1917800 (Refugee)
[2024] ARTA 566
•25 October 2024
1917800 (REFUGEE) [2024] ARTA 566 (25 OCTOBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs
Tribunal Number: 1917800
Tribunal:General Member V. Price
Date:25 October 2024
Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.
Statement made on 25 October 2024 at 1:41pm
CATCHWORDS
REFUGEE – protection visa – stateless – race – Palestinian – particular social group – stateless Palestinians born and raised in the UAE – no right to reside in the Occupied Territories of Palestine – identity documents – country of former habitual residence – UAE crackdown on Palestinians residents – deportations – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2CASES
AJZ17 v MHA [2019] FCA 1485
Applicant A v MIEA (1997) 190 CLR 225 at 233
BZAAH v MIAC (2013) 213 FCR 261
Chan v MIEA (1989) 169 CLR 379
Chen Shi Hai v MIMA (2000) 201 CLR 293
FER17 v MICMA (2019) 269 FCR 580
MIEA v Guo (1997) 191 CLR 559
SZUNZ v MIBP (2015) 230 FCR 272
Tahiri v MIAC [2012] HCA 61Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 June 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is [an age]-year-old male who was born in Sharjah in the United Arab Emirates (UAE) and states he is a stateless Palestinian. He claims that he does not follow a particular faith.
The applicant arrived in Australia in 2012 as a student and remained lawfully in Australia since that time. He lodged an application for a protection visa with the Department of Home Affairs (the Department) on 2 December 2017.
The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of s.36(2) of the Act. In particular, the delegate determined that the Occupied Territories of Palestine was a ‘country’ within the meaning of that term, and that the applicant was a national of that country. However, as he was not able to enter Palestine, he was not at risk of fearing any harm. This is an application for review of that decision.
The applicant appeared before the Tribunal on 3 September 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages; however, the applicant speaks English and did not require the use of the interpreter. The applicant’s representative attended the hearing by video.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
BACKGROUND, CLAIMS AND EVIDENCE
The applicant’s background and claims for protection were set out in his protection visa application, in his written evidence to the Department and the Tribunal, and his oral evidence to the Tribunal at hearing.
In summary, the applicant claimed that he is a Stateless Palestinian formerly resident in the UAE and that he cannot return to either location due to a real chance of serious harm or a real risk of significant harm.
Evidence before the Department
The following documentary evidence was provided to the Department to support the application:
·Passport in the applicant’s name issued by the Palestinian Authority in [2015].
·Letter from the Palestinian Authority dated [in] November 2017 confirming he holds a passport but does not have a Palestinian Identity Card, cannot obtain one, and has no right to reside in Palestine.
·Letter dated 2017 from the Consulate General of the State of Palestine in [Country 1] confirming the applicant’s mother holds a Jordanian passport and has no right of residence in Palestine.
·Letter dated 2017 from the Consulate General of the State of Palestine in [Country 1] confirming the applicant’s father holds a passport issued by the Palestinian Authority, does not have a national identity document for Palestine and cannot return to that country.
·The applicant’s UAE driver’s licence which identifies his nationality as Palestinian, and excerpt of his UAE residence card.
·Country information.[1]
[1] UNHCR, ‘The United Nations and Palestinian Refugees’, January 2007; UNHCR, Access through Rafah Border Crossing, the Gaza Strip’, November 2015; UNHCR, ‘UNHCR Position on Deportations to Gaza’, February 2015; and UN, ‘Report of the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Palestinian People and Other Arabs of the Occupied Territories’ A/72/539, 18 October 2017.
The applicant was invited to an interview with the Department but chose not to attend.
Evidence before the Tribunal
The applicant provided the following material to the Tribunal in support of his claims.
·A statement by the applicant (undated).
·A submission dated 3 September 2024 by the applicant’s representative.
·A submission dated 24 September 2024, provided at the request of the Tribunal following the hearing, and attaching country and other information regarding circumstances in the UAE.[2]
·Additional country information provided by the applicant’s representative.[3]
[2] Human Rights Watch (HRW), ‘Letter to Minister of Interior in the UAE regarding arbitrary deportations of Lebanese and Palestinian residents’, 19 July 2010; The Official Portal of the UAE Government, ‘Visa Rules for UAE living outside the UAE for more than six months’, accessed 24 September 2024; Edarights, ‘UAE ranks 127th in global Human Freedom Index’ 27 January 2023; HRW, ‘UAE: Joint UPR Submission by HRW, The Arabic Network for Human Rights Information, The Gulf Centre for Human Rights and Index on Censorship’, December 2012; and Amnesty International, ‘Urgent Action – Dr Al-Shawa released and deported to Turkey from UAE’, 16 March 2015.
[3] United States Department of States (USDOS), ‘UAE 2017 Human Rights Report’, No Date Provided (USDOS 2017 Human Rights Report).
At the hearing the applicant confirmed that the information he provided to the Department regarding his identity and familial and biographical information was correct.
Applicant’s background and protection claims
The applicant’s evidence is that his father was born in Gaza in the Occupied Territory of Palestine. He holds a passport issued by the Palestinian Authority in November 2024 but does not hold national identity documents for Palestine. The applicant’s mother holds Jordanian nationality. The applicant is one of [number of children].
The applicant’s father moved to the UAE for work when he was young, though his family remained in Gaza. The applicant was born in the UAE in [specified year]. At that time, he was granted nationality in [Country 2], though this was subsequently rescinded in 2003.
The applicant completed primary and secondary school in the UAE. He then undertook a bachelor’s degree in finance also in the UAE. In 2012 he came to Australia where he completed a Master of Accounting in 2014.
The applicant’s father ceased employment in about 2014 and had no permanent residency or other relevant right to remain in the UAE. He and the applicant’s mother were forced to leave the UAE and now reside in [Country 1].
The applicant’s right to enter and reside in the UAE also ceased and he cannot return. He has visited his parents in [Country 1] but does not have a present right to enter and reside in that country. He held a passport issued by the Palestinian authority in 2015, though this expired in 2020.
