1616594 (Refugee)

[2017] AATA 826

1616594 (Refugee) [2017] AATA 826 (1 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1616594

COUNTRY OF REFERENCE:                  Bahrain

MEMBER:David Corrigan

DATE:1 May 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 01 May 2017 at 4:29pm

CATCHWORDS
Refugee – Protection visa – Bahrain – Political opinion – Anti-government protests – Political activist – Religion – Shi’a – Arrests – Sectarian violence – Police assaults on protesters

LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994, Schedule 2, cl 790.221(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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] September 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Bahrain, applied for the visa [in] October 2015.

   CRITERIA FOR A PROTECTION VISA

3. Relevant to this case, subclause 790.221(2) requires that

   The Minister is satisfied that a criterion mentioned in paragraph 36(2)(a) or (aa) of the Act is satisfied in relation to the applicant.

4. 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.

5. 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.

6. 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).

7. 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.

8. 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.

   Mandatory considerations

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The applicant’s claims can be summarised as follows.  He is a Shia Muslim who was born in [a named district], Bahrain in [year].  In 1995 he was detained for two years and charged with political crimes even though he had nothing to do with politics at that time.  He and his friend had been caught lighting fires in the street but not in protest.  He was imprisoned with adults and subject to beatings, torture, sexual abuse and constant darkness.  Due to this and his denial of an education he became interested in human rights.

11. The applicant became involved in the democracy movement and attended protests.  He was summoned to court a number of times but refused to attend.  Because of this, he became a target for the police.  [In] February 2011, a new wave of protests began which the police attacked.  The following day he went to [a specified location] where there was a strike organised.  [In] March 2011, the police attacked the protestors and many were killed.  Shortly after the strike, his [Relative A] was arrested from their house for alleged involvement in national security crimes even though she had not been involved in the protests.  She was detained for two weeks and treated very poorly including being tortured and subject to sexual assault.  A week after his [Relative A’s] arrest, he was also arrested and held overnight and was subject to beatings and abuse.  He was threatened that he could be arrested again at any time.  He could not sleep at home for fear of being arrested and he stayed with friends and his girlfriends to evade the authorities.

12. In early 2015, the applicant was told by a police officer that his turn would come and he would be hunted down.  The applicant participated in protests by providing [protest materials].  The protestors were attacked by the police using live bullets and gases.   Some of his friends were arrested and tortured.  They told the police that the applicant was with them and had provided the [protest materials].  His house was raided by the police and his [equipment] taken but he was not there at the time.  The police then went to his [Relative B’s] house where the [protest materials] were stored. 

13. In 2006, [another relative] was arrested but the applicant does not know the circumstances.   [In] March 2017, the police came to his parents’ house to look for him.  The police then went to his [Relative C’s] house and arrested him.

14. The applicant fled Bahrain through the international airport and paid a bribe to ensure he could depart safely.  The applicant fears sectarian violence and systematic discrimination on the basis of his actual and imputed anti-regime political opinion and his Shia religion.  He further fears harm because the authorities will know he has sought asylum in Australia and they will believe he has said negative things about the government whilst doing so.

    Country of reference

15. The applicant has claimed to be a citizen of Bahrain  He has submitted documentation (copies of his passport and driving licence and ID cards) that supports this this and I find that he is a national of Bahrain and that this is his receiving country.

    Assessment of claims

16. I conducted an extensive hearing with the applicant and I have significant concerns about the credibility of the applicant’s claims for a number of reasons including:

    ·There were a number of inconsistencies in the applicant’s evidence.   For example, he has given inconsistent evidence about the police going to his [Relative B’s] house to look for [protest materials].  At his first interview with the Department, he stated that they questioned his [Relative D] there and they found nothing as no [protest materials] were there.  However, in his second interview he said he was unsure if they questioned anyone and they took the [protest materials].  At the hearing, he said he was unsure if they found anything or questioned his [Relative D].   I have taken into account, however, in his favour that these inconsistencies relate to claimed events that the applicant was not personally present at.

    ·He told the Tribunal that he had paid a bribe to a man in a government [agency] to depart Bahrain in September 2015 but he was unwilling to name that person despite being advised by the Tribunal that his evidence to it was confidential.  He also told the Tribunal that he checked with a friend in the government to see if he was on an airport watch list when he went to [Country 1] earlier in 2015 but was also unwilling to name that other person despite being advised by the Tribunal that his evidence to it was confidential.  The applicant claimed that his case manager had told him the Australian government would tell the Bahraini government about these matters.  I do not consider it plausible or credible that an Australian official would have told him this or that the government would pass on details about his protection claims to the Bahraini government and I note there is no supporting evidence of this occurring.  The applicant’s ability to depart Bahrain in September 2015 on his own passport casts doubt on his claims that he was and is wanted by the authorities.

    ·The submitted summons (original sited by the Tribunal) is in different fonts and misspells the word “Section” which creates concern that as to whether it is an authentic document.

    ·The US State Department reported in 1995 that at the year’s end there were no reports of any juveniles in detention for crimes allegedly committed[1] which is contrary to his claim that he was held in detention for two years from 1995 to 1997 when he was [age].

    [1] United States Department of State, Country Reports on Human Rights Practices for 1995 – Bahrain.

17. Despite these significant concerns about his credibility, I am unable to reach a positive state of disbelief that most or if not all of his claims are not true and I have considered his claims under “the what if I'm wrong” test” (the possibility that the alleged past events occurred).  I have been unable to reach this positive state of disbelief for the following reasons:

    ·A detailed psychologist’s report, dated [in] March 2016, indicates that he presented with features characteristic of [several conditions] and his statements in this report were consistent with his protection claims.  In considering inconsistencies in his evidence, I have taken into account that the Tribunal’s Guidelines on the Assessment of Credibility at [22] state that a person may have had traumatic experiences or be suffering from a disorder or illness which may affect his or her ability to give evidence, his or her memory or ability to observe and recall specific events or details.  They also state that there may also be mistrust in speaking freely to people in positions of authority.

    ·The applicant’s claims over time have been generally consistent on a number of matters including his detention in the 1990s, his involvement in anti-government activities from 2011 onwards and the authorities’ adverse interest in him and other family members.  Whilst I note that his obtaining a passport in 2014 and his trip to [Country 1] in early 2015 appear inconsistent with the authorities having an adverse interest in him such that they were issuing summonses in relation to him, he had told the Department at interview that he was detained in 2014 and released.  It is therefore plausible that he was able to do these things after being released and that the later interest in him by the authorities occurred after he had returned from [Country 1] as a result of the arrest of other anti-government activists.

    ·The applicant has submitted some documentary evidence in support of his claims which I have given some weight to.  He has submitted a copy of a photo of him at anti-government demonstration as well as a copy of a letter from [an organisation] which indicates that he has been an active member of the political opposition and that he is wanted by the authorities.  The [organisation] is active in public demonstrations against government corruption and the lack of political freedom and freedom of expression and is vocal in both domestic and international forums about social issues.[2]  He has also submitted a translated copy of an email to him from his mother concerning police interest in him and a translated copy of a [social media] extract regarding the arrest of his [Relative C] [in] March 2017.  Also submitted (and translated by the interpreter at the hearing) were a court document dated [in] April 2012 for national security charges against his [Relative A] and a letter from the [employer] concerning dismissal action taken by them for “inappropriate behaviours” also in relation to his [Relative A]. 

    ·The applicant’s claims are broadly consistent with country information in a number of respects.  Country information does indicate that as many as 200 juveniles were detained or arrested during civil disturbances in 1995 and there were credible reports of torture being used against prisoners at that time.[3]   It also indicates that the government cracked down very hard on anti-government protests in 2011 and afterwards.  The authorities arrested 2,929 people in connection with the 2011 protests and more than 250 persons were convicted through the courts and sources reported that human rights activists and protestors continued to be subject to arrest and ill-treatment in relation to these protests.[4]  More recent country information indicates that the government has continued to limit freedoms of expression, assembly and association and mistreat detainees.[5]

    ·Country information indicates that Bahrain has set up a legal anti-corruption framework and the Penal Code criminalizes most corruption offences in both the public and the private sector; including passive and active bribery and abuse of office. However it also indicates that enforcement is poor and officials have engaged in corruption with impunity.[6]  This supports that it was possible for the applicant to depart Bahrain through with the help of bribery.

    [2] [Deleted].

    [3] United States Department of State, Country Reports on Human Rights Practices for 1995 – Bahrain.

    [4] Refugee Review Tribunal Country Advice – Bahrain – 14 February 2011 – Protests – Treatment of Protestors – Treatment of Shias – Protests in Australia – Returnees, 30 January 2012.

    [5] Human Rights Watch, World Report 2017: Bahrain Events of 2016; United States Department of State, Country Reports on Human Rights Practices for 2016 – Bahrain.

    [6] GAN Business Anti Corruption Portal, Bahrain Corruption Report,

18. I accept that in 1995 the applicant was detained for two years and subject to beatings, torture and sexual abuse due to his suspected involvement in the 1995 protests.  I accept that when he was released he was denied further education.  I accept that in 2011, the applicant became involved in the democracy movement and attended protests including at the [specified location].  I accept that his [Relative A] was arrested from their house for alleged involvement in national security crimes.  I accept that she was detained for two weeks and treated very poorly including being tortured and subject to sexual assault.  I accept that a week after his [Relative A’s] arrest, he was also arrested and held overnight and was subject to beatings and abuse.  I accept that he was threatened that he could be arrested again at any time.  I accept that he feared being arrested and he stayed with friends and his girlfriends to evade the authorities.  I accept that he was sent a number of summons to which he did not respond to but that he was eventually detained in 2014 and released.

19. I accept that the applicant continued to his involvement in opposition politics by helping in the supply of [protest materials].  I accept that after he returned from [Country 1], some of his friends were arrested and tortured and they told the police that the applicant was with them and had provided the [protest materials].  I accept that his house was raided by the police and his [equipment] taken but he was not there at the time.  I accept that the police then went to his [Relative B’s] house to search for the materials.  I accept that [in] March 2017, the police came to his parents’ house to look for him.  I accept that the police then went to his [Relative C’s] house and arrested him.  I accept that the applicant is of adverse interest to the authorities on account of his actual political opinion.

20. Given the country information in the agent’s submissions and that set out above which indicates that the Bahraini government has continued to limit freedoms of expression, assembly and association and mistreat detainees and the applicant’s individual’s circumstances, I find he faces a real chance of persecution involving serious harm (significant physical harassment and ill-treatment and threat to liberty) for reasons of his actual (anti-government) political opinion now and in the reasonably foreseeable future at the hands of the Bahraini state as per s.5J of the Act.

21. As the persecution feared by the applicant is from the Bahraini authorities, I find that effective protection measures are not available to him and that the real chance of persecution relates to all areas of the country: s.5J(1)(c) and s.5J(2) of the Act. Accordingly, the applicant has a well-founded fear of persecution for the purposes of s.5J of the Act.

22. Given these findings, I have not addressed the applicant’s other claims relating to his status as a failed asylum seeker and as a Shia.

23. I find that the applicant does not have the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act and I find that this section does not apply in his case.

    Conclusions

24. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    DECISION

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

    David Corrigan
    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

    (1)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.

    (2)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.

    (3)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.

    (4)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.

    (5)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.

    (6)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

    (1)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.

    (2)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.

    …