1707044 (Refugee)

1707044 (Refugee) [2020] AATA 1376 (24 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1707044
COUNTRY OF REFERENCE:                   Yemen
MEMBER:Brendan Darcy
DATE:24 April 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 24 April 2020 at 9:06am
CATCHWORDS
REFUGEE – protection visa – Yemen – religion – Coptic Christianity – raised late only after the delegate’s decision – non-disclosure of apostasy and conversion to family – state protection and relocation – credibility concerns – race – ethnicity – political opinion – South Yemeni secessionism – participation in a public demonstration – particular social group – businessman who is targetted by a more influential authority figure – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
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 20 March 2017 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 Yemen, applied for the visa on 10 November 2016. The delegate refused to grant the visa on the basis that the delegate’s assessment of the country information did not support his claims to have well-founded fear of persecution or a real risk of significant harm if he returned to Yemen.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background
On Form 866C the applicant, [the applicant], claimed to be born [on date] in Aden in southern Yemen.
The applicant provided the Department of Home Affairs (the Department) with a copy of his Yemeni passport.[1], and claimed to be a citizen of the Republic of Yemen.
[1] [Department file number] f.6
According to Form 866C the applicant’s travel history includes:
·[Country 1 from] January 1991 [to] August 1991 for tourism
·[Country 2 from] June 1992 [to] July 1992 for tourism
·[Country 3 from] October 1998 [to] October 1998 for transit purposes
·[Country 4 from] October 1998 [to] October 1998 for [specified event]
·[Country 5 in] July 2007 for transit purposes
·[Country 6 from] July 2007 [to] February 2008 for employment
·[Country 5 in] February 2008 for transit purposes
·Aden City, Yemen [from] February 2008 [to] March 2008 to visit family
·[Country 5 in] March 2008 for transit purposes
·[Country 6 from] March 2008 [to] January 2009 for employment
·[Country 5 in] January 2009 for transit purposes
·Aden City, Yemen [from] January 2009 [to] February 2009 to visit family
·[Country 6 from] February 2009 [to] December 2009 for employment
·[Country 5 in] December 2009 for transit purposes
·Aden City, Yemen [from] December 2009 [to] February 2010 to be married
·[Country 5 in] February 2010 for transit purposes
·[Country 6 from] February 2010 [to] December 2012 for employment
·[Country 7 in] December 2012 for transit
·Aden City, Yemen [from] December 2012 [to] January 2013 to visit relatives
·[Country 5 in] January 2013 for transit purposes
·[Country 6 from] January 2013 [to] February 2013 for employment
·[Country 7 in] January 2014 for transit purposes
·[Country 4 from] January 2014 [to] February 2014 for tourism
·[Country 7 in] February 2014 for transit purposes
·[Country 6 from] February 2014 [to] October 2015 for employment
·[Country 8 from] October 2015 [to] October 2015 for tourism
·[Country 6 from] October 2015 [to] December 2015 for employment
·[City 6], [Country 6 from] December 2015 [to] December 2015 for business
·[Country 9 from] 24 December 2015 [to] July 2016 for employment
·[Country 10 from] July 2016 [to] October 2016 for tourism
·[Country 11 from] October 2016 [to] October 2016 for tourism
·[Country 10 in] October 2016 for transit purposes
The applicant arrived in Australia [in] October 2016 as the holder of a [visitor] visa valid until 18 January 2017. He has not departed Australia since his arrival. Since 19 January 2017 he has held a Class WA Subclass 010 bridging visa granted in association with his protection visa application.
On Form 866C the applicant claimed that his ethnicity is [Country 9] and his religion is Sunni Muslim. He claimed to speak, read and write Arabic and English and to speak Mandarin.
On Form 866C the applicant claimed that his wife and daughter are citizens of Yemen and reside in [Country 10]. He claimed his mother, father, sister and brother are citizens and residents of Yemen.
Written claims
The applicant’s written claims are on Form 866C and statutory declaration dated 10 February 2017. His claims may be summarised as follows:
Public demonstration
The applicant claims to hold the opinion that South Yemen should be independent from North Yemen.
The applicant claimed that in January 2013 he participated in a public demonstration against the influence of North Yemen in the South. The army and national security forces fired at the demonstrators and used tear gas. The applicant initially claimed that he and his friends were arrested at a hospital where they had taken a friend for treatment of a gun wound. The applicant later clarified that the man who he took to hospital was not a friend but a fellow protestor.
He claims he was held at the army base [for two days in] January 2013 and prisoners were randomly subjected to abuse. He was then transferred to gaol and detained in a small cell with about 15 other demonstrators. He claims the lights were on at all times and as a consequence of the random beatings he required stitches for a deep cut on his head. He spent one hour each day in interrogation for 5 days. He was released, subject to reporting conditions, as a result of his father’s influence.
He claims he left Yemen [in] January 2013 to avoid imprisonment and interrogation about his participation in the protest. In relation to his departure from Yemen, he claims he departed from Sana’a to avoid the authorities in his area and he confirmed with a government employed friend that he was not listed on the travel black list. His friend also provided him an airport contact to give him safe passage.
He claims that [in] March 2013 he was sentenced by the [Court] to pay a US$[amount] fine and serve 15 years imprisonment for his participation in the demonstration. He has claimed he was found guilty of participating in political movements, adopting an anti-government approach and helping to create confusion and overthrow the government.
He claims he fears he will be incarcerated if he returns to Yemen.
He claims he did not seek help because the government was his persecutor.
He claims he cannot hide in Yemen. He has no family outside Aden City and the national security police photographed and fingerprinted him.
He claims a neighbour reported finding a police officer looking for him at his apartment complex.
[Country 9] ethnicity
He claims his mother and grandmother have partial [Country 9] ancestry and he experienced discrimination due to his ethnicity.
He claimed a decision to dismiss him from university for missing classes was racially motivated and the College Dean wanted to give his place to a person of Yemeni descent.
He claimed persons of mixed ethnicity do not get the better government jobs.
He claimed it was difficult to find employment in Yemen because of his [Country 9] heritage.
Status as a South Yemeni
The applicant claims it was difficult to find employment in Yemen because he is from South Yemen
Ongoing war
The applicant claims to fear he will be harmed and killed as a result of the violence in Yemen which is in a state of civil war. He claims there is a humanitarian crisis with severe food shortages and in 2015 his house in Aden was destroyed by a bomb in the conflict.
Business dispute
The applicant claims a man named [Mr A] has threatened to kill him and his family due to a business dispute. The applicant fears he will be harmed and killed by [Mr A] and/or his allies.
He claims that in 2012 [Mr A] engaged the services of a contact of the applicant’s for the procurement of [products]. In 2013 [Mr A] and the applicant’s contact had a dispute about the quality of the product and payment for the product. The applicant acted as a translator in relation to the issues.
He claims his father knew the Yemeni Ambassador to [Country 6]. The applicant and his father met with [Mr A] at the Yemeni Embassy in [Country 6], but the dispute was not resolved. He also claims his father approached the Foreign Affairs ministry in Yemen for assistance mediating it, to no avail.
He claims that in late 2013 a group of 10 people with guns, including [Mr A], attended his father’s home because they wanted to the applicant to return to Yemen to talk about the dispute.
He claims [Mr A] has questioned his wife at his home.
He claims [Mr A] visited his wife’s family’s home and accused the applicant of taking his money and providing fake goods.
He claims that [Mr A]’s police friends attended the [Company 1] counter at [location], where the applicant is known because his father worked for the [company], and accused the applicant of cheating a businessman.
The applicant claims that [Mr A] informed his boss at [Company 2] that he cheated him and this is why his boss did not renew his visa and he had to return to [Country 6] at the end of 2012. The applicant’s boss told the applicant’s connections about the dispute and not to do business with him.
He claims that in 2013 and 2014 while in [Country 6] he received aggressive [instant communication applications] messages from [Mr A].
He claims he has received messages from an unknown man that he believes is connected to [Mr A] and is following his family.
He claims that the police will not protect him from [Mr A] because [Mr A] is a member of the same tribe as some of the police and there is a lot of corruption.