The applicant’s [sibling] is an Australian citizen and [another sibling] is resides in [Country 3] as the holder of a [residence permit]. [Another sibling] continues to reside in the UAE. [They do] not hold a permanent right to remain in the UAE and [their] residence is contingent upon [ongoing] employment.
The applicant cannot return to Palestine, but even if he could he faces harm as a Palestinian due to the circumstances in Gaza, including those arising from the current conflict with Israel. He is not able to return to the UAE. However, even if he did, he has no right to employment, accommodation or other basic services and faces a real chance and real risk imprisonment and/or of deportation to Palestine.
Criteria for 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The first issue in this case is to identity whether the applicant has a country of nationality, or if not, to identity his country of former habitual residence. The second issue is whether the applicant has a real chance of persecution in the relevant country or, if not, whether he faces a real risk of significant harm.
The receiving country
The assessment of whether the applicant has a well-founded fear of persecution in s 5J of the Act (and is therefore a refugee for s 5H) or whether he satisfies the complementary protection requirements in s 36(2)(aa), requires the Tribunal to identify his ‘receiving country’. An applicant’s receiving county is either: the country of which they are a national; or, if there is no country of nationality, their country of former habitual residence, regardless of the possibility of return to that country: s 5 of the Act. Further, an entitlement to nationality or a capacity to become a national is not sufficient to establish nationality, rather the person must presently hold such nationality. [4]
[4] FER17 v MICMA (2019) 269 FCR 580.
In this case the delegate concluded that Palestine was the applicant’s country of nationality and his receiving country. However, for the following reasons, the Tribunal has reached a different conclusion.
Is the applicant a national of any country?
The applicant states that he previously held nationality of [Country 2] but lost this in 2003. The applicant has not provided supporting evidence of this matter but, equally, I have no reason to doubt this is the case as his evidence has otherwise been detailed and credible. I accept he does not currently hold nationality in [Country 2].
I accept on the evidence before me that the applicant’s mother holds Jordanian nationality. In accordance with the relevant nationality law, a child born to a Jordanian mother can only acquire nationality if the child was born in the kingdom of Jordan and his father was stateless or of unknown nationality. [5] In this case, the applicant was not born in Jordan and cannot acquire nationality by means of this provision. There is no suggestion he otherwise satisfies the conditions required to hold nationality of Jordan and I am not satisfied that he does. I find he is not a national of Jordan.
[5] Article 3(4), Law No.6 of 1954 on Nationality, Kingdom of Jordan, 1 January 1954 (last amended 1987).
I accept that the applicant was born in the UAE to parents who did not hold UAE nationality. A child born in the UAE to non-national parents, is not entitled to nationality by operation of law.[6] Nor is there any indication on the evidence before me that he otherwise fulfilled the requirements of continuous residence, and lawful employment, to later acquire nationality by naturalisation.[7] I accept that he is not a national of the UAE.
[6] Articles 1 and 2, Federal Law No. (17) Of 1972 Concerning Nationality and Passports with its Amendments, U.A.E 1972.
[7] Article 12, Federal Law No. (17) Of 1972 Concerning Nationality and Passports with its Amendments, U.A.E 1972.
The applicant’s evidence, which I accept, is that his parents now reside in [Country 1] on temporary visas. The applicant states that he has visited them on several occasions. He previously held a temporary entry document allowing him multiple entries into [Country 1] for the period of a year, but this expired in 2018. I accept this evidence. There is no evidence before the Tribunal indicating that he or his parents are nationals of [Country 1], and I am not satisfied this is the case. I find he is not a national of [Country 1].
I accept on the evidence before me that the applicant’s father was born in Gaza, he holds a passport issued by the Palestinian Authority but does not have a national identity document for Palestine. I accept he currently resides in [Country 1] and that he has family who remain in Gaza. I also accept that applicant’s UAE documentation referenced his nationality as ‘Palestinian’ and that he held passport issued by the Palestinian Authority in 2015 which expired in 2020. I accept that the applicant is of Palestinian descent.
However, the issue for consideration is whether the Occupied Territories of Palestine can be considered a ‘country’ for the purpose of determining the applicant’s country of nationality and receiving country. This is a complex matter.
Australian judicial authority has indicated that, with regard to the context and purpose of the relevant provisions of the Act, the term ‘country’ refers to a nation state, defined by a body politic with a subordinate geographic feature reflecting where the body politic exercises sovereignty.[8] The Courts have stated that the features of a country include: an ability to confer nationality on a person; possession of a system of domestic law; and a sovereign law-making body; and responsibility for national security.[9]
[8] BZAAH v MIAC (2013) 213 FCR 261 at [24]–[25]; see also Administrative Review Tribunal, ‘Guide to Refugee Law in Australia (hereinafter Guide to Refugee Law), Chapter 2: Country of Reference, last updated September 2024 ,page 2-7.
[9] BZAAH v MIAC (2013) 213 FCR 261 at [28] and [46]; see also Koe v MIEA (1997) 78 FCR 289 at 298, where the Court stated that a country is one capable of granting nationality. Guide to Refugee Law: Chapter 2: Country of Reference’, last updated September 2024, page 2-7.
Department of Home Affairs’ guidelines state that when considering if a territory or entity is a ‘country’ for the purposes of s 5H(1), if the Australian Government does not recognise a place as a country then decision makers ought to do the same.[10] In this case, Australia, has not recognised a ‘State of Palestine’.[11] However, Australian caselaw does not support diplomatic recognition by Australia is as a determinative factor in the consideration of a ‘receiving country’, [12] and while the Tribunal has taken Australia’s diplomatic position into consideration, it is by no means the determinative factor.
[10] Department of Home Affairs, ‘Policy - Refugee and humanitarian - Refugee Law Guidelines’, section 3.3.2, as re-issued 27 November 2022.
[11] Australian Department of Foreign Affairs and Trade (DFAT), ‘DFAT Thematic Report Palestinian Territories,’ 15 March 2017 at [2.5].
