1700124 (Refugee)

1700124 (Refugee) [2020] AATA 380 (7 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1700124
COUNTRY OF REFERENCE:                   Bahrain
MEMBER:Rodger Shanahan
DATE:7 February 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 07 February 2020 at 2:17pm

CATCHWORDS
REFUGEE – protection visa – Bahrain – religion – Shia Islam – imputed political opinion – participation in anti-government protests – arrest, torture and solitary confinement – protection application in another country – voluntary travel on own passport to a country near home country and deportation from there to home country – coercion to act as police informer – credibility – vague and inconsistent evidence – level of involvement in protests – after return from other country, no attempt to gain information or help from embassy of that country – further travel through country from which he was deported – right to enter and reside in other Gulf countries – right to enter and reside temporarily in wife’s country – immigration status in other country – application for protection in Australia only after application for visitor visa refused – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 15 December 2016 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 Bahrain, applied for the visa on 16 October 2015.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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.
CLAIMS AND EVIDENCE
[Country 1] Protection Visa Application 2011
He was one of the participants in protest marches from 1994. In 1996 his brother [Mr A] and a friend were arrested and were tortured but released after two weeks. [Mr A] was rearrested in 2003 for three months and a month in 2004. The applicant was expelled from school in 1996 because of his participation in the protests but he continued to protest.
In 1997 security forces entered his home, tied and beat him and took him to the police station where he was accused of inciting the demonstrations and beaten and abused for being Shi’a and was imprisoned for two months. He was released on condition that he not take part in any more demonstration but he continued to do so. His brother [Mr B] was also arrested at times and imprisoned and beaten for taking part in protests.
In 1998 while at his grandmother’s he and three of his friends were arrested, asked about their pa5iticpation in the demonstrations, charged with inciting hatred against the regime and he was taken to a room where he was tortured and abused for being Shi’a. He was there for a month and then to prison for a year where he was beaten and put into solitary confinement. He was also detained for short periods at other times.
In 2001 he trained in [Occupation 1] and received a diploma, got a job and then 18 months later left that to become [an Occupation 2]. [In] April 2009 he travelled to [Country 2] and got married [later in] April to a [Country 2] citizen and returned to Bahrain [in] May 2009. In 2011 the Arb spring began and in Bahrain protests broke out on 14 February and he was one of the protestors.
They set up at the Pearl roundabout and on 17 February they were attacked by security forces. He was shot in the thigh by a ricochet but it wasn’t serious. He was one of the volunteers that organised the protest at the roundabout and would start at the evening and go back home in the morning.
Gulf security forces assisted Bahrain and on 18 March forces came and arrested the applicant’s neighbour. Scared that he would be next the applicant contacted his cousin [Mr C] who worked in the [Government Department] for the past five years and sought shelter with him as [Mr C] lived in a majority-Sunni area. The applicant’s home was raided [in] May 2011 and the authorities stole some money and beat his brothers and confiscated the applicant’s car. The next day they confiscated his [work vehicle] which was his only source of income. His home was raided most days as the security agencies looked for him and they also raided his relatives’ homes.
[Later in] May 2015 [Mr C] told the applicant that he had met the applicant’s friend [Mr D] who wanted to escape Bahrain as he was wanted by the security agencies. The applicant said he wanted to escape too because the agencies were looking for him. [Mr C] told the applicant that he wasn’t on a travel ban list and he could leave by the beginning of June when the state of emergency would be over. The applicant asked his travel agent friend to book him tickets for any safe country and he chose [Country 1].
On 2 June 2011 he left with [Mr C] in the car, picked up [Mr D] and weren’t stopped because [Mr C] was wearing his [uniform]. They flew to [Country 3] and then waited to get the tickets for [Country 1]. When they arrived in [Country 1] they applied for asylum. He contacted his family who told him that the medical centre in Bahrain had not let his wife give birth there, they harassed her but one of his wife’s relatives worked at a delivery centre where she gave birth. The authorities had refused to issue his child with a birth certificate.
Protection Visa Application
The applicant claimed that he was targeted by Bahraini authorities because he was a Shi’a pro-democracy activist demonstrating for his rights. He had been tortured while in prison and if he returned to Bahrain he would be arrested, tortured and possibly killed based on a false case. Other details from here essentially mirrored what was claimed in the [Country 1] application.
His mother passed away in May 2012 and his wife was in a severe depression because of the authorities’ harassment of his family so he decided to meet his family in [Country 4]. When he arrived in [Country 4] on 24 May he was stopped by Customs and they told him that he was wanted in Bahrain and he was sent there escorted by two Bahraini special agents. He was questioned in Bahrain regarding his protest activities, tortured very badly and sent to prison for three months.