He claims his father no longer has connections to the Yemeni government and he cannot protect him from [Mr A].
The applicant provided the following documents to the Department:
a)Judgment by the [Court] regarding the applicant, dated [in] March 2013;
b)The applicant’s birth certificate;
c)The applicant’s passport issued [in] 2012;
d)The biodata page in the applicant’s wife’s passport issued [in] 2009 and an untranslated copy of her birth certificate;
e)The applicant’s [academic qualification];
f)Letter confirming the applicant’s employment at [Company 2] from [day]/03/2009 to [day]/03/2013;
g)A photo of the stage at the demonstration;
h)A photo of the applicant’s home after the bombing;
i)Messages between the applicant and [Mr A], accompanied by an unofficial translation;
j)Messages between the applicant and the unknown person, accompanied by an unofficial translation; and
k)At ff. 4 and 2 of the Department file are untranslated documents;
The applicant’s statement dated 10 February 2017 additionally details his education, employment, military service and family background. He corrects mistakes in information given previously about his wife and daughter’s date of birth and clarifies that his passport was issued with an incorrect date of birth so that he could participate in a sport event in [Country 4].
The applicant attended an interview at the Department on 28 February 2017 regarding his protection visa claims. Following his Departmental interview the applicant’s representative provided the delegate a submission dated 7 March 2017 setting out legal arguments regarding the applicant’s protection claims and country information.
On 20 March 2017 the delegate determined that the applicant is not a person in respect of whom Australia owes protection obligations.
On 4 April 2017 the applicant applied to the Administrative Appeals Tribunal for review of the delegate’s decision to refuse his protection visa application. The decision record was not attached to the review application.
On 10 February 2020 the applicant returned his hearing response on which he claimed to have converted to Christianity.
On 25 February 2020, a pre-hearing submission was received by the Tribunal. Attached was a signed statutory declaration by the applicant which included new claims that since 2018 he has been in contact with members of the Arabic speaking Coptic Church in Australia; that he attends regular church services and bible/catechism lessons; and that he was formally baptised into that church since moving to [another city]. Also attached to the statement included a legal submission, a number of translated documents and photographs, emails, a psychologist’s report and two statutory declarations from [Mr B] and [Father C] attesting to the conversion of the applicant from Islam to Coptic Christianity to be genuine.
On 6 March 2020 the applicant appeared before the Tribunal to present evidence and arguments about his case. The hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The applicant was represented in relation to the review by his registered migration [agent].
Two witnesses provided oral evidence at the scheduled hearing: [Mr B] and [Father C].
Non-disclosure certificates
The applicant’s Departmental is not subject to a non-disclosure certificate.
ASSESSMENT OF CLAIMS
Country of reference
The applicant was born in the Aden in [year] which was then the People’s Democratic Republic of Yemen or South Yemen (which existed between 1967 and 1990). He also provided a copy of his now expired passport issued in Yemeni [in] 2012.
With no evidence to the contrary, the Tribunal accepts the applicant’s claim to be a citizen the Republic of Yemen. Given the personal details provided in that visa application, the Tribunal is satisfied the applicant is indeed an Yemeni national. Yemen is therefore the receiving country for the purpose of assessing the applicant's claims for protection.
Third country protection
The Tribunal has considered whether Yemeni nationals have a right to enter and reside in the Kingdom of Saudi Arabia. Since 1979, the Saudis have tolerated Sunni Yemenis travelling to if for the purposes of work and pilgrimage.
Since 2011, the Kingdom has approved the Nitaqat programme to increase the employment of Saudi subjects. This was partly a response to social unrest arising from the Arab spring. In 2013, the enforcement of this aimed to increase employment among Saudi subjects and reduce the role of irregular migrant. Since then, hundreds of thousands of Yemeni nationals have crossed the border into Yemen. This is despite Yemen being one of the poorest countries in the world and where the security situation has significantly deteriorated. Today, a Saudi sponsor for work is required for Yemenis and other nationals to remain in the Kingdom.
