1908975 (Refugee)

1908975 (Refugee) [2023] AATA 2443 (11 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Baker Al Musawi (MARN: 0601647)
CASE NUMBER:  1908975
COUNTRY OF REFERENCE:                   Yemen
MEMBER:Rodger Shanahan
DATE:11 May 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 May 2023 at 4:58pm
CATCHWORDS
REFUGEE – protection visa – Yemen – religious/tribal/regional conflicts, protests against former president and al-Qaeda – detained and questioned, and kidnapped and threatened – separation from wife in third country and cancellation or cessation of visa there – political opinion in third country – credibility – inconsistent claims and evidence – applications for other visa classes – continuing relationship with wife despite claimed separation – children’s eligibility for citizenship of third country – no political activity in Australia – no harm to family in home country – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
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 Home Affairs on 21 March 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Yemen, applied for the visa on 10 August 2017.
The applicant appeared before the Tribunal on 9 March 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.
The applicant was represented in relation to the review.
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 (Cth) (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 Statement of August 2017
I was born in Yemen. I am a citizen of the Yemen and my wife wrote to the [Country 1] authorities cancel my temporary residence in [Country 1] (his residency visa has been cancelled). Therefore I will not be able to return to [Country 1].
My parents were born in the Yemen and live there. I have [brothers], though sadly the eldest died as an infant. [Number] brothers live in the Yemen, and one in [Country 1].
I am married and my wife is a citizen of [Country 1]. I have two [daughters] and a [son]. They all live in [Country 1]. I am now separated from my wife due to a dispute.
I completed my primary and secondary education in Yemen, and in [Year] I started a Bachelor of [Subject 1] in [University 1]. I completed the degree in [Year]. I only had small jobs in the Yemen, maybe a month for [a] Company, and a short time as [an Occupation 1]. I then left the Yemen for [Country 1].
I was living in [Yemen] until 2007. There was a tribal conflict between our tribe and another tribe, that tribe is called [Tribe]. A member of our tribe was killed by this tribe, and then there was a revenge killing from our tribe. This caused a tribal conflict to become worse. As my father is well known and so at risk from this conflict, we moved to Mukalla to avoid the tribal conflict.
I left the Yemen for [Country 1] in November 2008 in order to find work to support my family in the Yemen. I initially arrived on a visitor visa and later this became a residence visa when I found work. In [Country 1] I worked as [an Occupation 2] in a [Workplace] in [City 1] from 2009 until about March 2010. I then worked as [an Occupation 3] in [Work sector] Company, [Company 1] in [City 2] from about April 2010 until about August 2015. I am still enrolled in a Masters in [Subject 2] at [University 2] in [City 1].
I married a [Country 1] national [in] July 2009 and that meant I could stay in [Country 1]. I travelled back and forth between Yemen and [Country 1] over this period. Sometimes by plane, or by car.
My first detention in the Yemen
The former president of Yemen was Ali Abdullah Saleh and although he left the presidency in late 2011, he still has influence in the country. There were protests against the regime from 2011 and I remember being in the Yemen in April 2012 and I participated in a protest.
I was detained by the security forces and questioned by the authorities. I was detained for about one to just more than a day. My family paid some money to someone who was influential and that lead to me being released.
I think it was around 20,000 Yemeni rial. I had to sign an undertaking not to be involved in activities against the regime. I left soon after and returned to [Country 1].
I made some short visits to the Yemen in 2013 and 2014 just to see my family. met up with some students who were mainly from our area and I learnt from them about their actions to try and improve the situation for people in the Yemen. The visits were usually short, only a few weeks at a time. I sometimes flew to Mukalla and other times by car through [Country 2], the border crossing is at [Location] in [Country 2], and [Location] in Yemen. Sometimes I returned to [Country 1] by car.
In April 2015, Al Qaida in the Yemen captured the city of Mukalla, where my family lives. They introduced strict Sharia laws which affected people's rights especially for women.
I went to Mukalla to visit my family in September 2015 and my family told me about the treatment of people by Al Qaida. I drove back to [Country 1] via [Country 2]. returned again in late November 2015. I was driving my brother's car in Mukalla when the car was stopped by some Al Qaida forces. They asked to see my documents and then my face was covered by a scarf and man came up and put a gun to my head and said come with me. I was blindfolded and taken away, I do not know where I was taken.
I was locked in a room and there were no windows, it was dark. I was asked whether I was a Muslim and I said I was. They said girls should not go to school and not support those involved in supporting western government or the US. I was afraid of what could happen to me.
My brother arranged through a contact for my release. After about four days, my head was covered and taken to a place and I was left in the street. I heard their car go and I lifted the scarf to see where I was. I learnt from my family that they had paid for my release. I think they spent about 100,000 Yemeni rials to get me released. I then returned to [Country 1] by road.
Although the Yemeni forces recaptured Mukalla from the Al Qaida forces in 2016, the Al Qaida people still have influence in the Mukalla area. My family told me about how people were still being killed by Al Qaida people even though they had left the town. This happened on a number of occasions, so my family has told me.
I made short visits to see my family in August and then December 2016. I only stayed with my family and did not go out really, just stayed with my family. I was very careful not to draw attention to myself.
I again drove to see my family in late April 2017. About two days after I arrived, my brother told me someone had come to him and said to my brother to tell me to leave the Yemen. This man told my brother that I was being watched by Al Qaida and not to use my car or public transport as I would be found. I decided to leave and so I moved around to different places and not drive my car.
I arranged a private driver to take me to [Location], near the [Country 2] border. I then took another car to [Location, Country 2]. I then took a bus to [Town]. I then took an international bus to [Country 1].
I had been dependent on my wife financially since about August 2015 and more recently this was causing problems in our marriage. I had a visa for Australia and so did my family but I came by myself [in] May 2017. Initially my plan was to look for a course my wife and I could do in Australia and then some accommodation. My wife and I had more arguments after I arrived in Australia and she told me she would write to cancel my visa because she did not want to support me any longer. She said she was tired of supporting me and that she would not support me anymore.
As my wife has decided to cancel my visa in [Country 1], I will not be able to return to live in [Country 1]. I am afraid to return to the Yemen because of what happened to me there on my last visit earlier this year.
I am afraid I could again be kidnapped by armed men, as there are a number of different groups who kidnap people, sometime for money and sometimes for political or religious reasons. I no longer feel safe in the area of Mukalla where my family lives. My family is a Sunni family so I cannot go to the western or northern parts of Yemen, as there is still a civil war between the Houthi groups and the Yemeni government. I was previously targeted by people from the Yemeni government so I do not believe they will protect me.
I left Yemen as soon as I could after my family arranged for my release and if I return there I fear I could be targeted again, or even put my family at risk. The Yemen is a small country and there is much conflict and armed groups have the ability to target those they believe do not agree with them, or to get money.
