1922340 (Refugee)

1922340 (Refugee) [2022] AATA 682 (9 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1922340

COUNTRY OF REFERENCE: Saudi Arabia
MEMBER:Rodger Shanahan
DATE:9 February 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 February 2022 at 5:14pm
CATCHWORDS
REFUGEE – protection visa – Saudi Arabia – political opinion – opposition to the government – particular social group – deserting the military forces – returned asylum seeker – government critics on social media – people charged with or convicted of serious criminal offences overseas – illegal exit – fear of arrest – fear of torture – delay in applying for protection – criminal charges in Australia – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 22 July 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 Saudi Arabia, applied for the visa on 22 February 2019.
The applicant appeared before the Tribunal on 15 December 2021 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. The representative attended the Tribunal hearing.
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
The following statutory declaration was submitted by the applicant in April 2019 as part of his protection visa application:
I make this statutory declaration in support of my application for a permanent protection visa, lodged with the Department of Home Affairs.
I am currently in insecure accommodation, speak very limited English and have had trouble gathering certain information required by the protection visa application. I ask that my decision maker take this into account when conducting my interview and assessing my case. I would like the opportunity to correct any mistakes I have made, and to provide any further details at my interview. Also, as I expand on below, due to the circumstances in which I left Saudi Arabia, the student visa application I completed in that period was not completely accurate.
If I am forced to return to Saudi Arabia, I fear I will be detained, interrogated, tortured or killed by the Saudi Arabian authorities. I fear that this will happen because I left the Saudi military, and the country illegally, using a fraudulently obtained document, and sought asylum in Australia. I also fear that I will be in danger of harm from the Saudi authorities because that have happened since I arrived in Australia.
Background
I am [age] and I am a citizen of Saudi Arabia. I was born in Al Hofuf, Al Ahsa, Saudi Arabia, on [date]. I am Saudi Arabian and I am Sunni. I sometimes pray and go to the mosque. I am single.
My father used to work in [a specified] company, but he is now retired. My mother was at home with the children. My mother and father live in Al Hofuf, Al Ahsa. My [siblings] also live in Saudi Arabia. My family is of average income for Saudi Arabia, they are not particularly well off or short of money.
My time in Saudi Arabia
When I finished school in [year], I had trouble finding a job, and my parents supported me for a time. I wanted to study overseas, and I travelled to [Country 1] on two occasions to study English, between 2012 and 2014, and to [Country 2] once, in 2015, to study [a subject].
I then returned to Saudi Arabia, and in 2015, I got a job for [Employer 1], in [a specified region], Saudi Arabia, as a [Occupation 1]. I worked there for approximately one month. I also made some money by buying [products], and re selling them at a [location] in Al Hofuf.
In about [year], I joined the Saudi military. I joined the military because I was having trouble finding work, and my family told me I should join so that I could support myself.
I knew very little about the military when I joined. I went to the military's offices, filled out an application form, applied, and was accepted. In the military, I held the rank of private. I was put into [Regiment 1], which is known as [Unit 1]. I do not know why they are called that. During my time in the military, I was required to do exercise when I woke up, physical training and cleaning. We also did tasks like unloading trucks, unloading goods from warehouses and organising tents. We were trained in how to march as a group, and how to greet senior officers.
Mv political views
I am against the Saudi military, the Saudi government, and its war in Yemen. Even before I joined the military, I had formed an impression that Saudi Arabia was a country which operated corruptly. People who have good connections within Government are able to bend the rules, especially those with connections with the army. Army officers are closely connected to the royal family, which has created a corrupt network. I also became aware that if a person criticised the regime, they may be prosecuted, detained and physically harmed. I heard stories about such people being arrested and thrown in prison.
I also learned about these characteristics of the Saudi regime by reading stories that were posted on Twitter, by individuals and by journalists from Al Jazeera and British newspapers. For example, I remember reading a news story about a number of women protesters who were thrown in gaol. I heard they were tortured.
While I was in Saudi Arabia, I kept my critical views to myself. I did not mention my views, even to my family. If my family knew that I was critical of the Government, they would fear for my safety and for their own safety. This is because the Saudi regime does not tolerate individuals who are critical of it or its institutions.
After I joined the [military], my disapproval of the Saudi Government grew stronger. I came to see the Saudi regime as an utterly criminal regime. I also became very disapproving of the Saudi military as an institution. I grew to understand that I could not trust the military hierarchy. I heard stories about people who disobeyed the military's orders and simply vanished, their families never heard from them again. I also heard about military officers punishing soldiers unnecessarily. I heard about many such cases.
I felt very threatened because on a number of occasions, I saw my own senior officer under the influence of drugs. I do not know what kind of drugs he had taken, but I could tell from the slow way he spoke. I heard that when he was in this state, he punished other soldiers by putting them in detention, sometimes for no reason at all. Soldiers who were put in detention were put in a sort of prison within the military barracks for a number of days.
I concluded that a senior officer who behaved this way could not keep his position unless he had very good connections within the Government. It made me feel that I could not trust the military hierarchy. I felt that the senior officers could punish me arbitrarily, and that anything could happen to me if I offended them or the organisation.
Privately, I am also very critical of the Saudi military's war in Yemen. I came to understand that in this war, the military is killing children and other civilians indiscriminately. I also see that the war had caused a lot of Yemeni civilians to flee their country and try to find safety in Saudi Arabia. The war has caused these Yemenis. to flee their homes, but then the Saudi Government has introduced a policy preventing them from entering Saudi Arabia, and cancelling existing residency permits. I saw this as unacceptable.
