1604251 (Refugee)

1604251 (Refugee) [2019] AATA 4675 (11 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1604251
COUNTRY OF REFERENCE:                  Saudi Arabia
MEMBER:Susan Hoffman
DATE:11 July 2019
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.

Statement made on 11 July 2019 at 10:48am

CATCHWORDS
REFUGEE – protection visa – Saudi Arabia – religion – Shia Muslim – Christian convert – Sharia law – status of women in Saudi Arabia – right to practice religions other than Islam – apostasy – relationship with father-in-law – fear of losing custody of son – disobedience laws of Saudi Arabia – third country protection – right to enter and reside in Gulf Cooperation Council countries – cultural and political links between Gulf Cooperation Council countries – forcible return from Gulf Cooperation Council country to Saudi Arabia – decision under review remitted
LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 22 February 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The main applicant, who claims to be a citizen of Saudi Arabia, applied for the visa on 27 March 2015. A departmental interview was scheduled for 2 December 2015. The delegate refused to grant the visa on the basis that the applicant did not meet the criteria to be granted a protection visa.
The applicant appeared before the Tribunal on 20 June 2019 to give evidence and present arguments. Also present was her husband and their two children. Her husband and the oldest child are also applicants. The applicant was represented in relation to the review by her migration agent.
Evidence was also given by a witness, [Pastor A]. (Some documents refer to her [with a different surname], which she said was her maiden name.)
The hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

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 (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 themself 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.
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, another country apart from Australia (s.36(3)).
S.36(3) does not apply if the person has a well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion in that other country or if the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen availing himself or herself of the right to enter and reside in that other country, there would be a real risk that the non‑citizen will suffer significant harm in relation to the country (s.36(4)).
S.36(3) also does not apply if the person has a well‑founded fear that a country will return the person to another country where they would be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion or be returned to another country where there is a real risk or a real chance they might suffer serious or significant harm (s.36(5) and (5A)).

Mandatory considerations

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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. There is no DFAT report for Saudi Arabia.

CONSIDERATION OF CLAIMS AND EVIDENCE

The issue in this case is whether or not the applicant meets the criteria for a protection visa. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

Background, initial protection claim and delegate’s decision

The applicant arrived with her husband [in] April 2010 on a student [visa] (subclass [number]). She was granted a student (subclass [number]) on 20 July 2011 which expired on 6 September 2012 and was then granted a student visa subclass [number]. The applicant lodged her protection application on 27 March 2015. Her husband was listed as a dependant with regard to that protection application, as was their son who was then [age] years old. The applicant and her husband have since had a second child born in [year].
The applicant and her husband claimed to be from Saudi Arabia and submitted copies of their passports. The delegate was satisfied as to their nationality as is the Tribunal who finds Saudi Arabia is their country of nationality and receiving country. The Tribunal is also satisfied that they are members of the same family unit.
The applicant’s original claim was to do with her father-in-law and that he wanted to take her and husband’s son away from them. The applicant did not attend the delegate’s interview. She said that the invitation to attend was sent to an old address which was the Department’s mistake and the Department acknowledged this after the delegate’s decision was made but told her it was too late to do anything about it.
The Tribunal checked the applicant’s addresses as found in the departmental file.
In a form dated 23 March 2015 and lodged with the Department, the applicant gave her address as [Address 1]. She recorded that a previous address was [Address 2]. Two forms dated 30 March 2015 also gave the applicant’s then-current address as [Address 1] and their previous address as [Address 3, a slight variation of Address 2]. In one of these two forms, it appears that the street number of the previous address was written as [the street number used in Address 2] then altered to [the street number used in Address 3].
The visa application summary, a document produced by the Department, recorded the applicant’s home address to be [Address 3] and that the applicants lodged their claims on 27 March 2015.
A letter from the Department dated 8 April 2015 was addressed to the applicant at [Address 1] (the correct address). A document created by the Department on 8 April 2015 to do with arranging biometric identification tests also gave the then-current address as [Address 1].
The departmental file includes a copy of a registered post envelope sent to the applicant on 22 February 2016 addressed to her at [Address 3] which was incorrect. That envelope contained the delegate’s decision.
It appears likely that the Department did send the invitation to attend an interview to the wrong address. The Tribunal does not draw any adverse inference from the applicant’s non-attendance at the delegate’s interview.
The delegate recorded that Sharia law as practised in Saudi Arabia automatically grants the father legal and physical custody of a male child when the child turns 9 years old. The delegate recorded that the applicants’ marriage appeared to be strong and that the delegate was unable to find information to indicate that a paternal grandfather could forcibly take custody of a grandchild against the wishes of the child’s father. The delegate referred to the only instance where this might occur was if the father was killed or in prison.
The delegate did not find the applicant’s claim that that her father-in-law wanted to take her and her husband’s child to be credible.
The delegate also recorded that Saudi Arabia is a member of the Gulf Cooperation Council (GCC) made up of Saudi Arabia, Bahrain, Oman, Kuwait, UAE and Qatar. The delegate found that the applicant has the right to enter and reside in any of these countries, and is therefore excluded from Australia’s protection obligations under s.36(3) as she has right to enter and reside in another country, being any of the member states of the GCC.
The Tribunal is satisfied that the applicant, as a citizen of Saudi Arabia, has the right to enter and reside in other GCC countries. However it is not satisfied that she would not face a real chance of serious harm if she was to do so. The Tribunal will return to the application of s.36(4), (5) and (5A) later in this decision record.

