1617221 (Refugee)

[2019] AATA 2543

1617221 (Refugee) [2019] AATA 2543 (31 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1617221

COUNTRY OF REFERENCE:                  Saudi Arabia

MEMBER:Nora Lamont

DATE:31 January 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 31 January 2019 at 2:17pm

CATCHWORDS

REFUGEE – protection visa – Saudi Arabia – political opinion – anti-monarchy opinions – anti-corruption opinions – fear of arrest – fear of killing – business dealings with royal family members – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 36, 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2; r 1.12

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 and Border Protection to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Saudi Arabia, applied for the visas on 17 July 2014 and the delegate refused to grant the visas on 5 October 2016.

3. The applicants appeared before the Tribunal on 8 August 2018 to give evidence and present arguments. The Tribunal hearing was not conducted with the assistance of an interpreter.

4. The applicants were represented in relation to the review by their registered migration agent [named] who was representing via the telephone. Since the Tribunal hearing [this agent] had his migration agent registration suspended by the Migration Agents Registration Authority. The applicant retained a new representative.

   RELEVANT LAW

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Refugee criterion

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

9. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

10. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

11. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

13. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

14. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

15. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

16. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

17. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

18. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

19. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment 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.

    Member of the same family unit

20. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include a spouse and a child (children) who has not turned 18.

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. Based on copies of the passport of the applicant which were provided to the Department of Home Affairs, the applicant’s oral and written evidence and in the absence of any evidence to the contrary, the Tribunal accepts that the primary applicant is a national of Saudi Arabia and assessed his claims against that country in relation to s.36(2)(a) and s.36(2)(aa) of the Migration Act 1958. Having witnessed evidentiary documentation of the applicant’s wife and children in the form of birth certificates and passports, the Tribunal further accepts the family member’s identities as claimed.

22. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has regard to material referred to in the delegate’s decision. The applicant provided a copy of the departmental record of decision to the Tribunal with the review application.

23. The issue in this case is whether Australia has protection obligations in respect of the applicant and secondary applicants and for the following reasons; the Tribunal remits the matter for reconsideration.

24. The applicant first arrived in Australia [in] July 2007 on a [Student] visa. He was granted a further student visa on 13 October 2010 and 12 December 2011. He applied for a protection visa on 17 July 2014 and remains on a bridging visa he was granted in conjunction with his application for a protection visa.

25. The applicant’s claims for protection can be summarised as follows:

    ·[Study details deleted]

    ·Since he arrived in Australia, he has only returned to Saudi Arabia once, in 2013 to attend [a family funeral]

    ·Although he is a devout Muslim, he objects to the Saudi authorities manipulation of Islam to supress personal freedoms, including for women

    ·He also objects to aspects of Sharia law including capital punishment and other barbaric forms of punishment

    ·He opposed the absolute rule of the monarchy

    ·The Saudi government is corrupt and those with connections can do whatever they like

    ·He has expressed his objections to the Saudi government

    ·He would not be able to express his objections if he returns to Saudi Arabia, the authorities monitor suspected political dissidents. If his liberal views become known he would probably be publicly lashed, imprisoned or executed

    ·His former business partner is a Saudi Prince. They had a falling out. During periods when they were on good terms, he constantly shared his political and religious views with the Prince. Since their falling out, the Prince has threatened to expose his dissenting views to the Saudi authorities

    ·He fears that the Prince will use his political connections to get him arrested, imprisoned, and subjected to physical harm and capital punishment

    ·He does not think the Saudi authorities will protect him or afford him procedural fairness due to  the Prince’s stature and connections

26. At the Department interview the applicant provided the following further information:[1]

    [1] Department of Home Affairs [File number]

    ·He has expressed his liberal views by making indirect comments to his friends on [social media] after he lodged his protection application

    ·He has not expressed his views in any other way. He would like to collaborate with other like-minded Saudi’s and share his views more widely via social media but he fears repercussions for himself and his family, including for his family members who are still in Saudi Arabia. He plans on becoming more politically active if he gets a protection visa

    ·He has not shared his liberal views with his family members. He is not sure whether they would be with him or against him

    ·He confirmed that he has not suffered previous harm in Saudi Arabia but he is concerned that he may have an adverse profile with the authorities because of his falling out with his former business partner, the Prince, and because he has been abroad for nine years. He thinks that other Saudi students in Australia are spying on him. His friends advised him that if he is planning to return to Saudi Arabia he should tell them so they can check the system (to see if he has an adverse profile).