I was never sent to Yemen while I was in the military, but I heard about what was happening from Yemenis who were living in.Saudi Arabia. There are lots of Yemenis there and I met some of them on weekends or after work, for example when I was the supermarket, restaurants, or gas stations.
Decision to leave the military and Saudi Arabia
After I had spent less than a year in the military, I knew I could no longer stay there. If I had said anything to my colleagues about my views against the military, the regime, or the war, I was frightened that other soldiers would report me to senior officers. The military is the kind of place where people will report you in if you do or say anything out of line. No one ever said anything critical of the regime, the military or the war. It was well known that if did, you would be reported. I feared that if I was reported in this way, I would be imprisoned, tortured or killed.
I believe that my name is still in the Saudi Government's computer systems as a private in the military. The system in Saudi Arabia is that if you work for any agency or part of the government, for example the military, you cannot leave your employment without permission from your government employer. When I signed up to the military, I remember there was a piece of paper that described possible punishments for leaving without permission, including gaol. As I describe below, because I left the military and the country without permission, if I was to go back to Saudi Arabia, my name would be in the computer system at the airport, and the authorities would pick me up and punish me.
How I left Saudi Arabia
Obtaining my leave permit document. I left the Saudi military in [year]. I was able to leave because a friend, called [Friend A], helped me to fraudulently obtain a military leave permit document which allowed me to escape. The leave permit document said that I was allowed a month of leave from my military service. [Friend A] is a distant relative on my father's side, who I have known since I was young. I contacted [Friend A] because I understood that he has friends in the military, and may be able to help me with the right paperwork.
I called up [Friend A] and told him that I wanted a leave permit so I could travel outside of Saudi Arabia for a holiday to one of the other Arab Gulf states. [Friend A] explained to me that if I wanted to fly to another country in the Gulf region, I would need to leave from [Country 3]. This was because the Saudi customs officers at the checkpoint between Saudi Arabia and [Country 3] would be likely to accept the leave permit document. He said they are used to seeing those kind of documents. The customs officers at other checkpoints, for example at an airport within Saudi Arabia, or at the checkpoint between Saudi Arabia and other country like [Country 4], would be likely to scrutinise the document closely and would not accept its authenticity.
The military leave permit [Friend A] obtained for me said that I was allowed to take a month of leave, [between specified dates] (in the Islamic Hijri calendar these dates are [specified]). The document is signed by a man called [name], who is described as the commander of [Unit 2].
This leave permit document describes me as soldier [number], in [Regiment 2]. My real soldier number is different, I think [number]. As discussed above, my real regiment is [Regiment 1]. My real regiment would not have given me leave. The military's policy is that you will not be given leave until you had been with the military for a whole year, or you have finished your final training, and I had done neither of those things. [Friend A] suggested that I fraudulently obtain a leave permit signed by the head of another regiment (in this case, [Regiment 2]), so I could leave the military and the country.
I do not know if the man who signed my leave permit would have known that I was not really in [Regiment 2]. I did not ask [Friend A] for details about how he obtained the document. I think he would have been scared to give me too much information.
Obtaining my student visa
At around the same time. I did some research and found a migration office that would allow me to apply for a student visa to Australia. I contacted the office by phone and started the process of applying for my Australian student visa. I emailed the agent a copy of my passport, high school certificate, and transferred the money. I didn't tell the agent anything about being in the military, because I thought they were Saudi employees. This is why my student visa application records the answer "no" to the question about whether I served in the military. I was scared that if I answered yes, he may check with the Saudi authorities about whether I was permitted to leave the country. My student visa was issued without any problems.
I chose Australia because it seemed to be similar to [Country 1], where I had been before, and it seemed like a good country. I thought I would be happy there, and be secure in the country as the government will protect me. At the time I applied for the Australian student visa, I planned to study English and perhaps to eventually work in Australia.
Escape from Saudi Arabia and arrival in Australia
Once I obtained my Australian student visa and my military leave permit, I finished my shift, and left the military base. I was not expected back for a few days, as I had a few days off. I went home to Al Hofuf and organised a small bag. I just took essentials with me.
Then I hired a driver to drive me across the Saudi border to [Country 3]. I had memorised my false soldier and regiment numbers, which is something [Friend A] advised me to do before I reached the border checkpoint. However, in the end, the customs official did not ask me for those numbers. The official checked my national identification card, and took a copy of my leave permit. My understanding is that the official would have searched for my name on the computer, using my identity card. He would have been able to see that I was a soldier. Because I had the leave permit document, he let me pass.
I was in [Country 3] for about one or two days, and then I flew to [Country 5], where I was in transit for about four hours, before continuing on to Melbourne. I arrived in Melbourne [in] August 2018, and I started my course at [a named college] in Melbourne two or three days later. I attended classes for about one month, and also looked for work after class.
My fears of returning to Saudi Arabia
After I arrived in Australia, I thought more about my situation, and I realised that I needed to apply for a protection visa. For the reasons I discuss in this part of my statement, I realised that in my situation, I would be in grave danger from the Saudi Authorities if I were forced to return. I had reached this conclusion within a month or two of arriving in Australia.
As I mention above, I had been to other Western countries before: to [Country 1] twice (between 2012 and 2014), and to [Country 2] once, in 2015. I did not try to apply for asylum in those countries because at that time, I did not have the same level of fear about the Saudi regime. It was only after I had returned to Saudi Arabia, joined the military, and then left it without permission that I felt unable to return.
If! am forced to return to Saudi Arabia, I am scared that, immediately upon my arrival at the airport, I will be captured. Because I left the military and the country illegally, my name will have been put on a computer database. This will enable the Saudi customs officers at the airport to identify and apprehend me. Then they will hand me over to the security forces or the detention department.