[12] See Guide to Refugee Law: Chapter 2: Country of Reference’, last updated September 2024, page 2-9.
The West Bank of Palestinian is divided into three administrative zones: Area A, which is administered by the Palestinian Authority; Area B, in which the Palestinian Authority maintains administrative responsibility, but shares security control with the Israeli authorities; and Area C, which is administered solely by the Israeli authorities.[13] The most recent United States Department of State (USDOS) Report states that in practice control by the Palestinian Authority over the West Bank is restricted given the presence of the Israeli Defences Force in the West Bank.[14] Hamas currently has de facto control over Gaza.[15]
[13] Anera, ‘What are Area A, Area B, and Area C in the West Bank?’, accessed 18 October 2024.
[14] USDOS, ‘Country Reports on Human Rights Practices for 2023- West Bank and Gaza’, 20 April 2024 (USDOS 2024 Report), page
[15] USDOS 2024 Report, page 6.
The Palestinian Authority has the power to grant permanent resident status to Palestinian residents in the West Bank and Gaza and to certain persons of Palestinian origin returning from abroad. However, the exercise of this power is premised on permission from Israeli authorities.[16] The so called ‘passports’ issued by the Palestinian authority are considered travel documents pending the formation of a Palestinian state.[17]
[16] ‘Palestinians and the search for protection as refugees and stateless persons', European Network on Statelessness, Badil Resource Center for Palestinian Residency and Refugee Rights, 2022 (‘European Network Report), pages 14-15.
[17] ‘Stateless Palestinians’, Abbas, S, Forced Migration Review, August 2006.
Palestine remains under occupation and Palestine does not have full control over official documentation issuance, or entry or exit to its territory.[18] Palestine is not a sovereign state, does not have a nationality law, and cannot confer citizenship on Palestinians.[19] Palestinians resident in the West Bank and Gaza do not have legal citizenship.[20] Taking all of these matters into account, and having regard to the factors identified by the Courts above, I find that the Occupied Territories of Palestine do not fulfill the requirements of a ‘country’ or ‘receiving country’ for the purpose of the Act.
[18] European Network Report, pages 14-15.
[19] European Network Report pages 14-15; and USDOS Report, page 6.
[20] European Network Report pages 14-15; and USDOS Report, page 6.
I find that the applicant is not a national of Palestinian. On the totality of the evidence before me, I find that the applicant is stateless, and his application must therefore be assessed against his country of former habitual residence.
Applicant’s country of former habitual residence
The term ‘country of former habitual residence’ is not defined in the Act. However, judicial authorities indicate this consideration requires a broad factual inquiry, including factors such as the actual and intended length of stay, purpose, strength of ties to the state and to any other state, and the degree of assimilation into the state.[21]
[21] Tahiri v MIAC [2012] HCA 61, at [16], SZUNZ v MIBP (2015) 230 FCR 272 per Buchanan J at [30]-[31], Flick J at [53], and Wigney J at [118].
The applicant was born in the UAE where he undertook his education, including university studies, and where he resided until 2012 when he came to Australia as a student. He has visited his parents in [Country 1] on several occasions, but he expressed no intention or ability to live there, other than for a short period of time and there is no suggestion he has assimilated himself into that country. Having regard to his circumstances, I am not satisfied his temporary visitation in the country, without more, amounts to habitual residence in [Country 1]. Rather, having regard to the applicant’s background and circumstances, including his birth and long-term residence in the UAE, I find that his country of former habitual residence is the UAE, and that this is his receiving country for the purpose of this assessment.
Third Country Protection: s 36(3) of the Act
Where a non-citizen has a right to enter and reside in any country apart from Australia, Australia is taken not to have protection obligations in respect of that person if he or she has not availed himself or herself of that right: s 36(3).
With some specified exceptions, if the holder of a residence visa lives outside the UAE for more than six months continuously, their visa will be nullified automatically.[22] The Tribunal accepts the applicant has lived outside the UAE for more than six months continuously, and that he does not fall within any of the relevant exceptions. I accept that his previous right of entry and residence in the UAE has ceased.
[22] ‘General provisions for the residence visa’, The Official Portal of the UAE Government, accessed 18 October 2024.
Palestinian refugees, including those born in the UAE, have no automatic right of re-entry to after departure, no right to UAE citizenship, to permanent residence, or to a UAE entry visa.[23] To enter the UAE, they must have a work visa or sponsor in the UAE. [24]There is no evidence that the applicant currently holds any work visa for entry into the UAE.
[23] DFAT, ‘Entry and residency rights', 4 July 2007; ‘UAE Residence Visa - Types of Residence Visas for Dubai’, www. visaguide.world, accessed 19 October 2024; and ‘Residence visas’, the Official Portal of the UAE Government, accessed 19 October 2024; and Immigration and Refugee Board of Canada (IRBC),’Palestine and United Arab Emirates: residence status of stateless Palestinians, including access to employment, education, health care and other services, and the ability to travel in and out of the country; the requirements and procedures to renew residence status; treatment of stateless Palestinians whose residence status has expired’, 24 November 2017 (IRBC 2017 Report).
[24] Article 4 Federal Law by Decree No. (29) of 2021 Concerning Entry and Residence of Foreigner, ( accessed 21 October 2024.
The applicant’s [sibling] remains in the UAE, but this is premised on [employment] in that country and there is nothing in the available evidence suggesting this automatically provides any right of entry and residence to the applicant. An expatriate resident can sponsor family members to reside in the UAE providing the meet minimum salary and accommodation requirements. [25] Additionally, the person being sponsored must have undergone and passed medical fitness tests at approved centres in the UAE. In this context a family member includes a spouse, child, or parents.[26] However, there is differing information regarding whether this extends to siblings, with one source indicating siblings cannot be sponsored for residence in any circumstances, [27] while other sources suggest that siblings can be sponsored, though only in limited circumstances, such as where they are minors without an alternative caregiver.[28] On the information before me, I am not satisfied and do not accept that the applicant has been sponsored by his [sibling] for residence in the UAE, and nor am I satisfied that [they are] able to do so given he would not appear to satisfy the limited circumstances required for sponsorship.
[25] Sponsorship requirements, the Official Portal of the UAE Government, accessed 19 October 2024.
[26] Sponsorship requirements, the Official Portal of the UAE Government, accessed 19 October 2024; and Amer Center, ‘How To Sponsor Family Members in Dubai: A Step-by-Step Guide’, accessed, 19 October 2024.
[27] Sponsor your family in Dubai: 2024 Guide - TRADE LICENSE ZONE (tlz.ae), accessed 19 October 2024.
[28]Amer Center, ‘How To Sponsor Family Members in Dubai: A Step-by-Step Guide’, accessed, 19 October 2024; and ‘How you can sponsor your siblings, their children in UAE?’, News Khaleej Times, 21 May 2019 .
The Tribunal finds that the applicant has no right of entry or residence in the UAE and without such documentation it is highly unlikely he will be permitted to enter that country. The Tribunal finds the applicant has no right to enter and reside in the UAE.
The letter issued by the Palestinian Authority dated [in] November 2017 confirms that the applicant does not have a Palestinian Identity Card, cannot obtain one, and has no right to reside in Palestine. This is so, irrespective of his Palestinian passport. The Tribunal accepts this evidence and finds that he does not have a right of entry and residence in the Occupied Territories of Palestine.
Nor is there any evidence to indicate that he has a right to enter and reside in [Country 1], [Country 2], or in any other country and I am not satisfied that he does. The Tribunal finds that s 36(3) does not apply.
Does the applicant satisfy the refugee criterion for protection in the UAE?
I have found that the applicant does not have a right to enter and reside in the UAE, however, I must nonetheless consider the circumstances he would face on return to that country irrespective of whether he can in fact enter.
In this case the applicant has claimed that he will not be entitled to employment, accommodation, and other basic services and that he faces a real chance of being imprisoned and/or deported to Palestine where there is an ongoing armed conflict.
Country information
The massive displacement of approximately a million Palestinians caused by the establishment of the State of Israel in 1948 had significant impacts on nationality systems across the region. [29] The large-scale displacement of Palestinians to the neighbouring states makes them one of the world’s most entrenched refugee populations, including in Jordan, Lebanon, Egypt, Iraq, Syria, and other Arab nations. As of 2017, there were about 5.5 million Palestinians registered with the United Nations Relief and Works Agency (UNRWA). In many countries, because generation after generation were born there, Palestinians have come to make up a considerable percentage of the population.[30] The UAE is not a signatory to the 1951 Convention Relating to the Status of Refugees or its 1967 Protocol [31]
[29] Zahra Albrazi, ‘Regional Report on Citizenship: The Middle East and North Africa (MENA) Comparative Report’ Robert Schuman Centre for Advanced Studies, European University Institute. November 2017 (MENA 2017 Report), page 4-5.
[30] Zahra Albrazi, ‘Regional Report on Citizenship: The Middle East and North Africa (MENA) Comparative Report’ Robert Schuman Centre for Advanced Studies, European University Institute. November 2017 (MENA 2017 Report), page 4.
[31] UNHCR, UAE Fact Sheet_February 2022.
The 1965 ‘Protocol for the Treatment of Palestinians in Arab States’ (or the Casablanca Protocol), is an agreement by Arab states to regularise and standardise the treatment of Palestinians, regarding employment, entry and return, freedom of movement and issuance and renewal of travel documents.[32] This in part mandated that Palestinians within their territory had the same rights of employment and freedom of movement as citizens. However, many states in the region interpreted the provisions of the Casablanca Protocol as excluding Palestinians from naturalisation processes, though Iraq is the only country whose laws expressly state as such.[33] The UAE signed the protocol on December 1971 (upon joining the Arab League).[34]
[32] League of Arab States, Protocol for the Treatment of Palestinians in Arab States ("Casablanca
Protocol"), 11 September 1965, available at: and Zahra Albrazi, ‘Regional Report on Citizenship: The Middle East and North Africa (MENA) Comparative Report’ Robert Schuman Centre for Advanced Studies, European University Institute. November 2017 (MENA 2017 Report), page 4-5.
[33] Zahra Albrazi, ‘Regional Report on Citizenship: The Middle East and North Africa (MENA) Comparative Report’ Robert Schuman Centre for Advanced Studies, European University Institute. November 2017 (MENA 2017 Report), page 5; and IRBC 2017 Report.
[34]League of Arab States, Protocol for the Treatment of Palestinians in Arab States ("CasablancaHowever, despite the inherent commitment under the Casablanca Protocol to regularise the status of Palestinians, the UAE has not done so, and even those who were born and raised in the UAE remain subject to the same immigration requirements as other non-citizens. [35] Amnesty International reported in 2019 that the UAE denied nationality to at least 15,000 individuals born within its borders and without nationality of another country, rending them stateless and depriving them of a range of state services, including free education and health care.[36]
[35] Kateryna Kadabashy, ‘Palestinian refugees: The state of statelessness’, Arab News, 15 May 2019.
[36] Amnesty International, Human Rights in the Middle East and North Africa Review of 2019’, 2020 page 70.
Sources state that even those Palestinians legally in the UAE and holding work visas, do not have access to public services: they must use private health care and education services.[37] Amnesty International reported that this year the UAE required all private sector workers to pay into a national unemployment programme. As migrants comprise most of the private sector workforce, they became eligible for unemployment benefits for the first time. However, the UAE still did not provide the protection of a minimum wage for migrant domestic and private sector workers.[38] Freedom House reported in 2024 that non-citizens and foreign workers commonly experience discrimination in employment and risk deportation for relatively minor offenses.[39]
[37] USDOS, ‘'Country Reports on Human Rights Practices for 2023 - United Arab Emirates', US Department of State, 20 April 2024, (USDOS, 2024 Report), page 29.
[38] Amnesty International, ‘The State of the Worlds’ Human Rights’, April 2024.
[39] Freedom House, ‘United Arab Emirates: Freedom in the World 2024 Country Report’ (2024 Freedom House Report) at [F-4].
Information states that individuals in the UAE without residence or entry permits may be imprisoned and deported. The Federal Authority for Identity, Citizenship, Customs and Ports Security (ICA) is responsible for issuing entry permits and visas to foreign nationals within the requirements of Federal Decree-Law No. 29/2021.[40] The law provides conditions for visas, residence permits, entry and exit procedures, and sets out the various obligations of foreigners. There are significant penalties for violations of the relevant provisions, including fines, imprisonment, and deportation.[41] The ICA has the power to deport the holder of a visa or residence permit, as required by the public interest, public security, public morals, or public health, or if he has no apparent means of subsistence.[42] Any foreigner illegally entering the UAE faces imprisonment for an unspecified period and deportation from the country.[43]
[40] Hassan Elhais, ‘UAE Amnesty and Legal Accountability: Clearing Records’, Lexology, 18 September 2023.
[41] See for example, articles 15, 18, 23, 24, 25, 27 and 30 of the Federal Law by Decree No. (29) of 2021 Concerning Entry and Residence of Foreigner.
[42] Article 15, Federal Law by Decree No. (29) of 2021 Concerning Entry and Residence of Foreigner.
[43] Article 21 Federal Law by Decree No. (29) of 2021 Concerning Entry and Residence of Foreigner
In 2022, the UAE delegation reported to the UN Committee Against Torture that: deportations of migrant workers only occurred if an individual posed a threat to the state; no person was extradited unless there was a relevant extradition agreement with the destination state; and there were no foreign nationals deported.[44] However, these statements do not appear consistent with other information regarding these matters.
[44] OHCHR, ‘Experts of the Committee against Torture Praise the United Arab Emirates for Establishing a National Human Trafficking Committee, Ask about Migrants and the State Security Apparatus , 14 July 2022.
The UNHCR reported in 2012 that deportation is a possible consequence of overstaying a legal residence permit for all non-citizens, including refugees and asylum seekers registered with the UNHCR in the UAE.[45] Between 2009 and 2010 hundreds of Palestinians were deported from the UAE for reasons including sending money to their relatives in Gaza.[46] These individuals were expelled without warning, receiving notices from immigration authorities that they must leave the country with their families. No explanation was provided and there was no opportunity to appeal. [47]
[45] United Nations High Commissioner for Refugee (UNHCR), ‘For the Office of the High Commissioner for Human Rights’ Compilation Report - Universal Periodic Review: UNITED ARAB EMIRATES’, June 2012.
[46] ‘The prospect of deportation may silence Palestinians in UAE’, TRT World, 2020, accessed 22 October 2024.
[47] The prospect of deportation may silence Palestinians in UAE’, TRT World, 2020, accessed 22 October 2024; and IRBC 2017 Report.
THE UAE position regarding these matters does not appear to have changed since that 2012 report, with the United States Department of State (USDOS) stating in their 2024 report that any persons lacking legal residency status, including asylum seekers, were subject to local laws on unauthorised immigrants, and could be detained. [48] The USDOS reported that in some cases authorities confined individuals seeking protection to a specific section of the airport while they awaited resettlement in another country.
[48] 'Country Reports on Human Rights Practices for 2023 - United Arab Emirates', US Department of State, 20 April 2024, page 29.
In 2019, the media reported widespread arrests of Palestinians residents in the UAE by the security services.[49] This lasted for about three months and resulted in dozens of arrests and several prosecutions. The report states that some individuals were arrested and interrogated about ‘the Gaza Strip, and political affiliations, in addition to relations with the Palestinian Authority and President Mahmoud Abbas’.[50] Some were released on the same day, others were held for several days, and some were prosecuted. Hundreds of families were placed into a state of tension and anxiety regarding their future. Observers considered this was a targeted measure specifically aimed at ‘tightening on the Palestinians’, and stemming from the fraught relations between the UAE and Hamas and the Palestinian Authority.[51] More recently, in 2024 the UAE arrested and then deported a Palestinian student, legally resident in the UAE, after he yelled ‘Free Palestine’ during his graduation ceremony.[52] Reports also indicate that a member of staff, at the same University, had also been deported.[53]
[49] Large-scale arrests against Palestinians in UAE, Emirates Leaks, 24 May 2019
[50] Large-scale arrests against Palestinians in UAE, Emirates Leaks, 24 May 2019.
[51] Large-scale arrests against Palestinians in UAE, Emirates Leaks, 24 May 2019.
[52] Agencies, and TOI Staff, ‘Report: UAE deported student who shouted, 'Free Palestine' at NYU Abu Dhabi graduation’, The Times of Israel, 10 July 2024; ‘UAE deports student for ‘free Palestine’ chant – Middle East Monitor’, 11 July 2024; Malak Harb, 'University student who yelled 'Free Palestine' reportedly deported as UAE weighs Israel-Hamas war’, The Independent, 10 July 2024.
[53] Agencies, and TOI Staff, ‘Report: UAE deported student who shouted, 'Free Palestine' at NYU Abu Dhabi graduation’, The Times of Israel, 10 July 2024.
The Global Detention Project (GDP) reported in 2016 and 2017 that there are at least seven facilities in the UAE used for immigration-related detention, only one of which is solely for immigration purposes.[54] All other facilities combine criminal incarceration with immigration functions and, of these, only two appear to have a system for segregating migrant detainees from the rest of the prison population. It is estimated that migrants and refugees may remain in detention any from a month to a year, prolonged by difficulties obtaining passports/travel documents, obtaining clearance from the local police, and/or waiting for a country to accept them.[55] The USDOS report states that the authorities rarely notified the appropriate diplomatic officials when a foreign national was detained, and for state security detainees, authorities rarely provided notification and provided very limited information regarding the status of these detainees.[56] However, the International Organisation for Migration (IOM), have reported that they visit detainees, mainly for the purpose of assisting with resettlement outside the country.[57]
[54] Global Detention Project (GDP), ‘Immigration Detention in United Arab Emirates’, January 2016 (GDP 2016 Report), page 11; and GDP, ‘ United Arab Emirates, Universal Period Review -3rd Cycle’, Submissions to the Universal Period Review by the Global Detention Project’ 29th Session of the UPR Working Group January – February 2018, submitted 28 June 2017,(GDP 2017 Report) page 5.
[55] GDP 2017 Report, page 3.
[56] USDOS 2024 Report page 6.
[57] GDP 2016 Report, page 11-12.
According to the GDP, there are few current reports detailing conditions for detainees in these facilities.[58] Some sources have indicated that the conditions of detention in prisons in Dubai and Abu Dhabi were generally good.[59] The GDP cites the 2014 USDOS Human Rights Report which indicated that prison conditions in the UAE vary widely, with reports of poor sanitary conditions, overcrowding and unconfirmed reports that police and prison guards mistreated individuals.[60] This is consistent with the most current USDOS report which continues to state that prison conditions vary widely among the individual emirates and between regular government operated prisons and detention facilities run by the state. Overall, the report states that ‘prison conditions are harsh due to overcrowding, physical abuse, long waits for health care access and inadequate sanitary conditions.[61] Notably the report also described the detention conditions as ‘life-threatening’.[62]
[58] GDP 2016 Report, page 11; and GDP 2017 Report, page 5.
[59] United Kingdom Home Office (UKHO), ‘Arrested or in prison in the United Arab Emirates (UAE)’ , 20 October 2023.
[60] GDP 2016 Report, page 11; and GDP 2017 Report, page 5.
[61] USDOS 2024 Report, page 3-4.
[62] USDOS 2024 Report, page 1
Amnesty International reported in 2023 that torture and other treatment amounting to serious harm, such as beatings, sexual assault, and prolonged solitary confinement, are used in security settings in the UAE.[63] Amnesty International’s Human Rights in the Middle East and North Africa Review of 2019 states that foreign nationals were among those arbitrarily detained and ill-treated in these environments.[64] More recently, in 2022, two foreign nationals detained by the UAE for purported spying offences gave evidence to the UN Committee Against Torture they were placed in solitary confinement, beaten, electrocuted, stabbed, interrogated for days, forced to take drugs and denied food and water during their detention in the UAE.[65]
[63] Amnesty International, ‘Human rights in Middle East and North Africa Regional Overview’, 2023; see also OMCT, ‘The United Arab Emirates need a national plan to combat torture’, 12 August 2022.
[64] ‘Human rights in the Middle East and North Africa: Review of 2018’, Amnesty International, Review
of 2019, page 69.
[65] Liv Martin, ‘UAE torture victims speak out at UN torture committee meeting’ Geneva Solutions, 13 July 2022; see also Rachel Hall and Patrick Wintour, 'Foreign Office failed to notice torture of British academic in UAE, watchdog finds | Foreign, Commonwealth and Development Office’, The Guardian, 4 August 2023; and BBC, ‘Foreign Office 'failed to protect' Matthew Hedges from UAE torture’, 3 August 2023.
The current armed conflict between Israel and Palestine began in October 2023 when Palestinian group Hamas, attacked Israeli citizens, and has had profound ramifications across the region. As of October 2020, Israeli forces killed more than 21,000 Gazans, mostly civilians.[66] Recent reports from the UN state that Israel is continuing its military operation in Gaza with at least 1,900,00 displaced persons, and severe restrictions on humanitarian aid.[67] There are severe shortages of food, water and medicine.[68] It is now estimated that over 40,000 people in Gaza alone have been killed, more than 99,000 people injured and more than 10,000 are missing.[69] In the Occupied West Bank, at least 756 people have been killed with almost 7,000 injured.[70] The Israeli death toll stands at approximately 1, 139 people killed and almost 9,000 injured.[71]
[66] Amnesty International, ‘Human rights in Middle East and North Africa Regional Overview’, 2023
[67] The United Nations and the crisis in Gaza, ‘What you need to know about the United Nations Response to conflict in the Middle East’, 22 October 2024; and UNRWA, Situation Report #121 on the situation in the Gaza Strip and the West Bank, including East Jerusalem, 16 July 2024.
[68]Ahmed Asmar, ‘Gaza death toll tops 42,700 with no letup in Israeli assault, 21 October 2024.
[69] Eric Tlozek, ‘How the death toll in Gaza is recorded and why experts say it is likely an undercount’, ABC News, 19 October 2024; One-year of Israel's genocide against the Palestinians - Letter from the State of Palestine - (A/ES-10/1012-S/2024/719) - Question of Palestine, 8 October 2024; Ahmed Asmar, ‘Gaza death toll tops 42,700 with no letup in Israeli assault’, 21 October 2024; and AJLabs, ‘Israel-Gaza war in maps and charts: Live tracker | Israel-Palestine conflict News’, Al Jazeera, updated 20 October 2024.
[70] AJLabs, ‘Israel-Gaza war in maps and charts: Live tracker | Israel-Palestine conflict News’, Al Jazeera, updated 20 October 2024.
[71] AJLabs, ‘Israel-Gaza war in maps and charts: Live tracker | Israel-Palestine conflict News’, Al Jazeera, updated 20 October 2024.
Relevantly, in early 2020, the UAE signed a normalisation accord with Israel, simultaneously reducing funding for Palestinian refugees.[72] The so called normalisation accord, among other things, provides for cooperation and bilateral agreements in relation to visas and consular services between the UAE and Israel.[73]The UAE has appeared to support Palestinians during the current conflict.[74] However, the UAE has continued its normalisation process with Israel[75] and in February 2023 UAE hosted the International Defence Exhibition and Conference at which states, including Israel, Russia, and the USA, gathered to sell weapons.[76] The group, Crisis Watch, recently observed that ‘the UAE attaches considerable importance to the relationship with Israel and will be reluctant to jeopardise it by demanding major concessions’ in respect of the current conflict.[77]
[72] UAE drastically cut funding for Palestinian refugees in 2020 ‘, AP News, 6 February 2021.
[73] READ: Full text of the Abraham Accords and agreements between Israel and the United Arab Emirates/Bahrain, CNN Politics, accessed 23 October 2024.
[74] UAE reaffirms commitment to supporting Palestinian people, accessed 24 October 2024; and
[75] BADIL Resource Centre, ‘Survey of Palestinian Refugees and Internally Displaced Persons 2019-2021, 2022 (BADIL 2022 Report) page 29;
[76] Amnesty International, State of the World’s Human Rights, April 2024, page 388-370.
[77] Crisis Watch, ‘The UAE, Israel and a Test of Influence’, 14 June 2024.
The UAE has also restricted protests and supressing open discussion on the conflict between Palestine and Israel.[78] This may be attributed to the broader limitations imposed on the media and residents in relation to freedom of speech, and political dissent and activism.[79] However, in June 2024, the UAE Detainees Advocacy Center stated they have observed a shift away from support for Palestine by the Emirates, and have recorded arrests and summons of dozens of citizens and foreign residents by UAE authorities due to social media posts opposing Israeli crimes or supporting the Palestinian resistance.[80] They observed that the authorities have implemented strict measures against those who support Palestine or criticise Israel, including deportation.[81] It has been reported that the UAE’s foreign policy prioritises economic and diplomatic ties with Israel.[82]
Findings
[78] Agencies, and TOI Staff, ‘Report: UAE deported student who shouted, 'Free Palestine' at NYU Abu Dhabi graduation’, The Times of Israel, 10 July 2024; ‘UAE deports student for ‘free Palestine’ chant – Middle East Monitor’, 11 July 2024; Malak Harb, 'University student who yelled 'Free Palestine' reportedly deported as UAE weighs Israel-Hamas war’, The Independent, 10 July 2024; 'Country Reports on Human Rights Practices for 2023 - United Arab Emirates', US Department of State, 20 April 2024, page 29;
[79] See for example, USDOS 2024 Report pages 18-26.
[80] ‘Detention and Deportation: The Struggles Faced by Palestine Supporters in the UAE’ Emiratesleaks, 30 June 2024.
[81] Detention and Deportation: The Struggles Faced by Palestine Supporters in the UAE’ Emiratesleaks, 30 June 2024.
[82]See for example, Zora, ‘UAE Deports Student For Shouting Free Palestine at a Graduation Ceremony’, S2Jnews’, 13 July 2024.
A person is not entitled to refugee status merely because they are stateless. Rather, a stateless person must have a well-founded fear of being persecuted in that country for one of the reasons enumerated in s 5(J)(1) of the Act.17 Accordingly, the Tribunal must consider the hypothetical situation of what would happen to the applicant if he were to return to the UAE in the reasonably foreseeable future.
The Court has confirmed that a person can have a well‑founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[83] Indeed the Court has stated that ‘an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be ... persecuted’.[84]
[83] Chan v MIEA (1989) 169 CLR 379; and MIEA v Guo (1997) 191 CLR 559.
[84] Chan v MIEA (1989) 169 CLR 379 at 429.
The applicant has claimed that he will be unable to reside in the UAE and that without any legal right of entry he will be imprisoned and deported. He also stated that even if he can reside in the UAE, he faces discrimination in obtaining employment, will not have access to basic services including education and health care such that he will not be able to subsist.
The country information above, indicates that Palestinians, including those who were born and grew up in UAE, have no automatic right of re-entry after departure from the country and must, like any other foreigner, obtain employer sponsorship or otherwise be sponsored by a resident or UAE citizen to enter, live and work lawfully there. As discussed above, I have found he had no such right to enter, reside or work there and I am not satisfied that he will do in the foreseeable future. The Tribunal accepts that the applicant, if returned to UAE, would be a stateless Palestinian without a residence permit upon his entry into the country.
The applicant previously resided in the UAE, but at that time he held a residence permit. The Tribunal accepts that upon return without a lawful residence permit, his circumstances would be very different. The Tribunal accepts he would not be able to work lawfully or access education, health or other public services which are dependent on a lawful residence status. It accepts his exclusion from employment and access to services threatens his capacity to subsist in the UAE.
Moreover, the Tribunal accepts there is a real chance he would be detained for not having a residence permit and that he would face imprisonment and deportation. The Tribunal finds that he faces a real chance of being detained in a prison, which may or may not have a separate immigration section, and that he will be held in detention for anywhere between a month and a year, while his deportation is arranged. Having regard to the above information, including that those interrogated and detained are subject to significant physical abuse, isolation, the Tribunal accepts that the applicant faces a real chance of mistreatment amounting to serious harm during any period detention and/or imprisonment.
Given the UAE recognises the applicant as Palestinian, the UAE’s past conduct in deportations to Palestine despite humanitarian issues in that region, and the current suppression of support for Palestine and criticism of Israel, the Tribunal also finds there is a real chance in the relevant sense that the applicant will be deported to the Occupied Territories of Palestine, where, because he is Palestinian, he faces a real chance of being killed or seriously harmed in the currented armed conflict.
Even if he is not deported, but allowed to remain in the UAE, the Tribunal also finds that the applicant faces a real chance of a lifetime of insecurity of residence status and exclusion of citizenship, which in his circumstances having been born and raised in the UAE, of itself amounts to serious psychological harm.
The Tribunal has also had regard to widespread arrests, interrogation, and detention of Palestinians in the UAE in 2019. They were questioned in respect of their views on Gaza and the Palestinian Authority. I note there is no suggestion the individuals had been outspoken or active on these matters, rather they were targeted and questioned merely because they were Palestinian and perceived to hold certain political views relating to the State of Palestine. Having regard to the meaning of real chance as expressed by the Court, the Tribunal finds there is a real change of the applicant experiencing this treatment, particularly given the current political environment in the UAE and the normalisation of relations with Israel, including in relation to visa and immigration matters.
On the totality of the evidence, the Tribunal is satisfied that taken singularly and cumulatively the circumstances the applicant faces on return, amount to serious harm of the kind contemplated by the Act.
