1722599 (Refugee)

1722599 (Refugee) [2021] AATA 3309 (4 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1722599
COUNTRY OF REFERENCE:                   Bahrain
MEMBER:Rodger Shanahan
DATE:4 June 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 June 2021 at 8:33am
CATCHWORDS

REFUGEE – Protection visa – Bahrain – religion – Shia Muslim – anti-government views – participation in protests – inconsistent evidence – delay in lodging the visa application –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5J, 36, 65, 424, 499
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 14 September 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Bahrain, applied for the visa on 26 February 2016.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
Protection Visa Application
The applicant made the following statutory declaration in support of his protection visa application:
I was bom in Manama, Bahrain on [date]. My father works as [an occupation] at [a workplace] in Manama Bahrain. My mother works in the same [workplace] as [an occupation]. I have [number of siblings]. Our family have lived in the village of [name deleted], which is a suburb of the capital of Bahrain.
When I was [age] years old I began school at [a named school] in [a named town]. I spent about 11 years at that school. 1 completed level 11 in April 2014. My family are Shia Muslims. The Government of Bahrain is Sunni Muslim but 75% of the population of Bahrain are Shia. The Government does not allow Shia Muslims to work in the army police or any VIP position. Shia Muslims are not treated equally.
[In] February 2011, as part of the Arab spring the Shia people in Bahrain became active and wanted their freedom and to be treated equally as Sunni people. There were daily rallies in [Location 1] in Manama. I wanted to be treated equally so I went to these rallies with my cousin, [Mr A]. My other cousin [Mr B] went to the rallies as did my parents. My grandmother stayed home with
my younger [siblings]. At these rallies there would be about 300,000 people. There was a stage and speakers would talk. I would carry a paper for freedom and rights. The protest was peaceful. We wore masks as people were afraid they would be identified. On two occasions I slept [there], otherwise I would stay with friends or go home at night.
Between [a period of time] on [date] February 2011 I was sleeping in a tent [at Location 1] where the Bahrain army started shooting at us and using tear gas. People started running. I fainted and was carried by another protestor to a house. Five people were killed that day in the [Location 1].stayed in the [Location 1] but after three days they allowed us to come back. 1 went every day to the [Location 1] and joined the peaceful protest. On [date] March 2011 the armies of the six United Arab countries, Qatar, Kuwait, Oman, Bahrain, Saudi Arabia and United Arab Emirates in the afternoon entered the [Location 1] and started shooting.
I was there and 1 ran away along with lots of other people. About 15 people were killed and many injured. 1 ran to a house nearby, hid until night and then went home to my village. After that the army controlled [Location 1] and there were no more rallies there. However, the Sftia people continued their protests in their local villages. In my villages we had protests every day in the street. I would only go after school but some days I could not go to school because the army and police would not allow anyone to leave or enter the village. There were always checkpoints around the village and on the main highways.
In September 2014, I went to Iran with my parents on a religious trip to visit holy sites. My parents would go every year. I had gone as a small child with them but this was my first trip that I remembered. We went to Qom and Mashed. We left by plane and at the airport we were asked why we were going but they did not stop us. When we were in Qom, my uncle, [my] father’s brother telephoned my father and told him that his son, [Mr B] and his sister’s son [Mr A] had been taken by the secret police and were in jail. My uncle knew they were the secret police as they wear black masks and yellow shirts with the word POLICE on the back. They had come to the house with guns.
My uncle told my father not to let [applicant] come back to Bahrain as he would be in danger as the police were focussing on young men who had been involved in the protests. My father told me that I could not return to Bahrain and he wanted me to be safe so he found me a place to stay in Qom. I lived in a shared house and he sent me money. My parents went back to Bahrain after about two weeks and when they went to their house there was a note telling them to go to the police station in the village of [name deleted]. They went to the station and were asked where is [the applicant] and they told them he was on a religious trip. I do not know what else they told them.
Since my parents returned to Bahrain they have told me that the secret police have visited the house about four times, they break the door down, smash furniture and ask where I am. They have even threatened to take one of the family as a hostage until I return. The. last time that I have heard of a visit was in September 2015.
My cousin [Mr A] has been sentenced to 15 years in jail in Jaw. I know that [Mr B] is still m jail but I do not know for how long. I know that a lot of young who were protesting with me have gone to jail, been arrested or have disappeared. I fear that if I return to Bahrain I will be taken away when I first arrive and will be put in jail. I will be hit and harmed by the police. I know this is what happened to [Mr A] when he was first arrested.
I do not keep in contact with my parents as I am afraid that the Government will find out where I am or they will threaten my parents if they know that I am in contact with them.
16. Bahrain is a small group of islands and I men am not safe anywhere in the country
because the police will find me. I cannot go and live in the other five Middle East countries because they are united together and I will be arrested wherever I am because I am Shia Muslim and have been actively involved in the protests. I fear that I will be treated like my cousin [Mr A]. The Government is still controlled by the Sunni and there are still protests in
the country. I am not safe there.
AAT Hearing
The applicant stated that his English was good enough to conduct the hearing and the member said the interpreter would be sworn in and used if necessary. Asked what the bundle of documents contained that had been handed to the member, he said that they were photos of the general situation in Bahrain and included photos of him at protests in Australia.
The documents in his file were gone through with him, and he was asked about an untranslated screenshot that had been provided. He said that it was of the lawyer who represented his cousin. He was asked to provide a translation of this. She had no website for her practice nor any professional social media page, only a private one and he had not asked her for it. Her offices were in Manama in Bahrain.
Asked if there were any documents that the Tribunal should have, the adviser offered two documents. He was asked why they weren’t sent previously and said he had only came across them late yesterday. He was advised that he could submit them post-hearing with a covering statement showing their relevance, or provide them to the member prior to a natural justice break so he could have a chance to scan them. Asked what their relevance to the applicant’s claim s were, he said that one was from the European parliament the . provide them subsequently with an explanation – he said that one was from the European parliament pointing out the obligations of the European parliament to Bahrain and the other was the Universal Periodic Review and spoke to respecting human rights and mentioned respect for the legitimate human rights of Bahraini citizens. He said the Australian government should therefore have regard to the legitimate rights of the Bahraini citizens. The documents wree never provided to the Tribunal post-hearing.
He claimed that if he returned to Bahrain he would possibly be killed or harshly sentenced as a result of his political views by the government of Bahrain and participation and because he was a Shi’a Muslim. His cousins were arrested and had been asked where the applicant was at the time they were arrested. The applicant was advised that the Tribunal had received letters from five human rights organisations in support of his application and the Tribunal had written back to them asking for how they had obtained their information and what advocacy they had undertaken on behalf of the applicant’s cousins.
The applicant was advised that the member had been to Bahrain on several occasions and was familiar with much of the background regarding the political protests so he could dispense with much of the general background as the Tribunal wanted to focus on his particular circumstances and what persecutory behaviour he claimed to have been subject to.
The applicant claimed that there was a refugee in 2019/20 who sought asylum. It was put to him that the Tribunal was only interested in his claim and he said that on [date] February 2011 Shi’a were protesting for their rights against the Bahraini government. He participated in the protest in his village and [Location 1]. The [Location 1] was his forst protest and he was about [age] years old and he was with his parents – his cousins were also there. He had no photographic evidence that he was there.
There were more than a thousand people there. It was put to him that there were 300-400,000 people there, a large percentage of the Bahraini population. He agreed this was the case. On 19 February the protests were attacked by the Bahrain army after being given the green light and he was sleeping in one of the tents. He was with his cousins (not his parents) and fainted. Asked why his parents would let an [age] year-old child stay unsupervised at [Location 1]. He said his cousins were his supervisors ([Mr A] was [age] years old). He said this was normal in Bahrain and they lived [not far]. It was put to him that it may be normal to stay over at the cousin’s house but staying alone at a highly charged political demonstration was another thing – it appeared strange.
He was taken to the nearest house but there were no photos taken of him. It was strange there was no photo of him given that advocacy groups would like to show an [age]year-old in distress. Asked if there were any media reports of him being gassed and he said that there wasn’t. He was at [Location 1] with his parents days later when the GCC forces attacked. He lost his parents and he hid in a house until night-time and returned to his house.
Protests began again in the Shi’a suburbs after [Location 1] was cordoned off. Things calmed down later and in September 2014 his parents decided that they should go on a religious pilgrimage to Iran. His cousins were targeted and arrested at this time and the applicant’s father received a call from his eldest brother [Mr C] ([Mr B]’s father) saying that [Mr A] and [Mr B] had been arrested and they had been asked about the applicant’s whereabouts. His family were all scared for him so they left him in Qum and came back to Bahrain where there was a letter awaiting them.
Asked if he was politically active after 2011, he said he protested in his village whenever there was a demonstration. Asked how many demonstrations he was in between March 2011 and September 2014 he protested every two or three days. His parents also protested. Nothing happened to either him or his parents during this time, nor were there any photo of he or his parents protesting at this time.
[Mr A] and [Mr B] also protested with the same regularity. Neither they nor his parents had any leadership roles in the protests. Their planned trip to Iran was for [a period] between Qum and Mashhad. They had no relatives in Iran. His father arranged the trip. He went to Iran with his father and mother on his own passport through Bahrain airport and nothing happened to them.
They had arrived in Iran and driven to Qum and were in the hotel two days later when his father received the call from his brother about [Mr A] and [Mr B]’s arrest. Asked if the authorities had asked about his parents he said they didn’t. Asked if it was strange they didn’t ask his parents, he said they targeted the son and younger people because they were more active. It was put to him that his parents had been protesting for the same amount of time and being older, so more influential. He said this was what happened.
It was put to him that nothing happened to them between March 2011 and September 2014 after having been in all these demonstrations and then two days after leaving Iran the authorities suddenly arrest both his cousins and ask only about the applicant and not his parents. The member put to him that this seemed strange and the timing very convenient and the phone call could never be proven.
He said that his parents calmed him down and they then all went to Mashhad and returned to Qum but got him to stay there - when his parents returned to Bahrain there was a letter from the police asking them to attend the station. They asked where he was and said that when he returned he should report to the police station. It was put to him that it was strange they would ask where he was knowing he had left the country. The applicant said that this was the way the Bahraini authorities worked.
It was put to him that his father must have been very nervous given he had attended the same demonstrations as the applicant and his two nephews had been arrested and they were asking about his son. He was asked why the father returned to Bahrain and didn’t just send his wife. He said the police didn’t ask about the applicant’s father. He said that his father was concerned about the son’s future and wanted to know what was going on. His father was a [occupation] in a [workplace] in Bahrain.
They told the police the applicant was in Qum, but the police came to their family house four times and broke their door and gave them summonses – the last time was in September 2015. There was no photographic evidence as it was too dangerous to take photos and be associated with them. It was put to him that he had said they threatened to take a family member hostage until he returned. Asked whether they took hostages, he said they had already taken two family member and had taken others but hadn’t mentioned them.