His parents’ house was raided by the police in July 2013 and he was given an order to attend the CID office where he was accused of protesting and encouraging others and calling for protests against the government. He was again tortured and sexually abused and he was sent to the prison for a month and a half.
Two of his brothers were arrested in front of the family house in June 2014 and charged with protesting against the government. After 7 or 8 months they were sentenced to three years in prison. In September 2014 the family house was raided and his brother [Mr E] was arrested and remains in prison.
In February 2015 he was stopped at a check point and sent to a police station where a police officer ([Mr F]) asked him to spy for them in return for protection. He refused but [Mr F] gave the applicant his mobile number, told him to think about it and then released him. A week later [Mr F] called him and he again refused at which point [Mr F] became angry and started threatening to arrest and torture him and his family unless he began working for them.
He then decided to run away to [Country 1] and applied for an Australian transit visa but this was refused. [Mr F] meanwhile kept calling him and threatening him. The applicant was confused and decided to work for [Mr F] to protect him and his family. But he fed [Mr F] false information or didn’t answer his calls and said he was sleeping or working. After a while it was a big problem so he again decided to flee to [Country 1].
He applied for an Australian transit visa which was then accepted. He was sitting on the beach with his family when the police came and surrounded them, arrested him and after three days [Mr F] came and threatened him that if he didn’t begin seriously working for him he would kill and torture his family. He then left Bahrain via [Country 4] and when he was in Australia he was stopped by airline staff, then he was sick and sent to the hospital.
AAT Hearing
The applicant was asked and confirmed that everything that he had submitted and said previously were correct. It was put to him that he was asked about his education and he said that he studied at the [Institution] but he didn’t outline the dates. He said that he studied there from 2001-2 and had not done any study since then.
He was advised about the presence of documents covered by a s 438 certificate and was told the nature of those documents but that it was unlikely the information contained therein was relevant to his claims.
He was asked if he had a right to enter and reside in any country other than Bahrain, and he named the other five Gulf Cooperation Council countries. It was put to him that he had previously been granted refugee status in [Country 1]. He said he was in 2011 but said it was no longer valid because he left [Country 1] and his visa was expired or cancelled he tried to explain. He said he was not living in [Country 1] on a protection visa but was on a work visa that expired in 2012. He confirmed that he was living in [Country 1] on a protection visa.
Asked when he was granted a protection visa he claimed that he was approved for protection but he needed to provide documents for the visa to be approved. He was unable to say what month/year he was approved. It was put to him that he had submitted a statutory declaration a week ago in which he had said when his protection visa was approved but was now saying he couldn’t remember. It was put to him that he said his refugee status was approved in September 2011.
He claimed that he had to provide documents to a building in [Country 1] separate from the Immigration building. He couldn’t remember what documents he had to provide. Asked why he didn’t provide them, he claimed that he was living in a remote area about three hours away and he worked for long hours, he didn’t speak English and his lawyer didn’t tell him about it until very late – in August towards the end of 2011.
It was put to him that he said he was approved for protection on 2 August 2011 and he said he couldn’t remember. It was put to him that he had written it in his statutory declaration. He said the lawyer sent him the approval papers from the [Country 1] government in late 2011. He was asked if he had them as the Tribunal had requested them and he said he had sent them to the adviser. The lawyer said that the applicant had not provided the papers. The applicant then said he had it on email on his phone. It was given to him by his friend. He again said that he had said he had provided them to his lawyer. The lawyer said he had forwarded what was given to him to the Tribunal.
It was put to him that the document he had provided was a photocopy of a letter from a [Country 1] law firm referring to reasons that were attached but he had not provided the annex. He claimed they were the only ones he had been sent by his friend via phone. He was asked how the Tribunal could be confident the letter was actually from the law firm and not fraudulent and that the only evidnce of a visa was his [Country 1] work visa valid until June 2012. The letter from the law firm came from a friend who e-mailed it and it could be manufactured for all the Tribunal knew. He needed to get in contact with the [Country 1] law firm and provide the Tribunal with a copy of the [Country 1] decision.
Asked if he was ever advised that he no longer had the right to enter [Country 1] and he claimed that he didn’t have formal notification but he was refused entry at the airport so he knew he couldn’t return. Asked if he confirmed with the [Country 1] government what his status was if he had been granted protection, he said he hadn’t. He said that he didn’t know – it was put to him that as an adult he would surely have contacted one of the [Country 1] embassies in the Middle East to confirm his status. He said he didn’t have enough information and was in prison.
