1610126 (Refugee)

1610126 (Refugee) [2019] AATA 1312 (23 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1610126
COUNTRY OF REFERENCE:                  Saudi Arabia
MEMBER:Rodger Shanahan
DATE:23 January 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 23 January 2019 at 3:39pm

CATCHWORDS
REFUGEE – protection visa – Saudi Arabia – religion – Shi’a Muslim – legal dispute with member of powerful Sunni Saudi family – convicted and imprisoned in Saudi Arabia – denied proper education – interest in Christianity – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 36
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 and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Saudi Arabia, applied for the visa on 29 October 2014 and the delegate refused to grant the visa on 16 June 2016.
The applicant appeared before the Tribunal on 19 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence [from Rector A] and [Mr B], who is the applicant‘s Priest/Religious Representative.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
CLAIMS AND EVIDENCE
Protection Visa Application
The applicant arrived in Australia on a student visa in March 2014 and fears returning to Saudi Arabia because he has been denied proper education and been unable to practice his religious rights. He has also been subjected to torture and imprisonment for no proper reason.
His father worked for [a Saudi Arabian company], hated being called Saudi, defended the Shi’a and was a voice who opposed the government. He opposed the government during the Muharram uprisings in 1979. His father passed away in [2005] and they strongly believed he was killed, however the hospital said he died of heart disease.
The applicant loves living at home but he also loves his religion and is denied practicing it; there is also no freedom of speech. The government is Sunni Wahhabist and commit terrorist acts to intimidate the Shi’a, whom they consider to be infidels and polytheists. They believe that death is obligatory for the Shi’a. They were denied proper and fair access to services in the country.
In 2013 Dr Sheikh Saad Alderayhem released a statement saying that Shi’a should be killed to stop their expansion. Instability in Saudi Arabia has increased since the Arab Spring. He lived in the eastern Province (Sharqiyya) where a lot of uprisings took place. He tried not to become involved and get on with his life and education.
When the 2011 uprising began in [Country 1], two cousins from the [C] family were martyred. The Saudis killed protestors in [Country 1] and in Saudi Arabia. After this the applicant became an oppositionist defending those killed in both areas.
He was a successful student but was denied a proper education and his rights were undermined – he faced many difficulties at school and at university. He was humiliated during religion classes as Shi’a were described as infidels, and weren’t allowed to wear black clothes during Muharram. They were screamed at and embarrassed by staff for no reason and their papers were marked with discrimination and graded based on whether they were Shi’a or not.
He was threatened with expulsion for no reason, and he became more committed to defending his religion and supporting the protestors. He began to hate studying but his mother insisted he continue.
He was imprisoned in 2013 because of a complaint from a member of the [D] family. He was imprisoned for [duration] simply because the person making a complaint had family members senior in the government. He served [number] months but was released because of early remission.
He returned home but realised that his house was being monitored by the authorities, as he saw cars and undercover security officers following him. Neighbours and friends also noticed this. He became scared for his life and could not move freely and this caused worry for his family. He then sought refuge outside the country by using a student visa.
When he came to Australia he explained to the authorities about the incidents and that he was under threat from the Saudi government. He didn’t explain everything as he wanted to see Australia first.
He is well known to the Saudi government as an oppositionist like his father and he doesn’t agree with the politics of the country or their attitude to the Shi’a. He has been denied freedom of speech and religion. He would be killed if he returned to Saudi Arabia.
AAT Hearing
The applicant was asked about a mental health issue raised in a letter from 2015 and was asked if there were any issues the Tribunal needed to be aware of. He had only seen a GP since then and was asked, and agreed that he was fit to attend the hearing. He was advised about the presence of a s 438 certificate and was told that the Tribunal did not believe it to be valid given the documents were routine administrative papers such as an identity validity check, permission to get a photo and another document referring to the fact there was no s 438 documents, and none would have any bearing on the hearing.
He claimed that if he returned to Saudi Arabia, he would be harmed by [Mr D] and his family and tribal connections. Asked how this person was related to the main branch of the family, he claimed that he didn’t know. He would be imprisoned again for his religious views.
Because of the applicants’ free thinking he would also be imprisoned by shari’ah law (hudud punishment) – these views advocated women’s rights and for his mother to have a relationship. These views contradicted his extended family’s views of Islam and his mother’s honour. This in particular involved his mother marrying a [Country 2] man without any person’s permission. He would be hurt physically and reported to the government (police or religious police).
Because of his beliefs, society would harm him because they were Wahhabis. He had studied Christianity and had some agnostic beliefs. He would be accused of apostasy. Some extremist may kill him. He had no other claims.