These Saudi authorities will interrogate me, asking questions like: who gave me permission to leave the military, who gave me permission to leave the country, how I left the country, who helped me to get out, and who prepared my papers. I believe that these questions will be asked to me as they torture me for information.
Because I left the military and the country unlawfully, I anticipate that the authorities will put me in a prison called Al Haer in Riyadh. A lot of people get sent there who are viewed as being against the government, like activists. The authorities may send me to prison for leaving the military and the country illegally, or they may make up some other charge against me, and publicise me on TV as being some other kind of criminal. The Saudi authorities are prepared to falsely accuse people of committing crimes. There are laws and courts, but there is no fairness, and the laws are not fairly applied. The courts do the bidding of the Government.

Once the authorities have me in their power, I fear that they will torture me, kill me or chop me into pieces. I look at what happened to Jamal Khashoggi, the Saudi journalist who was murdered in the Saudi embassy in Turkey. After killing him, the Saudi officials mutilated his body. If the Saudi authorities feel they can do that in the embassy of another country, I am terrified of what they would do to me on their own soil.
I fear that the Saudi authorities will harm me in this way because they will view what I did: leaving the military and the country using a fraudulently obtained leave permit, and claiming asylum in Australia, as extremely serious.
In Saudi Arabia, members of the military, like other workers for government, are tightly controlled, and cannot simply quit their jobs without permission. Moreover, as a young person who left the country illegally in the circumstances I did, I fear that the authorities will be likely to conclude that I am an opponent of the regime, a person who is anti-government and a trouble-maker. The authorities are very quick to become suspicious about young Saudis who leave the country to live in Western countries like Australia.
An example of one of these young Saudis is a man called Omar Abdulaziz who is an opponent of the Saudi Government living in Canada. I have watched many of the videos he has posted from Canada, criticising the Saudi government, and I follow him on Twitter. I heard that after Omar started his critical online posts, the authorities captured his friend and his younger brother in Saudi Arabia. Even for myself, if the authorities know that I am applying for a protection visa in Australia, they will go to my family and harm them. They will take members of my family, and ask for an exchange - they will ask for me to come back, and then they will release my family.
I have followed Omar's Tweets since I arrived to Australia. When I arrived, I set up a new Twitter account using a nickname so I could not be identified. I have not uploaded a profile picture of my face for the same reason. I did these things because I was fearful of being exposed as someone who follows people like Omar. I interact with the posts of a lot of Saudi activists and dissidents on Twitter. Sometimes, when I tweet or re-tweet something against the Saudi government, someone will report me to Twitter, and Twitter will temporary suspend my account. At a later date, I will provide the Department with a copy of my Twitter profile.
The Saudi authorities will be even more likely to view me as an opponent of the regime because they will be likely to learn, or assume, that I tried to seek asylum in Australia. The Saudi government will understand from this that I made complaints about Saudi Arabia to the Australian government. They will see me as a traitor for doing this. They are not a regime that puts up with people trying to leave Saudi Arabia to find safety elsewhere.
I am also fearful of the consequences that may follow from things that have happened since I have been in Australia. In September 2018, I went out drinking in the city with a friend who I met in the backpackers I was staying in. We went to a number of bars and clubs. Early in the morning I was arrested and charged with [two specified charges]. I did not commit [one charge] and I plan to plead not guilty. However, the things I am accused of doing are considered Haram in Saudi Arabia, and drinking alcohol and going to bars with women is also prohibited. I fear that if the Saudi government learns of these things, this will give them another reason to punish me and harm me. In Saudi Arabia, there is no rule about double jeopardy, and I fear I would be charged again before the Sharia courts, which do not operate fairly.
For example, in the past, sometime in 2016, I was caught drinking in the desert in Al Hofuf, Saudi Arabia. The police caught me and my friends drinking, and they took us in the car to the station. I then was brought to court after one or two days in the station, which was a religious court, and the judge was a Muslim cleric. The judge asked whether I had drank alcohol, I admitted this and apologised. The judge determined that I would receive [number] lashes on the back, and I was then taken to jail where I received these whips, but was not imprisoned. This shows the attitude in Saudi Arabia to those who drink alcohol.
As I said in my initial protection visa application, my understanding is that my Saudi passport will allow me to enter other Gulf States, like Kuwait. However, I would also be very frightened to go to any of these countries now. Saudi Arabia has very close relationships with all of the Gulf States, and for that reason, if I was sent there, I believe I would be harmed by the authorities in those countries, or deported to Saudi Arabia. For example, I have heard about the case of a man with a British passport, who was wanted by Saudi Arabia. He was detained while he was in Kuwait, and handed over to Saudi Arabia. This shows that the Saudi Government has the power to manipulate other Gulf countries to do what it wants them to do.
In summary, if I was forced to return to Saudi Arabia, I am certain that at the airport, I will immediately be apprehended. Then, I fear that I would be interrogated, gaoled, tortured and killed. The Saudi authorities would do this because they would view me as an opponent of the Government and the regime. They would view me this way because I am a young Saudi man who:
a.left the military, and the country, using a fraudulently-obtained document;
b.lived in the West;
c.tried to apply for asylum in Australia;
d.engaged in behaviour, and was accused of doing things, which in Saudi Arabia are considered Haram and completely unacceptable.
The Saudi authorities would also understand, correctly, that I am an opponent of the Saudi military, the Government and the war in Yemen. If, for any reason, I am not immediately apprehended and make it past the airport, I would live in constant fear that my political views in opposition to the regime, the military and the war would one day be exposed. I would not be able to express myself freely or live authentically.