Asked if he was in prison all the time from May 2012 – he said that he was in jail for three months from May 2012. He was asked if his relatives approached a [Country 1] diplomatic post to ask them to make representations about someone they had granted asylum to, or whether his friends or relatives had alerted the [Country 1] press to his situation and he claimed that he didn’t. he was in prison in his country and he would have risked his life if they had. It was put to him that he had claimed he was granted refugee status in [Country 1] but provided no document to support this, and left the country without a protection visa (which meant he could have had a [Country 1] travel document). This raised questions about how much fear he felt given his lack of action in getting the visa.
He was not thinking rationally and was driven by his emotions to leave. The member said he was still enquiring about his [Country 1] visa status at this stage. He claimed that his English was very poor and it was difficult to get assistance and his lawyer’s time ended and wasn’t going to be able to help him any more. He was working long hours far away from the city. It was put to him that a reasonable person would find it hard to believe that someone’s claim for protection would be approved but they would do nothing to get a protection visa because they lived far away or their English was poor. He confirmed that he had no current right to enter or reside in [Country 1] but could provide no documentation relating to this. He said he would ask his friend to go to [Country 1] immigration and send all the documentation to him. He had gone to the law firm and they said these were all the documents related to his claim – it was put to him that they weren’t as the annexes weren’t included.
He claimed that in relation to his claim in Australia he claimed that if he returned to Bahrain he would be imprisoned, tortured and/or killed by a special duties police officer named [Mr F]. This was because the applicant had refused to continue to work for [Mr F] as a spy and had fled the country. He also claimed that he was persecuted because he was a Shi’a. He was targeted by the government because of his participation in protests. He could be imprisoned, tortured and killed because of this and his record with them.
Regarding his protest claim he had taken part in many protests and strikes in the 1990s. he was one of the organisers and there was a lot of evidence for this, including the fact that his siblings and all his family were imprisoned and one of them had a mental problem and the other had hearing problems. Asked what he meant by his claim he was an organiser and whether he was a member of a political movement, he said he wasn’t a member but was active in organising photos of the martyrs and banners about freedom for prisoners.
Asked how he actually organised the protests, he said that if there was a protest he and his friends would decide where the protests would go and make sure the protests were peaceful and within their area. Asked how he deconflicted his protests with those organised by the Shi’a political movements, he claimed that he was talking about his local area protests. He was asked where his marches fitted into the scene relative to the movements as the member hadn’t heard about these local independent protest marches during the 1990s.
In the 1990s there were riots and protests the same as today and his participation was on a smaller scale in his neighbourhood but with the same ideology as the big movements. The current protests didn’t happen in the 1990s because there was no one to coordinate these big protests in the 1990s. It was put to him that there were large protests in the 1990s – he said there were no movements to organise big protests in the 1990s.
He was asked why al-Wifaq weren’t able to organise big protests and he said there were no political parties or associations and it was put to him that there were movements, which he agreed. It was put to him that al-Wifaq organised large protests in the 1990s and he claimed that the association didn’t exist in the 1990s and they were only approved later. It was put to him that there was a difference between approved and existing. The same people organised themselves but just didn’t call themselves the movement’s name officially. He said they weren’t licenced in the 1990s and so protests were only restricted to the suburbs and not in the city.

Asked why he didn’t become part of the formal political process after these movement were licenced, he claimed that he didn’t see himself as a significant person – he wasn’t a leader. He just took part. It was put to him that he said he was an organiser (organising the route, handing out pamphlets, making sure it was peaceful) and, after 2000 political groups were allowed so it was strange he didn’t join. On the one hand he was saying he was a leader/organiser, on the other he was claiming he was just a follower. This was confusing.
He claimed that he meant he wasn’t a big leader, he was just an ordinary person. He would attend meetings of associations but didn’t consider himself a full member. It was put to him that he had previously said that he wasn’t part of political associations but now was saying that he attended meetings; this was confusing. He claimed that he attended meetings of several associations if they were talking about rights. He went mostly to al-Wifaq meetings. It was put to him that he hadn’t mentioned them before and was asked what association he had with them. He claimed he supported their ideology but wasn’t a member.
He was detained six times in total, not including times when he was called to an office and made to sign an undertaking. The six times he was put in prison, were from a year to a day. The last time was in 2015. Prior to going to [Country 1] he had been detained five times – two months one time and a year the other. Asked if he was ever charged or went to court, he claimed that he was charged with inciting but he wasn’t taken to court and it was decided by the Minister. He was formally charged. This was in 1997/8. Asked if he had mentioned this on his visa applications to Australia or [Country 1], he claimed he had mentioned it but not that he went to court because there was no question about court but he had mentioned the charges against him.