Relevantly, s 5J(4) of the Act also requires that the essential and significant reason for the persecution is of or more of the reasons set out in s 5(J)(1)(a) and that the persecution involve serious harm, and systematic and discriminatory conduct.
Enforcement of a generally applicable law would not ordinarily amount to persecution because it lacks the necessary element of discrimination.[85] However, the High Court has also held that laws which impact adversely upon a particular section of the population cannot properly be described as laws of general application.[86] Further, a criminal law of general application may be implemented or enforced in a discriminatory way if it does not recognise, or take account of a relevant difference.[87] The case law supports that a law of general application can be considered to be implemented and enforced in a discriminatory way, if it does so in a manner that is not appropriate or adapted to a difference which can be characterised as a convention ground attribute or falls within one or more of the specified reasons set out in s 5J(1) of the Act. [88]
[85] Applicant A v MIEA (1997) 190 CLR 225 at 233, per Brennan CJ.
[86] Chen Shi Hai v MIMA (2000) 201 CLR 293 at [19]-[21]
[87] AJZ17 v MHA [2019] FCA 1485 at [46].
[88] AJZ17 V MHA [2019] FCA 1485; SEE ALSO 1621722 (REFUGEE) [2020] AATA 3913 (18 AUGUST 2020) AT [79].
To the extent the applicant faces harm due to his residency status, or lack thereof, the Tribunal has considered whether the circumstances he faces arise from laws of general application, as they apply to any non- citizen of the country. This question has also been considered by the AAT, differently constituted, in another matter involving factually similar claims and circumstances.[89] In that case, the Tribunal determined that the immigration laws applicable in the UAE at that time had a differential impact on stateless Palestinians born in the UAE, especially those with long term ties and family connections in the UAE,[90] such as the applicant in the matter before me. The Tribunal in that case was considering a previous version of the relevant immigration laws. This Tribunal is not bound by the findings in that matter, and I am considering the amended version of the UAE laws. However, on the relevant material before me, including the circumstances of the applicant, the relevant laws and country information discussed above, I have nonetheless reached the same conclusion in relation to the current immigration and residency laws of the UAE.
[89] 1621722 (REFUGEE) [2020] AATA 3913 (18 AUGUST 2020).
[90] 1621722 (Refugee) [2020] AATA 3913 (18 August 2020) at [80] –[83].
In this case, having regard to the country information discussed above, and the relevant caselaw, I find that relevant laws to which the applicant is subject cannot properly be characterised as laws of general application. I find they have a differential impact on stateless Palestinians born and raised in UAE, and who have familial ties to the country. The laws as they apply to this group deny them basic rights to subsist in UAE, including the right to be lawfully employed and to access services such as education and health care. Moreover, the laws differentially put them at risk of arrest, imprisonment, and deportation from the country and cause psychological harm because of their ongoing insecurity of their status.
The Tribunal finds that ‘stateless Palestinians, born and raised in the UAE, with long term and family ties there’, constitute a particular social group within the meaning of that term. This group has shared characteristics which are innate or immutable, fundamental to their identity, and which, based on the country information, clearly distinguish them from society. The characteristic is not a shared fear of persecution. The applicant finds the applicant belongs to this group.
The failure of the UAE to regularise the status of stateless Palestinians who were born in that country, had long term residence and with ongoing family ties, and the failure to permit re-entry and residence, cannot be said to be appropriate or adapted to achieving a legitimate object of the country. This is particularly so noting that the UAE has committed under the Casablanca Protocol to regulate the status of Palestine, including those born within their territory, and has failed to do so.
Given the differential impact of the residency laws and the UAE’s failure to treat the applicant differently, in a manner appropriate and adapted to his differences, the Tribunal finds the laws are being implemented and enforced in a discriminatory manner. The failure of the UAE to adapt these laws constitutes systematic and discriminatory conduct.
In respect of the real chance of being arbitrarily arrested, questioned, and detained, such as in the 2019 incident discussed above, the specific law and/or laws authorising these acts is not clear on the available information. However, the information above states that Palestinians were being specifically targeted during that period, most likely for political reasons. Accordingly, the Tribunal finds that this conduct, of which the applicant faces a real chance in the future, was discriminatory and amounts to persecution.
The Tribunal finds that the essential and significant reasons for the harms against the applicant are due to his Palestinian nationality or lack thereof, his perceived political opinion arising from his nationality, and/or his membership of the particular social group, being ‘stateless Palestinians born and raised in UAE with long term residence and family ties there.’
In summary, the Tribunal finds the denial of entry and lawful residence, lawful employment, and access to basic services, as well the real chance of arrest, detention, imprisonment, and deportation, amounts to serious harm. The denial of basic rights will threaten his capacity to subsist; being arrest, detained, imprisoned will not only amount to a threat to his liberty, but he faces mistreatment amounting to serious harm during those processes; and deportation will lead to serious harm as set out above.
The Tribunal finds the applicant faces a real chance of serious harm for the essential and significant reasons of his membership of a particular social group, an imputed political opinion, and/or his nationality or lack thereof, on return to the UAE now or the reasonably foreseeable future. The persecution involves systematic and discriminatory conduct and relates to all areas of the UAE. As the State is the agent of persecution, effective protection measures are not available to the applicant.
In this case, any modification would require the applicant to conceal an innate or immutable characteristic or conceal his true nationality or ethnicity. These are impermissible modifications for the purpose of s 5J(3) and as such he cannot take reasonable steps to modify his behaviour so as to avoid the real chance of persecution.
Conclusion
The Tribunal is satisfied on the totality of the evidence before it that applicant has a well-founded fear of persecution for 5J(1) and 5H of the Act.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Date of hearing: 3 September 2024
Representative: Dr Mohamed Al Jabiri (MARN: 9803754)
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.
…
Protocol"), 11 September 1965, available at: ‘The Untold Story Of Palestinians In Qatar: Navigating A Fragile Legal Landscape’ BU Intl Human Rights, Medium, 24 April 2024.
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