Protection Visa Application Statement October 2018
My wife applied to have my [Country 1] residence cancelled and was advised by the [Country 1] authorities that she had to wait until 6 months after I left [Country 1]. The cancellation became formal on 16 November 2017. My wife cancelled my visa because of disputes we had in our marriage. I was unable to get work in [Country 1] from 31 August 2015 and this caused conflict with my wife because she said I needed to support her and the children and that she could not support us all on her salary.
Sometimes I find her good to talk with, and other times she will not talk with me at all. It all depends on how she feels. As my residence has now been formally cancelled, I would need her to apply for me to get residency again in [Country 1] before I could travel there. I send money to support my children in [Country 1] from my work in Australia. However if I were to return to my wife in [Country 1] then firstly I would need to get a visa for [Country 1]. Then I would again be unemployed and this would again lead to the issue that caused us to separate in the first place.
In [Country 1] I was careful what I said because I did not want to endanger my residency in [Country 1]. I had heard stories of other Yemenis whose visas had been cancelled by the [Country 1] authorities, and I did not want to take a risk for me because that would mean I would have to return to Yemen.
If I expressed my views in [Country 1] about support for a federalist type of system in the Yemen, rather than a separation of the south, then that would be seen as contrary to the official [Country 1] position and place me at risk of cancellation in [Country 1]. It could be even more serious if this was seen as a security issue, and so I did not express my views to ensure my own safety in [Country 1].
I had residency in [Country 1] and so whilst I had that, I felt it was possible to occasionally visit my family in Yemen, especially as my father was old and not well. Sadly he died [in] September 2017. My visits to Yemen after my detention by an al-Qaida-linked group in Mukallah in 2015, were only for very short periods. I usually drove in via [Country 2].
My last visit to Yemen was in April 2017, and as I explained in the interview and in my previous declaration, I left Yemen suddenly after I was warned about being watched. I left via [Country 2] on [date] May 2017 and then left [Country 2] on [date] May to go to [Country 1].
I was careful not to express political views in public during my visits to Yemen because I did not want to cause problems for myself, or for my family who can only live in Yemen. Currently in Yemen there are many different groups and gangs and it is not just a risk of being targeted for money. Some of the gangs are linked to political or religious groups and that can also cause risks for me. I have lived and worked overseas for quite a few years no and it would be clear to people if I returned that I had been away from Yemen for some time. Just having a car when I was driving there can make me a target.
My passport had visas for [Country 1] so just being stopped at a checkpoint and being asked for ID could show that I had been outside of Yemen. There are many armed groups and gangs and it is not possible to refuse their demands if they stop you. There is much hunger and poverty in Yemen because of the war and it would not take much for someone to decide to threaten me because they thought I had money because of years of working in [Country 1] and now in Australia.
I have expressed my views about issues in Yemen before when I was living there and this caused problems for me then. I am concerned not to cause any risk for my family in Yemen so I have been very careful about what I said in Yemen when I was visiting my family.
As a Sunni, I am at risk from Shi’a groups linked to the Houthis which means I cannot go to the western parts of Yemen. These areas are also the parts of Yemen which have the most conflict now. I am also at risk from more extremist Sunni groups and was previously held by a group from al-Qa’ida.
AAT Hearing
The applicant was asked about two decisions about visa applications that he had provided the tribunal prior to the hearing. Asked if there was an email trail attached to the rejections, he claimed that he applied for a visitor visa to [City 1] that was rejected and then he applied for a visa to [City 2] and this was also rejected. Asked if he had e-mailed [Company 2] he said he did. Asked if he had a copy of the email correspondence, he said that he did it through Whatsapp through an office in [City 1].
He was a bit vague about [Company 2] and he was told that he had provided the documents. He said he had applied through an office in [City 1] and had the correspondence on his phone. Asked how he found this company he said he found it through a friend in [City 2]. The applicant sent him a copy of his documents and the fees and his friend applied for him through [Company 2]. Asked if [Company 2] was a real company, he said that he received the rejection and applied through his friend. He was asked for correspondence between him and his friend, and he said that he had sent a voicemail via Whatsapp to his friend asking him to get the visa. He left voice messages because of the different in time zones.
It was put to him that [Company 2] didn’t appear to be a legitimate company that was currently operating. He said that his friend would apply. He was asked why his friend needed to be involved as he could apply directly via the embassy in Australia. He said that he didn’t know this. He was asked why not given he could have looked it up. It was put to him that the Tribunal had a concern that the company was not currently operating and hence the visa was rejected because the company sponsoring or applying for the visa wasn’t currently trading/operating. It was the company that was the cause of his rejection, not him personally. The Tribunal was also wondering why his friend was using such a company.
He claimed not to know anything and the rejection came without a reason. It was put to him that if the sponsor was not a company that existed, it would have been refused. He said that his friend told him that other people using [Company 2] had been approved. It was put to him that he said he didn’t know anything about [Company 2] – he said that his friend said many people using [Company 2] had been approved. Asked if his friend had asked why the application was rejected, he claimed [Country 1] never gave reasons. Asked again if his friend inquired as to the reason, he stated that his friend never asked. He said that it was normally related to security reasons. Asked how he knew this given his friend never asked, he said it was the default reason. Asked how he knew it was the default reason, he claimed that Yemenis in particular were subject to these restrictions.
Asked if he had a record of the discussions surrounding his second visa rejection, he said that after his first rejection his brother knew a company that people used that was able to get visas to enter [City 2]. His wife was his sponsor but it was rejected after two days. It was a holiday visa. Asked what the company’s name was, he said he knew the name of the person but not the office. Asked for the relevant correspondence, he showed documents on Whatsapp. Asked if he had any email or other traffic, he said he used Whatsapp. The interpreter looked at the documents and said they were documents. Asked if he had any evidence of correspondence with the [Country 1] authorities he said that he didn’t.

Asked why his brother applied for him rather than his wife and whether his brother was a [Country 1] citizen, he said that his brother wasn’t. He said that the application had to be through an office according to [Country 1]. Asked why his [Country 1] citizen wife didn’t apply through the office rather than his Yemeni brother given he claimed [Country 1] made it difficult for Yemenis to get visas. He claimed that his brother only did the application. Asked if his wife asked why he was refused, he said that she asked and they told him it was for security reasons. He had no record of this.
Asked why he was going there, he said to see his mother and other family members. Asked if he saw them in [Country 2] instead, he went to [Country 3] and met them in November. The closest place to visit them was [Country 3].