He was advised about s 424AA and it was put to him that in his short-stay visa application for Australia he was asked if he had ever been charged with any offence or convicted of an offence in any country or been the subject of an arrest warrant and he answered no to all questions. He also answered no top these questions in 2015 as part of a transit visa application for Australia. When he was asked if had revealed this to the Australian authorities he said he had except for the imprisonment. This was not the case and what he had told the Tribunal was inconsistent with what he had written on the forms and this could call into question his credibility.
He claimed that the person helping him fill out the form interpreted it as ‘did you commit any criminal offence’ or ‘are awaiting trial in any country’ and he said no. He didn’t think it related to any political offences. When he was explaining he asked if he committed any crime against humanity or any killing – he didn’t think it was related to any political issue. He had only had one court since 2013. And that was in relation to him protesting.
It was put to him that he had been detained a few times before he went to [Country 1], his home was raided, his [vehicle] was taken, his brothers were beaten and he claimed that he went to [Country 1] and was given protection. Yet despite this and his claim that he was a target of the authorities he left [Country 1] in 2012 – he was asked why he did this. He claimed that he didn’t go to Bahrain but he went to [Country 4]. His emotions pushed him and he thought he would be able to return to [Country 1].
He went to [Country 4] to meet his family for condolences because his mother had passed away. He was asked why he didn’t obtain and travel on a [Country 1] travel document rather than travel on his Bahraini passport. He claimed that he wasn’t aware that he should go to immigration to get these documents, his English wasn’t good and he didn’t have anyone to help him. He was overwhelmed. It was put to him that he was an adult and it didn’t make sense that he would travel to [Country 4] on his Bahraini passport when he could have obtained a [Country 1] travel document. He claimed he had no knowledge that he could obtain a [Country 1] travel document.
He was asked what he did to try to find out. He knew to apply for protection so it was strange that he would know to apply for protection but not know to ask about access to a travel document. He again said he had no knowledge of this and he had not heard about it before. In [Country 4] he was straight away moved to Bahrain. It was put to him under s 424AA that he had been asked if he had ever been removed from any country in his transit and short-term stay visa applications and he had said that he hadn’t. This was inconsistent with what he had claimed to the AAT. This may call into question his credibility.
He claimed that when he was asked he thought it meant whether he had ever been removed from Bahrain. And in [Country 4] he had not actually entered the country, he was removed straight away. It was put to him that he had been asked about any country and that if he had been forced onto a plane from [Country 4] then this may have been reasonable to mention. It was put to him that there was a concern that he had never been removed from [Country 4] and had simply transited through to Bahrain
He claimed that the way he answered it depended on his he understood it. he thought he had to be living in a country in order to be deported. He was asked whether he thought it worth mentioning about his removal from [Country 4] and he said that he mentioned it in Australia.
He was asked why they chose [Country 4] to meet rather than [Country 5]. It was visa-free entry for Bahrainis, they were Shi’a and there would be no change of being deported. He claimed that if they went to [Country 5] they may in the future be charged with connections to [Country 5]. [Country 4] was easiest and cheapest. It was put to him that Gulf Air flew direct to [Country 5] and so it was strange they would charge people for having connections to [Country 5] if the national Bahraini airline flew there direct and many Bahrainis went to [Country 5] each year.
He claimed that if his family was in [Country 5] they could be seen as supporting [Country 5] and given their previous troubles they wanted to avoid it. Once back in Bahrain he was put in prison. He was told that this period was covered in his statutory declaration and was asked if it was all true and correct to which he replied in the affirmative. He was in prison for three months and then he remained in Bahrain. He was then in prison for three weeks and then went to [Country 2]. He was imprisoned in 2012 because he had been charged with protesting and in 2013 he was charged with protesting in front of Bahrain bank. Someone had said they had seen him there.
It was put to him that not everyone at protests were arrested. He had claimed not to be a leader and was asked why they appeared to focus on him. He said he wasn’t a leader but he was an organiser – the member said that he didn’t understand the difference. He said that after he was arrested and questioned they used to ask him who was with him and accused him of hating the regime and inciting others.
He went to [Country 2] in 2013 and had no problems in leaving Bahrain. He went there to take his family to visit his wife’s family. His son had a Bahraini passport. Asked if he had any problems obtaining it, he claimed that he was in [Country 1] during his son’s birth and they wouldn’t give him any documents. It was a huge effort to get him a passport. He was asked why, if the applicant was such a problem for the government that they would issue him one. He said that they raised funds while he was away and were able to get one.