Regarding the [D] family, he claimed that in 2013 he was planning to sell some land and [Mr D] was in [a specified court]. [Mr D] knew he was going to sell some land. [Mr D] accused him of [specified offence] and he was imprisoned without any evidence. He didn’t know the ownership [certificate] (of [Mr E]) was forged. The applicant was [selling] land of [Mr E] to another person (whose name he forgot).
He gave [Mr D] the papers for the property that [Mr E] said were out of date and needed renewing. [Mr D] took the papers and asked the applicant to ring back later. [Mr D] set a trap for [Mr E] to pay him a bribe (USD [amount]) but the police were there and arrested [Mr E]. [Mr D] had checked the real ownership on the system and found out it was forged, so set a trap for him.
The applicant had no knowledge of this but was summoned a few days [later] and was asked about [Mr E] – he explained everything to them but they accused him of [specified offence]. He denied this and was told to sign a paper admitting his guilt if he wanted to be released. He felt threatened, was kept isolated and they said he would just be warned.
He was taken to [a specified] commission and told about the complaint and his confession. Asked if he was convicted in court he said it was a commission not a court. He was then taken to prison. Eventually he was convicted in court and sentenced to [duration] in prison. He called [Mr D] before he went to prison and he told the applicant he was trying to get financial reward in this life and he needed to learn monotheism and should go to prison. He served [number] months and there was a general amnesty and he was released. He was released after [a specified religious holiday] in 2013.
It was put to him that as a [Occupation 1] the first thing he would have done would have been to check that the person selling him the land actually owned it. He claimed that he didn’t have much experience as it was the first piece of land he sold. He had previously worked as [Occupation 2] and [Occupation 3]. Many people work to receive commission – he didn’t have an office and thought he could get a commission.
He wasn’t a professional or had an office – he had just worked for himself. He was asked and said that he didn’t work for a company just for himself. He was asked why, if he was selling land that he didn’t check that the person selling the land actually owned it. And if he didn’t know the way to check it, he would have found out. He said he didn’t receive any [training] and just worked for himself. This idea of a registry was the first time he had heard about it.
He was asked about the documents relating to the prison sentence or release document. He claimed he didn’t think there was any document – they were just released. Asked why he feared going back to prison if he had been pardoned and released, he claimed that perhaps [Mr D] felt dishonoured or because he was Shi’a. He knew he was being monitored by cars.
Asked what he meant by this, he claimed that people from intelligence were coming to his house and watching all of his movements and who he was talking to. He thought he would be accused of something else. When he was with his Shi’a friends they talk about religion, politics, security and the like. Asked again how he knew he was being monitored, he claimed that his neighbours told him he saw many cars parking next to his house and trying to listen to what was going on in the house.
Asked how the neighbour possibly knew they were listening to things inside the house, he claimed they possibly had devices to listen, or seeing who he met and monitored these peoples’ phones. Asked how he knew this, given the aim of surveiling people is not to let them know they are being surveiled, he claimed that it is based on what his friends and neighbour told him. A friend had also been called by the police and asked about the applicant.
He was asked again why [Mr D] would want to imprison him after the royal pardon, he claimed it was perhaps a power thing, or he didn’t like the applicant’s Shi’a faith. Asked how many Shi’a were in the Sharqiyya, he claimed it was around two million. Asked why he was being targeted he claimed that [Mr D] knew him now and they had history.
Asked about the invoices from his lawyer and receipts, he claimed there was a contract between his cousin and the lawyer as he didn’t have time when he was arrested. There was no record that he had paid or been invoiced by the lawyer. Asked if he had written about his conviction on his visa application to Australia, he claimed that he hadn’t as he would not have been given a visa. Asked why he didn’t try to go to another country that didn’t require a visa and whether he had done any research as to where he may be able to go, he claimed that he had no specific country in mind, he just wanted to go far away. He couldn’t go to another GCC country as he would be returned.
Regarding a fear of being imprisoned for his religious views, he claimed he was outspoken about his views. He criticised religion and studied other religions. He had different views from other Muslims. He is opposed to shari’ah and is pro-gay and women’s rights. He does this with friends and family and via social media. Asked when he began being outspoken he said it didn’t happen overnight and he had been constrained in Saudi Arabia.
Asked to give a timeframe regarding his outspokenness, he claimed while he was in TAFE he was asked to speak on a multicultural event. It was attended by students from the English classes at TAFE. He hadn’t spoken about homosexuality in Saudi Arabia but they did in Australia, including about gay marriage. He spoke to people in TAFE about this. Asked how people in Saudi Arabia would know this, he claimed he wouldn’t be able to hold himself back from publicly criticising things back in Saudi Arabia and he would be called a liberal and reformist.