He stated that if he were to return to Yemen, the country was not safe and there were lots of killings. This was particularly for those returning from abroad. Asked about his personal circumstances, he said that he feared the northern authorities and the Yemeni Council for the South (STC). By the northern authorities he meant the Houthis and the legitimate authorities (as well as the STC). He had an opinion different to all of them and they had people dedicated to following people like him. They might detain or kill him and deny his freedom of speech. He had no other claims.
The STC belong to people supporting [Country 1] and works against the Yemeni nation. It is well-known [Country 1] and STC have secret prisons where they detain people. Anyone who speaks against their opinion will be detained. Asked how he had come to the attention of the STC, he claimed that he had a bunch of friends with whom he used to gather (in 2012 at the start of the Arab uprisings). They had discussions after work in private.
Asked how the STC heard, he said there were informants who must have reported on them. They expected people to do this, which was why they kept their discussions private. He confirmed that the informers would tell the authorities about the gatherings, rather than what they said. Nothing had happened to him by the time he left but they could have. He left in 2012. It was put to him that they had private meetings to discuss issues in 2012 – he was asked why the STC was after him. He said it was because they were against the STC’s relations with [Country 1]. Asked how he had a profile with the STC, he said that if he returned then his presence at the gatherings would be known by the STC.
Asked if he had expressed this opinion since he had been in Australia, he claimed that he hadn’t because he was very conscious of the damage to his family in [Country 1]. Asked why he didn’t express such opinions under a pseudonym, he claimed that he could have but the STC/[Country 1] are very clever about what site belongs to whom and they will always find out. He said this was easy and he knew about the technical details – he was asked to provide evidence post-hearing that the STC/[Country 1] was targeting critics overseas operating under pseudonyms. He said people had bene kicked out of the country using false names using Facebook. He claimed he knew the daughter of a person who did this type of stuff. It was put to him that simply claiming he knew somebody who did something without providing any supporting information would not carry much weight.
Asked if he had mentioned his fear of the STC in his 2017 statement, he said that he didn’t but he had done it at interview. It was put to him that he had written a statutory declaration and was legally represented at the time he wrote it, so it was strange he had made no mention of the claim that he had been so against the STC for five years by the time he made the declaration yet failed to mention it.
He claimed that the first time he was in Australia, his representative didn’t advise him appropriately and this was why by the time the interview came around he knew that he should mention this. Asked if he had made a complaint against his previous adviser if he had been poorly advised. He said that he didn’t because he believed that it would not have made a difference to the outcome. It was put to him that it didn’t have to have an impact on the outcome and he said that he didn’t know it was his right.
Asked if he had experienced anything from the STC that would give rise to such a fear and he said that personally not but two of his very well-known friends on Facebook who expressed anti-STC comments were threatened and voluntarily stooped because of the fear. A year later they began showing pro-STC commentary. Asked if he had evidence of this, he said they both had been arrested and then changed after this and it had been proven. Asked what he meant by it was proven. It was put to him that the Tribunal had no evidence that this occurred, let alone that he knew them. Asked if he had mentioned this before, he said that they were friends from school. It was put to him that this was not evidence and he had been told previously that he needed to provide evidence for such claims.
Asked when they were arrested, he said they expressed anti-STC comments until 2019 and he had their names and could give them to the Tribunal. He was told that the names meant nothing without supporting evidence and he said he knew what the tribunal meant but he could do no more. It was put to him that if he kept on mentioning friends and relatives who he claimed did things without evidence to support the claim then the Tribunal would not give it much weight. Particularly given he had never mentioned his concerns about the STC in his written statements.
Asked why, besides these alleged friends, he thought the STC would target him, he claimed that this was the way they thought against anyone who spoke against them. Asked if he returned to Yemen after 2012, he said many times. Asked if the STC ever did anything to him, he said they didn’t because they didn’t know about his feelings against them before he left. He was asked how it was that they didn’t know until after he left even though he hadn’t done any anti-STC activities since he had left.
He said that he had family in [Country 1] and Yemen. If he publicly expressed this sentiment they would be in trouble. It was put to him that this was not the question. He had claimed that between 2012-17 he had privately expressed anti-STC sentiment and the STC was unaware. Since that time he had not expressed any such sentiment yet he claimed that the STC now knew he was anti-STC. Asked if they knew or didn’t know, he said they didn’t know but his plan was that once he was in a safe place he would definitely express his opinion. At any time if he said something they would cut his throat. It was put to him that he had never expressed anti-STC opinion and the Tribunal was unwilling to accept that ‘they would know’ without explaining how they would.
He claimed that if he returned and he discussed anti-STC sentiment with his friend, they would know. If he had support from a country he would then freely express his opinions. This was eating him from the inside, his inability to speak out.
Asked why he was afraid of the legitimate authorities. He claimed that he was detained for a day and a half in 2012 during the demonstrations and he was forced to sign an undertaking not to protest again. He was detained in Mukalla – asked how many protestors there were, he said there were many but the authorities only detained a few. Asked why he was singled out, he said that they singled out those who had come from abroad because they believed they were supported by foreign countries even though they weren’t. He was detained around April 2012 but wasn’t sure of the month.
He was asked how they knew he was from a foreign country in order to target him given he looked like a Yemeni and had only been out of the country for a few years. He stated that he believed they got the information through a secret agency (intelligence). He was asked how they could target him individually in such a big group, he claimed that they knew the groups before and so targeted them. Asked if he was an organiser, he said that he was calling out for people to join the demonstration. There were no photos of him as he was so careful because his wife was in [Country 1] and they would be targeted. He agreed that he was careful and therefore didn’t have a profile because of his family in [Country 1].
He was asked why he increased his profile by being so public and calling for people to join the demonstration and exposing himself to being identified by the intelligence groups that were looking at leaders of particular groups of people from outside the country (such as him). This seemed to be at odds with his claim to want to keep a low profile. And nobody seemed to have targeted his family in [Country 1] as a result. He clarified that he was speaking in person to family, friends and neighbourhoods to join the protests.
It was put to him that he claimed in 2012 there were informers everywhere so it seemed incredibly risky to be seen talking to groups of people about this. He was asked why he did this. He said that during the Arab Spring people thought things would change but then people thought that more effort needed to be made to effect change. They went into the demonstration with certain hope but ended up with persecution. It was again put to him that his high profile was inconsistent with the risks he claimed he faced. He said that nothing was guaranteed 100 per cent.
Asked if there was any attention from the authorities after 2012, he said that he stopped all his activities after 2012. After he was freed from detention he had signed an undertaking not to take actions against the authorities. Publicly he hadn’t but he expressed his opinion in his smaller circles. Asked about whether he had expressed opinions in Australia, he said that he spoke in small groups with people who shared his views. Asked if he thought it was known outside the group he said that everything was possible.
It was put to him that the STC was backed by [Country 3] and he agreed. It was put to him that he went to [Country 3] recently and he said he went for [deleted]. His family met [him]. He was asked why, if he was so scared of the legitimate Yemeni authorities who were backed by [Country 3], that he and his family would be able to go to and leave from [Country 3] with no problems. His alleged concerns/fear was inconsistent with his actions in going to [Country 3] with his family.
He said that [Country 3] and [Country 1] had different approaches to threatening people who expressed their opinions. They were much tighter in [Country 1]. [Country 3] would allow you to [go] unless you targeted them powerfully and expressly. He said that Houthis were also able to [go] without problems.
Asked why he would be targeted by the Houthis, he claimed that he was against them. He said the Houthis had a system where one had to pay a tax (jizya) to them if they weren’t fighting them. He confirmed that he lived in Mukalla. It was put to them that the Houthis weren’t in Mukalla and he agreed. He said that he had a fear different from the Houthis there. If he was in Mukalla he had no issue with the Houthis. But if he went to their area it would be a different story. It was put to him that he could stay in Mukalla and not come into contact with the Houthis. He said that the Houthis tried to take the whole of Yemen. He was asked if his claim regarding the Houthis related to Mukalla. He said that he had no fear of Houthis in Mukalla unless they came there.
It was put to him that he had previously claimed to fear al-Qa’ida but had made no claim today, and was asked whether this was still a claim. He said he had no fear but had no information about the future and whether they would come back. Asked if he had any additional fears about returning to Yemen other than those he had already mentioned. He said that the biggest fear is the [Country 1] military and the secrecy prisons at the airport where they jail people who criticise them.
Asked what the [Country 1] military had done to him in the past, he claimed that it would only take one expression of his political opinion to take and detain him. Asked when the [Country 1] military were in control of the airport at Mukalla, he said it was from 2016 when they kicked out al-Qa’ida. Asked if he had been back to Mukalla since then, he said that he had returned to say goodbye to his father and he was threatened there.
He claimed that there was still AQ influence when he was there in 2017 and someone had told his brother about the applicant. It was put to him that he said [Country 1] kicked out AQ and he had also claimed to fear the [Country 1] military and yet he had returned to Mukalla even though they were in control since 2016. He said this was because he had never expressed any anti-[Country 1] sentiment and just returned to see his father.
He claimed that AQ still had checkpoints and interest there. Asked what interest AQ had in him, the applicant said he meant that AQ would still have influence in Mukalla. He said that even though AQ had left they might come back at any time. Asked why he was threatened by them in 2017. He said that he didn’t know their plans – it was put to him that it appeared strange that they would be interested enough in an unemployed Yemeni driving down from [Country 1] that they would pay close attention to him. He claimed that he didn’t know why he would be targeted in person but they could target people for their car or money or political views.
Asked if anything had happened to his other family members, he said they were under danger at any time. He was asked if they had been harmed he said they weren’t but anyone could be subject to danger, but none of them had expressed opinions against AQ. He claimed that everyone in Yemen objected to unfair detention and killing whether from [Country 1], Houthis, or other radical groups. He was advised that the Tribunal was interested in his personal story. It was put to him that he claimed to have been kidnapped by an AQ group in 2015 and yet he returned to Yemen. He said he returned after they left in 2016.
It was put to him that he claimed a person came to his brother saying the applicant was being watched by AQ. Asked how this person knew, he said that this person had a close relation with someone working for AQ. It was put to him that [Country 1 authorities] would surely have detained a person with such close links to an AQ member, and he claimed that he didn’t know. His problem with [Country 1] was with his political views.
He was asked why, if he had been kidnapped by AQ once, that they simply watched him in 2017. He stated that in 2015 they had full control of Mukalla but in 2017 they had less influence – only a few checkpoints and some supporters. They only used the AQ name.
Asked if he had any other fears, he said that any time there were problems in yemen he was in trouble. [Country 3] could bomb from the air and the Houthis had bombed Shabwa where he was from originally. And there were always tribal disputes. People could be kidnapped for money – all of Yemen was in chaos and he could be killed at any time. He had no freedom of speech or conscience. It was put to him that he had been in Australia for six years and had not yet expressed his opinion and so it didn’t appear that he was someone who did express such opinions. He stated that he didn’t have permanent residency and didn’t have protection to say his opinion and he wanted to avoid a profile. He would be killed if he returned.
Asked why he couldn’t live in [Country 1], he claimed that his visa had been rejected. Even in the middle of the night he could be told to leave the country. If he had to go to Yemen he would be detained in secret prisons and executed. Asked what he did in [Country 1], he stated that he went there in 2007 for a visit and then became a resident in 2008 and departed in 2017. Between 2008-17 his visa was never cancelled. Asked why he though it would be if he returned now, he claimed that it happened to many others such as Syrians or Yemenis who had problems in [Country 1].
Asked if he had an uncle who was a [Country 1] citizen, he said that he did have a maternal uncle. He had been a citizen from a long time ago (1970s) when they gave citizenship to many people. Other family members (later said from the same tribe) were also citizens who had the same surname. His wife was [a Country 1 citizen] Asked if he was divorced, he said that he wasn’t. he said that she cancelled his visa. Asked whether she cancelled it or if it was cancelled automatically, he claimed that his wife cancelled applied to cancel it.
Asked if he had evidence of this, he said that he supplied it. The department said that his visa was cancelled by default six months after he left. It was put to him that such visas are automatically cancelled after being out of the country for six months. He said that he gave evidence to his lawyer [that] his wife had cancelled the visa. She still had to wait for six months and the [Country 1 authorities] told her this. He was asked to provide a copy of this to the Tribunal.
She applied to cancel his visa in 2017, two months after he left [Country 1]. He left [Country 1] [in] May 2017 and two months after he arrived she applied to cancel his visa. Asked if she came to Australia as well, he said she had bene here many times with the children. He couldn’t say how many times but she brought the children to see him. Their relationship was like a yo-yo.
Asked if she came out [in] May as well, he said that his wife was [an Occupation 1] and applied for study in Australia. Asked where she applied, he said that she applied from [Country 1] as it had to go through the Ministry telling them that she intended to study in Australia. Asked if he had a copy of this he said that he did. Asked why he came as well, he said that he came to check on the university and the best place to live and reside. He said that he came to Melbourne and checked universities such as [University 3]. Asked what he did when he said he ‘checked’ them, he said that he visited many places and to look for universities and school for the children and the weather, so he looked at many places.
