1707097 (Refugee)

[2021] AATA 1222

1707097 (Refugee) [2021] AATA 1222 (15 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1707097

COUNTRY OF REFERENCE:                  Yemen

MEMBER:Rodger Shanahan

DATE:15 March 2021

PLACE OF DECISION:  Sydney

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

Statement made on 15 March 2021 at 6:22pm

CATCHWORDS
REFUGEE – protection visa – Yemen – political opinion – targeted as a Family Member of a Former Soldier – forced military service – support for the Youth Movement and Secularism – credibility concerns – delay in seeking protection – complementary protection – security and general humanitarian situation – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65, 424AA
Migration Regulations 1994, 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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 29 March 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2.    The applicant who claims to be a citizen of Yemen, applied for the visa on 25 January 2016.

CRITERIA FOR A PROTECTION VISA

3. 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.

4.    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.

5.    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).

6.    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.

7. 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

8.    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

Protection visa application

9.    The applicant provided the following statutory declaration with his application:

No current right to enter and reside in China as visa has been cancelled

Although I have lived and run my business in China for many years, I believe that I now have no right to enter and reside in any country other than Yemen. I talked to my lawyer in China about the visa and he told me that when my working permit is cancelled, my visa is also cancelled but he told me that if I want a stamp in my passport I have to send the passport through to get it.

I cannot send my passport to China at the moment because I need it to make this Protection visa application. My lawyer already told me that there is a record of my visa being cancelled, so I hope that immigration here can see that online, or if not, I will have to send my passport to China. In the past 3 months we had been called by police a few times to attend the police department. I feel that middle easterners in particular, Yemenis and Syrians are not welcome. Because of what is happening in these countries.

They are suspicious of us. It's been a while that Yemenis are not able to open bank accounts and we are not able to receive money from overseas. Previously we used to be able to receive any amount of money in our bank accounts but they have stopped this. In the past two years the amounts of money we can receive from overseas the maximum ceiling is only $50,000 per year and not more than that. That has limited our business. To partially solve this problem I opened a bank account in [City 1].

Or, I let the money be transferred to the account of the shipping co and they give it to me. When I don't have a problem with the client knowing who the suppliers are, I can let them pay the supplier manufacturer directly but this is not always commercially realistic. But when I'm worried about that I have two ways, either my account in [City 1] or the account of the shipping company.

Another solution was that I used 2 Chinese nationals who are employees of a friend of mine and there is another person who is married to a Chinese national and his wife has a bank account so I use her account for that purpose too. And my friend who is married to a Chinese national his account has not been closed, it is still open, because sometimes your relationship with the banks can help. He has two accounts, his wife's account and his own account. When the bank demands that he does not transfer money through his account, he uses his wife's account.

I had [a] business so I have money coming in from overseas. As you can see, we have to find ways to get the money in. This is not a reasonable way to be doing business. We have to go around the rules and transfer money through other people's accounts. So you have to break the rules and I have seen people who have transferred money through agents in the black market and I don't want to do that. So yes, it's fair to say that to do business we have to break the rules or get around the rules.

For this reason alone, I cannot reasonably keep doing business in China. It's been a long time now for me that I have to go around the rules and I do not want to operate that way.

Or sometimes the authorities let you operate this way going through different accounts as I have been doing so that when you are kicked out of China they will have evidence on you that you were operating this way. So it's really difficult for me to do business that way.

Also, many people have been accused of money laundering and Yemenis who have transferred very big amount, millions, go through agents. And when the Chinese authorities catch the agents they track down the clients. This has happened quite a few times now. I am not involved in that. I have not been money laundering, just trying to keep my business going in difficult ways.

As for those people, when the manufacturers demanded their money, the manufacturers were taken to the police and the accounts were opened for those people who had been simply operating around rules, not money laundering. And the authorities know that this is the only way for the Yemeni people to operate.

And if they are certain that people were engaged in money laundering, they would not reopen accounts for them again. There are also other things that have made me nervous in China too. I have seen that they have also installed security cameras in my building where I do business, monitoring me.

I have a photo of this camera and I can show it. My building street name and number shows in the photo. I took the photo because I wanted to show my friends that we have cameras on my door. Our building is a [multi]-storey building and I am the only foreigner in the building.

I asked the owner of the building if maybe he has installed the cameras, and he said "no, it's not me, maybe it's the police". And no other buildings around there have the cameras. The Chinese government does not like us to be involved in any political activities. We were told of that many times by the head of the Yemeni community in [City 2]. They have relationships with officials there and the usually give them advice to tell the community not to engage in politics because they don't want the political activity to become a trend in China. So the usual advice is to stick to business and forget politics.

And we have also received advice from the community leaders that we should not spread photos of violence that has occurred in Yemen, they don't want this culture of political activism and violence to spread in china; they don't want Chinese people to be exposed to such things and get these ideas.

They think that when we express our opinions we will teach the Chinese people to express our opinions too. And there are many Yemenis in China that support the previous government in Yemen and I'm afraid that there is a communication between these people and the government in China.

I was summoned to the police station twice, and it seemed like routine questions, they asked me about my business, how many containers I shipped, how much do they cost, and they see the paperwork of my business. And they asked about what types of products I ship, from which manufacturer and which shipping company I use. This had never happened before. This was the first time, in about the end of August; maybe the end of August. The second time was when I applied for the renewal of my visa. The lawyer told me it's normal because I applied for 2 years; I didn't apply for 1 year. That was in September 2015. But it's not normal to me. I have not had this before last year.

My intention had originally been to stay in China forever, but the problem is that the more the situation deteriorates in Yemen, I was scared that it's going to get harder to get a visa in China, so that's why I applied for 2 years. When you apply for 2 years you don't usually get it if there are problems in your business. But I got the two years.

So these things make me worried and psychologically it was very hard for me to keep going in China, with these problems and the issue of the bank accounts and the way we have to do business. I cannot bring my money out of China to Australia; I do not have a big financial benefit to come here.

I have been building my customer base there in China for 10 years and I find it very difficult because I'm losing all my money and business coming here, and I have nothing to do here. And it's very different here than in China. But now I cannot go back to China and I definitely cannot go back to Yemen.

Here I will have to start from scratch and I don't have a thousand years of my life left to start all over again but I'll have to start from scratch. I came to Australia once before, last year. When I came that time, I did think about making a Protection visa application. But it was not all quite so bad then in China and I was thinking about my business that I had been building for 10 years. So I ended up going back to China. I also still had hope that the situation would change in Yemen but now we lost hope because now the previous regime and the Houthis are now fully in charge of Yemen. Previously it was fears; now it's reality.

And as things have deteriorated in Yemen and Syria, it has also deteriorated in China towards Yemenis and towards me. So it became impossible to effectively run my business anymore. Psychologically I feel afraid to continue and in terms of business on the ground, I could continue illegally only. So this is not a safe environment for
me.

After I came here to Australia this time, I instructed my lawyer to cancel my business licence and for this licence I have to pay tax and insurance and fees but I cannot do that because it's a business that is not running so I cannot keep paying these fees.

But after my business licence was cancelled, the working card was also cancelled, because in order to cancel the insurance and all that, you have to cancel the working card. This working card validates the visa. So naturally when the working card is cancelled, the visa is cancelled too. It becomes illegal to stay there.

I am not sure about the process that occurred to cancel the business licence and the working card. I just asked my lawyer to organise these things and he did it. He also told me that the visa gets cancelled too but he told me that we have to talk to immigration to make sure that they are aware that the working card has been cancelled and I'm not doing business anymore. Because we have that obligation to notify them. So my lawyer has told me that he talked to them and that my visa is already recorded as cancelled.