[Mr B] and [Mr A] were arrested in September 2014. It was put to him that his cousins had been sentenced to 15 years so this was not likely to serve as an incentive to return – they weren’t hostages. It was put to him that they had never taken a hostage – he said the government could do what they wanted but they never took a family member as a hostage such as a younger sibling or his father in the six years he had been away.
He said that they wanted to make him feel secure so he would return and then arrest him. It was put to him that he claimed the government had threatened to take his family hostage and yet they had done nothing. He again said they had taken his cousins but it was put to him that they had allegedly been arrested a year before he left and sentenced so they didn’t serve as a hostage ‘incentive’. They had not taken a direct family member for the last six years – he said their main focus was him not his family members.
He claimed that he would not hand himself back if they took a family member. It was put to him that they didn’t know that and so they could take family members one by one and ratchet up the pressure yet they never even took a single close family member. He claimed they were trying to scare his parents into handing the applicant over or to attract him back to Bahrain by not taking the family members. Asked what he did in Iran, he said that he was surviving on the money his father sent him. He rented a room in a share house. He stayed at least for six months and then stayed in a share house in Mashhad.
Asked why he came to Australia, he claimed that Iran is an unstable country and he couldn’t stay there as there was racism against him. He applied to come to Australia for protection and would have gone anywhere. He sought out Australia to seek protection – he applied for a student visa. Asked if it was the first visa he applied for he claimed that it was. Asked if he had applied for a visitor’s visa prior to that he claimed he did and then applied for a student visa when he was refused a visitor’s visa. He had no relatives in Australia and knew nobody in this country.

He applied for protection as soon as he got here. Asked when he got here, he agreed it was [date] November 2015. He applied for protection six months later when his student visa ran out. It was put to him that this was not immediate, and he was asked why he didn’t apply earlier given he was moving around in Iran and had come specifically to Australia to apply for protection. It was assumed he had done some research about applying for protection.
He claimed he didn’t know he could apply for protection so quickly and his lawyer told him to apply for protection after his student visa expired. Asked if he had a statutory declaration from his lawyer saying that she had told him this as it was strange that a refugee lawyer would give him this advice. He was asked to provide this advice post-hearing.
He claimed there was nothing on the internet or Google about applying for protection – asked if he enquired through a lawyer, he said he did after he arrived in Australia. Asked why he was refused a tourist visa, he said he wasn’t given a reason. He was asked again and said he didn’t know anyone in Australia before he arrived.
Asked if anything had happened since September 2016 (last time Bahraini authorities visited his place) and now, he claimed that arrests had continued but he wasn’t aware that they had visited his house again.
Asked if he had been politically active since being in Australia, he said that he had protested [at an event]. He knew a few Bahraini people who had organised it – it was 2017 or 2018. And he had taken part in [another event].. Asked if he had been identified at these events or if there were photos of him, he said there were photos he had given on the USB.
The photo was taken on someone’s phone and he said it appeared in Bahraini anti-government media and he was asked to provide a copy of the media citation. He said he had links to it and was asked to provide the link. – a screen shot of what appeared to be the video he was referring to was provided however there was no indication that he was not named, nor any evidence such as a translation was provided that would have supported his claim. He said that he was named at the [event] and spoke about the human rights violation in Bahrain. It was covered by [Media 1] and [social media] page live.
He had also participated in [a] forum at [Venue 1] in 2017/18. He attended there and was on social media but he had no links. He was not identified and never spoke there. He had no social media pages in either his or a made-up name. he claimed he had one in a made-up name but it was stopped now. He covered Bahraini issues. He had no evidence of this and had never mentioned this to the DIBP interviewer. He said he never thought to mention it, and it was put to him that he would have been asked if he was politically active and he said it never came to his mind at the time.
He said that there was no point in him protesting by himself but he had commented on social media – he had posted the links on a word document on the USB. It was put to him that the Tribunal did not have any such document and he stated he would provide it later. It was also put to him that a social media footprint could reach a lot of people.
A response from one of the advocacy organisations that had provided references for the applicant had provided an excerpt from an Arabic-language newspaper that it said proved the applicant’s cousins had been arrested. It was given to the interpreter who said that the list referred to ‘the detainee [Mr B] [Mr C]’ who had been sentenced to two years. The applicant was asked what his cousins had been charged with, he said that he didn’t know but [Mr A] was sentenced to 15 years. He had heard no information about [Mr B] but had found information on [the] news. The interpreter said the paper said the people named in the article were sentenced the week prior to the article being published. The applicant said he was closer to [Mr A] but close to both.
Asked if he had discussed the issues regarding his cousins with his parents, he claimed that he hadn’t because he was scared to discuss such issues as the Bahraini government monitors all these calls in case this information gets out to NGOs. He speaks to his parents every two or three days. Earlier on he didn’t speak this often as he was scared the authorities would know. Asked how they would monitor encrypted Apps such as [Social media 1] or others and why he didn’t speak using them, he said that he wasn’t good at this and he wasn’t sure whether this information would be passed onto the authorities. Asked if he used Google he said he did, and he was asked why someone at his age and familiar with devices wouldn’t know to use encrypted Apps.
He said he wasn’t expert enough to use these Apps. He then said he was contacting his parents through [Social media 1] - it was put to him that [Social media 1] was encrypted and he d=said that he didn’t know this. It was put to him that the Tribunal found this hard to believe. He then said that he wasn’t sure that these Apps couldn’t be hacked.
Asked if there was any evidence that [Mr A] had been arrested and he said it was the letter from his lawyer. It was put to him that the latter may not have been written by the lawyer or it could have been written simply as a favour and not reflecting reality. He was asked if there were any court documents and he said his lawyer may have these. It was put to him that he had been here for seven years and could have gotten them.
Asked if he had appealed his sentence the applicant said that he didn’t know. It was put to him that this was strange given the closeness of the families that he had previously stated this would not have been known by him. He was aware that appeals were allowed but not in political cases. Asked to confirm whether he was unable to appeal political cases he said that this was the case. Asked this once more he said he wasn’t sure.
It was put to him that general country information indicated that such cases could be appealed and he repeated that he didn’t know if an appeal had been lodged. Asked if he had advocated for [Mr A]’s release given their closeness and the unjust nature of the charge and imprisonment, he said that he hadn’t. It was put to him that this was strange and he said that he didn’t know how and that NGOs didn’t advocate for individuals. Asked whether Amnesty International did this, he said they did it sometimes for some people but didn’t know if they would do it for [Mr A] and he would have to struggle so much to get them to advocate for [Mr A].
Asked to confirm again that NGOs didn’t advocate for individuals, he said there were more than 4,000 people and they didn’t want to focus on an individual. Asked again to confirm that they didn’t advocate for individuals, he said only if they were facing serious harm and if they had enough evidence and he didn’t have sufficient evidence.
Asked how old [Mr B] was, he said he was [a few] years younger than the applicant. In 2014 he would have been [age]. He then said between [an age range]. He knew nothing about his fate as he didn’t know his lawyer or anything. Asked if he mentioned his young cousin being arrested at the [meeting], he claimed that he didn’t. He didn’t have enough information or his files. He didn’t know what happened to [Mr B] and what sentence he got or if he was released but only knew he had been tortured. He only knew about [Mr A]. It was put to him that [Mr B] was his cousin, but he said that not all were close. He said that he didn’t have enough information about [Mr B] – he had tried but couldn’t get any information.
He was told about s 424AA and it was put to him that the Tribunal had written to the groups who had written letters in support of his claim about where they got their information and what advocacy they had undertaken for [Mr A] or [Mr B] – two had replied and neither had mentioned what advocacy they had done. This raised questions as to whether [Mr A] and [Mr B] had even been arrested or jailed, particularly given [Mr B]’s young age. They may be real people but they weren’t of interest to the Bahrainis.
In addition one group sent a media report from [Media outlet 1] [and] made mention of [Mr B] but none of [Mr A]. It mentions [Mr B] but no other names and it could refer to anyone given the common names. The paper says the person was sentenced to two years. If t was the [Mr B] he referred to then the Tribunal was concerned that he had no idea that [Mr B] was sentenced quickly after his arrest to two years in jail, or that this information was out there so he could take it to the media even though [Mr B] was so young. Nobody was taking up the case of such a young child reported in the media.
The concern was that this person was not his cousin, or that there was no young [Mr B] who had been arrested and jailed which was why there was no advocacy by the groups or by himself to approach the advocacy groups. It was also put to him that a very quick search indicated that Amnesty advocated for children arrested and jailed in Bahrain and that this was only Amnesty. The combination of all of this raised serious questions about the truthfulness of his claim that his young cousin [Mr B] had been jailed and he had no knowledge of his whereabouts or what happened to him. The same concern related to his claim about [Mr A] eing arrested and jailed for 15 years.
He claimed he was 100 per cent sure they were his cousins and arrested. He claimed there were many teenagers arrested and jailed in Bahrain not mentioned by advocacy groups. There were no other [Mr B] s in his village. If he was concerned about monitoring he didn’t want to put his parents’ lives in danger to discuss the issue about his cousins. The Bahraini authorities may think he was taking this information to the NGOs.
It was put to him that based on the [Media outlet 1] report, [Mr B] would have been released in October 2016. He was asked whether, when he had the interview with DIBP whether he mentioned [Mr B] was released, he said he had no idea as he had not discussed this with his family. It was put to him that it was in [Media outlet 1] so it was no secret. It was strange that his parents hadn’t mentioned it or there was no mention of young [Mr B] being jailed. He claimed that [Media outlet 1] lost its licence for printing names.
Asked if his family lived in the same house all their lives and owned the house and he said they did. He went to mosque not every Friday but during the main celebrations. He wasn’t that religious and didn’t swear on the Qur’an.
Also under s 424AA he was told that at the DIBP interview he said that he was helped with his protection visa application by [a named person] and that he knew him before he arrived through his father, yet today he said he had randomly run into a Bahraini man in Perth. This could go to issues of his credibility. He claimed he didn’t know him previously, but when they talked about where they were from, they spoke about villages they were from and [this person] =said he knew the applicant’s father.
In his DIBP interview he had stated that he had protested every day from 2011-14 and, when the officer questioned him as to whether he protested every day, he was emphatic in saying he did every day. Yet today he said it was every two-three days. There was an inconsistency about how emphatic he had been about protesting daily and what he said today. He claimed that the DIBP person must have gotten his reply wrong. It was put to him that the officer asked twice in order to get his particular answer. He was told that if there was a mistake in the interpreting then he could provide this to the Tribunal post-hearing.
It was also put to him that in his statement that he had said regarding his demonstrations in Bahrain that he would not stop until he got what he was asking for, yet his activities in Australia (particularly his on-line activity) would not indicate an active political person so there appeared to be an inconsistency. He said that he meant he would do this as long as there were people to help and support him. He still attended events and would not stop.
Asked why, if [Mr B] and [Mr A] were arrested for the same things they were given such different sentences he said that he didn’t know but perhaps because [Mr A] was older.
He was told about s 5J(6) and it was put to him that for someone who had been here since 2015 without much by the way of political activism, he had only attended and spoken at the meeting [after] his visa refusal and a month before his AAT hearing. The concern was that he was trying to create a profile. He claimed he couldn’t do these things on his own and he needed support. He did it bcause he had media and an opportunity to get an audience for his cause. He needed more people around him such as a human rights organisation to help him.
He was asked why he never approached Amnesty for example and he said that he didn’t know how to contact them. It was put to him that he could have Googled them and asked for a meeting. Yet he appeared to have done nothing despite the concerns that he had raised. He claimed he wouldn’t stay in Australia if he was free to return. He again said that one person couldn’t do much. It was put to him that there was an organisation in Sydney ([Organisation 1]) that wrote in support of his claim and he could have gone to Amnesty with them.
[Mr B]’s father had rang his father to warn him in Iran yet he had done nothing to help [Mr B] or even knew [Mr B] had been given a two-year sentence. He claimed that the [Organisation 1] wouldn’t mention individuals unless they were sick in jail for example. He was again told that Amnesty did mention individuals and he said that he hadn’t been to them. The fact that he hadn’t been to them was of concern to the Tribunal. He said again that he didn’t have enough information to go with – it was put to him that he had the letter from the lawyer with the trial numbers and charges and sentences. And the [Media outlet 1] article.
The adviser then said he had done a quick search and said that [Social media 1] could be traced through [an App]. It was put to him that [Social media 1] could be traced but not remotely and [the App] needed to be installed. He needed to include these details in his post-hearing submission.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on [date] November 2015 on a student visa, and applied for a protection visa on 26 February 2016. The Tribunal sighted his Bahraini passport; I accept that he is a national of Bahrain and his application will be assessed as such.
The applicant is a [age]-year-old single Bahraini national. He claimed that if he returned to Bahrain he would be harshly sentenced and jailed or possibly killed because he was a Shi’a Muslim, his anti-government views and participation in protests.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or entirely truthful witness, and that he fabricated much his claim in order to be granted a protection visa.
Protests, Arrest and Detention of Cousins
A key element of the applicant’s claim is the alleged arrest and sentencing of his cousins [Mr A] and [Mr B]; [Mr A] to 15 years and [Mr B] to an unknown period. Whilst I am willing to accept that the applicant has cousins with these names I do not accept that the applicant’s cousins were ever arrested and jailed and, as a consequence, I also do not accept that the Bahraini authorities are after the applicant because of his association with them.
I do accept that the applicant has been present at [a] protest with his parents in 2011, and that he may have attended other protests in his village. I do not however accept that the attended protests several times a week between 2011 and 2014. The size of the protests (estimated at a quarter of the population)[1] at the [Location 1] were such that it is entirely plausible that he would have been included in that, particularly given that he was taken there by his parents.
[1] [Source deleted]
I do not accept that he attended one protest in [Location 1] without his parents at which he fainted after inhaling tear gas, nor that he was attending protests several times a week because they rely on his oral testimony only. Regarding the frequency of his protest activity, he told the DIBP that he attended protests every day from March 2011 until September 2014 and confirmed this when he was asked again by the officer who found it hard to believe. This was inconsistent with what he told the Tribunal, which was that he protested every two-three days over that period. He then claimed that the inconsistency was due to a misinterpretation, however the member had listened to the interview and the applicant was given an opportunity post-hearing to point out the erroneous interpreting that he claimed was the reason for the inconsistency however he failed to do so.
The timing of the alleged arrest of his cousins and the Bahraini authorities’ interest in the applicant is also suspiciously convenient. Despite claiming that he had protested either daily,( or every two-three days continuously between March 2011 and September 2014) without any interest being shown in him or other members of his family, two days after he left with his family on a religious pilgrimage to Iran on his own passport (while encountering no problems from the authorities at the airport), the authorities allegedly detained his cousins and asked them about the applicant’s whereabouts.
It also lacks credibility that, having received news that two of his nephews had been arrested and the authorities were asking about his son, that the applicant’s father would return to Bahrain given he had allegedly also been active protesting at times with his son and nephews. I do not accept that he did this because the police hadn’t asked after him or because the Bahraini authorities were after younger people rather than older ones. There is no country information known to the Tribunal, nor was any provided by the applicant, that indicated the Bahraini authorities preferenced the arrest of children over adults. The complete lack of interest in the applicant’s father on the part of the authorities despite his alleged track record of protest activity and relationship with two of his allegedly detained nephews raises further concerns in the Tribunal’s mind regarding the truthfulness of the applicant’s claims.
Because I do not accept that the applicant was ever of interest to the police, I also do not accept that the police came to the family house four times looking for him and breaking the door. This relies on the applicant’s oral testimony which I have found lacks credibility.
I have taken into account the three documents provided that the applicant claims are police summonses (folios 14, 15, 19) however lend them little weight. Country information was put to the applicant via a s. 424A letter that indicated paper summonses were not issued to political activists after 2011 and the applicant provided country information that refuted this. I am satisfied that paper summonses did continue to be issued after 2011, however I am not satisfied that those provided by the applicant were genuine for the reasons shown above.
The documents themselves are photocopies of forms with handwritten entries so it is virtually impossible to tell if they are genuine or not given there are no discernible security features that could allow their genuineness to be measured against. I place more weight on the lack of credibility of the applicant’s claim and the alleged timing of the summonses being received. They were allegedly issued shortly after the applicant travelled to Iran even though he claimed to have been politically active for two and a half years before that any interest from the authorities.

I do not accept that the applicant’s cousins were arrested and sentenced to jail. I have also taken into account the information that the applicant has provided in support of these claims but lend it little weight. The first is a letter allegedly from a lawyer [Mr D] dated 27 September 2017 (folio 18) that states that [Mr A] had been sentenced on five charges. It appears on a letterhead that says ‘Lawyer [Mr D] – Attorney & Legal Consultant’ with a small logo. The letter also contains a gmail e-mail address and a mobile number.
I have also taken into account a letter purportedly from a lawyer [Mr D] (folio 18) on a letterhead saying ‘[Mr D] Attorney and Legal Consultant’ with its own logo, with a stamp to the same effect and with a gmail address and a phone number but lend it little weight. The letter stated that that she witnessed [Mr A]’s arrest and that he was charged on five counts and given sentences that totalled 15 years.
Country information was put to the applicant via s 424A letter that [Mr D] worked in the office of the law firm [and] that her office and phone email was different to what appeared on the letter. I have taken into account the fact that the applicant claimed she worked as a volunteer and hence she didn’t include her work contact details.
I am unable to lend this letter much weight. It was only presented after the applicant’s protection visa application had been refused by the Department. I place more weight on the implausibility of the applicant’s claims, as well as the absence of any reference in the media to [Mr A]’s arrest or sentence even though they allegedly saw fit to mention his other cousin [Mr B]’s arrest and subsequent sentencing. Given the sizeable sentence that he allegedly received, the lack of any advocacy advocacy on his behalf whatsoever by Bahraini advocacy groups (this will be covered in more detail later) or by the applicant in Australia raises serious concerns as the truthfulness of the claim that cousin [Mr A] was arrested.
I have also taken into account a report from [Media outlet 1] newspaper that was attached to an email [that] allegedly showed [Mr B] and [Mr A] were arrested and sentenced. The newspaper report does not show this, and there is only reference to a [Mr B] who was arrested and sentenced to two years’ prison. I am satisfied that someone of this name was sentenced to two years in prison, however I am not satisfied that this person is the applicant’s cousin.
Based on my personal experience neither [Mr B] nor [Mr B’s last name] are uncommon names in Bahrain so it could be somebody entirely unrelated to the applicant. I have taken into account the claim by the applicant that there was only one [Mr B] in his village but lend it little weight both because it relies entirely on the applicant’s oral testimony but more importantly because, according to the media report regarding the sentence, the person called [Mr B] would have been released in October 2016 if he had served his complete sentence. Yet the applicant claimed to have no knowledge whatsoever regarding his cousin’s fate after his arrest.
This is inconsistent with his claim in a submission he provided on 11 January 2018 in which he claimed that his parents spoke to [Mr B]’s lawyer to ask for evidence of his arrest and detention but the lawyer would not provide any allegedly for fear of how it would be used. Not only does it make no sense that the lawyer would be secretive about a sentence that had already been reported in the press, it is inconceivable that the applicant’s parents would not have found out via the lawyer or from [Mr B]’s parents (one of whom was the applicant’s paternal uncle) that [Mr B] had served his sentence and been released. It is also implausible that if his cousin had been released back into the same village where his parents lived that they would be unaware of this fact and that he would not find out about it during his encrypted chats with them.
I note in the same submission that the applicant claimed that he didn’t know whether [Mr B] had been sentenced or for how long. Yet that information was, according to evidence he subsequently provided to the Tribunal, reported in [Media outlet 1] newspaper in October 2014. For him to be unaware of this either directly or through his family is implausible, and reinforces my concerns that the person mentioned in the [Media outlet 1] newspaper article is not the applicant’s cousin.
In addition the applicant was unaware as to whether his cousin’s cases had been appealed. To begin with it is strange that he didn’t know this, given the allegedly unfair nature of the alleged arrest and trial. I do not accept that appeals were not allowed in political cases as the applicant claimed. He stated this twice but when asked a third time he said that he wasn’t sure.
The applicant also provided a number of letters from advocacy organisations [written] in late 2017 that all supported his claims regarding the Bahraini police interest in the applicant and the arrest of his cousins.
In order to determine the weight to be given to them, the Tribunal contacted the groups to find out the source of their information and what advocacy they had done on behalf of the applicant’s cousins (one of whom was a child). Of the five contacted by email, three replied while two said that they never received a request. The requests given to the other two were sent to the correct email address but the responses from the three sufficed in the view of the Tribunal to give rise to serious concerns regarding the truthfulness of the claims surrounding the applicant’s cousins’ arrest and detention.
These are all advocacy organisations, most of whom have some, or near complete focus on Bahrain. As part of that advocacy, they publicise the fate of Bahrainis detained in prison (the ICSRF website was in Arabic with no English version so its contents weren’t examined). A simple search of the two English-language websites from the groups that replied confirmed that they did name people detained and advocated for them. Of those that replied, none was able to point to any public advocacy done by their organisation, and their verification appeared to consist of claiming to have networks of people on the ground in Bahrain. [One organisation] claimed to have a documentation team on the ground that visit the families of victims, while [the other two] pointed to the [Media outlet 1] article as evidence (even though it did not make any mention of [Mr A]). And of those that did not reply, no evidence was put forward by the applicant pre- or post-hearing that showed that they had advocated for the cousins even though he knew this absence of advocacy was an issue with the Tribunal.
As I have already pointed out, there is no mention of [Mr A] in the [Media outlet 1] article, while a person called [Mr B] was noted as having been jailed for two years. Yet he would have been released about a year before the original letters were written and three and a half years before the responses to the Tribunal’s queries were answered. The fact that the two groups pointed to a media article as evidence that [Mr A] was arrested even though he was never mentioned in it does little to engender confidence on the part of the Tribunal in their knowledge of what is contained in the evidence they put forward. And the fact that no group mentioned that [Mr B] had been released (despite in the case of [one organisation] claiming to meet the families of victims) as a reason they did not advocate on his behalf gives me little confidence that they have any independent knowledge regarding the applicant’s claim.
The lack of advocacy on the part of the applicant is also of concern to the Tribunal. He originally said that he didn’t know how to advocate and that NGOs didn’t advocate for individuals, despite a cursory view of at least some of the websites of the groups he cited clearly do advocate for individuals. He then said that Amnesty did it for some people but that he didn’t know if they would do it for [Mr A]. His inability to even approach Amnesty, given that he not only spoke English but also that he had attended [a] meeting at [Venue 1] in 2017, also supports the view that he did not have any cousins who were detained and whom he was worried about.
I do not accept that he failed to approach Amnesty because he was fearful of sharing information with NGOs, that there were thousands of people in the same situation as his cousins and they all couldn’t be advocated for didn’t know how to contact them or because he didn’t have evidence or because one person couldn’t do much. The Tribunal was not concerned as to whether he was able to get Amnesty to advocate for his cousins out of all the thousands that he claimed were imprisoned, but that he did not even try.
He could easily have looked up Amnesty on the internet or asked for their contact details at [a] meeting he allegedly attended at [Venue 1], and he didn’t have to be one person given he had Australian-based and international advocacy groups that could also have assisted him to raise the issue. And given that he was allegedly able to obtain a letter from [Mr A]’s lawyer to present to the Tribunal attesting to [Mr A]’s conviction, it is reasonable to believe that he could have provided the same to Amnesty in order to assist his cousin. He also provided a picture allegedly of [Mr A] at trial to the Tribunal and this too could have been given to Amnesty.
Given the reputation and experience of Amnesty, it I also reasonable to believe that if he was fearful of passing on this information he could have elicited guarantees from Amnesty as to his anonymity or, if he was not satisfied that this could be guaranteed then he could refuse to continue with it. The fact that he never even attempted to do any of this though, raises concerns in the Tribunal’s mind as to the fact that the inability to even try to advocate for them was because the claim that they were arrested was fabricated in the first place.
I also don’t accept that nobody was taking up the case of young people being arrested in the media which is why there was a lack of information regarding his cousins. A simple internet search revealed two ‘urgent action reports’ from Amnesty International regarding the arrest and imprisonment of teenagers aged 16 and above. Other media reports deal with children of an even younger age.
I also do not accept that the applicant was unaware of the fate of his cousins because he was too scared to mention their names over the phone with his parents. To begin with, given the fact that he claimed their names were mentioned in [Media outlet 1] newspaper (only one person with the same name as a cousin was actually named) it makes little sense that simply mentioning their names was considered dangerous. He also said that he spoke to his parents regularly using [Social media 1] which is an encrypted service, which should mean there was no impediment to speaking freely. I do not accept that he was unaware of this or that he feared the system could be hacked – he is young and social media savvy and it lacks credibility that he wouldn’t have the wherewithal to look up the operating parameters of [Social media 1] if he didn’t already know them. He was given the opportunity to provide evidence that [Social media 1] could be hacked post-hearing however no such evidence was provided
I have also taken into account the photo he provided post-hearing that allegedly showed his cousin [Mr A] in hand cuffs at court at his trial. No explanation was given as to who took the photo or how they were able to take a photo at his trial, or why it was presented so late in his application process. There is also no way of knowing that the person in the photo was his cousin [Mr A]. As a consequence I am not able to give the photo much weight nor am I satisfied that it serves to corroborate any of the claims that he has made.
Political Activities in Australia
I do not accept that the applicant would be known as having been politically active by the Bahraini government. To begin with I do not accept that he has any public social media profile that would identify him as being politically active in Australia. I do not accept that he used to have a social media profile in a made-up name that covered Bahraini issues but that had been subsequently stopped. He provided no evidence of it and had never mentioned it previously during his DIBP interview. I do not accept that he didn’t think to mention it at the time, given his claim was based on his alleged anti-government profile and it is inconceivable that, if he had had such a site that he would have neglected to mention it at interview.
He claimed at hearing that he had commented on social media and said it was provided to the Tribunal. No such document was in the Tribunal’s possession and he said he would provide it post-hearing. There was an email with a number of attachments received post-hearing. One was a word document that was critical of the Bahraini government and I take it (in the absence of any submission from the applicant) that this is what he was referring to at hearing. It has no features that identify the applicant as the author nor is there any indication that it has been uploaded onto any website. As a consequence it appears simply to be a word document written by someone and I can lend it little weight in supporting the applicant’s activist claim.
I am willing to accept that the applicant has been present at one protest and a meeting since being in Australia. The applicant said that he attended a protest [details deleted]. It is too difficult to make out whether the applicant was one of the nine however I am willing to accept that he is. There is no indication however that their names were known to anyone or that any image relating to it appeared on social media with or without anyone’s names. Given this, I lend it little weight in establishing that the applicant has any, let alone a significant profile as an anti-government activist.
I also note that his attendance at the meeting occurred after his protection visa refusal which raises questions about his motivation for attendance. Regardless, I am satisfied that it is not indicative of any form of anti-government profile possessed by the applicant.
He also provided in a post-hearing letter what he claimed were links to news articles that mentioned his name, however there was only one hyperlink provided that was incomplete and therefore could not be used. I am satisfied that he has been given an opportunity to provide evidence to support his claim and he could have presented this prior to the hearing for the Tribunal to examine. Providing it post-hearing with only an incomplete link does not give the Tribunal any confidence that he was serious in providing such evidence, or that such evidence exists.
He also provided post-hearing a range of articles and letters and these were taken into account even if their relevance was not immediately apparent nor explained through any accompanying statement. One was from his father supporting his claim which I lend little weight to given the lack of objectivity of its author. Another is a photo and media article of a small gathering held in Australia to discuss the situation in Bahrain. There is no image of him nor is there any reference to him in the text that would indicate that he was present.
He also provided an image of what he claimed was a still shot of a video at [a venue] that he [attended]. He claimed that he was named and that it was shown on [Media 1] and on the [social media] page live. Again, while I am willing to accept that he attended this meeting and that it may have been shown on social media there is nothing in the vision shot that the applicant provided that appears to identify him so I am confident that his presence would not be known outside the small number of people who appeared to have attended it. He has not provided any proof that the vision has remained available on any social media site.
While I am willing to accept that the applicant has attended one or two meetings such as that mentioned above that discussed issues to do with Bahrain since his time in Australia. I do not accept that he has been identified in any of these publicly, or that the Bahraini authorities would be aware of, or interested in his presence given he has no profile as a political activist in or outside of Bahrain. I do not accept that he could not do more because there was so few Bahrainis in Australia. While they may be few in number the internet allows an individual’s voice to be heard by a much broader audience and his lack of a social media presence, let alone following is very curious given the vigour with which he allegedly pursued the community’s political rights in Bahrain.

100. Because I do not accept that the applicant was active in demonstrating in Bahrain outside of being part of the massive protests in 2011, or that he has been what would be considered as an active political demonstrator in Australia I am also not satisfied thatthere is a real chance he would become an active political demonstrator in the reasonably foreseeable future on return to Bahrain.
Shi’a Identity
101. The member has a PhD in Lebanese Shi’a political development and has taken a keen interest in the political situation of the Shi’a since. I have also travelled to Bahrain on several occasions and have seen first-hand the situation facing Bahraini Shi’a. I accept that the Shi’a face discriminatory practices within Bahrain, particularly with respect to political representation and employment in the public sector. I do not accept however, that the discrimination felt by the Shi’a necessarily nor automatically meets the threshold of serious harm for s 5J(5) purposes.
102. I note that the applicant was educated to high school level, his father is employed, they own the family home and they had sufficient financial resources to fund a religious pilgrimage to Iran and to pay for the applicant’s maintenance in Iran for quite some time after they returned, as well as providing him with funds to live in Australia (folio 30). I also note that the family had no problems in leaving from, or returning to Bahrain.
103. Given that he has been educated to high school level, has been free to travel and his family appears to be financially secure, and I am satisfied that . The applicant does not face threats to his life or liberty, nor do any of the limits placed on him threaten his capacity to subsist. As a consequence I do not accept that the limits placed by the Bahraini government on his selection of employment options or on who can politically represent him amount to persecutory behaviour.
Other Issues
104. The applicant also waited for nearly four months before applying for protection in Australia, despite claiming that he came to Australia with this purpose in mind. I do not accept that he waited until his student visa expired on the advice of his lawyer. Knowing the adverse conclusion that a decision-maker may derive from such a delay, I find it implausible that a lawyer would recommend such a course of action to him.
105. He was asked to provide a statutory declaration from the lawyer post-hearing confirming that this advice was given to him yet he failed to provide such a document. The documents on file indicate that the applicant appointed a solicitor to act on his behalf on 26 February 2016, the same day that the protection visa application was filed. The covering letter also stated that only the minimal requirements for a protection visa application would be met due to the time constraints, given his visa was due to expire on 5 March. If he had sought advice from a lawyer previously who advised him there was no hurry because of his extant visa, the Tribunal finds it strange that the lawyer has not provided a statutory declaration to that effect (nor has the applicant advised the Tribunal why it wasn’t provided), and that the lawyer points to time constraints limiting the information provided to the Department.

106. As the applicant hasn’t raised any other claims to fear persecution and, having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any 5J reason either now or in the reasonably foreseeable future.
Complementary Protection
107. I do not accept that the applicant’s cousins were ever arrested and sentenced by the Bahraini authorities or that the applicant is, or ever was wanted by the Bahraini authorities, has had summonses issued for his arrest, has or would be perceived to have an anti-government political profile, would be politically active on his return to Bahrain, or that he would face persecution because of his Shi’a faith.
108. As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bahrain, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
109. 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).
110. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
111. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
112. The Tribunal affirms the decision not to grant the applicant a protection visa.
Rodger Shanahan
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

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

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

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

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

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 3309

4 June 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Standing

Natural Justice