There is nothing in the evidence to suggest that the applicant has an existing residential sponsorship to enter and reside in Saudi Arabia. The Tribunal accepts the applciant does not have a 'right to enter and reside in' any country other than Yemen, of the kind referred to in subsection 36(3) of the Migration Act.
Findings on credibility
The applicant has made a number of claims that he is owed Asutralia’s protection obligations under s.5J(1)(a), this includes:
·His religion as an apostate from Islam to Coptic Christianity;
·His ethnicity as a non-indigenous Yemeni of [Country 9] ethnicity;
·His political opinion, based on anti-government political views in favour of South Yemeni secessionism and his alleged attendance at a protest in Aden in 2013; and
·His membership of a particular social group as a businessman who is targetted by a more influential authority figure.
The Tribunal has considered some of the arguments and evidence to support them somewhat lacking in credibility.
For instance, the applicant’s claims to have attend an antigovernment rally in Aden in January 2013 which became violent and then led to him being hospitalised, were unconvincing. The applicant then elaborated that he was arrested and taken from the hospital by a northern Yemeni militia, detained in an army compound, beaten and interrogated. He further claimed that he was released on bail for the serious crime of treason. Yet somehow the applicant was able to depart from Yemen. While he was outside of Yemen, the applicant claimed to have been issued with a summons and subsequently convicted and sentenced against in absentia. He could not produce photographs of his attendance but provided photographs and reports of the protest (which do not identify or mention the applicant), documents that he was hospitalised and copies of his summons and convictions with translations.

As discussed in the hearing, these specific claims are far-fetched and unsubstantiated and then clumsy augmented with fraudulent documents to augment the applicant’s otherwise weak claims for protection based on the applicant’s written and oral political opinion claims. The Tribunal does not accept the applicant attended a rally as claimed in Aden in 2013 or that he has a real chance of serious harm or a real risk of significant harm based on these claims.
By making such an adverse finding, the applicant has invited the Tribunal to consider that other claims lacked credibility.
Credibility findings regarding the applicant’s apostasy and conversion
On this occasion, the Tribunal has proceeded in its decision making duties by not to making exhaustive adverse credibility claims about his political opinion and other sets of related claims involving his ethnicity and being threatened by a former business partner, although such adverse findings were open to this decision maker.
The timing of the applicant’s late religious claims, it is further noted, were not raised prior to the delegate making his/her decision not to grant the protection visa on 20 March 2017. This has invited the Tribunal to consider this set of claims were presented to augment his otherwise weak claims for protection. Under s.5J(6) of the Act, it is open to decision makers to place no weight on such sur place activities when they are presented solely for migration purposes.
Despite these credibility reservations regarding the applicant’s credibility, the Tribunal found the applicant’s sur place activities whereby he has taken step to convert from Islam to Orthodox or Coptic to sufficiently credible and do not merit triggering making adverse findings about these religious claims pursuant s.5J(6), for the following reasons:
The applicant has outlined in a February 2020 statement that he did not have a deep or strong attachment to Islam while living in Yemen. He claimed that one only finds verses about hatred and killing and punishment in the Quran and stated that Islam is not peaceful or merciful and that many have been killed in its name. He also mentions Muslims stealing from him.
At one level, the Tribunal found this rejection of Islam rather shallow, A lopsided criticism of the Quran which containing verses of condemnation ignore many of the verses that are uplifting or inspirational. It ignores the capacity and character of people who adhere to Christianity or other faith traditions to be kind and act morally are not universally distributed. That former Muslims seemed to be cruel or steal or fixate on transgressions rather than forgiveness is not a sufficient reason to accept the applicant is no longer a Muslim.
The applicant claimed in his February 2020 statement that he was a Sunni Muslim who became curious about Christianity as he travelled through [Country 11] in October 2016 on his way to Australia. He claimed that he observed differences between the mosques and church there and that his curiosity about Christianity further piqued after the applicant arrived in Australia and was assisted by Christian volunteers. The applicant claimed he struck friendship with some Coptic Christians who were kind to him and because they spoke his language, Arabic. This provided him an opportunity to ask questions about Christianity. The Tribunal did not find it curious that the applicant only became interested in Christianity on his way to Australia and not while at university or in [Country 9] or [Country 6] or at some early point in his life, given he is a reasonably educated person.