Asked if he could stay in [Country 2] as the husband of a [Country 2] woman, he claimed that he could only get three years’ stay. Asked why he didn’t do this given his alleged circumstance in Bahrain, he claimed that there wasn’t a need at that time as he had been released from prison and he wanted to stay in Bahrain. He also went to [Country 6] for pilgrimage and had no problems entering there. He was asked why, given the close relations between the [Country 6] and Bahraini governments he had no problems entering or leaving [Country 6] and he said that at that time he wasn’t in trouble in Bahrain.
His problems in Bahrain began in 2015 when [Mr F] detained him for a day and asked him to be an informant. In August 2015 he was detained for a second time. He then applied for a transit visa to Australia and then to [Country 1]. But he was ill in Australia. Asked if he was approved to go to [Country 1], he claimed that he didn’t have a visa. Asked how he thought he could enter [Country 1], he claimed that GCC citizens can enter [Country 1] without a visa. Asked if they didn’t still have to get an on-line approval to enter, he stated that one didn’t as he previously went to [Country 1] without any permission.
Asked if he knew anyone in Australia, he said that he didn’t previously but did now. Asked if he had any relatives when he landed in Australia, he claimed that he knew people but had no contact – this included his brother-in-law.
Asked why he was detained by [Mr F], he claimed that [Mr F] wanted him to work as an informant on what was happening in the area. Asked why he was picked out given he was just a low-level person, he claimed that he had been organising the protests and he knew the names of protestors. Asked why he had to leave, he claimed that [Mr F] threatened him and his family and threatened to kill the applicant, but mostly to send him to prison. This was why he left.
He landed in Australia and said that he was sick. Asked if he was really sick he said he was and went to hospital but not overnight (he stayed a few hours). Asked what he was diagnosed with, he said he had chills and aches all over his body. He was asked if he had the emergency department report and he said he didn’t as he wasn’t asked for it.
His purpose of going to [Country 1] was because he had a refugee protection visa application there and wanted protection. It was put to him that he had previously left that country and hadn’t chased them up about his application. He was asked why he thought they would grant him protection again given he had left previously. He claimed that only [Country 1] had given him protection and he didn’t know they had cancelled everything.
He was asked why he had been refused entry to [Country 1] and he claimed that the officer told him that when he left [Country 1] he had breached the law of protection. Asked if he checked with the [Country 1] consulate or embassy whether he would be granted entry given he had left previously. He said they didn’t have an embassy in Bahrain – asked which [Country 1] embassy serviced Bahrain, he said that he didn’t know.
Asked if he had made any enquiries, he claimed that he hadn’t but asked a friend in [Country 1] who went to a lawyer and advised that if the applicant came to [Country 1] they may allow him entry and it may or may not happen. He was asked why he didn’t ask a [Country 1] official at the consulate or embassy rather than speak to a friend. He said he didn’t know if there was a [Country 1] consulate in Bahrain but there was no embassy. It was put to him that it was strange that he hadn’t made himself aware of this.
Asked if he applied for a protection visa once he arrived in Australia, he claimed he did it in different stages. He applied for a visitor’s visa on the advice of the wife of his brother-in-law. He contacted the [Country 1] embassy and government and they told that as soon as he left the country his visa was cancelled. He was asked why he did this in Australia and not when he was in Bahrain and he said he wasn’t expecting [Country 1] to refuse him entry.
Asked why he didn’t apply for protection in Australia straight away if he was going to be killed. He knew he wasn’t going to [Country 1] so his option was to go to Bahrain – he had applied for protection in [Country 1] so he knew what the process was and he was an adult. He claimed he was ill when he came to Australia and he knew he had an application in [Country 1].
It was put to him that the Tribunal was concerned that he was attempting to enter Australia as he knew he couldn’t enter [Country 1], he had a brother-in-law in Australia and he was just [an Occupation 2] in Bahrain so he may simply have been attempting economic migration. There were so many inconsistencies in his story. He travelled in and out of Bahrain easily, he never mentioned his deportation or his charges. His oral evidence appeared unreliable. He claimed that he was speaking the truth.
From Bahrain he travelled via [Country 4] to Australia. He was asked why, if he had been detained and returned from [Country 4] once already that he went through [Country 4] again. He could have flown via [Country 5] or [Country 7] rather than [Country 4]. He claimed that he left through [Country 4] because this was a new plan and they would not think he would do this – they knew he previously went through [Country 3].