Further protection claim, findings and reasons

Conversion to Christianity

In a pre-hearing submission to the Tribunal, it was claimed that since lodging their applications for protection visas, the applicant and her family had converted to Christianity. It was submitted that this put her at risk of serious harm should she be returned to Saudi Arabia and that the same risk applied to all members of her immediate family in all the GCC countries because of the attitude in those countries to Muslims who convert to Christianity.
The applicant said that when she first came to Australia, she saw the freedom that women have here. She did not know anything about Christianity and did not understand it. After applying for protection and living on a bridging visa, she said she did not get any support from the Muslim community or help with her son’s schooling but the Salvation Army helped her and they did not care what religion she was. Her son was enrolled in a Catholic school and they also did not care about her religion.
The applicant claimed that she had many friends here who were Christian and Muslim but it was the Christians who supported her when she was struggling financially.
The applicant said that before she left Saudi Arabia she accepted Islam and that way of life as she did not have access to anything else. She said they prayed five times a day and fasted on Ramadan because they had to but she did not particularly believe it.
The applicant said that as was the practice in Saudi Arabia, she and her husband lived close to her father-in-law’s house, in a small flat [close to] a mosque. She said her father-in-law was very strict with, and controlling of, her husband and when they lived in that flat, it was a very bad time for them. She said that her husband had issues and had been destroyed by his father, in the sense of being psychologically destroyed.
The applicant claimed that when her husband arranged to come to Australia to study, the father-in-law wanted him to come by himself as he wanted his grandson to be raised in a Muslim country.
The applicant attended with her two children, the oldest of whom is [age] years old. She said that he refused to go to school and wanted to come to the hearing so he could talk about his grandfather. The Tribunal declined to take evidence from him but notes his desire to give evidence.
The applicant said there was a time her son refused to eat and they took him to the children’s hospital and to the [refugee service Organisation 1], and the people at [Organisation 1] were surprised that a [age] year old was so worried about his parents.
In a written submission, the applicant claimed that when she and her husband first arrived in Australia, they placed advertisements [online] looking for Australian friends as they had no family or friends here at the time, and they wanted to become active members of the community. Soon after doing this they met a Christian preacher who would come to their house once a week, and gave them gifts at Easter and Christmas. This piqued their interest in Christianity, due in large part to how they saw the preacher interact with everybody. She wrote that he was always so welcoming and respectful towards people, irrespective of their gender or ethnicity.
The applicant said she attends church regularly and works [for Organisation 2 in City 1]. She said that she used to go to [Church 1] but was not comfortable with everyone there but she now goes to [Church 2] where she feels more comfortable with [Pastor A] who is the pastor there.
The applicant said that her youngest son (born [date]) was born with [Medical Condition 1] and [Pastor A] told her that if she believed in Jesus he would be healed. The applicant said that she dreamed about [Pastor A] who told her in the dream that her son had been healed. He was healed and she saw that as a miracle and that was what made her believe in Christianity, and subsequently convert to Christianity in July 2017.
The applicant submitted a copy of a text message from the pastors of [Church 2], inviting her to share her testimony at a Sunday service about the miracle of her son.
The Tribunal has verified with a medical colleague that it is not uncommon for babies to be born with [Medical Condition 1] that spontaneously [resolve]. It may be that the son’s condition was more serious. In any event, because of the manner in which the applicant spoke about her son and [Medical Condition 1], the Tribunal accepts that the applicant believes there was a miracle.