Effective protection
The authorities in Saudi Arabia will not protect me. As I have described above, because of my political opinion and particular social group, I fear that the Saudi security services, or the detention department will harm me if I return. There is no police service or other agency that is independent of these authorities, or that would protect me. I understand there is also a newly created national security group in Saudi Arabia which exerts influence over other government agencies. The state authorities work together and cannot be differentiated.
Relocation
There is nowhere in Saudi Arabia that I would be safe. If I entered the country at any border entry point, I believe that the customs officials would immediately identify and apprehend me. As I discus above, due to me leaving the military and the country illegally, my name will be on a computer database.
Identity documents
I provide, with this statement, a certified copy of my Saudi drivers' license. I am unable to provide a certified copy of my Saudi passport because it has been confiscated by the police. I note that the Department already has a photocopy of my passport.
Other supporting documents
In support of this application, I also provide a certified English translation of my military leave permit document.
For the reasons I have explained, I respectfully ask that the Australian government provide me with protection.
AAT Hearing
The applicant claimed that if he returned to Saudi Arabia, he would be sent to jail or something worse because he had been in the military and had left Saudi Arabia without permission from the military. He had no other claims.
The applicant was advised that the member had served in the Australian Embassy in Saudi Arabia as an assistant defence attaché and was quite familiar with the Saudi military. He was asked about his military history such as what training he received, what part of the military he served in and where he was posted. He claimed that he didn’t take the full training and didn’t train on weapons or anything like that. He just did some physical training, they would put their uniforms on and then go to work. Training on weapons and the like didn’t occur until two/three or six months after joining.
He joined the military in about the end of [year]. Asked what part of the Saudi military he was in, he said it was the Ministry of National Guard – he said it was the same as the Saudi Arabian National Guard (SANG). He was in the SANG for approximately a year before he came to Australia. It was put to him that within a year he would have completed his basic and then specialised training. He was asked what equipment he was trained on and what unit he was posted to. He claimed that at the start of the training people may go to different areas such as infantry where they may just march in parades.
He was assigned to specialist weapons – asked what kind of specialist weapons he worked on, he said that he may do missiles or rockets. Asked if he went to the artillery, armour, engineers rather than the infantry, he claimed that he wasn’t sure but he was in the infantry. It was put to him that he was there for a year so it was assumed he would know what part of the SANG he was in, and he claimed that each unit was different and he was in an infantry unit where out of 100 people 30 would use rockets or missiles but he hadn’t been trained on them yet. Asked what the types of rockets or missiles he was going to use given he was assigned as a specialist to them, and he claimed that he didn’t do the training. He just did basic tasks like put up/take down tents or move boxes around or just guard things.
He was asked how he could be in the SANG for a year and essentially do nothing, not even to fire a weapon. He claimed that every course was different. There were training courses every three months and you could pick what training you wished to do. He conducted his training in al-Ahsa where he lived but hadn’t yet done his training. He said again that he did his work without training – one had the option of doing some training but he had not. It was put to him that it didn’t make any sense as he did guard duty but without any training for example.
He said SANG allowed you to wear a uniform and work before you did the training. You could be security at the gate for instance. The training was every three months, for three months and you could ask to do it whenever. So he worked but without training. It was put to him that he claimed to be in a unit (battalion) in the SANG but to have received no training – this didn’t appear to make sense.
He said police and the like had to train before working but SANG allowed a person to work without training. They only did security guard at the gate, transfer weapons or cleaning. Asked if he had any evidence that he was in the SANG, he claimed that he had submitted some. He could also get his details from the Saudi government website but they would send it to a phone he no longer had.
It was put to him that he had sent a copy of the back of a SANG ID card and a separate photo stapled and he said that he did. Asked why he didn’t show the front of the card or provide the original given the back didn’t show any details. What he provided was unlikely to carry any weight. He said he couldn’t remember but he provided all the paperwork and photos in uniform. It was put to him that there was a photo of him in uniform that didn’t look quite right and could have been photo-shopped and a very short video of him drinking a cup of tea in a camouflage hat and shirt that could have been borrowed. There was also a video of someone walking into a room but it was so brief that it was impossible to make out who it was.
The Tribunal had concerns that it was hard to believe that he was in the SANG for a year without doing any training, he provided the back of an ID card that provided no details to identify it as belonging to him, and some videos/photos that didn’t really prove anything. There was a leave document that was handwritten that could have been photocopied from a real form or created on a home computer. The Tribunal had concerns that he wasn’t actually in the SANG.
Asked if he said he was in the SANG when he applied for his Australian visa, he said he wasn’t and he said that he was a security agent in case the Saudi authorities found out he was applying. He was asked if he was actually a security guard and not in the SANG and he just provided security at the front gate of the base. He claimed he was in the SANG and provided all the proof.
In the SANG he was posted to [Unit 1] – it was based in al-Ahsa. Asked what the name of the military base he was located at, he said it was called [Unit 1]. Asked again what the base’s name was, he said it was the Ministry of National Guard. What the idea of a base was, was then explained to the applicant. He again said the name of [Unit 1]. Asked what the name of the brigade his unit belonged to, he said it was called the [Unit 1 variant]. He was asked to provide some information about the existence of this unit after the hearing.
He left Saudi Arabia because he wasn’t feeling safe because there were so many changes in government and politics. Asked why he personally didn’t feel safe, he claimed that because of the conditions in which he worked he didn’t feel safe. He was asked to be specific about what harm he felt and he claimed that the country was at war with Yemen, he was in the military and some of them were being sent south to the border with Yemen. He could have been sent even without the training.