He also claimed they had a friend in Bahrain who did a check on the system that said he was able to travel on that day. Asked who the friend was and what system they checked, he claimed that the friend came with him to Australia and didn’t know what he did but he checked the computer and said they were right to go. Asked how he knew what was on the [Country 4] system, he said that he didn’t know what the system said in [Country 4] but these systems were all interconnected and so if he knew what the system in Bahrain said, he would know what the one in [Country 4] said.
It was put to him that the member had served in embassies in [Country 4] and [Country 6] and the countries didn’t all know what was on each other’s security systems – he was invited to provide country information that supported the claim that he made regarding the compatibility of IT systems. It was put to him that it was strange that in 2012 he claimed [Country 4] stopped him and returned him to Bahrain but a few years later he would seek to transit through [Country 4] again when he had other options. This may raise questions as to whether he was actually of any interest at all.
He was asked why his passport in 2011 listed his occupation as a student, and he claimed that when he first had a passport this was what he was doing and in order to change it, the process was long and involved and he just left it. He couldn’t remember when he got his first passport but when pressed he said he was 15 or 16 but he didn’t travel on it.
He was asked why he was given a passport and allow it to be renewed if he was of such security concern. Surely they would want to keep their enemies close so they could monitor them. He claimed that in Bahrain if you are not recorded as wanted or charged then you can renew your passport. It was put to him that he had been detained six times and a police officer was after him yet his passport had never been cancelled. Country information indicated that senior Shi’a activists had had their citizenship stripped and others had their passports cancelled.
He claimed that his case was still their but there was no official court case so he could renew his passport. Asked if he had anything else he wished to raise, he claimed that he didn’t come to improve his economic situation as he earned good money and could have travelled elsewhere in the Gulf to earn money. He had left his child and wife to seek protection.
The applicant again said that he had been in prison and tortured but he had become used to this but if the harm was to his family this would be different. It was put to him that his claim only applied to him. He claimed he left Bahrain because his life was in danger.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on [in] September 2015 on a transit visa, unsuccessfully applied for a visitor’s visa on 1 October 2015 and then applied for a protection visa on 16 October 2015. The Tribunal sighted his Bahraini passport; I accept that he is a national of Bahrain and his application will be assessed as such.
The applicant is a [age] year old married Bahraini national. He claimed that he was a pro-democracy activist, had been tortured in prison and if he returned to Bahrain he would be arrested, tortured and possibly killed.
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 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 much his claim in order to be granted a protection visa.
Right to Reside in [Country 1]
Under s 36(3) of the Migration Act, Australia is taken not to owe protection obligations to a person who has not taken all possible steps to exercise a legally enforceable right to enter and reside in a safe third country other than Australia.
The applicant claimed that he had previously had his refugee status in [Country 1] approved. He was asked to provide evidence of this. He provided the following:
a.His refugee application dated 21 July 2011 (folio 95);
b.A photocopied letter from the Immigration [Country 1] dated 2 August 2011 confirming that his refugee claim had been received, stating that he would be required to attend an interview which are held approximately 20 working days from receipt of the claim (folio 198); and
c.A photocopied covering letter from the [Country 1] Department of Labour dated 29 February 2012 that says that he has been recognised as a refugee (folio 97). It refers to an attached ‘Refugee and Protection Status decision’ but no copy of this decision has been provided;
I do not accept that he is being truthful regarding his refugee status in [Country 1]. He never provided the actual decision, he claims he never applied for the actual visa, never enquired whether he was eligible for a [Country 1] travel document and never enquired what his status would be if he left [Country 1] temporarily. He also never enquired whether he would be able to re-enter before he left Bahrain.
And when he claimed that he was imprisoned in Bahrain, no one in his family nor any friends sought to make this known to the [Country 1] government or to any media organisation. He was even unaware of whether [Country 1] had a consulate in Bahrain or even which [Country 1] embassy serviced Bahrain. It is reasonable to believe that if he had been granted asylum in [Country 1] and then deported from [Country 4] back to his place of alleged persecution, that some effort would have been made to highlight these circumstances.
It is equally reasonable to believe that the applicant would have known whether [Country 1] had a consulate in Bahrain or not, and/or which embassy covered Bahrain. I do not accept that a friend in [Country 1] approached a lawyer there to seek clarification, given the applicant simply could have found out the servicing [Country 1] embassy and spoken to them direct.