    ·He ran a [large] business in Saudi Arabia. He started selling [products] when he was [age] years old and expanded into [different fields]

    ·In around 2005-2006, [the named prince] started harassing him about becoming business partners. A friend told him that the Prince was a good man and could help him create more business opportunities. The Prince offered him a villa to entice him to accept the offer.

    ·He refused to become partners with the Prince because he did not want to work with the government and did not think it would be good for business. Princes only become involved in businesses to abuse people and show off their power

    ·While he was away on business in [another country], the Prince pretended they were partners and took payment for one of his contracts. When he returned, he went to see the Prince at his palace to claim his share of the payment. The Prince threatened to kill him if he ever came to the palace again. Someone told him that the Prince had killed someone in his palace before. After that he relocated from Riyadh to [another location] to get away from the Prince.

    ·The Prince somehow obtained his phone number in Australia and tried to entice him to return to Saudi Arabia to talk. He refused to return.

    ·He never trusted the Prince

    ·It was put to him that in his written statement he said that during periods when he was on good terms with the Prince he constantly shared his political and religious views with the Prince. This is inconsistent with his statement at the interview that he never trusted the Prince. In response he said that the Prince tricked him into thinking he was against the government also, and sometimes their relationship wasn’t that bad. He was young and talked to the Prince as a friend. He thought that the Prince respected him in a way he now thinks that it was a strategy to trap him

    ·He was asked if there was any indication the Prince would cause him problems for him if he returned to Saudi Arabia. He said that if the Prince knows he has returned he will have him arrested and put in jail for no reason. He is not sure if the Prince would also do something to his family.

    ·He was asked why, if he feared being arrested and imprisoned, he returned to Saudi Arabia in 2013. He said that his [relative] had [a medical condition] and wanted to see him. His [relative] passed away [several] days after he came back to Australia. Before he travelled, his friend checked the system and advised there was nothing recorded against him. He feared he would be targeted after he entered the country. He was surprised that he was able to leave again without difficulty.

    ·His brother is now running the business in his absence, and has not had any problems with the Prince. He clarified that the Prince was only ever involved with one contract and has no ongoing involvement in the business

    ·He did not apply for a protection visa sooner because he did not feel that he was really in danger until his friends observed that he had been away for a long time and warned that something could happen to him because of the comments on [social media]. He now thinks he is in danger. He decided to change his life plans and stay here so he can freely express himself and raise his children in a good way.

    Tribunal Hearing

27. At the Tribunal hearing the applicant stated that when he was in Saudi Arabia he worked in the family business managing [services] with his [specified relatives]. His first business was working in the [specified] business. He said that his brother now operates the business with some of his cousins. The applicant said the business had a net worth of [amount] Saudi Riyal ($[amount] AUD) but lately business was not that good.

28. When asked how he came to be in Australia the applicant stated that his wife had wanted to come to study in Australia and he agreed. The applicant and his wife attended [a named university]. He was enrolled in a [studies] program but has not completed it.

29. The applicant and his family moved to Melbourne and the applicant purchased a [business] which cost him $[amount]. It is a [business] where Arabic people can meet up. Prior to this he was working as a contractor for [another business].

30. The Tribunal asked how he met the Prince and he said he met him through a business associate. The prince is a member of the royal family and at the time he was around [age] years old. The applicant said that he was warned by his father not to see him. The applicant said the prince tried to take advantage of him and he felt like he was trapped. At first he thought that it would be good as he had many contacts and they could do business together. He was taking advantage of the applicant without putting money into the business. However, he was using his power and take advantage of the business. This happened between 2006 and 2007. The contact with the prince was sometimes weekly sometimes it was monthly.

31. When the applicant was with the prince he would say bad things about the government and the applicant was young so he spoke up about the royal family as well. The royal family always fight with each other. The applicant felt that he could share his own opinion, but it was a big mistake. The applicant was surprised he was able to criticise the royal family in front of him.

1. The prince works in [an agency] and the applicant was surprised he could speak to him about the royal family. But then towards the end of the relationship the prince told the applicant that he would use what he said against him. He could put him in gaol for the rest of his life.  The applicant had told him that he thought religion was being used against people and hurting people.  But he was just trying to trap the applicant.

2. After a while the Prince tried to take his payments by forcing him to sign documents. The applicant refused to sign any documents. The Prince said he was going to make it difficult for the applicant. The applicant was frightened and told his father. His father had warned him not to have a relationship with these people. Everyone in the family knew this but he was young and naïve. The Prince rang him when he first arrived in Australia and told him to come back to Saudi Arabia. He does not know how he got his phone number. It was the last communication with him.

3. The Tribunal asked if he thought that even after all the time he has been in Australia would he come after him. The applicant said yes and he would use it against him, even if he made stories up about him they would still believe him as he is part of the government.

4. The Tribunal asked why the applicant returned to Saudi Arabia in 2013. The applicant said that he returned as his [relative] was dying of [a medical condition]. The applicant said he kept a low profile whilst he was in Saudi Arabia. The applicant said that he has a friend in security and he told him there was a slight concern against his name. The applicant stated in his statutory declaration that a few months ago his brother told him that he now has a red circle around his name which means that he is of serious interest now with the Saudi Arabians. The Tribunal has some concerns around the fact that the applicant was able to return to Saudi Arabia, however, the applicant was forthcoming and the Tribunal accepts his explanations.

5. The applicant said that he is against Wahhabism Islam. He has shared his thoughts on [social media] (he provided the Tribunal with copies of the [social media entries]) and he has also shared his thoughts with people at his [business]. He speaks out about Qatar and that is against the law. He lives in fear. The applicant said that Islam gives you freedom to speak your mind but not Wahhabism. They use it to control people, they kill people in public, this is Sharia law and we cannot say anything. The applicant saw a woman have her hand cut off, he will never forget it. It is very emotional.

6. The Tribunal asked the applicant about women in Saudi Arabia as women can drive, the literacy rates for women is high and his wife was [able to leave for study in] Australia. The applicant said that the women who campaigned for the right to drive are now in gaol. He said that old women need to be supervised by 15 year old boys. They think this is the right way of Islam; the applicant needs to tell people the truth. If he said this in Saudi Arabia he would be killed. Even if you have a fake account they will find you. He has put himself in great danger.

7. The applicant said that he is aware that his family left in Saudi Arabia is in danger if he continues to speak out. When asked why there was a gap between arriving in Australia and applying for protection he said  he had always hoped things would get better but he realised they use students in other countries to get information.

   Findings

8. The Tribunal accepts that the applicant is a political dissident and has shared his anti-Saudi regime and anti-Wahhabism (Sharia law) views with the prince in Saudi Arabia prior to his arrival in Australia and online, and in the [business] here in Australia. Whilst the Tribunal has concerns that the applicant returned to Saudi Arabia in 2013 and that he waited several years to apply for protection, the Tribunal accepts that the applicant has a visible anti royal regime online profile and that he openly speaks against the Saudi government in person here in Australia. Cumulatively, this leads the Tribunal to be satisfied the applicant would be considered a political dissident by the Saudi ruling family and government.

9. The Tribunal accepts that the applicant had an ongoing work relationship with a prince from the royal family and that relationship turned sour sometime in 2006-2007. Further, the Tribunal accepts based on the forthcoming and credible evidence which was consistent with the applicant’s initial claims that the prince used the applicant and then threatened him, causing the applicant to fear for his life.

10. Further, the Tribunal is satisfied that the applicant has accumulated a political profile over the past ten years and has come to the attention of the authorities through his online communication and his private dealings with the prince. Given these findings, the Tribunal has gone on to consider if the applicant faces a well-founded fear of persecution for a refugee reason I return to his home in Saudi Arabia.

