1604251 (Refugee)

The applicant, a Shia Muslim who had converted to Christianity, sought review of a decision by the Minister for Immigration and Border Protection to refuse to grant her a protection visa. The applicant claimed she feared persecution in Saudi Arabia due to her religious conversion, the status of women under Sharia law, and her relationship with her father-in-law, which she feared would lead to her losing custody of her son. The Administrative Appeals Tribunal (AAT) had affirmed the Minister's decision.

The primary legal issue before the Federal Court was whether the AAT had erred in law in its assessment of the applicant's claims for protection. Specifically, the court considered whether the AAT had adequately assessed the real risks the applicant faced upon return to Saudi Arabia, including the implications of apostasy, the potential for her to be subjected to the disobedience laws, and the risk of losing custody of her son. The court also examined the AAT's consideration of whether the applicant could obtain effective protection in a third country, namely a Gulf Cooperation Council (GCC) country, given the cultural and political links between these nations and the possibility of forcible return to Saudi Arabia.

The Federal Court found that the AAT had failed to properly consider the cumulative impact of the risks the applicant faced. The court held that the AAT had not adequately engaged with the evidence regarding the specific dangers associated with apostasy in Saudi Arabia, nor had it sufficiently explored the potential for the applicant to be subjected to the disobedience laws. Furthermore, the AAT's assessment of the risk to the applicant's custody of her son was found to be lacking. The court also determined that the AAT had not adequately considered the effectiveness of third-country protection in a GCC state, particularly in light of the potential for forcible return.

Consequently, the Federal Court set aside the AAT's decision and remitted the matter to the AAT for redetermination in accordance with the court's reasons.