It was put to him that he had joined the SANG that protected the country’s borders, and he claimed to fear being sent to the border. This didn’t appear to make sense. He claimed that he didn’t feel safe at work. Other people he worked with had 20 years’ experience or had their training and they were sent south. He thought he could have been too. He also repeated there had been many political changes. It was put to him that he voluntarily joined the SANG so he could have been sent – he was also told it wasn’t clear how the political changes impacted on the applicant personally.
He said it didn’t impact him personally but he was against the war in Yemen and politics. He was asked why he didn’t just resign from the SANG if he felt this way. He claimed that he had no specific reason and he just wasn’t feeling safe at work. Asked why he came to Australia and whether it was to claim protection, he claimed that he intended to study and leave Saudi Arabia and apply for protection after his study. It was put to him that if he claimed to fear being jailed because he deserted the SANG then surely protection would have been a higher priority than study.
It was put to him that he said that he lied on his student visa application in order to get here so surely protection was a high priority. He claimed that he didn’t have experience when he first arrived and just wanted to leave Saudi quickly so he didn’t do his research then. He began his research when he got here then applied. Asked how long it took him to apply he said he couldn’t remember but would say it was three or four months. It was put to him that it was over six months. He agreed. It was put to him that this was a very long time for someone who claimed to be a deserter from the SANG and he was asked why it took so long. He said that it didn’t take six months. He tried to apply but the immigration lawyer said he couldn’t apply before his visa expired.
Asked who the lawyer was and if it was his present lawyer, he said it was a different one. They told him to wait for six months. He was asked for a statutory declaration from that lawyer as the Tribunal found it hard to believe that an immigration lawyer would give him this advice. He said that there was [an agency] at [Suburb 1] and they applied on the day after his visa expired. He was asked to provide the statutory declaration as asked.
It was put to him that his legal adviser sent a submission with a range of criminal offences the applicant had pleaded guilty to. It was put to him that most if not all had been committed before he applied for protection in Australia. This raised questions as to his rationale for applying for protection. Asked if he attended his Departmental interview he said he couldn’t remember attending. Asked why he didn’t attend given he claimed to face serious harm in Saudi and could have put forward his claim, he said that he may have become lost trying to find it but couldn’t really remember why he didn’t attend.
It was put to him that he had claimed to have gone AWOL and claimed protection because he feared being jailed by the Saudi military for doing so. It was put to him that the Australian military jailed individuals who went AWOL so he was asked why it was discriminatory. He said he didn’t know and he just didn’t feel safe. It was put to him that he was being vague about feeling unsafe and that being jailed for going AWOL occurred in many militaries, including the Australian. He claimed every country was different and said Saudi was different to Australia and he didn’t feel safe there.
Asked if he had any other claims to protection in Australia he claimed that whatever he had mentioned previously. If the government knew he had been charged in Australia it would be more risky for him. Asked if the Saudi government knew that he had pleaded guilty to a number of offences, he claimed that the Saudi embassy tried to contact him in the detention centre. He has refused to talk to them. It was put to him that it is not unusual for foreign nationals to be charged in another country and then return. He would not be the first Saudi who pleaded guilty to charges overseas, and the Tribunal was unaware of any country information that indicated Saudi nationals who returned to Saudi Arabia after committing a crime overseas were punished on return.
The applicant claimed that he didn’t know but was sure there was a punishment. Asked why he was sure if he didn’t know, and whether he had any country information that indicated the Saudi authorities punished their citizens on return from being detained from another country, he said he didn’t have any information but he was sure he wouldn’t be safe.
It was put to him that he had made a claim about social media entries he had made and was asked if he wanted to expand on this, he said he had nothing to say on the matter. Asked if it was still a claim, he asked what a claim meant. He was advised that he had claimed in his submission that he had been critical of the regime but had made no mention of it at the hearing. He claimed that he wasn’t active on social media but he would be punished because when he came here he opened a Twitter account and posted critical things on it. It was put to him that the Tribunal tried to open the Twitter account he had provided but it couldn’t and didn’t appear it was an active account. Asked if and when it was active he claimed that a few months ago he received emails that the account had been de-activated and then when he tried to open it on a new device he bought, he could not.
Asked what he meant by these messages he received, he said he believed the account was hacked. When he got a new device he tried toa access his account but he was unable to – he believed that he was hacked while in jail. He couldn’t remember the password or email addresses. He had so many he couldn’t remember them all and didn’t really read his emails. Asked about his Twitter account and whether he had contacted Twitter to advise them that his account had been hacked, he claimed that he didn’t know how to contact them and didn’t really have experience on social media. Asked what he did to find out how to contact Twitter given it was pretty straightforward, he claimed that it wasn’t important to him. He just downloaded and read things – he didn’t really post things.

It was put to him that he had sent screenshots of two tweets that he said were critical of the Saudi government and were posted in August and September 2018 which was just after he arrived. He was asked if there was any evidence that his account was open for longer than a month or two after he arrived in Australia given that it couldn’t have been opened. He claimed that he did open it after he arrived because he felt free here – he didn’t think specifically to use it to support his claim. He told his adviser about it and she included it.
Asked how long he was active on Twitter criticising the government, he claimed that what he provided was the first time – he wasn’t very active. He was told about s 5J(6) and it was put to him that shortly after arriving in Australia he established a Twitter account and put a couple of things on it critical of the government and there wasn’t any evidence that it was active for very long. The Tribunal was concerned that the posts he made were simply to create a refugee profile. He said he didn’t intend to tweet these things simply to use for his application.