The applicant further claimed in the same February 2020 statement that he first attended a Church service in [Australia] at [Church 1], met with the priest there. He then claimed to have started to read the bible. When the applcinat relocated to [another city] he claimed started attending [Church 2] in [location]. He claimed he attended regular services and bible studies classes from June 2018. The applicant claimed to have become to become a Christian and was baptised [in] September 2019. Photos of the baptism taken by [Mr B].
In the light that the applicant had attended bible services since 2018, the Tribunal undertook to ask a number that would indicate his depth of knowledge during the scheduled hearing.
The applicant explained that Jesus was crucified and the resurrected after three days. He outlined miracles by Jesus in which the blind and sick were healed. The applcaint further explained about the fasting season of Lent which ended with the Last Supper (‘How Jesus spoke to his Apostles and gave them bread and told them that this is body and drink this is my blood.’). He spoke about the evangelical mission of the Apostles after Jesus’ death although they were persecuted by the Romans.
The Tribunal enquired further into the applicant’s understanding of the Christian season of Lent. The applicant explained that he was fasting to clean his body and soul and to follow Jesus’ example of fasting. He outlined that fasting for Muslims was different and that fasting was easier for Christians, even though he did not fast as a Muslim. He claimed that he had personally stopped eating and drinking between midnight to noon and did not eat either red or white meat as his Lenten sacrifice.
The Tribunal enquired whether he knew which books of the Bibles were ‘The Gospels’ to which he responded it was the four written by Apostles when they heard and witnessed what Jesus did. He was also able to identify Judaism as the religion in which Jesus, the founder of Christianity, had been brought up.
It is noted the applicant made a number of minor factual errors. Overall, the Tribunal however finds that this knowledge of Christianity demonstrated by these responses did indicate a sufficient level of detailed understanding commensurate with someone who regular attends lessons from an Orthodox or Coptic catechist over a two year period and who was living under a degree of psychological distress.
The Tribunal enquired whether he has disclosed with anyone in Yemen about his conversion to Christianity. He said that he has not anyone, including his wife, as he feared his family might be hurt by disclosing it to them and he risked being separated from both his wife and his son. He particularly singled out his father in law as someone who would condemn him. The Tribunal enquired that if this conversion was so deeply held that it would be reasonable to at least disclose it one’s wife as it is what is in your heart. The applicant responded by conceded that the Tribunal was right but he only wanted to reveal his conversion gradually to his family. The applicant further conceded that he told them that he was not proud to be a Muslim due to hypocrisy and issuing immoral fatwas, but not that he rejected Islam and Mohammad as The Prophet.
On one level, the Tribunal finds the lack of disclosure of the applicant’s apostasy and conversion to his wife undermining his claims as lacking a degree of sincerity and/or enthusiasm for his new found faith; on another level, the Tribunal sympathised with the plausible reasons he was cautiousness due to safety and custody concerns if he did so.
In this respect, the applicant reminded the Tribunal during the hearing that he attended counselling due to mental suffering he had been experiencing and because he continually ruminates about his and his family safety. [The applicant]’s evidence about his mental health is supported by a letter from [name deleted], [the applicant]’s Psychologist, dated 20 February 2020, which states in part:
He described symptoms of anxiety with panic attacks, sleeplessness with nightmares related to the wellbeing of his wife and daughter, difficulties with concentration and memory which present as symptoms of derealisation – a dissociative symptom of his condition of anxiety, severe stress, depression and trauma. He spoke of feelings of hopelessness and despair and concerns for his own safety if he were ever to return to his country of origin…
At the end of the hearing, the applicant emphasised that his apostasy will mean martyrdom as a Christian if he had to return to his country of nationality and origin.
The Tribunal found the most persuasive element of the evidence arising from applicant’s claims about becoming an apostate by converting to Christianity, including being baptised into the Coptic or Orthodox Church specifically, to be genuine had been provided by [Father C] and [Mr B].
Compellingly [Father C], the Coptic priest who baptised the applicant, stated in a statutory declaration the following:
I am weary of people of other religious backgrounds wishing to convert to Christianity. The Coptic Orthodox Church treats baptism very seriously. We do not baptise everyone who requests it. We only baptise people where we are sure that they are genuine in their faith. I have declined to baptise people in the past where I have felt that they have not been genuine. I consider myself a good reader of people.
The Tribunal accepts [Father C] undertook his duties in administering the sacrament of baptism to the applicant, both wearily and conscientiously. For this reason, the Tribunal finds that his witnessing of the applicant’s spiritual development should carry significant weight in favour of finding the applicant’s conversion to Christianity to be credible and heartfelt.
Furthermore, the Tribunal has considered [Mr B]’s written and oral evidence as the person has spent the most time with the applicant learning the Christian scripture and doctrine. [Mr B] said this conversion to Christianity was more spiritual than it was intellectual or theological. The applicant often struggled to take in the catechism lessons (conducted in English) over a two-year period as he was constantly pre-occupied with the safety of his family as well as dealing with his own trauma. He said he was constant looking for answers regarding suffering and pain (theodicy) and truth. The applicant also struggled to understand the difference in meaning with Arabic words used by both Arabic speaking Muslims and Christians.
In the context of [Father C]’s evidence, the Tribunal has also placed significant credibility weight on [Mr B]’s oral testimony.
When cumulatively considering the relevant evidence, the Tribunal has been able to overcome some of its adverse credibility concerns about the applicant’s claims and it accepts the applicant is a genuine and credible apostate from Islam who has genuinely converted to Orthodox or Coptic Christianity. The Tribunal assesses it would placing undue adverse weight on his reluctance to disclose his apostasy and conversion to his family in Yemen, considering he has provided plausible reasons in not doing so. It accepts that the applicant has undertaken bible studies or catechism lessons and attended Coptic liturgies on a regular basis over a sustained period of time since 2018. It accepts the applicant has been accepted carefully but warmly into the Coptic community in Australia. The Tribunal finds these sur place activities were not solely or partially motivated in order to augment his claims for protection, some of which appear to be lacking in credibility.
The applicant should be aware that the Tribunal only reached these credibility findings marginally in his favour.
A well-founded fear of persecution based on the applicant’s religious claims
The Tribunal has considered whether the applcaint has a real chance of serious harm based on his accepted religious claims if he were to return to his home area of Aden in Yemen.
At the time of writing this decision, Aden is currently under control of the Southern Transitional Council (STC). Backed by the United Arab Emirates, the STC’s alliance with the central government led by Abdurabbuh Mansur Hadi since 2012 (or the Hadi government) broke down and it seized control over Aden in January 2018. The STC had backed the Hadi government which effectively controls Aden and the Hadi government remains only nominally present, although for intents and purposes is autonomous. The Southern Movement (or al-Harakarat al Salmiyya lil-Jaunab or Peace Movement), according to Jane’s Sentinel Security Assessment from December 2017, is an umbrella movement compromising a number of different political factions in southern Yemen who opposed the administration of the late President Saleh and failed to gain concessions about greater autonomy for southern Yemen from current Hadi government.
The Hadi government had been in control of Aden since 2015 and was its de facto capital while Sana’a was occupied by the Houthis. A remnant of the official government led by President Hadi which is principally backed by Saudi Arabia exists in Aden. Hadi’s Presidential Protection Force commanded by his son, Nasser, is tolerated in Aden by the STC.
Both the UAE and Saudi Arabia oppose the Iranian backed Shi’ite Houthi rebels or government as well as Al Qaeda in the Arabian Peninsula (or AQAP) but have diverged with regards to the coalitions and tribal militias and strategic goals.
Jane’s updated October 2018 assessment claimed that the UAE and its allies are focussed on degrading the AQAP presence in the area and restoring order to the cities under its control. It also reports that the UAE works more closely with the United States in fighting the AQAP but the STC also fights the influence of the Houthis whom they blamed for firing missiles at a military graduation ceremony in southern Yemen in August 2019. The UAE is also committed to thwarting the Yemen’s Muslim Brotherhood (Al Islah) who, it blames the Arab Spring unrest. However, Al Islah is in alliance with the Saudi-backed Hadi government. Subsequently there are periodic clashes between the government forces and the UAE-sponsored ‘southern belt’ militias.
As this short outline of the political and military environment in Aden demonstrates, the situation in the applicant’s home area is complex, dangerous and dynamic.
According to the United States Department of State’s 20-12 country report on human rights practices, under the Yemen criminal code, “deliberate” and “insistent” denunciation of Islam or conversion from Islam to another religion is apostasy, a capital offense. The situation in Aden under control of the STC is not so dynamic that the Tribunal was able to locate any country information to indicate any improvement of the human rights environment with regards apostates from Islam.
The 2018 State Department report on religious freedom states that more than 99 percent of Yemen’s population of approximately 28.6 million people belong to either the Shaf’i order of Sunni Islam or the Zaydi order of Shia Islam, with an estimated 65 percent of the population Sunni and 35 percent of the population Shia.[2]
[2] United States Department of State, 2018 International Religious Freedom Report, Bureau of Democracy, Human Rights, and Labor, pages 1 and 3, available at >
The number of people from other religions, including Christians, is indeterminate but estimated by the United States Government as less than 1 percent of the population. The watchdog group Open Doors estimates there are a few thousand Christians in Yemen. Yemen has been named as the eighth most dangerous country in the world to ‘follow Jesus.’14 The chaos resulting from the ongoing civil war in Yemen has made an already difficult place for Christians more difficult by allowing increased persecution.[3]
[3] Open Doors, World Watch Research, Yemen: Country Dossier, 2020, page 5, available at >
The Annual report of the United Nations High Commissioner for Human Rights and reports of the Office of the High Commissioner and the Secretary-General on the ‘Situation of human Rights in Yemen, including violations and abuses since September 2014, Report of the detailed findings of the Group of Eminent International and Regional Experts on Yemen’ dated September 2019 (OHCHR report) states that it has reasonable grounds to believe that the de facto authorities in control in Yemen have unlawfully restricted fundamental freedoms of opinion and expression, peaceful assembly, association of freedom of thought, conscience and religion. [4]
[4] Annual report of the United Nations High Commissioner for Human Rights and reports of the Office of the High Commissioner and the Secretary-General on the ‘Situation of human Rights in Yemen, including violations and abuses since September 2014, Report of the detailed findings of the Group of Eminent International and Regional Experts on Yemen’, September 2019, page 100, available at >
This country information represents one of the most hostile environments among any of the Muslim majority nations for apostates from Islam to another religion. Noting the accepted political situation in Aden at the time of writing, the applicant does appear to have a real chance of his religion being discovered, leading to arrest, long term detention and even capital punishment, amounting to serious harm as outlined in s.5J(5)(a).
Based on the Tribunal’s assessment of the country information above and notwithstanding the Act’s effective protection and relocation considerations, should the applicant return to Aden as his home area, the Tribunal accordingly finds that the applicant as an apostate from Islam to Christianity will face a real chance of serious harm based on one of the reasons mentioned in s5J(1)(a), namely his religion, in the reasonably foreseeable future.
State protection and relocation
The Tribunal finds that the applicant is unable to avail himself of the protection of the authorities within Yemen pursuant to subsections 5J(1)(b) and (c) and 5J(2).
Firstly this is because there is no central authority in Yemen which is experiencing a civil war while its population endure considerable deprivation. While there are recent reports of the parties in Yemeni negotiating for a cessation of hostilities which may lead to greater security, the Global Centre from the Responsibility to Protection describes the internal security situation for April 2020 as thus:
Last Wednesday, 8 April, the Saudi Arabia and United Arab Emirates (UAE)-led international military coalition announced a two-week unilateral ceasefire in Yemen. The Houthis, who released their own eight-page peace plan the same day, have alleged the ceasefire was nothing more than “a political and media maneuver.” Although fighting has decreased, the ceasefire remains tenuous as some ground attacks and airstrikes continue.