Asked where he stayed in Melbourne, he said that he lived with someone from [Country 1] on a study visa. He knew him from [Country 1] and stayed with him for a week – he then went to [City 3] and then Sydney and Canberra. Asked if he had evidence that he went to these universities, he said that he didn’t but he visited them and asked people at the universities. Asked if he went to the universities, he said he did but he mainly asked the students. Asked what students he was speaking to, he said that one student was the person he stayed with. Asked if he went to the universities himself, he said that he went to the universities with this person and spoke to Arab students there. He only asked students – he didn’t go to the universities. The applicant said he had a degree [and] did one year at a university in [City 1] but didn’t complete it.
His wife came to Australia in 2017 and then many other visits. She came to Australia two months after he arrived. Asked if he took her around to the universities and spoke to the faculty – he said that he spoke to agents who would get them acceptance to the universities. Asked if his wife spoke to staff at the universities, he said that she spoke to an Arabic-speaking agency as she would need to do an English course.
Asked if she had applied before she came to Australia, he said that she had applied through the Education Department in [Country 1]. Asked what the result of the application was, he claimed that they told her that the scholarship had been stopped except for certain subjects such as [Subject 3]. Asked if he had a copy of this advice, he said that he did. His wife returned three weeks later.
He agreed that she then sought to cancel his visa. Asked why she did this, he claimed that she concluded that she wouldn’t get the scholarship and if he went back they would have fallen into the same cycle of no work, marital problems and the like. Asked why she didn’t divorce him, he said there was no reason as he wanted her. Asked why she didn’t then reinstate his visa if she didn’t want to divorce him.

It was put to him that spouses often fought, yet he claimed his wife cancelled his visa (even though it was automatically cancelled after six months) and had continued to regularly visit him in Australia with their children. His claim that she cancelled his visa so soon after she returned ensuring that he could never return to [Country 1] appeared very strange. If she never wished him to return to [Country 1] she could have divorced him ensuring he never came back.
He claimed that this is understood but their story went well back to 2015 when he left his job and they had lots of financial trouble and she coped initially but hoped that he would get a job soon after and could provide for the family. They had children and thought they could correct their relationship if they came to Australia on a scholarship meaning they had a double income. When her scholarship wasn’t approved she came up with a decision to stop as things would go backwards. This conclusion took two years to reach.
It was put to him that she had been here lots of times and visited her in [Country 3] which indicated that they had an ongoing relationship. It seemed strange that she had not tried to reinstate his residency given he was her spouse and, if for some reason she couldn’t get it then she and her father could have petitioned the [Country 1] authorities directly.
They seem to be financially comfortable given they flew the family to Australia often. If she was happy to keep him as her husband and visit him regularly, it seems very strange that she or her father had made no effort to get his residency visa reinstated given their ongoing relationship seemed firm. This raised questions as to whether she had actually sought to cancel his visa in the first place or whether it was cancelled automatically.
He was also advised about s 424AA and it was put to him that the Tribunal had been given a copy of a visa refusal involving the company [Company 2] and the Tribunal had looked at its website and the last activity appeared to be around 2014 - the concern was that it wasn’t operating as a company any more. It may have been put forward because the rejection would have been automatic as the company was no longer operating. In other word the rejection had been engineered.
Regarding the other visa rejection, he would be eligible for a residence visa so the reason why he would be applying for a short-term visitor visa rather than a resident visa was unclear. It raised concerns that the rejection letter was either fake or had been engineered. There was an overall concern that he had an ability to reside in [Country 1] as he had a functioning marriage and his wife could sponsor him to live in that country. So she had either not applied to cancel his visa or the result had been engineered, the same with the two visa applications he had provided to the Tribunal. The rejections he had provided the Tribunal were also from September 2022, five years after he arrived. The Tribunal had concerns that he did not have to return to Yemen and could live in [Country 1], he just had to exercise that right.
He claimed that his uncle hadn’t applied on the applicant’s behalf because under no circumstances can he sponsor the applicant. He couldn’t even sponsor his sister (applicant’s mother). It was put to him that he was able to sponsor his mother’s visitor visa. He said that the authorities could refuse any visa application without reasons, but simply because of security. Asked why he delayed applying for a [Country 1] visa, he said that he wasn’t safe there. And a family feud may arise between him and her family and his visa may be cancelled.
He was asked why he did not apply for a visa to [Country 1] before 2022 and also, he complained that he claimed to fear being jailed by [Country 1] in Mukalla and yet he had applied to go to [Country 1]. He said that he was issued a bridging visa by the Australian authorities in September 2022. This gave him a five month window to go overseas. He wanted to go to [Country 4] but his mother had a plane phobia and so he could only go by car to [Country 1] to meet her for example. He said that his relationship with his wife was volatile and there was no guarantee if he returned she could cancel his visa.
He was asked again why it was that he couldn’t go to Mukalla because the [Country 1 authorities] would lock him in their secret prison, yet he was applying for a visa to [Country 1] at the same time. This was inconsistent and made no sense. He was also asked why he tried to go to [Country 1] rather than [Country 2] for example where they could meet. Once again it didn’t make sense why he would want to go to [Country 1]. It raised questions as to whether he was being truthful. This could also raise questions about his claim that he and his wife were estranged – the regularity with which his wife and children came to Australia and the fact that he [went] with his family was also inconsistent with his claim about their relationship.
He said that the [Country 1 authorities] would only go against him when they found out he was against them and the STC. He had not expressed his fears. It was put to him that he had not claimed his opposition to the STC in his previous submissions. He said that he may have been misguided about what to include in his previous submissions. He said that he would not stay silent forever if he went to [Country 1]. He could restrain himself for a short time in [Country 1].
Asked how many time his family came to Australia, he said twice a year, sometimes once. He received a multiple-entry visa for them but recently it had been refused. He stated that his children were Yemeni and they could never become [Country 1 citizens]. When this was queried he then said that they could apply but it wasn’t guaranteed. He was reminded of the need to be accurate with what he claimed. Asked who didn’t get it if their mother had citizenship, he said it wasn’t guaranteed even though they could apply.
Asked if they had applied for citizenship he said they had. They were born in [years]. They applied after they turned [age]. One had to be born and live full-time for six years in [Country 1]. Asked why his wife hadn’t applied to reinstate his [Country 1] residency. He said that even if she applied he wouldn’t return because she could cancel the visa at any time. It was put to him that if he had the ability to reside elsewhere but chose not to exercise it, then this was unlikely to be sufficient to be granted protection in Australia.
He said that there was no guarantee that he would be granted a visa. It was put to him that the history of their relationship as outlined by him was inconsistent with what appeared to be their actual relationship. She had not initiated divorce whereas she could have divorced him while still allowing the children to visit him - they appeared to have enough money for all the family to visit him in Australia relatively regularly. He said that he paid for the airfares – he also said that if he was supported by his wife in [Country 1] people would talk badly about him. He claimed this was harmful and it was put to him that this may make him feel uncomfortable but would not really represent serious harm.

100. He said that Yemen was where he would return to and it was not safe as a country. People were hungry and desperate. Asked what family members he had in Yemen, he said that he had [brothers] – they kept moving and weren’t static; one in Shabwa. Asked if he had mentioned this previously, he said that he had said this during his interview and the Tribunal could listen to it. In [Country 1] one person would decide on his visa and it could be rejected and was never permanent. He could not become a citizen.
101. His brother never physically applied for the applicant’s [Country 1] tourist visa, but rather he used a delivery driver. His wife was the sponsor. The Tribunal said that it understood. He was asked why he didn’t apply for the visa himself from Australia and he said he didn’t know he could. Under s 424AA it was put to him that the Tribunal had notes of his interview and there was no record that he had said in the interview that his family in Yemen lived in peace because they avoided confrontation. There was nothing in the interview that indicated his family had to live in different places – this could go to issues of his credibility. If he stated something as a fact and when checked, it wasn’t a fact, this went to issues of his credibility and the truthfulness of other claims. He claimed that it was a long time ago and it was his mistake but his family were moving around.
102. The adviser said that the interview was an opportunity for the applicant to provide additional information not included in the statements. He also claimed that people from Yemen had been granted visas without interview since the Ministerial Guidance had been issued.
CONSIDERATION OF Claims and evidence
103. The applicant arrived in Australia [in] May 2017 on a tourist visa and applied for protection on 10 August 2017. The Tribunal has cited his Yemeni passport as proof of his identity, and Yemen will be used as his country of reference. Given his personal circumstances, as well as the location and status of his immediate family, reference will also be made regarding his ability to enter and reside in [Country 1].
104. The applicant is a [Age] year-old Yemeni man whose wife is [a Country 1 citizen] who currently resides in [Country 1] with their three children. He claims that he cannot return to [Country 1] because his wife refuses to sponsor his residency visa. He also claims that if he returns to Yemen he could be detained or killed because of his political beliefs that were opposed to [Country 1], STC, legitimate Yemeni government and the Houthi movement, and that he had been detained by Yemeni authorities in 2012 and by AQ in 2016 and may again at some time in the future.
105. 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 expected to accept uncritically any and all claims made by an applicant.
106. Overall 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 an entirely credible, reliable or truthful witness, and find that he fabricated his claims in order to be granted a protection visa.
Credibility Issues
107. There were a number of issues that presented themselves during the hearing where the applicant stated something as a fact that, when challenged on the assertion, either changed what he said or admitted an error. While the Tribunal does not expect perfect recall of events from applicants, it does require that applicants are truthful in their accounts and that they include relevant information as early as possible in the process. The instances listed below, while perhaps not significant in and of themselves, when taken together and in light of concerns about the applicant engineering visa outcomes to support his narrative that I have noted below, lead the Tribunal to make an adverse judgment as to the applicant’s credibility as a witness.
108. These include, but are not limited to the following:
a.At the hearing he claimed that he had [brothers] in Yemen but that they kept moving and weren’t static (due to the security situation). He had never mentioned this need for his brothers to be constantly on the move due to fears for their security in any of his previous submissions, nor did he do so in the interview as he claimed. Rather, he had said in his interview that his family lived in peace in Yemen. I do not accept that he had simply made a mistake given that he had provided statements and been interviewed and still had failed to mention this significant issue. This goes to issues of his credibility; and
b.He originally claimed that his children could never become [Country 1] citizens. When he was challenged on this claim he then stated that they could apply and knew the circumstances under which they could be granted citizenship, even though he claimed that it wasn’t guaranteed. Again, his willingness to assert something as a fact and then to change his claim when challenged, does little to engender confidence in his credibility as a witness.

Relationship with Wife
109. I do not accept that the applicant’s relationship with his wife is conflictual and, as he claimed in his August 2017 statement, that he is separated from his wife due to a dispute. The nature of the dispute he claimed to be involved in was allegedly of such importance that his wife sought to cancel his [Country 1] residency visa to stop him from returning to the country (and initiated his decision to seek asylum) because she tired of supporting him and would not support him any more. This decision to stop her husband and father of her three children from being able to re-enter the country occurred more than five years ago and is indicative of a failed union.
110. Yet their subsequent actions are not those of people separated for five years due to martial disputes. The applicant’s wife has made no attempt to divorce him (which is open to her under [Country 1] law given his absence from her[1]), she has personally brought the children to Australia since he has been here at least once, if not twice a year, he has remitted money to them from Australia and when he had the opportunity to do so he travelled to visit his family in [Country 3]. These are all the actions of a family that is dislocated from each other rather than a husband and wife legally separated because of a failure of their marriage, in the generally accepted sense of the term.
[1] [Reference], accessed 19 April 2023.
111. Regardless of whether the term dislocated or separated is more appropriate, the Tribunal is satisfied that the applicant and his wife have a functioning, ongoing marital relationship marked by regular family visits from [Country 1] to Australia and the remittal of money from Australia to [Country 1]. In short, their relationship is not of the type stated by the applicant, in which he claimed their enmity was of such an intensity that his wife sought to cancel his residency visa and has never sought to re-instate a residency visa in all the time he has been in Australia.
112. Given the apparent continued regard for each other and their union, I do not accept that the applicant’s wife decided to cancel his [Country 1] residency visa, although I do accept that the applicant’s residency visa ceased after he had been out of the country for six months. I have taken into account the screenshot post-hearing provided by the applicant that indicates a half-completed online residency cancellation application, however I lend it little weight. The screenshot identifies only a Customer Number so there is no way of knowing if the applicant’s wife initiated it, nor is there anything to indicate that the application relates to the applicant. I also note that the applicant stated at hearing that the application wasn’t able to be completed because the applicant hadn’t been outside the country for six months yet.
113. The applicant also stated in his interview that he arrived in Australia in May 2017, his wife arrived after two months and she returned to [Country 1] three weeks later - she then sought to cancel his visa. During her time in Australia they explored education options for her as she was seeking a [Country 1] scholarship to study here. This was also supported by an email from an education agent in Australia provided post-hearing stating that he provided in-person advice to the applicant’s wife in Sydney [in] July 2017 (the same day she entered Australia).
114. In his August 2017 statement the applicant stated that he and his wife had more arguments after he arrived in Australia and his wife told him that she would write to cancel his visa as she didn’t want to support him any more. This account is inconsistent with the screenshot of the residency cancellation application provided by the applicant which shows the application being initiated on 18 July 2017, a week before the applicant’s wife had even arrived in Australia, and not three weeks after her return to [Country 1] as he claimed. This raises further concerns in the minds of the Tribunal as to who initiated the online residency visa cancellation and whether it was engineered to provide evidence of a ‘falling out’ between the applicant and his spouse when none existed.
Continued Denial of [Country 1] Visa
115. The applicant has claimed that he is unable to return to [Country 1] because [Country 1] government has denied his application for entry on two occasions. There are a number of issues that the Tribunal was concerned about regarding the evidence presented by the applicant in this regard.
116. To begin with, his desire to apply for a visa to [Country 1] to see his family, while understandable, was also not necessary as he could have met them elsewhere. I do not accept that he originally wanted to meet them in [Country 4] but his mother had a plane phobia so he had to go to [Country 1]. If he had any concerns regarding his safety in [Country 1] he could have met them in [Country 2], an easy drive from [Country 1] which the member has done many times, as has the applicant.
117. His willingness to apply for a [Country 1] visa on two occasions is also inconsistent with his claim elsewhere that he feared being locked up by the [Country 1] military in their secret prison(s) in Yemen where they jailed people who criticised them. When this was put to the applicant, he said that because he had not criticised [Country 1] publicly he would not be known to them but that he could not stay silent forever. Given he has been in Australia for six years and never criticised [Country 1] publicly either in his own name or under a pseudonym, I do not accept that there is a real chance that the applicant will suddenly criticise [Country 1] once he returns there or Yemen
118. The Tribunal is also concerned about the type of visas he applied for and the manner in which he applied for them. He provided copies of two on-line documents dated 16 September 2022 and 21 September 2022 that indicated he had been refused a single-entry tourism visa and single entry long-stay pleasure visa respectively. He applied for the first entry through a company called [Company 2] in [City 1] and the second visa his wife was listed as his sponsor.
119. Whilst the Tribunal accepts that [Company 2] is a registered company in [Country 1] it appears to be moribund and its social media sites do not indicate that it is active as a travel agency. There is no record of any correspondence between the applicant (or his family) or the company, nor any receipts or invoices that would indicate any such work was done. The applicant could also have applied for a [Country 1] visa from Australia without having to go through a travel company in [Country 1].[2] His claim that he was unaware of this avenue raises further concerns in the Tribunal’s mind that the circuitous method of applying for the visa was in order to avoid leaving an auditable trail that the Australian authorities could follow. It adds to the Tribunal’s doubts regarding the genuineness of his visa application rejection.
[2] [Reference], accessed 27 April 2023.
120. There was no reason given for the refusal of the visa, nor did he have any written evidence of any correspondence between the applicant and any individual in [Country 1] who was applying for his behalf. Whilst I note that the applicant claimed that he left voice messages for his contact in [Country 1], that person would still have had to have had some contact with a [Country 1] immigration official or travel company representative at some point however there is no evidence of this.

121. Given the allegedly toxic nature of the relationship between the applicant and his wife and her refusal to act as his sponsor, it also appears strange that she would then act as his sponsor for a long-stay tourism visa to that country. Even more so when, as has been mentioned, the option to meet his family in [Country 2] without the need for her to sponsor his visa was open to him.
122. Again, there is no record of any correspondence between the applicant and anybody else involved in the visa application process, no reason for the refusal or indication that anyone has asked why it was refused, or that any family member has sought to repechage the decision. The Tribunal has significant concerns that, if the refusals are genuine, the applicant has engineered the outcome to reinforce his claim that he would be unable to re-enter [Country 1] regardless of whether his wife sponsored him, whereas the Tribunal is of the view that he would be able to enter and live under a five-year residency visa[3] if his wife simply applied to sponsor her husband.
[3] [Reference], accessed 4 May 2023.
Targeted by AQ in Yemen.
123. I do not accept that the applicant was ever detained by AQ, or that he has been or would be of interest to them in the future. He was equivocal regarding whether he was at risk from them during the hearing – he made no claim to fear them and when asked, stated that he didn’t fear harm from them but that he didn’t know if they would come back.
124. I do not accept that the applicant was ever detained by AQ in Mukalla. The group controlled the city for a year between April 2015 and April 2016. During that time the applicant stated that he visited Mukalla in September and November 2015. Although he has provided evidence that he entered Yemen on these dates there is no evidence that he entered Mukalla. This element relies entirely on his own oral testimony which I have found lacks credibility.
125. If he was indeed opposed to AQ then it is surprising that he would enter the one city in Yemen that they controlled not once, but twice. I note that he claimed he had family members in Mukalla, however if this was the case it would have been possible for them to leave Mukalla to meet him elsewhere in eastern Yemen if he or they believed he was at risk from them.
126. I do not accept that AQ retain influence in the Mukalla area, were still killing people and that in 2017 he was warned that he was being watched by AQ and left Yemen as a result. Again, this relies entirely on his own oral evidence. He also provided no supporting country information regarding any ongoing AQ operational activity of the nature he described, nor why AQ would be interested in threatening an unemployed Yemeni national visiting from [Country 1].
Political Opinion
127. I do not accept that the applicant holds political opinions opposed by the [Country 1] government (such as Yemeni federalism), the Houthis, the internationally-recognised Yemeni government and the Southern Transitional Council (STC) and that he may be detained, killed or have his freedom of speech denied by these groups because of these opinions.
128. I do not accept that the applicant has expressed, or would be considered to have expressed political opinion against any of the groups that he claimed or that he would do so in the reasonably foreseeable future. In his first statement he made no mention of holding or expressing anti-[Country 1], Houthi or STC opinions. Subsequently he has claimed that he expressed such sentiments in private from 2012 and that the STC would know this because of people who reported on such private discussions. The applicant later changed his claim, saying that the STC didn’t know but that once he was in a safe place he would speak out against them.
129. I have taken into account his claim that he did not mention this claim earlier because he was not appropriately advised by his representative. I am not satisfied that this was the case given it relies entirely on his own oral evidence which I have not found to be credible. It also strikes the Tribunal as strange that any legal firm (let alone the experienced one that represented him) would have failed to advise him to include such a claim if he had told them about it. Regardless, the way the applicant has outlined the claim, it relates to private comments made to friends more than a decade ago that are unknown to the STC.
130. The applicant has also not expressed any opinion against any Yemeni group in the six years he has been in Australia, which is inconsistent with his claim to be willing to publicly express such opinions once he was somewhere safe. I do not accept that he failed to do so because the [Country 1] government and their allies were clever and could determine who belonged to a site even if they used a pseudonym. The applicant was asked to provide country information supporting such a claim following the hearing, yet the only information provided post-hearing was a media report that the STC had arrested an activist in Hadhramawt.
131. I note the news source (Yemen Press Agency) is based in Houthi territory and its social media page is obviously anti-[Country 1]/STC. Another article from Human Rights Watch notes the arrest by the STC of a journalist in September 2020, along with a 2021 media report regarding the arrest of three former US intelligence officers who were charged with providing cyber technology designed to allow [Country 1] to undertake hacking and damage its enemies. Whilst I accept that [Country 1] is keen to silence political opposition that it believes threatens its interests, I do not accept that social media criticism of its actions in Yemen by individuals would meet its threshold for concern, given the plethora of online criticism that already exists and has done so since the original military operation commenced.
132. Nor do I accept that he failed to express any political opinion in [Country 1] because he did not want to risk having his visa cancelled. Given his visa was cancelled more than five years ago and he allege that he has had two subsequent tourist visas denied, this would not appear as an issue that should restrain him any longer. I have considered his claim made earlier that he did not comment because of his wish not to cause harm to his family in Yemen. This however is also inconsistent with his other claim that he would express such opinions once he felt safe, given this presumably means that he believed there was no adverse impact on his family members or that he didn’t care.
133. His actions in regularly returning to Yemen between 2015-17, and also seeking visas to return to [Country 1] (when he could have attempted to reunite with his family in a neutral venue) is also inconsistent with his alleged fear of the [Country 1] authorities, or of [Country 1] -backed groups in Yemen.
134. Whilst the Tribunal accepts the reality of the ongoing civil war in Yemen in which both [Country 1] and [Country 3] are heavily involved, it is also aware that the war has not affected all parts of Yemen equally and that Hadhramawt (of which Mukalla is the capital) has not been impacted in the same way as the rest (particularly the west) of the country. Country information indicates that apart from the year-long takeover of Mukalla by AQ from April 2015 to April 2016 the region has avoided much of the ground conflict seen elsewhere.[4] The applicant noted that he did not have a fear of Houthis in Mukalla.
[4] The Case of Hadhramaut: Can Local Efforts Transcend Wartime Divides in Yemen? (tcf.org), accessed 21 April 2023.
135. The safety of Mukalla, and the applicant’s willingness to travel to Yemen indicates that the applicant is comfortable with the safety situation in eastern Yemen. He returned to Yemen a number of times after 2012 without the STC taking any interest in him. His return to Yemen, on two occasions even while AQ was active in the area he returned to, are not the actions of someone with a profile as a person known to have expressed opinions against groups active in Yemen. Given he entered Yemen on several occasions through the [Country 2]-Yemen land border, whose crossings were controlled by the internationally-recognised Yemeni government, this would indicate that the applicant felt at ease doing so and the government had no interest in him.
136. I also do not accept that the applicant took part in a protest in 2012 in Yemen and was detained by the authorities and released after his family paid a bribe. There is no supporting evidence for this and his account appears implausible. He claimed that the demonstration and that he was very careful about maintaining a low profile because his wife was in [Country 1] and he was afraid they could be targeted. Despite this, he claimed that he was targeted because he was from abroad and that intelligence had provided the authorities with information so that he could be targeted. He also stated that he was calling out for people to join the demonstration.
137. It was put to him that his desire to keep a low profile because of his family in [Country 1] was inconsistent with his calling for people to join the protest. He then clarified that he spoke in person to friends, family and neighbourhoods to join the process however, this was still difficult to reconcile with his claim that there were informers everywhere.
138. I accept that the applicant spoke to his friends about the political situation in Yemen during his visits there in 2012. Given it was the time of the Arab Spring, it would be natural to do so. I do not however accept that these discussions were reported to the STC by informants. This was purely supposition on his part, and it also raises questions as to how the STC (formed in 2015)[5] could have been informed about (or even interested in) private discussions between friends that took place in 2012. I give no weight to claims he made about friends who posted anti-STC comments, were threatened and then began making pro-STC comments on social media. No supporting evidence was presented and it relies entirely on his oral evidence, which I have found lacks credibility.
Other Issues
139. I do not accept that he could not return to Yemen because there were lots of killings and the country was not safe. I have already noted that the impact of the conflict is not felt uniformly across the country and the area in which the applicant lives is one of those less impacted. This is evidenced by the applicant’s willingness to return there on a regular basis, and the fact that he had noted in his Departmental interview that his family in Yemen was safe. The Tribunal also notes that a year-long UN-brokered truce has largely held, while with the rapprochement between Saudi Arabia and Iran, talks between the Saudis and the Houthis have commenced and the prospects for a longer-term ceasefire are the most positive since the civil war began.
140. I also do not accept that there is a real chance the applicant will be harmed as a result of a tribal conflict. The applicant stated that such a conflict forced his family to move to Mukalla in 2007, however he made no claim that it would have any relevance to him and, given he claimed the dispute occurred 16 years ago I am satisfied that, even if such a dispute occurred (it relies entirely on his oral evidence) that it is no longer relevant.
Complementary Protection
141. Because I do not accept that the applicant ever took part in a protest and was detained by Yemeni authorities, is or would be perceived to be a political opponent of [Country 1] or the STC or of interest to either, was ever detained by AQ or would be of interest to them in the future, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
142. I have taken into account the conflict in Yemen in determining Australia’s complementary protection obligations towards the applicant. While the consequences of the war in Yemen are readily accepted, the Tribunal also notes that the conflict has not affected Yemen uniformly and the east of the country (of which Mukalla is the main port city) has, particularly since the expulsion of AQ, been largely spared the conflict seen in the rest of the country.[6]
143. The applicant comes from a secure part of the Yemen, has never been of interest to any of the protagonists in the Yemen conflict let alone detained by them, and he has felt safe enough to travel and visit family members regularly during the period of the civil war (including during the AQ occupation of Mukalla).
144. As a consequence of all this, 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 Yemen, that there is a real risk that the applicant will suffer significant harm on the basis of these claims as set out in the complementary protection criterion set out in s. 36(2)(aa).
145. And while the Tribunal accepts that he currently does not have a right to enter and reside in [Country 1], I am satisfied that this is only because he has chosen not to exercise that right through his wife sponsoring his residency visa. The Tribunal is satisfied that his relationship with his wife is not as adversarial as he has presented it and his visa refusals were engineered in order to give the impression that entering [Country 1] was not an option open to him. Thus, while the Tribunal has used Yemen as his country of reference, it is satisfied that he has the option of gaining residency in [Country 1] with his wife and family. He would be able to exercise that right if his wife acts as his sponsor, and the Tribunal is satisfied that the only reason that she has not is because the applicant is trying to engineer a reason why he cannot in order to improve his chances of being granted a protection visa in Australia.
[5] Yemen’s Southern Transitional Council: A Delicate Balancing Act | Crisis Group accessed 4 May 2023
[6] Violence in Yemen During the UN-Mediated Truce: April-October 2022 (acleddata.com), accessed 11 May 2023.
CONCLUDING PARAGRAPHS
146. 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).

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).
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

149. 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.
…

[2023] AATA 2443

11 May 2023

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