The lack of definitive documentary evidence and his actions with respect to contacting the [Country 1] government not being consistent with someone accorded refugee status there, means that I am not satisfied that the applicant is being truthful regarding his refugee status in [Country 1]. As a consequence I do not accept that he has a current right to reside in [Country 1] and therefore his application for protection in Australia will be considered.
Anti-Government Protests
I am satisfied that the applicant may have taken part in some protests in Bahrain, however I do not accept that he has any profile as a political activist or has ever been detained, charged, imprisoned, tortured, sexually abused or deported from [Country 4]. Participation in protest activity in Bahrain by the Shi‘a has been widespread throughout the years, and at its height in 2011 for example, there were an estimated 150,000 demonstrators from the country’s population of 600,000.[1] Given this, I am satisfied that the applicant has likely been one of the many Shi’a who have demonstrated in Bahrain.
[1] Report of the Bahrain Independent Commission of Inquiry, 10 December 2011 (Final revision), p 88

I also accept that the Shi’a face politically discriminatory practices within Bahrain, particularly with respect to political representation and employment in the public sector. I have a PhD in Shi’a political development and have travelled to the country on a number of occasions for research purposes and interact with Shi’a while there. I do not accept that the discrimination felt by the Shi’a necessarily nor automatically meets the threshold of serious harm for s 5J(5) purposes. I note that the applicant was educated, did a course on [Occupation 1] and was subsequently employed. He then bought and operated a [work vehicle] and claimed that he earnt good money, which would indicate that he enjoyed a good economic situation in the private sector.
There are several reasons why I have not accepted his claims regarding being persecuted by Bahraini authorities. To begin with, there is an inconsistency between his claimed level of involvement with protest activity and the interest shown in him by the security authorities. He said that he was a local demonstration organiser, and that he would decide the protest route and attended political movement meetings (but wasn’t a member). He also claimed that he wasn’t a leader and didn’t see himself as a significant person.
Despite this limited level of involvement in protest activity, he claimed that the CID had accused him of encouraging others to protest, he had been deported from [Country 4] to Bahrain, charged with inciting protests and detained six times for between a day and a year, his house was raided, money stolen, his [work vehicle] (his sole source of income) and his car was confiscated, the police tried to recruit him as an informant and his brothers were beaten. His siblings had also been arrested and jailed.
The claims he made regarding the attention security authorities appeared to pay to him (sufficient for example, to have the [Country 4] authorities detain and deport him from [Country 4] to Bahrain) would indicate that he was someone with a significant political profile. Yet despite him allegedly being of sufficient importance to the Bahraini authorities to have him deported from [Country 4] to Bahrain, they neither cancelled his passport nor revoked his citizenship. Country information[2] indicates that Bahrain has revoked the citizenship of 738 people since 2012 for opposing the government, so the fact that he has retained his seems at odds with the focus the authorities have allegedly had on him.
[2] accessed 30 january 2020
His travel history is also inconsistent with someone who fears serious harm from the Bahraini government. Despite claiming to be of interest to Bahraini authorities and having claimed protection in [Country 1] because of it, he then willingly travelled to [Country 4] which is a member of the Gulf Cooperation Council along with Bahrain and a close ally that had sent police to help Bahrain quell largely Shi’a protests in 2011.
After allegedly being deported to Bahrain he was then able to travel to [Country 2] without problems and could have obtained a three-year residency visa based on his wife’s [Country 2] nationality but chose not to. He also travelled to [Country 6] (another GCC country) without incident. He then willingly returned to Bahrain. I do not accept that he was able to do this travel and didn’t ask for a visa in [Country 2] because he wasn’t in trouble at the time. This was only the year after he had allegedly fled to [Country 1] and successfully applied for protection based on the likelihood of serious harm occurring to him in the future if he were to return to Bahrain.
My finding that he wasn’t deported from [Country 4] to Bahrain in 2012 is supported by the fact that he failed to mention being deported from any country on his Australian transit visa application, and because he was willing to travel through [Country 4] again on the way to Australia/[Country 1] in 2015 when he could have taken other routes that didn’t require him to transit through [Country 4]. I don’t accept that he misinterpreted the deportation question as only applying to being deported from where he was living as the question is quite straightforward and difficult to misinterpret.
I am also not satisfied that if the family was of such interest to the Bahraini authorities and they knew their son had applied for asylum in [Country 1], that they would plan a family gathering in another pro-Bahraini government GCC country such as [Country 4] with its attendant risks. If they felt the need to gather the family together they could have done so in a country like [Country 5] where he would not have been at risk. I do not accept that they could have been accused of having connections to [Country 5] if they went there – the fact the Bahraini national carrier flies direct [Country 5] to cater for Bahrain’s large Shi’a population indicates that simply traveling there doesn’t impute someone with a political profile.