    Country Information

11. Country information indicates that the law does not provide citizens the ability to choose their government in free and fair periodic elections based on universal and equal suffrage; it establishes an absolute monarchy led by the Al Saud family as the political system.[2]

    [2] Country Reports on Human Rights Practices for 2015 United States Department of State Bureau of Democracy Human Rights and Labor

12. According to a 2015 Freedom House Report social media users were increasingly careful about what they posted, shared, or liked online after the passage of the 2014 Counterterrorism law. Further, the government required internet access providers to monitor customers and since 2009 has made it mandatory for internet cafes to install hidden cameras and provide identity records of customers. [3]

    [3] Country Reports on Human Rights Practices for 2015 United States Department of State Bureau of Democracy Human Rights and Labor page 22

13. Saudi Arabia has a history of repressing and killing political dissidents. On 2 January 2016, 47 men, some of whom were minors at the time of their arrest were executed. They were charges with ‘disobedience to the King’, ‘incitement to sedition’, ‘insulting the judicial or religious authorities’. [4] Jamal Khashoggi was murdered at the Saudi consulate in Turkey in 2018.  The rights group Prisoners of Conscience, which is an independent non-governmental organisation advocating human rights in Saudi Arabia, announced in a post on its official Twitter page that Saudi authorities were reportedly keeping more than 2500 anti-regime activists behind bars as part of a widening crackdown led by bin Salman against Muslim preachers. [5]

    [4] >

    The Tribunal considers that the country information supports the applicant’s contention that political dissidents in Saudi Arabia face harm. The information demonstrates that political dissidents are at particular risk. The Tribunal is satisfied that the applicant’s political opinion is the essential and significant reason for the harm and that the harm is systematic and discriminatory.

14. In the circumstances of the applicant, the Tribunal is satisfied he faces more than a remote chance of serious harm on return to Saudi Arabia for his political opinion and his online presence against the regime. The applicant has taken a risk and the Tribunal is satisfied that the applicant faces a real chance of being detained, tortured, or killed on return to Saudi Arabia by the government. The Tribunal is satisfied the applicant’s political opinion is the essential and significant reason for the harm.  The Tribunal finds that the applicant has a real chance of serious harm arising from his political opinion against the royal family and Sharia law. The Tribunal finds that the applicant has a well-founded fear of persecution for this reason.

15. The Tribunal has considered whether the applicant can avail himself of state protection. The Tribunal notes that in its considerations that the actors causing harm in this instance include state actors—the royal family, who can be said to have a real chance of seriously harming the applicant in the future. Given the involvement of the royal family in such persecution, the Tribunal does not consider that the applicant can avail himself of state protection.

16. The Tribunal is also not satisfied that the applicant can safely relocate to another part of Saudi Arabia to avoid the harm he fears in his home areas as the agents of harm are aligned to and authorised by the state. The Tribunal does not consider that there is a location within Saudi Arabia where the applicant would not face the real chance of serious harm arising from his political opinion.

17. For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations. Therefore the first named applicant satisfies the criterion set out in s.36(2)(a).

18. The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa). However, the Tribunal is satisfied that the wife and children are members of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i). As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.

    DECISION

19. The Tribunal remits the matter for reconsideration with the following directions:

    (i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

    (ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

    Nora Lamont
    Member

    
    

    Submissions

    1. Washington Post article ‘The Saudi crown prince is throwing women in jail for speaking up’ AAT Folio pages 66-67
    2. Applicants [social media entries] –AAT Folio pages 64-65
    3. Article of autistic patients: the subsidy is not enough hidden disease does not wait AAT Folio page 61
    4. Statutory Declaration of the applicant AAT Folio pages 58-60
    5. Applicants [social media entries] AAT Folio pages 54-58
    6. [A health service] Speech Pathology Assessment Report pages AAT Folio 48-53
    7. NDIS plan approval AAT Folio page 67
    8. Birth certificate of applicant’s daughter AAT page 21