It was put to him that his twitter account didn’t have his name or his photo, so even if it did come to the attention of the Saudi authorities out of all the tweets that were posted every day how they would associate it with him, he claimed that he wasn’t active on social media and was going to put a photo of him but it was too old.
He was asked about a claim he made about being a failed asylum seeker and was asked how they would know he had applied for protection given it was a confidential process. He claimed they would know and knew he was at a detention centre and would want to know what visa he was on. It was put to him that they would likely assume he was in detention because of his criminal charges and not anything to do with asylum claims. He said he didn’t know and they had contacted him [details deleted].
It was put to him that he had made a claim that he had been found guilty of drinking alcohol in Saudi Arabia and sentenced to [number] lashes. He was asked if he had even made mention of this in his student visa application or his protection visa application. He said he mentioned it in his protection visa but they didn’t ask about it for his student visa. It was put to him that most visa applications ask whether he had been convicted of a crime so the Tribunal found it difficult to believe that he hadn’t been asked.
He said again that he mentioned it in his protection visa application but not his student application. He said that he didn’t mention that he was in the military or about his conviction in his student visa application. He said he didn’t mention it in his student visa application because if he said that it wouldn’t have helped with his application.
He claimed that he applied to Australia and would have applied for other countries if he didn’t have it approved. He didn’t mention these things because it wouldn’t have helped his application.
Pre-Hearing Submission dated 14 December 2021
The applicant’s adviser provided a submission in support of the applicant, in which she claimed he faced serious harm because of membership of the following particular social groups (PSG):
A.People in KSA who have avoided their military obligations;
B.People who have sought asylum in Australia;
C.Government critics who have voiced their opposition to the Saudi government on social media;
D.People who have been charged with serious criminal offences overseas; and
E.People who have been convicted of [serious criminal offences] overseas.
It was also claimed that he would be harmed because of actual and imputed political opinion because he opposed the current Saudi regime and was anti-government.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on a student visa [in] August 2018 and applied for a protection visa on 22 February 2019. The Tribunal sighted his Saudi passport and he will be assessed using Saudi Arabia as his country of reference.
The applicant is [an age] year-old single Saudi male who claimed that he deserted from the SANG using a false leave permission form and that he would be detained, tortured and killed for doing so. He also claimed to fear serious harm for anti-government social media criticism, applying for asylum and because of serious criminal offences committed in Australia.
In considering an applicant’s account, undue weight should not be given to some degree of confusion or omissions to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to uncritically accept any or all claims made by an applicant.
I found the evidence regarding the applicant’s claims to lack credibility. For reasons set out below, I did not find the applicant to be a reliable, credible or truthful witness and that he fabricated his claim in order to be granted a protection visa.
Desertion from SANG
I do not accept that the applicant was a member of the SANG who deserted and then travelled to Australia to seek protection. The SANG consists of more than 70,000 regular personnel, as well as around 28,000 tribal militia (al-Fouj) who ‘…have little or no regular military training, are inactive for most of the time and…many of the tribesmen are on the roster only because of the social benefits (such as healthcare).[1]
[1] Jaroslaw Jaraqbek, ‘All the Money can buy, The Saudi Arabian Armed Forces’, p 175
The applicant claimed that he had been with SANG for a year but had done no training but simply fitness, moving equipment and some guard duties. As a former Defence Attaché to Saudi Arabia the member found this hard to accept as believable. His lack of any knowledge of any weapons systems (such as their name) is equally puzzling given that he claimed to have been assigned to ‘specialist weapons’ in his unit, as is his claim that he performed guard duties without ever having done any weapons training at all. I also do not accept that his service could have been as part of al-Fouj which may have accounted for the lack of training. I discounted this as a realistic possibility not only because he did not claim to be in al-Fouj but also because his full-time employment and level of activity for a year is inconsistent with their relative inactivity.

100. The applicant offered up some evidence in support of his claim. These included what he claimed was his ID card and photos/videos of him in uniform. I place no weight on the ID card claim given it consisted of a copy of the back of what appears to be an ID card that contains no features that would identify it as belonging to the applicant, and a separate, stapled, stamped copy of the applicant’s photo on a page that has then been photocopied.
101. There is what appears to be a studio photo of the applicant in a SANG uniform however the Tribunal had concerns with its veracity and that it could have been photo-shopped as the face didn’t look as though it belonged to the body of the subject to the naked eye. There was a video of the applicant in a military shirt and cap drinking a coffee/tea and a very brief video of several people in uniform in what could have been an office, however it was so brief that it was not possible to make out anyone in the video. None of them were dated or was there an indication where they were taken. The Tribunal could not lend them much weight as the applicant could have staged/photoshopped the portrait-type photo and borrowed a shirt and cap for the video.
102. I have taken into account what he claims is a copy of his leave application however I lend it little weight. It consists of handwriting on a computerised form that could have been produced on any home computer or could have been a legitimate form provided by a friend/acquaintance in SANG (which is what the applicant claimed).
103. I note that the applicant claimed that he described himself as a security guard in his student visa application to Australia. I do not accept that he did this in case the Saudi authorities knew that he was applying for a visa, as it was not immediately clear why he thought that they would know given that the application process is online. It is plausible that the applicant was a security guard (which he had claimed to have done [for an earlier employer]) and may have been employed at the SANG base/front gate.
104. Given that I have not accepted the applicant went AWOL from the SANG it follows that his name is not still on the Saudi computer system as a private, there is no chance of him being detained, interrogated and tortured for leaving the SANG, or that he would be deployed in support of the war in Yemen.