The ceasefire declaration in Yemen was a result of a 23 March global initiative by UN Secretary-General António Guterres calling for all warring parties to cease hostilities and focus efforts on combatting the COVID-19 pandemic.
In a 10 April Press Statement the UN Security Council welcomed the announcement by the Saudi/UAE-led coalition and called upon all other parties to similarly commit to a ceasefire. The UN Special Envoy for Yemen, Martin Griffiths, also welcomed the announcement, stating that, “The parties must now utilize this opportunity and cease immediately all hostilities with the utmost urgency, and make progress towards comprehensive and sustainable peace.”
The coalition’s declaration comes after more than five years of war characterized by rampant war crimes and the death of more than 12,000 Yemeni civilians. Hospitals and medical facilities have consistently been targeted by all parties to the conflict, with these war crimes severely affecting the country’s capacity to confront COVID-19. Flight bans and closed border crossings, imposed to stop the spread of COVID-19, have also disrupted life-saving humanitarian operations, exacerbating what is already the world’s largest humanitarian crisis.
Earlier this week Yemen officially recorded its first COVID-19 case. In order to prevent a COVID-19 outbreak from further devastating the country, all parties to the conflict must immediately halt the restriction of humanitarian operations and end blockades that prevent essential commercial imports entering Yemen. A comprehensive ceasefire should be established and rigorously upheld by all parties to the conflict.

This recent country information indicates that throughout Yemen, conflict and poverty is widespread, humanitarian aid is low and even targeted by combatants. Any peace initiatives for the foreseeable future will remain fragile and precarious and there is no suggestion they will include initiative to protect religious minorities or apostates.

100. Secondly, none of the authorities with territorial control of parts of Yemen controlled by the UAE-backed Southern Transitional Council can provide effective protection measures to the applciant. This includes much of southern Yemen and the island of Socotra as well as Aden where the applicant ordinarily resides. In these areas, there is no evidence that the authorities do not enforce Islamic and secular laws against apostasy or that apostasy is not a capital offence. In this way, the applicant can not avail himself to the effective protection measures in his home area or any area controlled by STC or Southern Movement more widely.
101. The same hostile laws and practices against apostasy are reflected in those area controlled by the Hadi-led government and its allies backed by the Saudis. Citizens and human rights groups allege that the security forces and judiciary do not normally observe due process. There are reports of the Iranian-backed Houthis intimidating Christians with the areas it controls, including forcing them to wear attire to identify them. Other parts are precariously controlled by AQAP for whom apostasy from Islam, it is reasonably to assess, will lead to summary execution if discovered. There are no credible reports of effective protection of any religious minorities, including Christians, Baha’I, Jews and Isma’ili’s, throughout Yemen, and there are no laws to protect Muslim converts to Christianity.
102. Given the combination of Yemen’s deteriorated security situation and the lack of protection for apostates from Islam throughout Yemen, the Tribunal does not accept relocation within any areas outside Aden for the applicant will not lead to an appreciable and forseeable risk of persecution based on the applicant’s religion in the foreseeable future.
103. Considering the evidence in this applicant’s credible claims about his apostasy from Islam to Christian and the assessment of that Yemenis who convert to Christianity are not offered any effective protection measures within that country, the Tribunal is satisfied that the applicant faces a real chance of serious harm for a nexus reason mentioned in s.5J(1)(a), if he were to return to Aden specifically and Yemen more generally in the reasonably foreseeable future.
Unreasonable modification of behaviour
104. The Tribunal also accepts, as the applicant’s representative has argued, falls within the exceptions outlined in subsection 5J(3) as it would be unreasonable for him to modify his behaviour so as to avoid persecution in relation to the applicant’s religious beliefs and personal conscience, if he were to return to his country of nationality.
105. For these reasons stated above, the applicant has a well-founded fear of persecution if he were to return to his country of nationality and origin and is a refugee for the purposes of sections 5H(1) and 36(2)(a) of the Act
Conclusion
106. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
107. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Brendan Darcy
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 1376

24 April 2020

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