It has got worse for me in China; in September 2015 I was applying to stay for 2 years but by the end of the year I wanted to leave form there. Mainly it was the installation of the camera that scared me. It was installed after I had applied for the visa to stay for 2 years. And also there was a visit of a police officer to my office; he looked around my office and asked me some questions. It was the same type of questions that I had been asked at the station. This happened around November 2015.

This was abnormal for us; I've stayed there for 14 years and I should be treated like a citizen in normal situation. It makes me feel like a criminal having a camera on the door of my office or to get this police visit. And it made me feel like my position in China was not very stable. Because they gave me the visa but at any point in time they can cancel my visa and tell me to leave.

Fears in Yemen

I left Yemen in April 2002. I moved to China as an employee as [an Occupation 1] and I worked as an employee for about 2-3 years and then I opened my own business. The economic situation Yemen at that time, led me to look for a better situation in China; that was my reason to go.

And China was welcoming to foreigners at that time. I started the business because I worked as an employee as [an Occupation 1] for a long time and I was almost the manager because the owner was not present most of the time, so as I had the experience to own my own business, why would I stay as an employee. Everybody strives to be better; no one wants to stay in the same situation.

At the time that I left Yemen, it was purely a financial and career decision; I was not afraid of anything in Yemen at that time. After about maybe 4 years in China, not exactly but approximately, I got married.

The family had a big role in choosing my wife. When this arrangement happened I went back to Yemen and I was introduced to her. After we were married, within a week she came to China. We were together for about 8 months and she was pregnant and I was always travelling, so I thought she could go back and give birth with her own mother
there. Because I was travelling most of the time.

After my child was born, my wife and the baby, my son, came back to China. After they came to China, it was about 6-7 months and then they went back to Yemen. My wife didn't like staying alone at home and I was always travelling so that caused some disagreement. So she liked to go back to Yemen, and that's what happened. She didn't come back again; she stayed in Yemen and we stayed married for a while, and when I went to Yemen, the divorce happened.

At the beginning, my son was living with his mother and my relationship with her family is OK. I was in contact with her family and my son was with her. But then she got married and I took my son to live with my mother and he is living there with her. And I still get on OK with my ex-wife's family and my [relative] who is her father. But it was hard for me for my son to be raised with another family, so that's why I took him in with my family. And I have sent financial support to Yemen for my son.

I am definitely worried about my son's safety in Yemen. And he is also sick in his throat; he has a problem with his tonsils, and they cannot take him to a hospital because he is living in a village with my family and they cannot take him in the city to seek treatment because there is the war in the city and it's under siege; there is no medication going in there and also there is no transportation. It causes him fever a lot, and he was supposed to have the surgery a while ago but we have been advised to wait because it's not safe to go and no facilities anyway.

And this also was one of the reasons why I took my son from my ex-wife because there was lack of care for my son's health and it caused him rheumatism with a fever and he was having one injection every 21 days for more than 6 months. I used to travel to Yemen every year at the time of Chinese New Year. I did not have a big problem in Yemen that I was really afraid of until 2011. There was a slight problem, a tribal revenge issue because one person from my tribe bought a piece of land in Sana'a and it was taken from him and then he killed someone to avenge that. But this was not a personal issue for me; it was a tribal issue. It wasn't causing any fear or problems for us; we are used to it. The guy was killed a long time ago when I was in school and I know a few of
the details but not a lot.

But from 2011, when I got involved in supporting the youth revolution, and after that I have had a lot of problems. As well as my [business] in China, I had a business in Yemen, I was a franchisee for a [Product 1] brand in Yemen and I used to take a percentage for
someone running my shops. I started my [Product 1] shops in the end of 2009.

At the beginning I used to buy from the local market in Yemen and sell but in 2010 I contacted the manufacturer [directly in China]. The [agreement] was not on paper; it was just a verbal agreement. The business was running well and I was exporting from China to Yemen; I was doing very well. The only reason I sold the shops, was because of the threats made to the employees because of my activities supporting the youth revolution.

My businesses were in a street called [name] and it was close to a [named location]. On top of the mountain was a camp that belongs to the National Guard, which is run by [a named official]. So they used to send some soldiers down to Sana'a and they used to burn some business and there was some discrimination against people from Taiz and that's because the revolution started from there and most of the people doing the revolution were from there.

And my employees were afraid and they didn't want to work because of the fears so I had no choice but to sell. The revolution started approximately in February and I had to sell somewhere around May to June. Because no one wanted to stay in the shop. There are people in China who know that I owned a shop in that street. And that's the reason that it happened; the fact that the employees were from Taiz was a side issue and the main problem was that I was the owner. Because 30%-40% of people in Sana'a are from Taiz. But they knew that I have opinions and that I support the revolution.

I think the probability that Yemeni people in China who support the previous regime had passed information about me is about 90%. In my area in China, including their families, there would be maybe about [number], or maybe a bit less, Yemenis. That is an approximate estimation. So there are a lot of people and I am sure some of them are leaking information. Before I sold the [Product 1] business, I had shipped 3 containers from China and I had also paid towards a new order, so it can be seen that I was doing well in the business. The first instalment, the deposit, I had paid for the new order was about $16,000 USD. The business was going really well. I had no other reason to get rid of it.

Likewise, my business in China has continued to do well right up even until I have been in Australia; but it is not possible to run it legally and it is not safe to run it illegally, and also I don't want to do so. When I applied for my current visa to Australia I supplied a tax record; and it can be seen from that, that the business was making profit. I had also given them a bank statement from my personal account and it shows the money going in and out. So it can be seen that I had a successfully operating business. I have not left China for financial reasons.

I have some papers about my business in China, but by law we're not allowed to directly export, so the export records are always in the name of the [company] that we use. But I have many emails between me and the [company]. As for the export companies, usually they benefit that they help us because they want us to get back to them and when they demand US Dollars we transfer this to them from our accounts in [City 1]. They provide the containers and we pay them for the containers. It's a [specified operations] company.

The paperwork is sometimes in the name of the [company] and sometimes in the name of the manufacturer. Anyway, my life was going well until the peaceful Youth Revolution erupted in Yemen in 2011. The support that I gave to the youth revolutionaries in Yemen, as businessmen we tried to support these peaceful protesters as well as we could. I agreed with their cause and their actions.

The support that we provided, it wasn't just me; it was me and other business people. We once sent a container full of [supplies] and sometimes we sent funds, we also sent [clothes] once, we sent financial support for about $5000-$10000 US dollars. When the city was under siege and there was no water in the city we raised fuds and we sent it to an organisation that sends water I trucks to the city. This one related to the water is the only one I have evidence of, I have a receipt for the transfer of the money and it was about 5 or 6 months ago. It was the community that gathered funds for this. It wasn't done in a secretive way, it was known in the Yemeni Chinese community that we were doing this.

We received some photos from Taiz showing that the work was done to show us that the work was done, they were not just receiving funds ad doing nothing. It was shown in newspapers that the community in China was raising funds for this. These are the things that we used to participate in. Our support angered very much the former regime supporters in China. This was why they gave the information that caused threats against the staff in my [Product 1] shop in Yemen.

As for the person who was running my shop in Yemen, he was not educated, so I used to just talk with him on the phone. But I do have one or two emails between me and the person who bought the shop. I have the list of demands that they made for the purchase and it was
valued at $[amount] US Dollars. This included the decoration in the shop the remainder of the rent I had paid and the stock in the warehouse. He initially paid me $50,000 and after a couple of months he transferred the remainder to me.

But there were some people in the market who were indebted to me but did not get my money back from them after I sold the business. Despite all the threats that we had, we still had hope that things would become OK in Yemen, but it has now become much worse.
The last time I went to Yemen was in January 2014.

While I was there on [a day in] February I was assaulted by 2 people when I was coming down from the hotel. Usually in Sana'a I stay in a hotel: I don't stay in house I used to go and have breakfast every morning at about 9AM in a café in the corner of the street, there was no problem for several days. But this day a car was already waiting there. There were 2 people standing next to the car one was standing near the front and one was on the side of the car near the middle of the length of the car; when I was passing next to him he jumped on my head and locking it and trying to pull me into the car by force and I was pushing him back. The one that grabbed me had a gun with him I don't know if the other one or the driver had weapons.

Because of the gun, it had seemed to me that they were either Police officers or army officers, they seemed to me belong to an organisation. Because when I was pushing him away I saw his gun. But have no idea about types of guns, to be honest, so I don't know what type it was. It was on of his body. Also, the way he grabbed me, and how he hurt me on my head, he was extremely strong and it gave me the impression that he had had training. And, had he not lost his balance, I would not have been able to escape. There was a kerb and when I was pushing him he lost balance. The Kerb was slightly higher than the road so he lost balance and fell down. When that happened, the other person came forward to try to catch me but I ran away and shouted to other people to ask for help. I ran away in the direction of the café but there was also a restaurant nearby and people were around it.

So lots of people had gathered when I called out and the 2 men saw that it was a failed attempt they jumped in their car and drove away. There was a driver in the car. it was a huge shock to me when he grabbed me, he might have said something but I was really in shock and it was very quick, less than 2 minutes. so I don't recall what was said exactly: but I think he said something about China, he said something like "welcome to those who are from China" or something related to China. I can't remember anything other than these words I went to the pharmacy and bought a bandage to put it on the side of my head where I was hurt.

Then I went to the house of my sister; it wasn't in the same area because I felt that I shouldn't stay in that area. so I went to my sister's house further away. She and her husband told me that I have to report this to the police so that there is a record of the event. My sister's husband was in [an agency]. He said to me that this is a dangerous situation and something else might happen to me so he instructed me to go and notify the police.

I went to the police station to report this attack. The officer in charge started an incident report and he asked me a few questions, such as why I didn't go to the police station in the same area. And he asked me about the number of persons and the type of car. He also asked me if I had any person in mind that has a motive to do that.

I don't think that anything after that was done. Because nothing is done professionally back there in Yemen. Even the hiring process is not done professionally. I talked with the leader of the Yemeni Community in my area in China and he told me that he cannot intervene and that I should lower my tone. But when I was thinking before about lodging a Protection visa application, I asked him if he could write a statement for me about the things that he knew about that had been happening to me, and he did that.

Also my [relative] is in China as well; he has an office in China and he has relationships with some business people who are Houthis, they usually have gatherings. And they showed him papers of people who are wanted in Yemen had me and my brother were on the list. And I think that was issued from the centre of Houthis in an area called [name]. It appears to be a paper issued from the political office of a group called [Group 1], so that's another name for the Houthi's. They are requesting from [an authority] to blacklist me and my brother and catch us dead or alive. And then give us to the political division of [Group 1] upon our arrival to Yemen. And to give our names to all the security organisations in all the states and all the ports whether airports or seaports because they are wanted by [Group 1]. It also has a signature. I'm not sure if this is a true document or if they are trying to scare us. I haven't returned to Yemen since I saw that document and I have no idea if it's real, but it is one of the reasons why I don't want to return to Yemen again.

I have [number of siblings]. I don't have a lot of contact with my brother who is mentioned in this document because since he got married he is separated from us to some extent. And I avoid being in contact with my family because I don't want to create trouble for them; so the contact is so little. And only one person in my family knows that I'm here in Australia. I don't want them to be worried about me. Because they know that I'm a successful person; I'm supporting the family and all of a sudden I'm a refugee, so I don't want them to be worried,.

My brother who is mentioned in this document is already in Yemen, so I don't know why it would say to catch him when he enters Yemen; he is still enlisted in the army but he does not perform his duties; he is afraid. And because he is from Taiz and there is discrimination t people in Taiz because they think that we betrayed the previous government.

Now he works for trading [Product 2] and he has been afraid for a long time. Another reason that I don't want to go back to Yemen is what happened last time I was there, when I was assaulted. The people in China who were involved with me in collecting the money and sending the support to Yemen, all of them are afraid of what's going on. I am not aware of any of them who have gone back to Yemen. Most of them are looking for alternatives, some of them are thinking of going to Turkey; some of them are thinking of going to Malaysia.

I don't think that Malaysia or Turkey can provide me with protection. About Malaysia, I was worried to move there because there are so many Yemenis there and they will report back on m to Yemen maybe even more than in China. Also, when I went there, they used to tell me not to go out at night with money in my pocket because there are a lot of gangs there and if someone is there who is supporting the previous regime, they can pay a gang
to come and hurt me.

I went to Turkey last year and I investigated the situation; I had thought about buying a house. But I found that people there are unhappy; they do not give them protection, they only give a short term visa. I know that you have to go rent a house and get a visa that is just a short visa; I think it's a tourist visa. And at that time I still had the business going in China. I had been thinking of moving to Turkey but I found that it's even more difficult for me to do my business in Turkey than in China but also the main problem was that I cannot get safety there.

There were protests going on in Turkey; it was Kurdish protests and the political situation there is unstable. The Kurdish minority had the protest there. And I felt that the situation is unstable there. And it was when I was coming back from Turkey that I went to Malaysia, I stayed 2 days there and I can feel it's not a safe place for me.

The reason I came to Australia now is that I am afraid to go to Yemen and I can't keep staying in China because of the problems I have explained. The reason I chose Australia is because it's a safe place; there are human rights and there is no discrimination on the basis of race or religion or anything and it's one of the safest places I can think of.

The situation has got worse and worse in Yemen. Before, we had some hope that it would improve. Now, we have lost our hope. In September 2014 there was still hope because there was still a government in place even though the Houthis has entered Sanaa and taken over some places, they occupied the government's institutions, But the war had erupted in March 2015, and that's when we lost all hope.

During the all this time I have continued to receive threats; nothing has changed. The document that has the threat to catch me and my brother, I received it in October 2014.
The other threats that I have continued to receive have been verbal threats in person; we used to see them a lot. And those people who are threatening me in China, it could be them or it could be other people, we wouldn't know, they wouldn't show us the same face, who are reporting on us, or on me, in Yemen.

Specifically, I fear being killed in Yemen. Now there are people being killed
for no reason, let alone how it would be for a person that they have a reason to
kill.

Relocation within Yemen
I do not believe I can be safe in Yemen by moving to a different
place. I don't think it would solve the problem. Even the areas that are not in the hands of the Houthis, the people who are called the legitimate government are unable to protect themselves and there are assassinations every day so I don't think moving to a different place. This regime has been in place for 30 years so it's not easy to escape them, because they are present in every house or every place.

No authorities will protect applicant
I do not believe there are any authorities in Yemen who will protect me. There is no one that they can protect effectively even if they want to. The only authority that was able to protect people was the old regime and now they are the enemy.

Additional Statements/Statutory Declarations:

10.     Statement dated 31 January 2017:

I have been hiding myself for the last year about anything to do with Yemen. I just stay here and hide myself; I am not discussing with anyone. During this year I stopped to talk about politics and also not to contact with anyone in Yemen except my family. I call every week or two weeks, maybe one time.

I am not contacting anyone else there except family and some special friends or contact with the old customers. About political things I don't contact anyone. Just maybe talk about it with my brothers and with some friends we talk about what's happened but that's all.