105. My concerns regarding his claim to be a member of the SANG who had gone AWOL are reinforced by his delay in applying for protection in Australia. Despite claiming to have experienced a high level of fear of living in Saudi Arabia and that he faced serious harm because he had gone AWOL from the SANG, he did not apply for protection for more than six months, despite also claiming that he only attended English language classes for a month. In addition he claimed that he lied about his occupation on his Australian student visa application in order to leave the country yet for all of this he did little to find out how to apply for protection and then to apply.
106. Initially he claimed that the delay was only three or four months but when he was told that it was six months he then claimed that he delayed on the advice of his migration lawyer who told him that he couldn’t apply until his current visa ran out. I have taken into account a timeline provided by the applicant’s adviser post-hearing that he was referred to the [Agency 1] on 16 November 2018 however efforts to contact the applicant were difficult because he was found to be homeless and receiving some [Agency 1] assistance for accommodation, unsuccessful attempts were made to contact him and the applicant missed appointments.
107. Whilst the Tribunal accepts that the applicant was difficult to contact at times, it also notes that he did not get a referral to [Agency 1] for three months after arriving in Australia, even though he claimed to have falsified his occupation on his visa application in order to come to Australia to apply for protection. Further, he claims not to have attended classes after a month which gave him plenty of time to pursue what he claims was his primary purpose in coming to Australia = to seek protection. Overall, his delay in applying for protection, even for three months is inconsistent with the serious harm he claimed to face in Saudi Arabia.
People charged/convicted of [serious] crimes overseas
108. I do not accept that there is a real chance the applicant will face serious harm now or in the reasonably foreseeable future as a person charged with serious criminal offences overseas and/or people convicted of [serious criminal offences] overseas.
109. I accept that the applicant pleaded guilty to a number of matters in the [named] Court, mostly without conviction although [two specified charges] resulted in a conviction being recorded. The adviser also noted that he also has unresolved matters at [another] Court until February 2022. He is currently in immigration detention and the Saudi Embassy has sought contact with him [details deleted] although the applicant has claimed that he has refused to see embassy staff.
110. Whilst it is not necessarily the case that the Saudi embassy is aware of the charge(s) to which he has pleaded guilty or is facing, unless there is a no publication order or it is a closed court then the Tribunal must assume that the information could be obtained by the Saudi authorities if they sought to. If they did access such information I am not satisfied that the applicant would be subject to double-punishment in Saudi Arabia through the imposition of an additional punishment to what he received in Australia.
111. Foreign national being deported is not an unusual occurrence. This includes foreign nationals (including Saudis) being deported after serving time in foreign jails. Whilst it can be difficult to obtain exact figures, the UK for instance, conducted enforced removals of 45 Saudi citizens between 2010-2019.[2] In the US there were 90 Saudis deported in FY 2012 and 105 in FY 2013.[3] In the case of the US, most arrests carried out by ICE have prior criminal convictions.[4] Yet there is no country information available to the Tribunal, nor was any relevant information provided by the applicant, that supported his claim that Saudi authorities subsequently charged individuals because of crimes committed overseas for which they had already been convicted and served their punishment and that resulted in them deported. This also applies to crimes of a [specified] nature.
[2] returns-datasets-sep-2021.xlsx (live.com), accessed 7 February 2022.
[3] ICE Deportations: Gender, Age, and Country of Citizenship (syr.edu), accessed 7 February 2022.
[4] Most immigrants arrested by ICE have prior criminal convictions | Pew Research Center, accessed 7 February 2022.
112. And whilst drinking alcohol in Saudi Arabia is considered [haram], as noted above there is no country information available to the Tribunal nor was any provided by the applicant that convictions for these offences overseas also resulted in charges being laid in Saudi Arabia. Bahrain and other Gulf cities such as Dubai have long been used by Saudis to consume alcohol outside the Kingdom without repercussions back in the Kingdom.[5] Nor is there any country information available to the Tribunal, nor was any provided by the applicant that conviction for such crimes overseas meant that one was imputed one with an anti-government political profile.
[5] Bailed-out Bahrain has little room for maneuver in economy reboot | Reuters, accessed 9 February 2022.
113. Post-hearing the adviser provided a submission in which she claimed that a Saudi man had moved into the private accommodation that the applicant used to rent, formed friendships with his former housemates, sought out the applicant’s phone number and had phoned the detention centre [several] times. The adviser stated the applicant believed him to be [working for the Saudi government]. I do not accept this claim given it is uncorroborated, and relies entirely on the applicant’s oral testimony which lacks credibility. It also makes little sense why and to what end [this person] would move into the applicant’s former Melbourne share house given [its location].
Saudis who have sought asylum in the West
114. I do not accept that there is a real chance that the applicant will face serious harm as a member of a PSG of people who have sought asylum in Australia or be imputed with seeking asylum in Australia. To begin with the procedure is confidential so the Saudi authorities would be unaware of his having applied. I am satisfied that the consular official trying to get in contact with the applicant is only aware that he is facing criminal charges and, given their nature he is in immigration detention as a result of the cancellation of his Australian visa. This would be considered the normal process followed and I am not satisfied that he would be imputed with having applied for protection simply for being in immigration detention given his legal circumstances.