He helped his mother and sister go to [Country 3] and have a relationship with a [Country 2] man. His extended family knew this and she had been summoned to court in Saudi Arabia but then he was able to get her to [Country 3]. The applicant was asked and agreed that his mother had previously claimed protection in Australia. She was refused and returned to Saudi Arabia. It was put to him (he had noted this as part of his statutory declaration pre-hearing (folio 154) that she had claimed that she could not return to Saudi Arabia or she would be seriously harmed and yet she had done so. This raised questions about how truthful that claim was in the first place.
Asked if there was any evidence about his role with his mother marrying the [Country 2] man [Mr F] (and incurring the wrath of his extended family) other than his oral evidence, he claimed that his extended family was well known. It was perhaps the best known Shi’a family in [Saudi Arabia]. The family didn’t consider the relationship as marriage as it hadn’t been cleared with, or approved by any sheikh at all.
Regarding his interest in religion, he claimed that he spoke about religion with Muslim, Saudi and Muslim friends. He had gone to church so there was a chance he was being monitored now and would be known in Saudi Arabia. He writes on [social media] in English, sometimes in Arabic. He had a [social media] account but when asked if the Tribunal could see it on his phone, he said that it was not in public pages and sometimes he wrote and deleted it as he received bad comments.
He came to Australia and was taken to church by an Australian woman just to see what was going on. He engaged in learning Christianity online around 2014. Asked if he had mentioned this to DIBP during his interview, he claimed he didn’t as he was doing this for himself only. Asked when he became more interested in going to church regularly, he claimed it was after he finished his course, around the middle of 2016.
Asked if his study of Christianity came before or after his protection visa rejection, he claimed that he hadn’t been going to church regularly at first, just to random churches. He met [Mr B] at university and they spoke about Christianity and began meeting weekly. He couldn’t remember when these meetings were in relation to the visa decision but it was around this time.
He claimed that there were similar things in Islam and Christianity to be criticised. There was the Trinity and the 12 imams in Shi’ism. It was put to him that the Trinity was the triple manifestation of God, whereas the imamate was not a part of God in the way in which the Trinity was. He was asked if he had raised his interest in Christianity with the DIBP and he said he didn’t. he claimed he didn’t know what was important and not. He was asked why he thought a Saudi Shi’a studying Christianity wouldn’t be of interest to his claim, and he claimed that his migration agent told him his case was strong enough. She didn’t give him good advice. Asked if he made a complaint, he claimed that he didn’t.
Asked if he had a religious identity, he claimed that he didn’t. He was asked why he would be thought of differently if he returned to Saudi Arabia, he claimed he was changed and didn’t attend mosque and questioned the Qur’an and liked following Jesus as a moral example. People would see him on social media, he wouldn’t be allowed to attend a church or follow his interest in other religions. He couldn’t discuss the things there that he could here. He may be accused of being an apostate because of his different kinds of belief.
Asked if he was currently studying under a Saudi government scholarship. He agreed that he was and it hadn’t been revoked. Asked why he was still being paid if there was any concern about his ideas or outspokenness publicly, privately or on social media. He claimed that the scholarship system in Australia operated more or less separately from the broader Saudi system. It was put to him that if he had a profile in Saudi Arabia the Saudi authorities would cancel his scholarship from the Saudi end without any reference to the embassy here. He claimed he wasn’t sure if the [D] family was his main protagonist and he didn’t know how much influence [Mr D] had with the mission in Australia.
It was again put to him that it was nothing to do with the mission here. The government, the [D] family or his extended family could all have complained and asked for his allowance to be stopped, and he claimed that his educational adviser had asked him about his mother so there was an investigation but it may be going slowly. His problems may not be clearer until after he went back to Saudi Arabia as his mentality had changed – he could not hide things any more.
Asked if he disliked the Saudi government, he claimed he did. He was asked why he still accepted their money given he had significant funds in a term deposit and could afford to pay his own way. He claimed the money was from the Shi’a areas so he had no problem taking what he believed to be his own money. The term deposit was related to his sister’s inheritance; he borrowed some of this money but would pay back and they used some for his mum’s travel.
The witness was then called and said the applicant came from a student group in the middle of 2016. He worked through the material and the applicant was baptised, but later said he didn’t believe the same things (including the Trinity). There was a baptismal certificate from [January] 2017. He was disappointed but this had happened with other Muslim converts who had baptised but then went back. The applicant continued to interact, this stopped, but then he re-started.
The witness said he had seen people revoke their baptism and never been seen again but the applicant had come back. He questioned things but they were there for him. He was asked how he satisfied himself that the baptism and interest wasn’t just to get a protection visa. He claimed they did a range of instructional things. They believed he had applied for a protection visa and wanted to include his baptism but after speaking to his lawyer he didn’t include this.
He claimed that Saudi Islam was influential in [Country 3] and Christian converts were persecuted in many places. The adviser asked whether the witness would have an opinion as to whether the applicant would suffer persecution in Saudi Arabia and it was put to him that the witness had never been to Saudi – the adviser offered that he could proffer an opinion and the member nopted the witness had already testified to his opinion of the applicant’s belief.
The applicant was told about s 91R(3) and it was put to him that his interest in Christianity was never mentioned in his application or his DIBP interview. This raised concerns regarding the genuineness as did his increased interest following his visa refusal. He was baptised in the Anglican church but there was a photo of him at a catholic church which didn’t indicate a coherence in his faith. There were concerns that his interest in Christianity wasn’t genuine but strategic. In his DIBP interview he was very specific about fearing persecution based only on his Shi’ism, not agnosticism or Christianity.
He claimed that his interest pre-dated his refusal. He was with his family and didn’t want them to know. This was perhaps a year before his refusal. It was a gradual process and thinking about taking the steps. Some of this was public before his visa refusal. After his course, he thought he should go to the church to compare study and practice. He didn’t include this at DIBP because it was personal and he didn’t want to upset his mother and he wasn’t certain he would continue through with his interest.

He had attended two or three protests in Qatif. Not all people reported are arrested – he wasn’t arrested. All the protests he attended were in Qatif. He couldn’t remember what years he attended, but thought it was 2012 or 2013.
He was also told about s 424AA and it was put to him that the reason he claimed he didn’t mention his interest in Christianity to DIBP was his adviser told him that he had a strong enough case, yet the witness said that the applicant had told the adviser to take that claim out. This inconsistency could go to questions as to his credibility. He claimed that he didn’t want to be identified as a Christian so this was consistent.
Also under s 424AA it was put to him that in his DIBP interview he said he worked in [Industry 1] and that two [extremists] ([Mr D], [Mr G]) worked in [Industry 1] and didn’t like him getting commissions. He also stated that the papers contained a bribe. Today he claimed he worked for himself, stated that [Mr D] set up [Mr E] to offer a USD [amount] bribe, and that the [deal] was his first one. This revealed several inconsistencies in his claims and raised questions as to whether this event occurred.
He claimed the Tribunal could check his LinkedIn profile. He had been asked about the bribe when he came to Australia and said that [Mr G] was involved in the deal but in Saudi people didn’t need a [relevant] licence or the like. He thought that the reason [Mr G] and [Mr D] didn’t like him was because he was Shi’a. His recollection was better because he had the lawyer’s documents and he had some stressful issues and he had tried to forget them as he had read some psychotherapy. It was all truthful.
It was put to him that he had been targeted for his religious identity and his papers marked with discrimination, yet he had offered a copy of his high school that showed his lowest mark was [number] %. He claimed he was referring to his university [degree] where he was [unfairly marked].
Also under s 424AA it was put to him that in his interview he had been asked about discrimination and said that he had asked five universities for entry and all had refused him and yet he had said today that he had been to university for [number] years. He claimed that he was talking about two different times; after he left school and applied but was refused. It was put to him that he had not mentioned his university attendance in his protection visa application – he claimed that he thought it was only his qualifications they wanted. He was told it asked for attendance, not completion. He claimed that he misunderstood the question as his English was limited.
It was put to him that in his protection visa application he had also written that he was employed in [Company 2] from October 2012-April 2013 yet he had said at hearing that he worked for himself. He claimed that his cousin worked in this company and his adviser told him that he could not work alone, so he just included this. He had not worked for the company but thought he had to put this company name down.
Also under s 424AA in his application for a student visa he had claimed he had never been convicted or gone to prison and yet he had said that he had been sentenced to [duration] in prison. He claimed that the fear was controlling him when he filled out the form but would tell them when he came to Australia. His immigration agent applied for him.
It was put to him that he didn’t apply for protection for eight months after arriving in Australia. He claimed that he didn’t know the process and wanted to wait until his mother and sister had arrived. He said he was interviewed on arrival because he had written on his arrival card that he had been arrested. He was worried that if he applied for protection his mother and sister couldn’t arrive. He asked some members (in the Shi’a societies) about the process. They told him to go to the husseiniyyah and then introduced him to a migration agent – he met the agent about four or five months after arriving.
The adviser noted that [Mr B] had appeared for moral support and was present if the Tribunal wished him to speak. He was advised the Tribunal didn’t seek to speak to him but would call him if the applicant wished. They requested this to occur. The witness recounted his meetings with the applicant and said that he first met the applicant before his visa rejection (around May 2016). He believed there was a genuine interest in his Christianity. They had an ongoing connection until around August 2017 and was now intermittent. He was asked whether he tried to test people on their credibility other issues or if he went on what the applicant said and did. It was the latter. Asked if the witness spoke with other witness during the hearing but prior to coming into the hearing room about the date the applicant first had interest in Christianity and he said that he had.
Under s 424AA it was put to him that he had said he attended two or three protests in 2012/2013 but during his DIBP interview he claimed that he had attended only one, in 2012 and gave other details regarding it. It was put to him that his specificity contrasted with his vagueness. He claimed that he perhaps remembered things better as his migration agent focused on this. He may have attended more than one but it was a long time ago. Some protests are political and others religious that contain some political aspects. Perhaps there was only one that was exclusively political.
He was asked what his [social media] page was and he said that there wasn’t anything on the public site as they were on enclosed sites in English – he had also deleted everything that was controversial on the public site. Asked how the Tribunal could check there was any social media activity in his private chat groups. He claimed that he didn’t think of keeping any – he was scared and anti-social and he began participating in private chats. He commented on some posts rather than mainly posting things himself.
He claimed that he had anxiety and depression and this could affect his memory and his nervousness.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant initially arrived in Australia [in] March 2014 on a student visa and applied for a protection visa on 29 October 2014. The Tribunal sighted his Saudi Arabian passport; I accept that he is a national of Saudi Arabia and his application will be assessed as such.
The applicant is a [age] year old single Saudi national. He claimed that he may be imprisoned, physically hurt or killed because of a legal dispute with a member of a powerful Sunni Saudi family, and by his family or broader Saudi society because of his free thinking (particularly in aspects of religion and women’s rights).
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
I have taken into account the documentation provided that indicated treatment for a mental health issue in 2015, but he agreed that he was fit to attend the hearing and there was no indication that his evidence was inhibited by any medical condition. I do not accept that his inconsistencies were caused by poor memory due to any medical condition as there was no evidence presented that indicated he had any form of memory loss.
I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or entirely truthful witness, and that he fabricated most of his claim in order to be granted a protection visa.
Legal Dispute with a Member of the [D] Family
I do not accept that the applicant was ever accused of being involved in [specified offence] and then imprisoned as a result. The claim regarding the alleged incident that led him to being imprisoned was also both inconsistent and implausible. To begin with he claimed in his protection visa only that he was imprisoned because someone from the [D] family had made a complaint against him and he was imprisoned ‘with no proper reason’. During the hearing the applicant claimed that he was a [Occupation 1] who tried to sell some land.
He was told that the ownership papers were out of date and needed to be renewed and when he went to the [court] in good faith to have them renewed, [Mr D] checked them on the database and found out that the papers the applicant had presented him were forged. [Mr D] decided to set a trap for the owner and asked him for a [bribe] to clear the property and when the owner agreed the police (who were there) arrested him. The applicant only found out a few days later when he was summoned, and was tricked into signing a confession that was later used to convict and imprison him.
This account is inconsistent with his claim during the DIBP interview when he stated that the papers he gave to someone contained a bribe. It also lacks credibility that the applicant would not have had access to [records] to establish before he began the deal, that the land he was trying to sell was actually owned by the purported seller. General country information indicate that there is a process for confirming land ownership before purchases can be made.[1] I do not accept that he did not know this because he was not a professional and was a [sole trader] looking to get a commission, had received no training, and this was the first time he had tried to sell a piece of land.
[1] [Source deleted]
This claim is inconsistent with his claim in his DIBP interview that he worked in [Industry 1], and that two extremists ([Mr D] and [Mr G]) who also worked in [Industry 1] didn’t like him working there and getting commissions. It is also inconsistent with his claim in his protection visa application (folio 43) that he worked for [Company 2] during the period he claimed that he was a [sole trader]. I do not accept the claim that his cousin had worked for the company and his adviser had told him to put this as he couldn’t have worked alone. This claim was repeated in the post-hearing submission (folio 247).
Not only does it not make sense that the migration agent would tell the applicant to substitute an untrue piece of information when simply stating that he was a [sole trader] was not only allegedly the truth but would have been consistent with his claim. I also note that, if the agent had instructed him to lie on his application form, the applicant has not made a complaint against them. Further, I note that in a statutory declaration submitted by the applicant on 13 December 2018 he provided a third account of his employment, claiming that ‘he was working for a [company] and as a [sole trader] on my own time’ (folio 154 – my emphasis added)
I am also unconvinced by the post-hearing claim that when he talked about [Mr D] and [Mr G] working in [Industry 1] and not liking the applicant getting commissions, he meant they were all involved in selling [Mr E]’s land or that because he was Shi’a they would be assumed to be against him receiving commissions. Nor do I believe that any inconsistencies could be explained by the fact that he was trying to forget his prison experience, given I do not accept that he ever went to prison.
I have taken into account the documents (folios 189-197) that he provided post-hearing that he claims are his court documents (including a submission from his lawyer) but give more weight to the inconsistencies in the applicant’s account. The court document is a photocopy and, along with the lawyer’s submission could have been produced on any home computer. Prior to the hearing, he was also asked to provide a copy of the contract with the law firm, and an invoice and receipt from them. I do not accept that his inability to do so was because the contract was with the applicant’s cousin as the applicant didn’t have time to sign one. Regardless of who the contract was with it relevant dated invoices and receipts should still have been able to be produced via his cousin. The response to the Tribunal’s request was simply that they couldn’t be provided
I have also taken into account the emails he claims indicate that he worked as a [Occupation 1] in Saudi Arabia but can lend them little weight. Not only can their veracity or provenance not be checked, but the email allegedly from [specified sender] is dated [June] 2012 when he claimed in his protection visa application that he began work in [Industry 1] from October 2012 (folio 43). Because I do not accept that he was arrested, charged and found guilty, it follows that he was not the subject of surveillance by Saudi authorities after his release.
Education Claim
I do not accept that the applicant has been denied a proper education or that he was academically discriminated against because of his religious identity. He claimed that at school his papers were marked with discrimination and his grades based on his being Shi’a. The high school certificate that he presented (folio 160) showed his average grade to be [number] per cent, which is not indicative of someone who was discriminatorily graded.
I do not accept that he was referring to his [university] where he claimed that he was marked unfairly. The written protection claim made no mention of this tertiary education context, and he never noted that he had ever attended any university course in his protection visa application. I do not accept that the questions were ambiguous, particularly given that he claimed at hearing that a migration agent filled it out for him, and it is reasonable to believe that a professional agent would understand the nature of the questions being asked, and seek the appropriate response from the applicant.
I have taken into account his claim that his LinkedIn profile indicates this study. He provided a copy (Folio 222) that simply says [specified qualification]. I am happy to accept that he may have attended [university], but not that he was unfairly treated in terms of marks. It is not an uncommon experience for students who do well at high school to not do well at university, given the different study skill sets required. I also do not accept that the applicant had been refused by five universities given he provided no documentary evidence (such as rejection notifications) to support such a claim.
Political Protests
I do not accept that the applicant has taken part in any political protests in Saudi Arabia, or that he is, or would be perceived to be politically active against the Saudi government. This relies entirely on his oral claim. He was also inconsistent with his claims of political participation; during the hearing he claimed that he had attended two or three protests in either 2012 or 2013 but wasn’t really sure.
During his DIBP interview however, he was very specific that he had only attended a single protest and how far away from his home it was, and what they did during the protest. I do not accept that this was because he had been told to focus on this aspect by his then migration agent, that it was a long time ago or that sometimes religious marches were also somewhat political. I place more weight on the fact that the applicant has a history of providing inconsistent evidence in finding that this claim too has been fabricated.
For someone who has claimed to have been politically active in Saudi Arabia, he was unable to demonstrate any public social media activity to that effect. He claimed that he deleted all the controversial aspects on his public [social media] page. His activity was, he claimed, in closed [social media] chats in English but he mainly commented on posts rather than posting information himself. He wasn’t sure how to find older comments when asked if there was anything prior to the 2017 chats he had presented.
I do not accept that either he or his father is well known as a Saudi oppositionist, or that his father was killed by the government. The claim regarding his father being an active opposition member relies solely on the applicant’s oral testimony which I have found lacks credibility, and his claim about his father being killed because he died suddenly completely lacks credibility and is unsupported by evidence. Given the applicant and his family have all been issued passports and travel freely, and the applicant himself is the recipient of a generous government scholarship, they present as people of no adverse interest to the government.
Religious Identity Claim
I am not satisfied that the applicant is, or would be perceived to be Christian, atheist or anything other than a Shi’a Muslim.
It is difficult to assess the genuineness of someone’s interest in other religions and discern legitimate questioning of the applicant’s own religious identity from strategic profile-building. In the case of the applicant I believe that it is the latter. The timing of his interest is coincidental with his refusal of a protection visa, and he has maintained associative and financial links with his original faith, Shi’a Islam.
During his protection visa interview in June 2015 (the visa refusal decision was dated 16 June 2016) he made no mention of an interest in Christianity, despite having been in Australia since March 2014. I also note that in a psychologist’s assessment report (folio 168) dated [in] December 2015 it noted that the applicant ‘associates himself with Saudi Arabia (Shia Muslim)’. Nowhere is any interest in Christianity or any other religions, or questioning of his Islamic faith noted as being mentioned.
I do not accept that he had been visiting random churches or learning about Christianity online from around 2014. He never mentioned this at his DIBP interview and I don’t accept that he didn’t know what was important or not. Or that his migration agent told him that his case was strong enough. He has never made a complaint about the agent regarding this omission, and it lacks credibility that an allegedly activist Shi’a from Saudi Arabia genuinely interested in another religion other than Islam would not strengthen his protection visa claim.
I have taken into account a range of material that he has submitted in support of his claim, but lend them little weight for reasons referred to after the list (largely because I give more weight to the inconsistencies in his evidence related to, and timing of this claim):
a.Certificate of courses from [Christian website] (folios 141-147 and 204). There is no indication of when they were conducted or what is involved in them. On all bar two the date 20 August 2016 appears at the bottom left hand corner – this is more than a year after his PV interview and two months after the refusal decision. I note that the applicant claimed to have commenced the course in May 2015 (folio 152) but I am unable to confirm that nor has the applicant provided evidence to this effect;
b.Certificate of completion of bible courses dated 18 October 2016;
c.An undated [social media] conversation in which a person ([Ms H]) says that while he was living with this person they went to [a specified] church one night (no date given);
d.Letter from [Christian group] at [university] (folio 173) dated 27 September 2016 saying that he joined their group in 2016 and participated in their mid-year conference from 11-15 July 2016;
e.Email from person called [Ms I] who claimed that they had discussions regarding religion include the Christian concept of the Trinity in the middle of 2015 (folio 238)
f.Email from [Mr J] (folio 198) saying he had known the applicant for two years and had discussed spiritual issues together and that the applicant was comparing parts of his faith as a Shia Muslim (my emphasis added) with biblical Christianity; and
g.Letter from [Rector A]. He did not say when he first began seeing the applicant, only that the applicant asked to be baptised in August 2016 and this was done in January 2017. [In] March 2017 he wrote to the congregation and said that he wasn’t Christian and that he regarded himself as a Shi’a Muslim.

I have also taken into account his claim that his interest pre-dated his refusal but he had not mentioned it because he didn’t want to upset his mother. He could simply have asked to have an interview separate from his mother, or submitted a supplementary claim so that his mother didn’t know (or both). The fact that he did neither is not indicative of someone with a pre-existing religious claim.
I am concerned that the vast majority of his interest in Christianity where the dates are given occurred after his formal notification of a visa refusal. I also have concerns that the witness had spoken to another witness prior to giving evidence and then said the applicant expressed interest in Christianity in May 2016 – one month before the notification of his visa refusal. I lend more weight to the maintenance of his Shi’a identity, his confusing understanding of religious identity and his lack of commitment after his baptism in evaluating the reasons for his approach to Christian identities and organisations.
He was advised about s 91R(3) and it was put to him that his interest in Christianity was never mentioned in his application or during the DIBP interview as his interest appeared to increase following notification of his visa refusal.
His claims regarding religious identity do not reflect much awareness for someone who claims to be a deep thinker and to have studied and discussed Christianity and other religions. In his statutory declaration of 13 December 2018. He considered himself a Christian and tried to follow Jesus’ teaching but stated that he would never follow a human as his God. This is fundamentally at odds with being Christian in that one has to believe in the Trinity and that Jesus is the earthly manifestation of God.
He also claimed to be a Shi’a Muslim but against shari’ah – the incoherence between claiming to be both Christian and Muslim with the fundamental contradictions in dogma between both are not indicative of someone at odds with their identity. Rather, I am satisfied that it is indicative of confusion over the claims that he has made regarding religion. He also claimed at the hearing that he didn’t have a religious identity, further adding to the sense that the applicant’s inconsistency is more indicative of a confusion of what he has claimed rather than a confusion of religious identity.
I am satisfied that the applicant was and remains a Shi’a Muslim, given that he has told [Rector A] this, the psychologist noted this, he attended ‘Ashura and Arbaeen events (folio 65) and the applicant also provided copies of receipts for donations given by him to the al-Ayn Social Care Foundation between April 2017 and November 2018 (folios162-169). Country information[2] indicates that it was set up under the guidance of one of the leading Shi’a clerics Ayatollah Ali al-Sistani and that it is authorised to receive contributions as part of the religious dues to help the orphans. The fact that he contributes to this avowedly Shi’a religious charity in accordance with the dictates of the Shi’a faith indicates that he has a strong identification with his religion. I do not accept that this is illegal in Saudi Arabia (no supporting evidence was presented or, even if it was how the Saudi authorities would know that he had given this money).
[2] accessed 23 January 2019
The member has been posted to the Australian Embassy in Saudi Arabia and visited the Eastern Province and I accept that the Shi‘a community in the Eastern Province (where the applicant is from) faces discrimination in the issue of employment in particular. However I do not accept that it reaches the threshold that would constitute serious harm for Convention purposes, nor do I accept that the applicant has or that there is a real chance that he will suffer serious harm because of it.
The applicant’s father was employed by [a Saudi Arabian company], the applicant has been educated and by his own admission entered university in Saudi Arabia, was allowed to get a passport and travel freely and has been granted a Saudi government scholarship for a course whose fees were AUD [amount] per annum. Whilst he is likely unable to work for the government because of his religious identity, from his claims it appears that he would not wish to serve the government. He had already been employed as an [Occupation 3] and on return he would be well qualified in [Industry 2] and the expectation is that he would be able maintain a lifestyle well above subsistence level.
I also note that the mother voluntarily returned to Saudi Arabia after her protection visa for Australia was refused, taking two of her daughters with her. This is not indicative of someone who fears persecution based on their religious identity. I don’t accept that she did this because of a relationship with a [Country 2] man. This claim relies solely on the applicant’s oral evidence which I have found elsewhere lacks credibility, and I note the mother’s claim has also been rejected by [Country 3] immigration authorities (folio 152).
Other Issues
I do not accept that the applicant is outspoken about his views that are critical of Islam and other religions, opposed the shari’ah and was pro-gay and women’s rights. While he may hold some of these views I am satisfied that they exist privately. There is no indication that he has expressed them openly in the liberal, democratic environment that Australia provides and so will continue to hold them privately on return to Saudi Arabia.
Being exposed to a liberal democracy would certainly impact on the way in which a person would view things, but I do not accept that he would have to speak out publicly on return because he could not hide things any more. If he has not spoken out publicly in Australia in the more than five years he has been here, I do not believe that there is a real chance that he would do so in a more restrictive environment. I am satisfied that this does not represent self-censorship, simply that the applicant doesn’t appear to be interested in publicising his views beyond some private chat sites.
I give little weight to the social media extracts he provided (folios 183, 122-23, 68-9 ). To begin with it is not apparent whether they are from the public pages or private chat sites or the date they were written. Regardless they are in English and uncontroversial, querying someone’s comment that torturing is cooler than sex, that he has strong belief and whether Allah in the Qur’an says people must have certainty, on a Shia discussion site criticising an action in which someone who was allegedly killed for looking gay
The applicant claimed that he may be targeted by his extended family because of his beliefs and encouraging his mother’s relationship with the [Country 2] man. I do not accept this to be the case given the concerns I have with the truthfulness of his claimed belief system, and that the claim regarding his mother’s relationship with the [Country 2] man has been fabricated.
Although I have found that each of his claims individually are fabricated, the fact that he has applied for and been granted a generous Saudi government scholarship since being in Australia is, I believe further evidence that he is of no interest to the Saudi authorities for any reason. I do not accept that this was because the scholarships in Australia operate more or less independently from the broader Saudi system. The decision to award him his scholarship (folio 181 - he was asked to provide this) indicates that it was from the [Saudi Arabian government] and that the Saudi cultural mission (in the applicant’s case, in Canberra) simply administers it.

100. I also note the delay in applying for protection – the eight month delay is not indicative of someone who feared harm from state or non-state actors in Saudi Arabia. I do not accept that he was afraid that his mother and sisters couldn’t arrive. Given this was not the case and would have been apparent if he had sought advice straight away, I do not accept it as a valid reason for the delay. Given he claimed that he was given guidance from the Shi’a societies in [Australian City 1], this avenue to conform things was open to him as soon as he made contact with them ,which he could have done as soon as he arrived if he feared returning.
101. Having considered the applicant’s evidence both individually and cumulatively, for the reasons set out above the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.
Complementary Protection
102. Although I have disregarded the applicant’s church attendance, baptism and online religious courses for the purposes of the applicant’s refugee claims, I have had regard to them in assessing his claims relating to s.36(2)(aa). I do not believe they were done as an expression of genuine curiosity about other religions but rather for purposes of creating a refugee profile.
103. I am also satisfied that the applicant’s actions would not be known by Saudi authorities – there is no reason why any Saudi authority (either individual or collective) would be aware of his actions. Nor has he provided any evidence of a social media profile that would indicate he has spoken publicly about such attractions.
104. Because I do not accept that the applicant is, or would be perceived to be interested in Christianity or against Islam, that he was ever ‘framed’ over a bribery case and imprisoned, is or would be seen as an oppositionist or taken part in any political protests, or is in dispute with his family over his mother’s relationship with a [Country 2] man, I am not satisfied that there are any substantial grounds for believing that there is a real risk of significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
105. And while I accept that he may face discrimination on return to Saudi Arabia because of his Shi’a faith, I am also not satisfied that such a threat or discrimination meets the definition of significant harm as outlined in the complementary protection criterion in s.36(2)(aa).
106. Therefore, I do not accept 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.
CONCLUDING PARAGRAPHS
107. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
108. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
109. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
110. The Tribunal affirms the decision not to grant the applicant a Protection visa.
Rodger Shanahan
Member

[2019] AATA 1312

23 January 2019

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Immigration

Administrative Law

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