But I am now not doing anything like I was before when I am in China. I am not sending money or getting involved anymore. Of course I am worried to do that; 1 am not even safe in this country; I don't have a protection visa here yet, so I have to be careful.

About my visa, they published online that my visa had been cancelled. On [specified] website. It is in Chinese but you can find it if you want to. And now I have heard that Yemeni's China stopped them even to do personal bank account and many Yemeni's they cannot get visa for China. As I had expected, it has become very difficult now there. China I think they support the legal government, but under the table they support Houthis.

This support it cannot be accepted by the legal government. Also I hear that they send also guns to the Houthis. The government in Yemen now, they don't have a real power to control the country and overcome the Houthis. They have to have support of other countries. They are very weak, and actually from my experience for these years, I think they also will not do what Yemeni's want. The same as old regime; just different face. This government is not really support our object, the young revolution object.

11.     Statement dated 13 February 2016

About cancelling the working licence, you have to make an advertisement in the newspaper and if no one writes any case against you, then you can cancel. That's why I said the business was cancelled between January and February. Hadi was elected by both parties to cool down everything. What he was supporting was the ideas of, he was more presenting the opposition's views rather than just presenting one side. He did not represent us, but we supported him because he was the legal president.

After we choose this one, the Houthis and the old government people wanted to take him out by force. He was pushing views that I approved of. If you understand the separation in Yemen it is very clear, I support the person who wants change. But it is very difficult to understand if you don't know the situation there.

He was the legal president to what the views of what the opposition were. Although he was elected by both the Houthis and the opposition. What was the view at that time, he was the person elected by the opposition and the Houthis; it's like a transition period, it was supposed to be two years, and it didn't happen.

The Houthis, they didn't stick to the agreement. They pushed him out by force. So we support Hadi because he is the legal president and carries the view of the opposition. Did I show my support for Hadi in any way? I did not walk around with a poster. I was in China and it's well known that in China it's illegal to go out and show political support.

But when I discussed with the Yemeni community in China, I showed support for the revolutionaries and by extension that means to people that I support Hadi. There are other Houthi supporters in China and when I sit down with people, and I am quite vocal, that is when the Community leader told me to lower my tone. Definitely people in China knew that I am supporting the revolutionaries, which means that I support Hadi.

I cannot get my son out from Yemen; I cannot go to Sanaa to get a passport for my son; I cannot go there. I have not been there since I was attacked. That is why he is there still, I am very worried about him in that situation that they have and also because he is ill. If I was not afraid to go to Yemen, and if I did not have problem in China as well, I would have brought him out after the civil war started.

But after things got really worse in Yemen, and everything became so hard in China too for me, I was really worried If I was attacked just because of being a businessman, why did it not happen before? It could have happened when I had more money with me or why did they not go to my shop in Yemen and attack for money? This thing happened only after I expressed my views in China about the revolutionaries and gave financial support.

If it was just for money, and they know me and know I am in China, they could have attacked my little brother who lives in Yemen, any time and asked me for money. And if they want to take me for ransom when I arrive in Yemen, that is stupid because I am the person with money, how I'm going to give it to them? I don't carry much money in my hand when I go to Yemen, it's illegal to take much money in. My money is in the business, not available to pay out.

About the attack, that happened on the second day that I arrived back in Sanaa, after I came back from Taiz and Aden. I had been in Sanaa maybe a bit less than one week when I first arrived in Yemen and then I had gone to Taiz and Aden. I cannot speculate on why they did not attack me when I first arrived, but it looks like they knew I was in the country and they waited for me to come back to Sanaa.

After that attack happened, I changed my plans and returned straight to China. I booked early on the first plane I could get. My plan had been to be in Sanaa for about one week before I left.

And the flight is not very frequent. I think it's only one or two a week with that airline. And during that time also I tried to find another way but it was also Chinese New Year and it was very difficult to find a seat. Maybe can find to Doha or Dubai but after that cannot get a seat.

The threat letter in October 2014, which was several months after I was attacked in Yemen. I came to Australia in December and I really was intending to apply for protection at that time. I went to see [a] lawyer in [Town 1] about it. I have his card. Even when I went to see him, I got a consultation. We discussed a lot of things; we discussed evidence we should have. And that was the time when I asked the community leader in China to give me the letter.

Maybe about 30 minutes I stayed with him. I spoke with him about protection visa and he said it's very difficult and I have to get evidence. After I was attacked, and after that letter, even though in that time I was thinking to apply for protection, still then we were thinking that things can become OK in Yemen and we were waiting for that. And I have been in China for so many years and running my business. And in that time I thought I would still be OK in China. And I was worried about the difficulty of applying for the protection visa and what if I can't get it.

I also visited an office in the city (Sydney) for 3 consultations. I don't know the name. A charity organisation for helping refugees. I asked them about making a protection visa, I almost wanted to lodge the application then. They did the form with me.

The situation in Yemen, there was no war in that time; now is war. So at that time we did not have big problem in China yet. No security camera in my office, no ask me to go to police station, no police come to my office. In 2015 the war in Yemen did break out, and at the end of August I think, I applied for a new visa in China and it was granted in September. They gave me
a two year visa, I don't really know why but probably because my business was going well.

Because people whose business was not so good, they try to get the two years and they can't get it. I did have to go to the police station once before I got the visa and once after, but the camera was not put up until after I got the visa and the police did not come to visit me at my business until after I got the visa. Otherwise I wold not have applied for the visa; if they did this before I would have just come back to Australia then.

How can you walk around with a camera on your head? It's very scary; something wrong. About why my family can live in Yemen but I can't? They have not been speaking up and providing money. They are not known to oppose the regime or the Houthis. They can't speak up because they are in Yemen, and they would not have sufficient money anyway to support people. They are not involved actually in this issue.

About going to Turkey and Indonesia and Malaysia, I was looking for safety and something close to my own culture. I have met also some people in Turkey who supported the revolution, I have talked to them, they are also not happy there and they are seeking for another place. I have met also one famous person there who is a lawyer, he has many speech in internet, he is well known for his activities opposite the Houthis and he used to give talks and he's a lawyer in the organisation called [Organisation 1], an NGO in Yemen for human freedoms. He was the [head] of [Organisation 1], it was specialising in assisting people being harassed by government agencies. He's
one of those that's running away from the Houthis, they've attacked his house in Yemen; they bombed his house. He was unhappy in Turkey actually; in that time he wanted to go to another place because he was not feeling safe in Turkey, I hear after that he left there, I think maybe to [specified country].

His opinion gave me a big sign that it's not good to stay in Turkey. There was an article in [an Australian newspaper] about him actually in 2010 when he was still Yemen; [the lawyer’s name], Malaysia actually, they don't have protection visa for refugees and also there are very many Yemenis there and I am afraid to be attacked by Houthi supporters there and there is the gang problem there so it's easy for them to get someone to hurt me.

I was not going to Turkey or Malaysia or Indonesia for business. I went to [specified cities] just for tourism; not business, I went to Turkey and Malaysia looking to see if they are somewhere I can be safe.

AAT Hearing

12.     The applicant was asked whether he knew everything that was in his protection visa application and that he knew it to be true and correct and he said that he knew and it was. He claimed that if he returned to Yemen, he would be tortured and killed by the militias in Yemen; the Houthis, al-Qa’ida (AQ), Islamic State (IS), former followers of Ali Abdullah Saleh – there were many.

13.     Because he believed in civilian rule in Yemen and he was living in a foreign country and speaking a foreign language, they considered him something different. He has to serve in the army and would have to kill or if he refused he would be tortured and jailed. Asked which army he would be made to serve in, he claimed it was the militias, not the Army. AQ, IS, The Muslim Brotherhood (MB), the Transitional Council (TC) and the internationally-recognised government of Yemen.

14.     Asked if he had any other claims, he said that in 2011 when the revolution began he was with the youth in the squares. Asked if he was now talking about his claims or this was a new one, he claimed that the army split at the revolution – one for the government and the other against (and for the youth), and he said that threats then came to him and his family. It was put to him that this claim related to him only and he claimed that his brother was with the young people against the authorities. Because of this, there would be trouble for him. Asked what fear he had as a result, he said that the authorities, Houthis and other militias are looking for those who had left the army. Asked what this had to do with him, he claimed that they considered his brother a traitor and his family also as a result. He would be killed because of this. He had no other claims.

15.     He claimed that because he was also supporting the youth revolution they believed this to be kufr and the followers should be killed. They don’t believe in parties, democracy and wanted Islamic rule.

16.     Asked about his claim to be forced to serve in the army or militias if he returned to Yemen, he claimed that because he was educated and had a background in trading and had English and Chinese he could be taken to serve their purposes. Asked which group would do this, he claimed they all would. He claimed that he knew of a person in China who returned and was made to join a group and was killed in battle. Asked if he had any evidence of this other than his oral claim, he said he had heard this from people but had no other evidence.

17.     Asked when he first feared this would occur to him, he claimed that in 2017 after Saleh was killed the militia began recruiting people. People began to move to the mountains in Taiz because of this recruitment. He said he had put in his statement about people moving to Taiz at the start of 2018. He had this fear at the end of 2017 as Saleh was killed in December 2017.

18.     It was put to him that AQ had been active in Yemen for a long time and he was asked why he only had a fear they would recruit him at the end of 2017. He claimed that because there was a Yemeni government and it controlled everyone but after his killing there was no state that existed. They were hoping that Yemen would return back to the old regime but the new one had no control and the militias were in control.

19.     He was asked whether he could provide any country information that supported his claim that these groups began recruiting after Saleh’s death. He claimed he could do this for sure as it existed in the media. He was asked whether the applicant had provided any information to date or it relied only on his oral claim and he said that [his migration agent] had provided DIBP about information regarding these things. Asked if it pertained to AQ/IS were recruiting and he said it was only about the Houthis. He said it was easy to find the information from the media.

20.     It was also put to the applicant that the only information that the member had seen in a quick look of the material provided that claimed the Houthis were forcibly recruiting people came from the Houthi’s opponents and he was asked whether he had looked at the sourcing of the information he provided to the Tribunal – he claimed that he would provide the source after the interview.

21.     Asked his age, he said he was [age]. He had not been in the military before. He was asked why they would be interested in recruiting [an age] year-old with no military experience, and he claimed that they had a desire to recruit anyone they could train – age was no problem. He could also speak English and Chinese and they could use his business background. He again said that someone he knew from China was recruited – it was put to him that unless he could provide evidence then the claim about his friend was unlikely to carry much weight.

22.     Asked if he had made his claim about being recruited previously, he claimed he had made mention of this but not the same way because it changed at the end of 2017. Asked when he mentioned this to Australian authorities, he claimed he mentioned it very shortly as it wasn’t very clear until late 2017. Asked again when he mentioned it, he claimed he believed it was during the DIBP interview. Asked again when he mentioned it as the member had the interview notes with him as he had listened to the interview, he claimed that it could have been mentioned as part of being kidnapped but it may not have been mentioned in real words.

23.     He was asked again whether he had mentioned it as he wasn’t being clear. He claimed he mentioned it as part of being kidnapped but it may not have been as clear as he mentioned it today. He agreed when asked that he had a copy of his interview recording and he was asked to provide to the Tribunal post-hearing that part where he had previously mentioned being recruited. He undertook to do so. He was also asked why the Islamist groups would seek to recruit him given that he believed in a secular government – this didn’t make sense. He claimed that if they didn’t recruit him they would believe him a kaffir and kill him.

24.     Asked what the process would be by which they recruited him, he claimed that they would kidnap him and then recruit or kill him. It was put to him that if he was a businessman then they would kidnap and ransom then give him back. He agreed that this was one of the choices. He said that if he was freed by one then he would be kidnapped by another – he couldn’t escape.

25.     Asked if he had any brothers in Yemen, he said he had [number]. Asked how many of them had been forcibly recruited into militias, he claimed that they had fled to Ta’iz and lived in the mountains. All his brothers and the whole family were there now. One brother had been in Aden and the others in Sana’a. he then said he had [other] brothers, [most of them] in Sana’a. They all moved in February 2018 after Saleh had been killed. The brother in Aden left in March because the TC started to deport northern Yemenis.

26.     Asked if he had mentioned this before, he claimed he hadn’t because it occurred after the interview. Asked if it was in the statement before the hearing, he claimed that it was in the statement given prior to the hearing.

27.     Regarding the claim about Houthis and other militias trying to kill him because of his brother having been in the army and supporting the youth movement in 2011, he claimed that when the army split into two, the group that supported the Youth Movement were either killed, jailed or had to go to the mountains. When the Houthis took over, his brother left the army at the end of 2014. The Houthis took over Sana’a in September 2014. His brother was a normal soldier – his brother ran away from the army because he knew the Houthis were targeting him.

28.     When he left the army, he secretly lived in Sana’a until 2017. He escaped to an area in the mountains around Sana’a – he was not clear exactly what he was doing but he was making and selling [Product 2]. Some days he worked with people that he knew and distributing them under cover. Asked if he mentioned this previously, he claimed that he didn’t put in all the details but said he was working in [Product 2]. Asked if he mentioned that he had left the army and was living in secret, he claimed that he did.

29.     Asked when he feared that he would be targeted because his brother had left the army, he claimed that when he received the message that he was on the Houthi watch list. Asked what month/year he had this fear, he claimed it was from when the Houthis controlled Sana’a on 21 September 2014. But it was greater after Saleh was killed at the end of 2017. He was asked to confirm that he had this fear from September 2014, and he then said it was okay until Saleh was killed. Again asked to confirm that he didn’t have the fear of being killed in September 2014, he said that after the 2014 takeover he had the fear in October 2014 when he found out he was on the list to be arrested.

30.     Asked whether his other brothers had been targeted too, he claimed they had all fled – it was put to him that they hadn’t fled until February and March 2018, and he was asked why no one had targeted them previously. He claimed they had been living secretly and anonymously – their children weren’t attending school. Asked if he had said this before, he claimed he was never asked. He was asked if he had been queried about his brothers before and he said that he had and told them where they lived. Asked whether he had told Australian authorities that they were living secretly in fear of being killed. He claimed he was only asked where his brothers were, but wasn’t asked about whether they were hiding or their fears.

31.     He was asked whether the authorities asked how his brothers could live there without being targeted, and he claimed he was only asked where they lived and what work they were doing. They never asked if they were being targeted or not. He was asked if he was certain that he had only been asked about where his siblings lived and what work they did. He said he mentioned only where they were living and not if they were hiding. He said they lived at home without any communication outside. He agreed that he communicated with his family about once a month.

32.     Asked if he always communicated with them once a month, he claimed that communications weren’t always available so he usually spoke to his younger brother who walked a long distance to get mobile reception. He spoke to him weekly or fortnightly. Asked if he had any country information that showed that family members of former soldiers were targeted in Yemen, he claimed that there was information about deserters previously. Asked about their family members, he claimed that lots of family members had been arrested. He was asked to provide this country information to the Tribunal – he said that he would find it and send it to the Tribunal.

33.     Asked about his claim to be killed by militia groups because of his support for secular rule and the fact that he lived in Australia and spoke English, he claimed that in 2011 they started to support the Youth Movement and this was considered to be kufr. Asked who ‘we’ were, and what he meant by ‘support’, he said that they were business people in China and used to collect donations of clothes or money and would send it to Yemen. They continued to send money for a year.

34.     Asked who it was sent to and whether there was evidence that this was sent, he claimed that he was one of the donators but he didn’t send it directly. Others used to send the money. They had the demonstrator’s point of contact but he didn’t have it. Asked why this was a problem given there was no evidence that he sent anything directly, and why militias would target him because of this, he claimed that they had eyes in China and they could tell who was giving money. Asked how this occurred and how many people knew that he gave money, he claimed that some of the people collecting money were working for AQ, IS or the Houthis and they told people in Yemen who gave the money. Asked how he knew this to be the case, he claimed that he heard this from other people and some people who were collecting were with the Houthis and the previous regime and they knew this was the case.

35.     This was one of the reasons why there was an attempted kidnapping of him in Yemen in 2014 when he returned there. On [a day in] February he left the hotel for breakfast about 0900 and he saw a black car with a driver and two people – one on front and one on the side. As he passed by, the man on the side grabbed him by the shoulder and the neck. He started pushing him into the car, saying ‘welcome to the Chinese person’. He tried to resist and the person lost his balance as they hit the kerb. The man lost his grip and he was able to run away.

36.     Asked what the second man did, he claimed that after his friend lost his balance the other man tried to help but the applicant ran away. He only saw the man who held him had a gun (on his side). Asked about the other man, he said he didn’t see him as he was behind. Asked what the other man was doing as the person was trying to force him into the car, he claimed that he was observing the area and trying to protect the friend. Possibly the applicant may have come out with someone else so they may have needed two people. Asked why the two of them didn’t try to grab him as it appeared to be very amateurish – he claimed that he thanked God that he was saved. He didn’t know their plan.

37.     He was asked why this was connected to providing [supplies], clothes and some money three years prior, and he claimed that when he mentioned the China word, he put two and two together. Asked why they weren’t trying to kidnap him for ransom as a successful businessman from China, he said it was possible but he didn’t think so as there wouldn’t be anyone to pay him the money. He wasn’t carrying much money in the pocket.

38.     It was put to him that they could have got his family to pay them the money from his bank accounts. He was asked why he discounted kidnap for ransom, and he said it was possible but he thought the main reason was because he was donating money. He had been to Yemen a few times before and nothing had happened – it was put to him that the same argument could hold for the fact that nothing had occurred even though he had been donating previously. He had been to Yemen in 2013 and 2014 and in Ta’iz most of the time so perhaps they hadn’t received information about his donations in 2014.

39.     He was asked if he was scared as a result, and he said he was shocked and began to prepare to leave. The ticket was booked for [early] March but he left [in] February instead. He had his fear from the point at which the attempted kidnapping occurred. Asked who controlled the airport, he claimed the government of Hadi controlled it. He didn’t realise he left Yemen he was in so much shock.

40.     Asked if he was politically active against the government or had any social media or other profile, he said he wasn’t politically active but had a political opinion. While he was living in China they weren’t allowed to comment on events in Yemen. Asked if he had been active since he had been in Australia, he claimed he was scared that his family would be harmed. It was put to him that according to him his family was already at great risk and living in the mountains so there didn’t appear that they could be in any more trouble given what he had claimed. He claimed it was more exposed for recruitment or kidnapping if he did this so he didn’t express his opinions.

41.     It was put to him that he claimed to have given some clothes and money in 2011 but this was a decade ago – he was asked why people in Yemen still cared. He claimed it was more dangerous now because there were militias controlling the country. It was put to him that he had no profile so it was strange that people cared in 2011, let alone in 2021. He claimed that he was against the militias and Islamic rule and he was secular and wanted civilian rule and democracy. If he returned he wouldn’t be able to express his opinions.

42.     He came to Australia [in] October 2014. This was after he received advice that he was on a watch list, after the Houthis had taken over Sana’a and after the attempted kidnapping. He never applied for protection on this occasion. He spoke to a lawyer at [Town 1] and also RACS in the city and they spoke about a protection visa, he filled out the form but didn’t hand it over because he was worried about what would happen to his mother and his son so he delayed in handing over the forms.

43.     He was still hoping the situation in Yemen would change and he tried to get his son out but didn’t, and he had a successful business and wanted to keep that going. Asked what his purpose was in coming to Australia, he said it was to apply for a protection visa but he didn’t do it. Asked if he had evidence of these visits, he said that he tried to communicate with them but was unsure if they had records but he would try.

44.     It was put to him that if he came to Australia to apply for protection based on certain claims but never did, this raises questions about his claim. He said that he didn’t return to Yemen and he hoped the situation would change. Asked why he thought things would get better given the Houthis had taken over Sana’a, he claimed that there was an agreement for peace and power-sharing but the Hadi government was in control so there was hope.

45.     It was put to him that the Houthis never recognised Hadi and he agreed that not at that time. Asked if they ever recognised Hadi, he claimed that Hadi was ruling everywhere but the Houthis didn’t adhere to the agreement. Asked if he travelled to any other countries before he travelled to Australia, he said he travelled to [Country 1], [Country 2] and [Country 3]. He was in Turkey in August 2015. He didn’t apply for protection while there as Turkey doesn’t issue protection visas. Asked if they accepted refugees, he stated that the government doesn’t accept refugees but someone can apply through the UN for a protection visa. He didn’t apply to the UN because many Yemenis advised him not to stay because the government doesn’t allow any protection for refugees.

46.     It was put to him that Turkey offered protection, they just didn’t give him citizenship. He said they could a tourist visa for three months and for a year if they rented property. He didn’t know about applying for protection through the UN. It was put to him that it was possible to stay in Turkey as a refugee if they applied through the UN and he said he had no information about this. Asked what he did to find out about this, he claimed he communicated with a lawyer who went to Turkey – he gave him some information but wasn’t happy and he went to Australia. He was then left with a choice of going to Australia or to China.

47.     He was asked why he didn’t apply for protection given the UN could process him as a refugee until a country was found to take him. He said there was no reason to wait for the UN in Turkey when he could come to Australia and apply. It was put to him that the Tribunal had to judge his actions in the first place of safety as to how credible his claim was. It was not about waiting to apply for protection in a country that he wanted to, as this could raise questions about the truthfulness of his claim.

48.     Country information was also put to him that Turkey had been quite welcoming of Yemenis who were applying for protection. He claimed that he never knew that turkey gave protection visa or to wait for the UN to send him to another country wasn’t appropriate and he thought coming straight to Australia was better. Asked what he meant by it being not appropriate for the UN to determine what country he went to, he meant that the people applying through the UN had to wait for tens of years and he had no choices while he had to wait for that.

49.     Asked what his purpose of going to Turkey was, if it wasn’t to apply for protection, he claimed he was just searching the situation there and he would have got his family out if they gave protection visas. It was put to him that he said that he knew they didn’t, so he was asked again what his purpose of going there was. He said he was gathering further information about refugees and also to see if his family could settle in Turkey as it was hard to get a visa for his family to come to Australia.

50.     Asked if he looked to open a business or invest money in turkey, he said he wasn’t. Asked if he had ever said that he went to Turkey to buy property, he claimed that he was thinking if he bought a house his family could settle there. He didn’t buy a house because they wouldn’t get protection even if he bought a house. Asked if he would get citizenship if he bought a house, he said he didn’t know at that time.

51.     Asked if he could get a visa for Turkey if he bought a house, he said that he didn’t have a complete idea. When he knew he wouldn’t get a protection visa he gave up. He repeated that he went to Turkey to get a protection visa and was going to buy a house but when he didn’t get it he didn’t buy the house. He didn’t know whether he got a visa if he bought a  house. It was put to him that he would have looked this up if he went to Turkey with an intent to looking at options for safety and potentially buying a house.

52.     He claimed that he went to Turkey to seek a protection visa but when he found this was not possible he left. Asked how much his businesses in China and Yemen were worth when he sold them, he claimed that the business in Yemen was USD 94,000 and in China he had no assets as it was service only. It was put to him that he was a successful businessman so he had income and accounts.

53.     Asked how much money he had, he claimed that the money in the bank was for his clients and he had to pay for the goods. Asked how much cash he had, he claimed that he had about 2 million yuan but he wasn’t sure. Asked where the money was now, he claimed that he paid off his customers most of it. Asked how much money he had in his account when he left China, he claimed that he transferred money and there was about USD 2,000. He didn’t transfer money to Australia but withdrew it through ATM. There was only USD 2,000 in his account when he left China.

54.     People also had debts for him of about 1.5 million yuan. Asked how old those debts were, he claimed that he couldn’t go out and collect them. Asked where his debtors were, he said they were in China, [another country] and Yemen. Asked what he had been living off since he came to Australia, he claimed that he had about USD 8,000 when he came to Australia and after a while he searched for help and work. He worked for four years as [an Occupation 2] but was now looking for work. He was living off his earnings and couldn’t pay for his lawyer here.

55.     Asked how he paid his lawyer in China, he claimed through his account and the people that owed him money he told them to pay the lawyer. He was asked why they would pay his lawyer but they wouldn’t pay him, and he claimed that the lawyer fees were low (USD 400) but if he asked for his money they complained that business was bad and they couldn’t pay. He had no visa so they couldn’t transfer money to him. Asked why they couldn’t transfer money if he didn’t have a visa, he claimed that there would be a lot of questions and he wasn’t really desperate. He would collect the debts and open a business after he got a visa.

56.     Asked what he did with the USD 94,000 from the sale of his business in Yemen, he claimed that he transferred it to his account in China. He was told about s 424AA and it was put to him that at his DIBP interview he had claimed that he believed his kidnappers were from the army as they looked very well trained and had information about him. Yet what he described today regarding the alleged kidnap attempt didn’t appear to support his claim that the kidnappers were well-trained at all.

57.     This may lead the Tribunal to find that the alleged kidnapping never occurred. He claimed that the kidnapping was from military people because the person trying to kidnap him had a military jacket and only people from the military could get these. Asked if he had mentioned this previously, he claimed the person at DIBP was in a hurry as it was the end of the interview – it was put to him that it occurred about halfway through the interview. He then said that he meant the people were trained and he was strong and he only lost his balance because he hit the curb. Asked why he didn’t mention any uniforms when he claimed they were from the army (he only mentioned they looked well trained). He said his statement mentioned they were either from the police or army.

58.     Under s 424AA it was also put to him that he had mentioned previously that his brothers had lived anonymously but he never mentioned it because he had only been asked what his brothers did and where they lived. In his DIBP interview, he was asked why his family could live in Sana’a, Aden and Ta’iz and yet he couldn’t. he said they could because they weren’t known as being opposed to the government or the Houthis – there was no mention that they had to live in secret. The concern was that he had been asked and had never mentioned the claim he made today that they were forced to live anonymously, and that the inconsistency may be because nobody was after his family.

59.     He said he would answer in writing – asked why he had to answer in writing and was unable to answer the question directly, he claimed he couldn’t concentrate on the question and asked to repeat the question. The question was asked again, and he said in the interview the question was put in a different way and they were living in fear in their homes and they had no contact with others. Asked if he could speak with his agent, he was told that he would be given some time after.

60.     Also under s 424AA it was put to him that Yemenis are able to buy property in Turkey and that those who have USD 250,000 to invest one could get citizenship. It was put to him that he had the necessary assets given the money he had and was owed and so he could have done this but didn’t, which raised questions as to how much he feared his situation in Yemen. He claimed his information was wrong and the money he had was for buying and selling goods – it wasn’t his money and it was hard to collect the debts. At the time this offer of investment for citizenship wasn’t available at this time. He only heard this after he arrived in Australia.    

61.     The situation in Yemen from 2014-17 was totally different to that now. After 2017 they are in the mountains and they have nowhere to live. There is hunger and no health care – it is very dangerous to live at the moment. The adviser said that most of his money went on the market or was owed. In 2015 he only had USD20 or 30,000 and there were too many cheap houses in Turkey and other Yemenis advised him that he could buy an apartment for USD 50,000. He didn’t know about the USD 250,000 citizenship. He didn’t apply to the UN because he had many choices. He was told that he could go back to Australia and decided to do this and try to get his family to join him.

CONSIDERATION OF CLAIMS AND EVIDENCE

62.     The applicant arrived in Australia on a visitor’s visa [in] December 2015, having been here previously from [October] – [November] 2014.  He applied for a protection visa on 25 January 2016.  The Tribunal has sighted his Yemeni passport and his claim will be assessed using Yemen as his country of reference. 

63.     The applicant is [an age] year-old Sunni Yemeni who was born in Yemen and lived in China since 2002.  I accept that he has no current right to reside in China. He claimed that if he returned to Yemen he would be tortured and killed by any of the militias such as AQ, IS, Houthi Movement or any other group because he believed in civilian rule, lived in a foreign country and spoke a foreign language. He also claimed that he would be made to serve in the militia forces and kill people and would be tortured and jailed if he refused. He also claimed that he would be killed by the militias because he was the family member of a former soldier who had supported the Youth Movement and deserted the army; he would also be killed because he supported the Youth Movement and would be considered an unbeliever as a result.

64.     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.

65.     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 truthful witness, and that he fabricated his claim in order to be granted a protection visa.

Targeted as a Family Member of a Former Soldier

66.     I do not accept that the applicant would be targeted because he was the family member of a soldier who had deserted. I am unable to find country information to support this claim and, while the applicant claimed that lots of family members of deserters had been arrested, and that he would find the media reports of this and send them to the Tribunal post-hearing, no such reports were ever forthcoming.

67.     All of his [brothers] were all able to live in Sana’a and Aden until they allegedly fled to Ta’iz in February and March 2018 to avoid this forced recruitment. I do not accept that his brother was a deserter, or that his family had to live secretly in their locations or that they all then fled to Ta’iz to escape forced recruitment. This relies not only on his oral testimony which I have found lacks credibility, but also on the fact that he had never previously mentioned that his brothers had had to live in secret in their locations for more than three years.

68.     I do not accept that he neglected to include this fact because he had never been asked. He wrote a very lengthy and detailed statement in support of his protection visa application (as well as follow-up statements in 2016 and 2017), and even mentioned that his brother worked in trading [Product 2] and had been ‘afraid for a long time’. Yet there was never any mention of the fact that all his brothers were living secretly to avoid being conscripted. It is reasonable to believe that the applicant had every opportunity to raise this pertinent issue prior to the hearing without needing to be prompted, and its prior absence raises serious questions as to its truthfulness. 

Forced military service

69.     I do not accept that the applicant would be made to serve in any militia force in Yemen. To begin with, he is [age] years old without any military experience and it is unclear why the militia groups would seek to place him under arms. I do not accept that they were doing this to everyone and would train them from scratch or that they would recruit him because he spoke English and Chinese and was experienced in trading. If the militia groups were interested in recruiting him to fight against Arabic-speaking opponents, it is not clear why these attributes would be useful on the battlefield.

70.     Alternately, if they were recruiting everyone then it appears anomalous that his [brothers] could have avoided being recruited given they have lived in Yemen all that time, including one with prior military service. As I noted above, I do not accept that they were able to do so because they all lived in secret and moved to Ta’iz to live in the mountains in February or March 2018.

71.     I have taken into account the country information that he provided in support of this claim however I can lend them little weight. Three of the four sources were from Saudi or Emirati media claiming that the Houthis were involved in recruiting child soldiers, while the fourth quoted the Yemeni government spokesman (all opponents of the Houthi Movement) as saying that the Houthis recruited 50, 000 children. The story also quotes a UN report that notes that several groups recruit children but cited a figure of 842 children. 

72.     There is no country information about the forced recruitment of individuals by AQ, IS, or any other non-Houthi group either prior to, or after the death of former president Ali Abdullah Saleh. Nor has he mentioned the fear of being forcibly recruited prior to the hearing. I do not accept that he had previously mentioned it but that the fear increased after Saleh’s death in December 2017. The Tribunal could find no such evidence and the applicant was invited to direct the member post-hearing to that part of the DIBP interview in March 2017 where he had mentioned it, yet he failed to do so.

Support for the Youth Movement and Secularism

73.     I do not accept that the applicant has, or will be persecuted because he was living in a foreign country, speaking a foreign language or because he is a secularist who believed in civilian rule in Yemen. I accept that he may have given some money and clothes to people in China who were collecting for humanitarian assistance purposes in Yemen, however I do not accept that the people collecting were AQ, IS, Houthi or former regime members and they reported the people who donated money to people back in Yemen.

74.     To start with, this belief is not a well-founded one given he claimed he heard this second-hand from people who knew this to be the case. It lacks credibility that China (or indeed the broader Yemeni business community in China) would allow AQ or IS operatives to openly collect money in China to fund their operations in Yemen if their identities were known by members of the Yemeni community. He also stated in his protection visa statement that the gathering of funds wasn’t done in a secretive way, which would also point to the impossibility of AQ/IS members fundraising in China.

75.     I do not accept that the applicant has been placed on a wanted list by Ansarullah (Houthi Movement). He provided a copy of the alleged letter’s translation (folio 24) however I lend it little weight. There is no way of verifying its authenticity, and the applicant himself says that he doesn’t know whether it is real or not. The letter also doesn’t say why he and his brother are wanted. Nor has he explained why only he and his brother are singled out.

76.     In a pre-hearing submission dated 16 December 2020 he claimed that his name may have been placed on it because of his donations to support the Youth Revolution and this was leaked to them from Yemenis in China. Yet it doesn’t make sense that these simple humanitarian donations from 2011 would elicit such a response when there is no indication that other Yemenis in China appeared to have been placed on blacklists, or why his brother’s name was on it.

77.     I further note that the letter was dated 2 October 2014 and he received it in that same month, prior to his first arrival in Australia and Turkey and yet he never applied for protection in either country.

78.     I also do not accept that the applicant was the victim of an attempted kidnapping in Yemen in 2014 because his name had been passed on to the relevant group by their operatives in China. His account of the kidnapping was inconsistent and implausible and, while inconsistencies in recalling an event from seven years previously are to be expected, it is the implausible nature of the action along with the inconsistencies, and his delay in seeking protection after it that cause the Tribunal to disbelieve the claim.    

79.     To begin with he claimed during his DIBP interview that he believed his kidnappers were from the army because they were very well-trained and they had information about his whereabouts. Yet his account indicated anything but a well-trained group of would-be kidnappers. There were two men outside the car and a driver inside. Yet only one of them grabbed the applicant and when he fortuitously lost his footing on the curb the applicant was able to run away.

80.     If there were two men there outside the car to grab him it appears odd that only one of them tried to. If he was acting as a second person in case the applicant came out with a friend then once it was obvious he was alone they could have both tried to put him in the car. It also seems strange that if the person who grabbed him by the head and shoulder was so well-trained and so strong, that the applicant would be able to break out of his grip simply because the person hit the kerb.

81.     I also do not accept that the applicant believed they were in the army because one of them wore an army jacket and only people in the military could get these. He had not mentioned this in his DIBP interview, nor in his exhaustive statement and I do not accept that the failure to mention it at interview was because the interviewee was running out of time at the end of the interview, given the account occurred about midway through the interview.

82.     I also note that, despite having been the victim of an alleged kidnapping in Sana’a in February 2014, he didn’t apply for protection until 25 January 2016. At hearing he claimed that he had a fear from the point at which the kidnapping occurred and allegedly brought forward his departure from Yemen because of it. Yet when he was in Australia in November 2014 he never applied for protection.

83.     I accept based on the letter received post-hearing from RACS saying that he had attended their office on three occasions in late 2014 to discuss applying for a protection visa, and an email from a migration agent who recalled the applicant having approached him to ‘seek advice’ (on what subject was not detailed) that the applicant did discuss the issue. However, the fact that he did not then apply for protection indicates that he did not fear serious harm in Yemen at this stage.

Other Issues

84.     I do not accept that he never sought protection in Turkey when he went there in August 2015 because Turkey did not give him protection and only issued a short-term visa, that the political situation was unstable and there were protests. He provided no country information to support this claim, and what country information there is, indicates that Turkey has been welcoming of Yemeni refugees[1] and [details deleted].[2]

[1] Jonathan Fenton-Harvey, ‘The Forgotten Yemeni Refugees’, Inside Arabia, 30 September 2020.

[2] [Deleted].

85.     While I accept that the scheme whereby Turkey provides citizenship to foreigners who invest in [real estate] didn’t come into effect until after the applicant had left Turkey, the fact that the applicant didn’t apply for protection when Yemenis were able to buy property and Turkey was welcoming of refugees raises further concerns that the applicant was not fearing serious harm at this stage. I accept that Turkey did not provide a protection visa and that the applicant wished to settle in Australia, that does not mean that Turkey would not have provided him protection until he could be resettled.  

86.     I also do not accept that the applicant has received verbal threats. It relies on his oral testimony which I have found lacks credibility, and a letter purportedly from the president of the Yemeni community from his part of China that claims the applicant told him that the applicant was receiving verbal threats from community members. The letter can’t be verified and it simply reflects the author recounting the applicant’s oral claim.

87.     It also lacks credibility as to why he would be imputed with a political opinion for verbally supporting President Hadi while talking within the Yemeni community in China while he lived there, or for sending a single shipment of clothes and [supplies] to Yemen for humanitarian purposes nine years ago. He has no social media or other profile as someone interested in Yemeni politics, let alone involved in them.

Complementary Protection

88.     Although I have found that the applicant has not been truthful to the Tribunal and has largely fabricated his entire claim for protection, and as a consequence I do not accept that the applicant will be forcibly recruited into a Yemen-based militia, that he would be targeted as the family member of a deserted soldier, because he supported civilian rule or had lived in a foreign country and spoke a foreign language, or that he is on a Houthi Movement wanted list.

89.     I do however accept that the security and general humanitarian situation within Yemen has deteriorated significantly since he submitted his application for a protection visa[3], and I am therefore satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm. 

[3] How Severe Is Yemen’s Humanitarian Crisis? | Council on Foreign Relations (cfr.org), accessed 15 March 2021.

90. As a consequence I also accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Yemen, there is a real risk that the applicant will suffer significant harm on the basis of the complementary protection criterion in s.36(2)(aa).

CONCLUDING PARAGRAPHS

1. 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).

2. 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 satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

   DECISION

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

   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.

   …