I also don’t accept that he transited through [Country 4] a second time as he didn’t want to go the same way as he had left last time, or that he had a friend who accessed the computer system in Bahrain that told him he wasn’t wanted. He could have gone through [Country 7] or [Country 5] first if he wanted to leave via a different route and avoided [Country 4] altogether. And it lacks credibility that his friend could access a computer in Bahrain and determine whether he was on the alert list of the [Country 4] authorities. I do not accept his explanation that ‘all the (GCC) systems are linked’. This does not accord with my understanding of the security systems based on my knowledge and experience of the region and he was unable to provide supporting evidence when given the opportunity to do so.
Because I do not accept that the applicant had any profile as an anti-government Shi’a activist/demonstrator I do not accept that a police officer named [Mr F] approached the applicant to be an informer for the Bahraini authorities, that he ignored him, gave him false information or that he and his family were surrounded on the beach and he was arrested and threatened.
This relies on the applicant’s oral evidence which I have found lacks credibility. I have taken into account a range of documents provided post-hearing in support of his claim but lend them little weight. They include a statutory declaration from his wife essentially repeating claims that I have found to have been fabricated, copies of screenshots of documents purporting to be police summonses – without access to the original documents it is impossible to verify their genuineness and I lend them little weight. They could have been made on any home computer, or altered for example. The fact that they were allegedly issued in 2015 and the applicant has not provided the originals in that time further adds to my concerns regarding their genuineness.
A statutory declaration from the ex-Bahraini soccer player Hakeem al-Arabi was also provided however it simply repeats elements of what the applicant told him – claims that I have found to have been fabricated. There is also a screen shot of a WhatsApp chat between the applicant and his sister in which it is stated that the riot police allegedly came looking for the applicant in 2018. There is no way of verifying that the event actually occurred and it also appears strange that the riot police would be seeking the applicant three years after he left the country.
Other Issues
I do not accept that the applicant was able to leave Bahrain because his friend had ‘checked the system’ and they were okay. He was very vague on the details regarding this rather fortuitous occurrence. He didn’t know what his friend did, how he could access the system, or even what system he was accessing and he was unable to explain how someone accessing a Bahraini computer system would know what the [Country 4] immigration authorities’ systems contained. I do not accept that the systems were all interconnected – given he didn’t know what system was checked it is implausible he would know if it was interconnected with [Country 4]. No country information in support of his interconnectivity claim was provided.
A supporting statutory declaration was provided post-hearing (folio 98) from [Mr G] (with whom the applicant travelled to Australia) that told a slightly different story – [Mr G] had a friend ‘who works for the government’ and that for a sum of money he would fix it so that they could leave Bahrain without being stopped. This is also a rather vague claim and still doesn’t explain why they chose to go through [Country 4] again, or how the friend ‘who works for the government’ was able to fix it so they could transit through [Country 4] without the [Country 4] authorities stopping them as they had done before.
I also note that the applicant didn’t apply for protection when he arrived in Australia but only did so after his visitor’s visa was refused. I do not accept that he was ill or he did this on his brother-in-law’s wife’ advice. Given he had (by his own admission) successfully claimed asylum in [Country 1] previously, it is reasonable to believe that he would have known the same option was open to him in Australia if he feared serious harm in Bahrain. The fact that he first sought a visitor’s visa does little to strengthen his claim to fear persecution in Bahrain.
I do not accept that the applicant’s family in Bahrain would be harmed because of his involvement with the authorities. Given I have not accepted that the applicant is, or ever has been of interest to the authorities it follows that neither is his family or would they be. I also note that the applicant’s son has Bahraini citizenship. I do not accept that he only obtained this because they paid a bribe – this relies on the applicant’s oral evidence which I have found lacks credibility.
As the applicant hasn’t raised any other claims to fear persecution and, having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any 5J reason either now or in the reasonably foreseeable future.
Complementary Protection
I do not accept that the applicant was ever detained, charged, imprisoned, tortured, sexually abused or deported from [Country 4] to Bahrain for organising or participating in anti-government demonstrations, or that a Bahrain police officer attempted to recruit him as an informer.

100. As a consequence I also 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 Bahrain, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
101. 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 s.36(2)(a).
102. 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).
103. 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
104. The Tribunal affirms the decision not to grant the applicant a protection visa.
Rodger Shanahan
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.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

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 the 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.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(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.
…

[2020] AATA 380

7 February 2020

Key Legal Topics

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction