicants’ brothers and threatened them; that they abused and humiliated the applicant’s family when they went looking for the missing brothers; or that they signalled their intention to arrest and/or execute the applicant on his return to Saudi Arabia.

    [6] The Tribunal refers here to the image of the [official] with [details deleted], as well as the various ‘photos and posters’ that he mentioned in his original statement of claims, which refer to the Bahraini revolution and autonomy for the Eastern Province.

36. The Tribunal also rejects all associated claims, such as the applicant’s statement that the Saudi authorities also told his brothers that they believed he had been selling Shia religious books. Since the Tribunal does not accept that the authorities arrested the brothers at all, it does not accept that they accused the applicant of other dissident activities on that or other occasions. Likewise, having rejected these claims, the Tribunal also does not accept that the applicant is unable to communicate freely with his family and friends, for fear that he will put them in danger, or heighten the risks to himself if he returns to Saudi Arabia. The Tribunal also does not accept that the applicant relies on Saudi residents in Australia returning there for visits to discreetly obtain information for him.

37. The Tribunal also does not accept that the applicant learned about his brothers’ arrests in October 2014, and the threats to himself, and that this is what prompted him (and the other applicants) to lodge protection visa applications [in] November 2014. The Tribunal finds instead that the applicants lodged the application for other, unrelated reasons.  

    Treatment of the Shia minority

38. The applicant described the Saudi authorities’ poor treatment of the Shia minority. He said that the Eastern Province suffers discrimination and poverty, despite Saudi Arabia’s obvious wealth. Shia face reduced opportunities for education and employment. He gave as an example that he had been unable to find suitable employment as [an Occupation 3]. Similarly, his wife had been unable to find a job as [an Occupation 3] on her return to Saudi Arabia, despite the shortage of qualified [Occupation 3s]. The applicant claimed that Shia are at risk of imprisonment even when attending religious festivals.

1. According to the recent US reports[7]: ‘The U.S. government estimates the total population is 27.3 million (July 2014 estimate). Approximately 85 to 90 percent of citizens are Sunni Muslims who predominantly adhere to the Hanbali School of Islamic jurisprudence. Shia constitute 10 to 15 percent of the citizen population.’

   [7] US Department of State: Saudi Arabia 2014: International Religious Freedom Report: >

   Country information about the Shia minority in Saudi Arabia lends some support to the applicant’s claims. For instance, the US State Department wrote: ‘The Shia minority continued to suffer social, legal, economic, and political discrimination. To address the problem, in recent years the Ministries of Defense and Interior and the National Guard included antidiscrimination training in courses run by the King Abdulaziz Center for National Dialogue for police and other law enforcement officers (for additional information, see Other Societal Violence and Discrimination).’[8] It appears nonetheless that the Shia minority, particularly in the oil-rich Eastern Province, have genuine grievances about the allocation of resources to them and their discriminatory treatment.

   [8] US Department of State: Saudi Arabia 2015 Human Right Report:  >

   Reports also indicate that the Saudi authorities target the Shia minority, in large part due to their religious and historical links with Iran, and their political demands for equality.

   Freedom of expression has been further curtailed in recent years; new anti-terrorism laws introduced in 2014 were very widely drafted, giving the authorities wide scope to use them to repress dissident opinions. The right to assemble and to form associations is also severely restricted. Shias are frequent targets of repression and discrimination. Their standard of living is lower than that of Sunni Saudis. Nimr al-Nimr, a Shiite sheikh, was executed in 2016, on charges of The number of executions has increased in recent years; Saudi Arabia is one of the biggest users of the death penalty, along with Iran and China.[9]

   [9] Ben Smith and Steven Ayres, "Saudi Arabia update 2016", House of Commons Library, 01 December 2016, CIS38A80122885

2. In the present case, there is little objective information to suggest that the applicants had experienced discrimination amounting to serious or significant harm, or that they fear such harm.  As discussed at the hearing, the applicant’s employment in Saudi Arabia as [an Occupation 1], his and the second-named applicant’s advanced education, and the limited information about their families (such as the employment of his brothers in [a certain] sector, and his [Relative 1’s] marriage to [Occupation 2]), seem to suggest that they did not suffer significant discrimination.

3. The applicant commented that he lived under stress, was subject to abuse, and had been unable to find work as [an Occupation 3] that was commensurate with his qualifications. The applicant also explained that he obtained his job as [an Occupation 1] only through connections, and that it was not a formal position (but rather one that he had obtained through informal sub-contracting). He also stressed that the Shia community was under surveillance and unable to exercise their religious freedom.  In his oral submission, the representative posited that a lifetime of discrimination in Eastern Province might indeed amount to ‘extreme discrimination’.

4. The Tribunal finds it significant that the applicants returned to Saudi Arabia on multiple occasions; that they did not seek protection in Australia (as Shia or on any other grounds) until 2015; and that the original statement of claims made no mention of discrimination as Shia. In partial response to these concerns, the applicant said that at the time of their first arrival in 2007, they did not fear discrimination or mistreatment that reached the level of persecution.

5. Having regard to the applicant’s circumstances and conduct, and that of the entire family, the Tribunal accepts that they have faced some discrimination. However, the Tribunal does not accept that it involved serious harm amounting to persecution, or ‘significant harm’.

   Assessment: Refugee criterion

6. The Tribunal now assesses whether, on the basis of the findings of fact above, the applicant’s future conduct if he returns to Saudi Arabia, and relevant country information, he has a well-founded fear of Convention-related persecution, now or in the reasonable foreseeable future.

7. Given its assessment above, that the alleged incidents in 2014 did not occur, the Tribunal finds that the Saudi authorities do not have an adverse interest in the applicant as a perceived political or Shia dissident, as a result of past events.

8. The Tribunal accepts that the applicant has faced some degree of discrimination as a Shia in the past, but it finds that this did not reach the level of serious harm. Aside from the applicant’s incorrect advice in his protection visa application that he had worked as [occupation], when in fact he had been [an Occupation 1], the Tribunal found his evidence about his past activities in Saudi Arabia (for instance, after he returned there from Australia in 2010) to be guarded and unforthcoming. The Tribunal accepts that the applicant may need to rely on contacts to find work, and that his employment might not be commensurate with his qualifications. However, the Tribunal does not accept that the applicant faces a real chance, in the fields of employment, housing or similar areas, of discrimination amounting to serious harm.

9. The applicant voiced his criticism of the Saudi Government’s treatment of the Shia minority, in terms of economic justice, religious practice and broad discrimination. However, the Tribunal does not accept that he has a political opinion that motivates him to engage in protests or activism; or that he would need to refrain from acting upon, in order to avoid persecution. Rather, in the Tribunal’s view, his political preference is one of several factors that drive the applicant and his family to live abroad.

10. The Tribunal has considered the applicant’s claims individually and cumulatively. For the reasons set out above, it does not accept that if the applicant returns to Saudi Arabia now or in the foreseeable future, there is a real chance he will face serious harm for reason of his Shia religion and identity, his preference for a modernised Saudi government, or any other Convention reason. 

11. The Tribunal finds that the applicant does not have a well-founded fear of Convention-related persecution, now or in the reasonably foreseeable future, if he returns to Saudi Arabia. It is therefore not satisfied that he meets s.36(2)(a).

    Assessment: Complementary protection

12. The Tribunal has considered whether on the evidence before it, there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Saudi Arabia.

13. The Tribunal has rejected the applicant’s claims that the Saudi authorities are looking for him, and intend to execute, or imprison and inflict significant harm (including torture) on him because he was linked to the production of political posters in 2014. The Tribunal accepts that the applicant has experienced some discrimination as a Shia in the past, but it is not satisfied that he faces a real risk of significant harm – such as cruel or inhuman treatment or punishment – arising from this if he returns to Saudi Arabia. Finally, the Tribunal notes country information indicating that Saudi Arabia faces considerable political challenges, including in its treatment of the Shia minority and its human rights observance. However, it is not satisfied that these general conditions give rise to a real risk that the applicant will face significant harm if he returns to Saudi Arabia.  

14. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Saudi Arabia, there is a real risk that he will suffer significant harm: s.36(2)(aa).

    Assessment: Other applicants

15. The other applicants did not make protection claims of their own, and the Tribunal is satisfied that none arise from the material before it. They therefore do not satisfy s.36(2)(a) or s.36(2)(aa).

    Safe third country protection in Gulf Cooperation Council States

16. The delegate noted that the applicant is a national of Saudi Arabia, which is a member of the Gulf Cooperation Council (GCC); that GCC nationals have the right to enter and reside in any GCC state; and that he would therefore appear to be legally permitted to enter and reside in Kuwait, United Arab Emirates, Oman, Qatar and Bahrain. The question may therefore arise as to whether Australia is taken not to have protection obligations in respect of the applicant, as per s.36(3) of the Act. This occurs if he has not availed himself of such a 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.

17. In the present case, Australia does not have protection obligations in respect of any of the applicants, as none of them meets the requirements of s.36(2)(a) or (aa). It is therefore unnecessary to further consider the application of s.36(3).

    CONCLUSION

18. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.

    DECISION

19. The Tribunal affirms the decision not to grant the applicants protection visas.

    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).

    Ministerial Direction

    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.