The applicant said that she and her family go to worship and take communion, and the miracle is one of the reasons they prefer [Church 2]. She said everyone there – the congregation – were waiting for the hearing.
The applicant said that her family in Saudi Arabia view her conversion to Christianity to be a disaster. She started to cry as she spoke about her [relative] who was in Australia studying but after she converted to Christianity, her family pressured him to return to the Middle East, and also tried to pressure her to go back.
The applicant said that her parents came to Australia to visit her and she took her mother to church but her father refused to go. She said her mother felt better about the conversion after visiting the church. She said she, the applicant, arranged for [Pastor A] (the witness) and her husband, also a pastor, to come to her home where they met her parents.
The applicant said the main problem was to do with her husband’s family. Pictures of the baptism were posted on [social media] and one of her husband’s [relatives] called him, so they know his family know, and they are very religious.
The applicant said that her husband cannot stand up to his family in Saudi Arabia and no longer talks with members of his immediate family there. She said they did not have a good relationship with them when they lived in Saudi Arabia and now he does not talk to his father, stepmother or siblings. His family do not like what she does. She said they do not know that she and her husband have had a second child.
The applicant said she did not know if anyone at the Saudi Arabia embassy in Australia knew about the conversion. She said there was a big group of Saudi Arabians living in [City 1] who have rejected her. Most of her friends are Western.
The husband had not been in the hearing room (he was with the children) for most of the applicant’s evidence. She went to look after the children when he gave evidence.
The applicant’s husband said he had a problem with his family. He said when he came to Australia in 2011 or 2012 and was at [a university], there were lunch time sessions where a friend told him about Jesus, and he compared Islam with Christianity. He said that he did not have much and he saw how the Christians helped people and supported people, including him and his family and he liked them.
The husband also spoke about their son being sick, that he was healed and this was a miracle. He said that all these things made him like Christianity, and he goes to church regularly although sometimes he cannot as he has to go to work. The husband said that although he has no contact with his father, stepmother and siblings, he does still speak to his mother.
The applicant’s husband said that he and the applicant last returned to Saudi Arabia in 2014 because there had been a death in the family.[1] There was an incident where his father hit him in front of people and took his I-phone away and tried to take his car unsuccessfully. He said that his stepmother influenced his father to be against him, and that his father wanted him to divorce his wife (the applicant) and did not want his grandson raised in Australia. He said that his family told him not to return to Saudi Arabia.
[1] The husband was unsure of the year but thought it was probably 2014
The applicant referred to this incident in her written submission made prior to the hearing. She wrote that during a ceremony, her father-in-law approached her husband and demanded his car and his newly-purchased I-phone. When her husband refused, the father-in-law hit him many times, as well as verbally abusing him. She wrote that their eldest son witnessed this and until now has problems concentrating at school because of this incident.
Both the applicant and her husband were in the hearing room when their witness, the pastor, gave evidence. She said that she was the co-pastor of [Church 2] with her husband. She confirmed that the three Certificates of Baptism submitted by the applicant which were signed by [Pastor A] and [another pastor], were genuine. According to these certificates the three applicants were baptised [in] July 2017 at [Church 2] in [City 1].

The pastor said that both the applicant and her husband attended the church, and that she had known them for one to two years. She said that their conversion was genuine and she had seen their lives change. The pastor said they read the Bible, their kids come to church and she sees their hearts are for God and Jesus.
The applicant submitted a number of text messages and photographs that show her and her husband at church-related events and/or acknowledge the applicant’s involvement in church activities, for example a message from [Church 1] thanking the applicant for making biscuits for Harmony Day.
The Tribunal noted that at the start of the hearing, the applicant and her husband swore on the Bible, rather than the Koran, to tell the truth. The applicant arrived at the hearing room wearing a [hat] which she removed at the start of the hearing. There were two men in the room who were not relatives. Generally it would be expected that a woman wearing hijab would cover her hair in this situation. The applicant said (towards the end of the hearing) that after converting and dispensing with a headscarf, she was often criticised by other Muslim women especially when they found out she was from Saudi Arabia and for this reason (to minimise the criticism) she had started to wear a [hat] in public.
The representative submitted that the applicants’ passports have expired and to get them renewed, they would need to attend the Saudi Arabian embassy in person. They would be asked what visa they are on in Australia and if it was apparent they were seeking protection, it could be problematic for them. He submitted that someone from the Saudi Arabian community may have told the embassy that they are seeking protection in Australia.
The representative said that the applicant worked [for Organisation 2] which was a Christian organisation. The Tribunal was not satisfied this is accurate although it accepts that this is the perception, [especially] in Muslim countries.
The representative submitted that the applicants are proudly Christian. In a written submission he stated that conversion (apostasy) is a crime in Saudi Arabia which is punishable by death.
The Tribunal was satisfied that the applicant and her husband were honest in giving their evidence. It was apparent that the applicant was the stronger character of the two, and that the witness knew the applicant better than the husband; the witness seemed unsure of his first name. However the Tribunal accepts that they have both converted to Christianity, this is a genuine conversion, and that the husband’s family have rejected them because of this.
The Tribunal is satisfied that the conversion was genuine and that the applicant and her family practise Christianity because of the following in combination:
·The baptism certificates
·That the pastor attended the hearing to give evidence, and the evidence she gave as to the genuineness of the conversion including the applicant’s regular attendance at church
·The photos and text messages which were corroborating evidence
·That the applicant and her husband swore on the Bible and not the Koran
·The applicant has dispensed with the hijab
·The Tribunal found the evidence given by the applicant and her husband to be credible and was satisfied they were truthful when giving their evidence
·The applicant’s belief that there was a miracle
The Tribunal then considered the country information as regards Saudi Arabia, other GCC countries and conversion to Christianity.
According the US International Religious Freedom Report for 2017:[2]
Executive Summary
According to the 1992 Basic Law of Governance, the country’s official religion is Islam and the constitution is the Quran and Sunna (traditions and practices based on the life of the Prophet Muhammad). The legal system is based on sharia as interpreted within the Hanbali School of Sunni Islamic jurisprudence. Freedom of religion is not provided under the law. The government does not allow the public practice of any non-Muslim religion. The law criminalizes “the promotion of atheistic ideologies in any form,” “any attempt to cast doubt on the fundamentals of Islam,” publications that “contradict the provisions of Islamic law,” and other acts deemed contrary to sharia, including non-Islamic public worship, public display of non-Islamic religious symbols, conversion by a Muslim to another religion, and proselytizing by a non-Muslim… In April a court sentenced Ahmad al-Shammari to death after he was convicted on charges related to apostasy for allegedly renouncing Islam and the Prophet Muhammad on social media… The government convicted and imprisoned individuals on charges of apostasy, blasphemy, violating Islamic values and moral standards, insulting Islam, black magic, and sorcery…. Since 2004, Saudi Arabia has been designated as a “Country of Particular Concern” (CPC) under the International Religious Freedom Act of 1998 for having engaged in or tolerated particularly severe violations of religious freedom. Most recently, on December 22, the Secretary of State redesignated Saudi Arabia as a CPC, and announced a waiver of the sanctions that accompany designation as required in the important national interest of the United States pursuant to section 407 of the Act.
Legal Framework
The Basic Law of Governance establishes the country as a sovereign Arab Islamic state in which Islam is the official religion. The Basic Law says sharia is the “foundation of the Kingdom” and states the country’s constitution is the Quran and the Sunna (traditions and practices based on the life of the Prophet Muhammad). The Basic Law contains no legal recognition or protection of freedom of religion. Conversion from Islam to another religion is grounds for the charge of apostasy, a crime which is legally punishable by death, although courts have not carried out a death sentence for apostasy in recent years.
Blasphemy against Islam is a crime that may also legally be punished by death but courts have not sentenced individuals to death for blasphemy in recent years. Punishments for blasphemy can include lengthy prison sentences and lashings. Criticism of Islam, including expression deemed offensive to Muslims, is forbidden on the grounds of preserving social stability.
[2] US Department of State (2018) 2017 Report on International Religious Freedom: Saudi Arabia, accessed 4 July 2019 at
Minority Rights Group International reported in 2015 that in Saudi Arabia, the public practice of all religions other than Islam is forbidden and there were no houses of worship (such as churches, temples or synagogues) other than mosques.[3]
[3] Minority Rights Group International (2015) Still Invisible – the stigmatization of Shia’a and other religious minorities in Saudi Arabia, accessed 9 July 2019 at
The Tribunal could not locate any reports that contradicted that from the US Department of State and accepts that Saudi Arabia criminalises apostasy which is a crime punishable by death, even though the death sentence for apostasy has not been carried out for many years. In any event it is apparent that a convert to Christianity from Islam is not free to practice their religion in Saudi Arabia. Further, attending church services is central to the applicant’s practice of her religion which is not possible in Saudi Arabia as there are no churches.
The Tribunal finds that the applicant has a well-founded fear of persecution in Saudi Arabia, in that she would not be able to practice her religion there, and that this applies to her husband and children as well.

The right to enter and reside in another country

With regard to s.36(4), (5) and (5A), the Tribunal considered the situation for a religious convert in the other five GCC countries: Oman, Bahrain, Kuwait, United Arab Emirates (UAE) and Qatar. DFAT has not produced country reports on any of these countries.
DFAT travel advice records that on 5 June 2017 Bahrain closed all air and sea borders with Qatar and severed diplomatic ties between the two countries. DFAT travel advice for Saudi Arabia states that it also indefinitely closed its air, sea and land borders with Qatar on 5 June 2017. The Tribunal is satisfied that the applicant has no right to enter and reside in Qatar, even temporarily.
The Tribunal will consider each of the remaining four GCC countries in turn but first notes the following which are relevant to each of them.
The applicant spoke about criticism she received from other Muslims here in Australia with regard to her conversion, especially when she told them she was from Saudi Arabia. That is, because she comes from a country that practices a particularly strict form of Islam and because of the guardianship system whereby a Saudi Arabian woman needs permission from a male relative for a range of things, and that relative could be a father, husband, brother or son. According to Human Right Watch, “The Saudi state essentially treats women as permanent legal minors.”[4] The applicant was suggesting that her conversion has been viewed more negatively than if she came from a country that practised a more moderate form of Islam and did not exert the same degree of control over women.
[4] Human Rights Watch (2019) Saudi Arabia: 10 Reasons Why Women Flee, accessed 11 July 2019 at
The representative submitted that because of the cultural and political links between the GCC countries it was very likely that the applicant would be deported back to Saudi Arabia if she was reported by her in-laws to the authorities of the other GCC countries. He also suggested it was possible for a case of disobedience to be filed against her. A Reuters’ article gives an example of the disobedience laws of Saudi Arabia. The article states:
Under the kingdom’s Islamic legal system, law is not systematically codified and judicial rulings are subject to individual judges’ interpretation of sharia. Some judges view children’s “disobedience” towards their parents as an offence worthy of lashing and even jail sentences.”
The article cites the case of a 43 year old man who was jailed for three years in 1997 and 12 years later was still in jail because his father asked a judge to keep his son in prison until he, the father, thought he should be released.
While the control over Saudi Arabian women by male relatives is well-documented, the Tribunal was unable to find any record of fathers-in-law being able to use the guardianship laws or the disobedience laws to directly exert power or control over daughters-in-law.
However Human Rights Watch reported the following case. Mr Adil Matrudi, a Saudi banker, married a woman of whom his father disapproved. They had a child. The grandfather applied to the courts and gained legal custody of Matrudi’s 9-year-old child. This shows that the applicant’s fear that if she was to return to Saudi Arabia, her father-in-law could take her child (the initial basis of her protection claim) is not unfounded.
The Tribunal is of the view there is the possibility that the grandfather could take court action in Saudi Arabia to try and exert control over his son and get custody of the grandchild and because of close links between the GCC countries, the applicant, husband and children could be forcibly returned from a GCC country to Saudi Arabia. .
This possibility, in the Tribunal’s view, needs to be considered in conjunction with how the applicant and her family’s conversion to Christianity, as Saudi Arabian nationals, would be regarded in Kuwait, Bahrain, Oman and the UAE.
According to a report from World Watch Monitor, Christians enjoy more freedom in these four countries compared to other Middle Eastern Muslim-majority countries but have to adhere to government restrictions. The report also states “The number of Christians from a Muslim background is growing, despite fierce persecution and pressure from both government and their community.”[5]

Kuwait

[5] World Watch Monitor (2017) How easy is it to live as a Christian in the Arabian Peninsula? Accessed 9 July 2019 at

From World Watch Monitor:[6]
The atmosphere in Kuwait is becoming increasingly hostile – though not yet violent – towards non-Muslims. Islamic law prescribes a wide range of rules for personal, family and community life. Christians from Muslim backgrounds are seen as second-class, “foreigners” and infidels, and are prevented from participating in community activities. Expatriate or migrant Christians often struggle to get licences and registration for using places of worship.
[6] ibid
According the US International Religious Freedom Report for 2017 for Kuwait:[7]
Muslims faced societal pressure against conversion from Islam but were not barred from doing so…
The law states apostates lose certain legal rights, including the right to inherit property from Muslim relatives or spouses, but it does not specify any criminal penalty. The marriage of a Muslim man is annulled if he converts from Islam. A Muslim woman may have her marriage annulled if her Muslim husband converts to another religion…
Although the law does not prohibit apostasy, the government continued its policy of not issuing new official documents for recording a change in religion. When asked if there were any cases of conversion, religious leaders from some non-Muslim religious groups said they had not heard of any case of a Muslim desiring to change religion, while others said they would not convert a Muslim in Kuwait. All leaders, regardless of faith, stated they were free to practice their religion and that their sole mission was to take care of their existing community. A few leaders refused to speak about conversion…
There continued to be societal pressure against conversion from Islam, according to minority religious leaders and citizens. Some foreign residents as well as citizens who converted to Christianity reported their families harassed them for their conversion…
[7] US Department of State (2018) 2017 Report on International Religious Freedom: Kuwait, accessed 4 July 2019 at
Based on these reports, the Tribunal finds that there is a real chance - in the sense of more than a remote chance – the applicant and her family would face serious harm in Kuwait such that they would not be free to practice Christianity and attend church. It notes in particular the reference to the atmosphere in Kuwait becoming increasingly hostile towards non-Muslims. The Tribunal considers it likely that dislike of non-Muslims would be magnified in relation to converts.

United Arab Emirates

From World Watch Monitor:[8]
Christians in the UAE are either expatriates, migrants or converts to Christianity from a Muslim background. It’s the last of those groups that feels the most pressure, from family, community leaders and government officials. The country is stable and wealthy, yet religious and political freedom is severely restricted. All citizens are defined as Muslims. The law does not recognise conversion from Islam to Christianity, for which the legal punishment is death.
[8] World Watch Monitor (2017) How easy is it to live as a Christian in the Arabian Peninsula? Accessed 9 July 2019 at >
The US International Religious Freedom Report for 2017 for UEA states:[9]
The constitution designates Islam as the official religion. It guarantees freedom of worship as long as it does not conflict with public policy or morals. It states all persons are equal before the law. The law prohibits blasphemy, proselytizing by non-Muslims, and conversion from Islam.
[9] US Department of State (2018) 2017 Report on International Religious Freedom: United Arab Emirates, accessed 4 July 2019 at >
As conversion from Islam is prohibited under law, the Tribunal finds that there is a real chance - in the sense of more than a remote chance – the applicant and her family would face serious harm in UAE as they have converted from Islam to Christianity. It is not satisfied they would be able to practise their religion and that they would not have to hide the fact they are Christians.

Oman

From World Watch Monitor:[10]
Most Omanis practise a form of Islam called Ibadism. The constitution provides for religious freedom and apostasy is not a criminal offence – but neither is it respected by the legal system, which assumes all citizens are Muslims. Society shuns those who leave Islam, and Christians who convert from a Muslim background risk legal discrimination, as well as losing family, house and job. Foreign Christians are allowed to worship in private, but their facilities are restricted and Christian meetings are monitored for political messages and for any Omani nationals attending.
[10] World Watch Monitor (2017) How easy is it to live as a Christian in the Arabian Peninsula? Accessed 9 July 2019 at >
According to the US International Religious Freedom Report for 2017 for Oman:
Legal Framework
The Basic Law declares Islam to be the state religion and states that sharia is the basis for legislation. It protects the right of individuals to practice other religions as long as doing so does not “disrupt public order or contradict morals.” The Basic Law prohibits discrimination based on religion. According to the Basic Law, the sultan must be a Muslim.
The law prohibits a father who converts from Islam from retaining paternal rights over his children. There is no provision of the law specifically addressing apostasy, conversion, or renunciation of religious belief.
Given these reports, the Tribunal is not satisfied that the applicants would not face a real chance of serious harm in Oman, being Saudi Arabians who converted from Islam to Christianity. It notes that a father who converts from Islam loses his paternal rights over his children, which is particularly relevant given the experience of Mr Matrudi whose father gained custody of Mr Matrudi’s son (paragraph 74).

Bahrain

From World Watch Monitor:[11]
This tiny, mainly Shia country is relatively tolerant and the constitution provides for religious freedom. A large number of expatriate Christians work and live in Bahrain and are relatively free to practise their faith in private, but evangelising Muslims is illegal. Christians from a Muslim background face pressure from family members, community leaders and government officials. Bahrain is very influenced by the politics of neighbouring Saudi Arabia.
[11] World Watch Monitor (2017) How easy is it to live as a Christian in the Arabian Peninsula? Accessed 9 July 2019 at >
According to the US International Religious Freedom Report for 2017 for Bahrain:[12]
According to non-Muslim religious groups, there was a high degree of tolerance within society for minority religious beliefs and traditions, although societal attitudes and behavior discouraged conversion from Islam…
Non-Muslim religious community leaders reported there continued to be some Muslims who changed their religious affiliation, despite ongoing societal pressure not to do so, but those who did remained unwilling to speak publicly or privately to family or associates about their conversions out of fear of harassment or discrimination.
[12] US Department of State (2018) 2017 Report on International Religious Freedom: Bahrain, accessed 4 July 2019 at

The Tribunal notes here the reported the reluctance of some converts to be open about their conversion for fear of harassment or discrimination.
Before converting to Christianity, the applicant was Shia Muslim. The Religious Freedom Report for Bahrain report listed numerous examples of how discrimination against Shias in Bahrain manifest, which include that the government continued to question, detain, and arrest Shia clerics, community members, and opposition politicians; claims by Shia community representatives of ongoing discrimination in government employment, education, and the justice system; that some public officials continued to state some Shia opposition members were supporters of terrorism; and that the higher unemployment rate and lower socioeconomic status of Shias were exacerbated by continued discrimination against Shia in the private as well as the public sectors and added to tensions between the Shia and Sunni communities.
The Tribunal concludes that there is a real chance the applicant would face persecution in Bahrain because she was a Shia Muslim, and is a Saudi Arabian national who converted to Christianity.

Summary of the four GCC countries

The Tribunal is not satisfied that the applicant would be free to attend church - which the Tribunal finds is central to how she practices Christianity - in any of the other GCC countries, as a woman from Saudi Arabia who converted from Islam. Compounding her situation is the possibility that her father-in-law could instigate court action in Saudi Arabia that could lead to her and her family being returned to Saudi Arabia by the authorities of a GCC country because of the close links between GCC countries. Also of concern is how other Saudi Arabians living in the other GCC countries would react to a Saudi Arabian woman who had converted to Christianity, given the status of women in Saudi Arabia, in that they are subjected to the guardianship laws.
The Tribunal finds that the applicant would face a real chance of serious harm in any of the GCC countries that she has a right to enter and to reside in, because of her religious beliefs, exacerbated by the fact of her gender. The Tribunal is of the view that for reasons of personal safety the applicant would need to hide the fact of her conversion to Christianity and would not be free to practice her religion in an open and free manner, in any of the GCC countries that she could enter and reside in.
The Tribunal also notes the reports of discrimination against Shia Muslims in Bahrain which add to the factors leading to a well-founded fear of persecution in that country.
The Tribunal cannot dismiss the possibility that the applicant would be removed from any of the GCC countries to Saudi Arabia where she would face persecution, because of the close links between the member states, as she is a Saudi Arabian national who has converted to Christianity. The Tribunal accepts that the applicant has a well-founded fear she would be returned to Saudi Arabia from other GCC countries because she has converted to Christianity and that would be exacerbated by her gender.
In summary, the Tribunal finds that although the applicant has the right to enter and reside in four of the other GCC countries, Australia still has protection obligations towards her because she has a well-founded fear of persecution in those countries by virtue of her religion and has a well-founded fear that the other GCC countries would return her to Saudi Arabia.

The second and third applicants

The Tribunal has already found that the applicant has a well-founded fear of persecution in Saudi Arabia, in that there is a real chance she would suffer serious harm because of her religion. The Tribunal notes that the applicant’s husband and oldest son have also converted to Christianity and is satisfied that they also have a well-founded fear of persecution in Saudi Arabia.
The Tribunal is satisfied that although they have the right to enter and reside in other GCC countries, they could not safely practice Christianity or openly admit to having converted to Christianity in those countries, in particular because they are Saudi Arabian nationals where a particularly strict version of Islam is practised. The Tribunal finds they would have a well-founded fear of being returned to Saudi Arabia from a GCC country, with the added possibility of the grandfather instigating legal action through the disobedience laws in order to control his son and gain custody of the grandson (the third applicant) to ensure he is raised in Saudi Arabia in accordance with strict Muslim traditions.

State protection and other considerations

With regard to their conversion to Christianity, the harm feared by the applicants is from the state and therefore state protection is not available to them, and the fear of persecution they hold is well-founded with regard to all parts of Saudi Arabia. The Tribunal accepts that the applicants face a real chance of persecution in all areas of Saudi Arabia (s.5J(1)(c).
The Tribunal accepts that there are no reasonable steps the applicants can take to modify their behaviour so as to avoid the real chance of persecution that would not involve hiding their religious beliefs, or renouncing them, or no longer practising their faith.

CONCLUDING PARAGRAPHS

The Tribunal finds that the harm feared by the applicants is for the reason of their religion, being Saudi Arabian nationals who were born Muslims and converted to Christianity. It is satisfied that they fear persecution because of their religion and that reason is the essential and significant reason for the persecution. The Tribunal also finds that the persecution feared is systematic, in the sense of not being random, and is discriminatory in that it is directed at the applicants because of their religion. The Tribunal is satisfied that the persecution feared by the applicants involved serious harm as it would be a threat to their life, liberty or be significant physical harassment or ill-treatment.
The Tribunal is satisfied that a real chance of persecution applies throughout Saudi Arabia and state protection is not available to the applicants as it is the state that is the source of the persecution.
The Tribunal is satisfied that there are no reasonable steps the applicants could take to modify their behaviour to avoid a real chance of persecution without altering their religious beliefs, including by renouncing their religious conversion, or concealing their true religious beliefs, or ceasing to be involved in the practice of their faith.
For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants satisfy the criterion set out in s.36(2)(a).

DECISION

The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.

Susan Hoffman
Member

ATTACHMENT - Extract from Migration Act 1958

5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:

(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
receiving country, in relation to a non-citizen, means:

(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5J Meaning of well-founded fear of persecution

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.
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.
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 them 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.
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.
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.
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

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.
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.

36Protection visas – criteria provided for by this Act
…
(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.
…

[2019] AATA 4675

11 July 2019

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