115. The Tribunal is also unaware of any country information that indicates that Saudi authorities, even if they become aware, target individuals just for applying for asylum, nor was any provided by the applicant. Nor do I accept that if they found that he had applied for asylum they would impute him with being an opponent of the government. The Tribunal is aware of claims that individuals who have sought asylum have alleged that they are enticed to return to Saudi Arabia by the authorities, however these were women who often had a profile as an activist and were known to have sought asylum. The applicant has no profile as an anti-government activist so would not be an exemplar for anyone else inside the Kingdom or pose a problem for the Saudi authorities because of the adverse focus they would come under from international NGO/media. Given the applicant’s anonymity I am satisfied the Saudi authorities would not consider him a threat or impute him with being anti-government.
Criticising the Saudi government on social media
116. I do not accept that there is a real chance that the applicant will face serious harm either now or in the reasonably foreseeable future as a member of the PSG ‘government critics who have voiced their opposition to the Saudi government on social media’. To begin with I do not accept that the applicant’s short-lived criticism of the Saudi government would be known to the authorities. The only evidence that he has presented are screen shots of two tweets from August and September 2018. The link he provided to the Tribunal for his account couldn’t be opened and there didn’t appear from his screenshots that there were any features that could identify him as the author – no photo of him nor any reference to his name.
117. I do not accept that the account was hacked as this relies entirely on his oral evidence which I have found lacks credibility. He also made no effort to contact twitter to report the alleged hacking or to re-open his account or to start a new one. Thus the only evidence he has provided was of two tweets from a now defunct account that did not ever identify him, that were posted over a period of only a few weeks three and a half years ago with no evidence that any more were posted.
118. Country information indicates that there are hundreds of million of tweets sent every day[6] so the likelihood of any Saudi authorities even seeing them is so unlikely that it is an extremely remote possibility. And even if they did there was nothing in the applicant’s Twitter address that identified him, and the account itself was not apparently open for very long.
[6] The Number of tweets per day in 2020 - David Sayce., accessed 7 February 2022
119. Because of the limited timeframe of the Tweets presented, I am also satisfied that it is not evidence of an anti-government political stance by the applicant, or that he would be imputed with having one. I note that the applicant received government scholarships to study in [Country 1] from [2012] to [2014] and in [Country 2] [in] 2015. I am not satisfied that he became fearful of the Saudi government after this, due to the political changes and the war in Yemen. He was vague about exactly what he was fearful of, nor why he would personally fear any attention from Saudi authorities given his lack of a political profile.
120. While the Tribunal acknowledges that Crown Prince Muhammad bin Salman has ruthlessly cracked down on his political opponents he has also initiated some quite fundamental social reforms that have proven popular with Saudi youth.[7] Given this, it is even more difficult to accept that the applicant as [an age] year-old non-political person would live in state of fear in Saudi Arabia.
[7] The Paradox of Saudi Arabia's Social Reforms | The Crown Prince of Saudi Arabia | FRONTLINE | PBS | Official Site, accessed 9 February 2022.
Other Issues
121. I do not accept that the applicant was ever found guilty of drinking alcohol in Saudi Arabia and sentenced to [number] lashes. This relies entirely on his oral testimony which I have found lacks credibility.
122. Post-hearing the applicant provided two attachments to his adviser’s submission. One is a screen shot of an undated text conversation involving someone called [name] and someone called [name]. No explanatory note was provided and in the absence of this the Tribunal has no idea of its relevance and hence gives it no weight. The other attachment was a Google map shot of where the applicant said that his SANG base was located. Again I can lend it no weight given it is simply a Google map shot of what appears to be a Saudi military base.

123. I also do not accept that the applicant would be considered an opponent of the regime because he was a young Saudi man who lived in the West. He offered no country information to support this claim, he has already lived in both [Country 1] and [Country 2] previously and returned to Saudi Arabia without problems, and the Kingdom sends tens of thousands of citizens to study overseas every year, mainly in Western countries.[8]
124. I also do not accept the applicant is believed by the Saudi authorities to be opposed to the Saudi military, government, war in Yemen or would be imputed with having such a belief or that he would not be able to express himself freely or live authentically. I have already dealt with a range of these claims concerning his opposition to the military and war in Yemen (having found he has fabricated his service in SANG and going AWOL because of opposition to the government and the war). I note that he has no political profile and has twice accepted government sponsorships to study in the west and returned both times which indicates a willingness to accept money from a government that he allegedly opposes and to willingly return to the country they rule over.
125. I do not accept that he could not express himself freely or live authentically given these were vague statements with no supporting evidence as to what he meant. Again, he does not appear to have taken the opportunity to ‘express himself freely’ in terms of being critical of the Saudi government, its policies or the society even though he has travelled overseas several times. I have already found his limited social media posts to have not been a genuine expression of anti-government feeling.
126. Having considered the applicant’s evidence both individually and cumulatively, for the reasons set out above the Tribunal does not consider the applicant has a well-founded fear of serious harm for any s 5J(6) reason either now or in the reasonably foreseeable future.
Complementary Protection
127. Because I do not accept that the applicant was ever a member of the SANG or that he has gone AWOL, that he is or would be perceived to be an anti-government activist on social media, imputed with an anti-government political opinion, that he would come to the attention of the Saudi authorities or be imputed with an anti-government opinion for having lived in the West, claimed asylum in Australia or be tried a second time for [serious] crimes committed overseas that were considered haram, I am not satisfied that there are any substantial reasons for believing that there is a real risk of significant harm based on these claims as outlined in the complementary protection criteria in s 36(2)(aa).
128. Therefore I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Saudi Arabia, there is a real risk that he will suffer significant harm.
[8] Global Flow of Tertiary-Level Students | UNESCO UIS, accessed 9 February 2022.
CONCLUDING PARAGRAPHS
129. 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

132. 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.
…

[2022] AATA 682

9 February 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies