1926805 (Refugee)

[2024] AATA 756

1926805 (Refugee) [2024] AATA 756 (19 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1926805

COUNTRY OF REFERENCE:                   Saudi Arabia

MEMBER:Denis Dragovic

DATE:19 January 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 19 January 2024 at 8:53am

CATCHWORDS
REFUGEE – protection visa – Saudi Arabia – religion, political opinion and membership of particular social group – renunciation of Islam – deeply thought reading, discussion and writing on political issues shared with friendship groups – fear of publishing online even anonymously – country information – government known to pursue even anonymous social media activists – claim on grounds of gender diverse identity better described as expression of male identity in traditionally feminine ways – appearance and activity – third country protection in Gulf Cooperation Council countries – passport expired and possibility of deportation to home country – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(c), (2), (3), (4)(a), (c), 36(2)(a), (aa), (2A), (3), 65
Migration Regulations 1994 (Cth), Schedule 2

CASE
MIMAC v SZRHU (2013) 215 FCR 35

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 September 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Saudi Arabia, applied for the visa on 4 January 2018.

3. The applicant’s claims were limited to having turned away from Islam. The delegate refused to grant the visa on the basis that although the applicant has renounced his former Islamic faith, he does not have a profile that would be of interest to the Saudi authorities.

4. In addition to the claimed fear of harm arising from his religious non-conformity and political opinion, at the Tribunal hearing the applicant presented claims arising from his gender diverse identity. The applicant appeared before the Tribunal on 28 November 2023 to give evidence and present arguments on the entirety of his claims.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.

9. 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

10. 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.

11. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The applicant is a [Age]-year-old male citizen of Saudi Arabia. He was born in Jeddah but moved to Medina early in his life as his father is from Medina. In [Year] after finishing high school in Medina, he moved to Jeddah to study and to be away from his family. He lived in Jeddah for five years ([Year]-2016) before briefly returning to Medina and then successfully applying for a visa to travel to Australia. He departed Saudi Arabia in October 2017, and he has not returned since.

13. The applicant did not complete his university studies while in Jeddah, due to what he described as ‘psychological issues’. He said that he had lost motivation to study.

14. In post-hearing submissions he elaborated on this by writing:

    At the hearing, the member made a comment saying that I survived being non religious in Saudi Arabia, specifically referring to the period from early 2015 to October 2017.

    I would like to add: With all due respect, using the term "survived" by the member is underestimating toward the mental damage I received. I was suicidal. I was trying to avoid using this term as much as possible and refer to my situation as extremely bad mentally or deeply depressing. But now it is important to make the situation very clear to the tribunal that I had serious intentions to end my life. Particularly after the refusal of my [Country] visa in December 2016. I thought there was no hope. However, after my Australian visa was approved and I moved to Australia, things got much better. If I return to Saudi Arabia, there is a high chance that I will develop serious suicidal thoughts again, especially that I now have a different gender expression in addition to being an apostate.

15. The applicant described his family as being very strict. He said that they are a part of [Tribe] which is a tribe that has a history spanning more than [Number] years. For that reason, the family is very strict about the practice of Islam. He described the tribe as [History of tribe]. Despite this [History], he acknowledged that the tribe is no longer as important as before.

16. In Saudi Arabia, according to the applicant, tribes play a role in paying allegiance to the new king. They are also responsible for maintaining honour such as when someone does something shameful then the tribe is responsible for bringing them into line, which they do through psychological pressure such as the head of the tribe speaking to the person. He clarified that the tribe cannot punish wayward members, a responsibility solely the domain of the state.

17. The applicant described his youth as including being a proud Muslim until he started a university degree in [Subject] when the Salafists were prominent in Saudi Arabia. He said that they limited society, only wanting people to pray and fast. They advocated a social structure that elevated people in part based upon how much one knew of the Koran. He added that the religious police were a means of enforcing these practices, but he acknowledged that they are no longer powerful as they once were.

18. As he was studying [Subject] the applicant said that he wanted an Islam that promotes ethics and science.

19. It was during this time, he said, that he lost his belief. He said that he would no longer go to the mosque. When he returned from his first year of studies his parents noticed this but he believes that they didn’t think that it was serious as he would still pray at home and fast. He said that during this time his mind was focused on science.

20. Since arriving to Australia, the applicant claims that his social life in Australia has been limited to the gym. He said that he doesn’t engage with Arabs nor the practice of Islam.

21. The applicant has not worked in Australia and continues to live off of income that he receives from his parents. He said that his parents have not asked him why he remains in Australia. He said that initially he told them that he was there for studies and then in 2020 and 2021 he blamed the COVID lockdowns. But over the last two years he said that they barely even text and the last time they spoke was five years ago. He thinks that they realised that he is not being truthful about his studies.

22. The applicant said that they tried to call him intermittently, but he rejects the calls. Nevertheless, they continue to send him money as he doesn’t have a source of income. I wondered aloud whether the parents may not want him to return knowing that he would possibly bring them shame. He said that he thinks that they want him back.

    The applicant’s religio-political views

23. The applicant claims that he has slowly turned from Islam and arising from this process has critical views of the Saudi regime.

24. In the applicant’s 2018 protection visa application he identified the basis of his fear of returning to Saudi Arabia as being that he is a non-Muslim and that he cannot express his opinions relating to religion.

25. In a written statement provided to the delegate following the Departmental interview the applicant expanded on this by explaining that he additionally sees Islam as serving a political objective. He wrote that ‘Islam requires muslims to hate and become violent against other people who believe in other different beliefs.’ He argued in the submission that Islam limits freedom and not to focus on their lives on Earth but rather on the end time when they die. He concluded that Islam is not ‘suitable and fit to be practiced nowadays.’

26. At the Tribunal’s hearing in 2023 the applicant provided further thoughts on the topic. Building on his earlier statement, he wrote: ‘I am passionate to read, think, discuss and write topics and articles that are related to human sciences. This is how I spend a lot of my time every day’. He said that most of his work is in draft form which he shares with his friendship groups. His drafts are from one page to three pages in length. He said that he had an intention to publish them on social media because it is easy and free but hasn’t done so to-date out of fear.

27. I suggested that if he truly believed in the message, he could have posted his work online anonymously. He said that he needs to put his identity to the article as it adds credibility and without an identity the work wouldn’t be taken seriously. He said that when someone from his background publishes these articles it would make it more interesting than for someone from another culture.

28. The applicant said that it is his hobby and purpose in life to write, read and have discussions about such matters but having a divergent view on the religious-political status quo of Saudi Arabia would lead him to face prosecution. He said that there is a blurred line between constructive criticism and insulting the leadership.

29. When I asked why he would be of interest to the government considering that he has no platform, he said that the government would see such a person as disobedient. I put to him that I could find many Saudi academics with different views on some of the issues he has raised in submissions such as the government turning geopolitically to the BRICs and separately, questions over its economic policies. He said that the academics may criticize a few points but in general they must approve of the general direction.

30. I again asked if he did say something critical, who would care. He said that anything that is posted on social media can be subject to reporting to the authorities and in turn the author being accused.

31. In post hearing submissions received between the 9 and 16 December, being two to three weeks after the hearing, the applicant produced 34 pages of thoughts on various religious and political issues that are relevant to the case. To provide a summary of these documents I am reproducing the headings:

    The Hidden Dark Reality of Saudi Arabia, Exposed by Saudi Ex-Muslim

    Part 1: A government that is willing to fix policies as long as the throne is not threatened.

    Part 2: Have fun as Long As You are misled

    Part 3: The society that is moral from the outside, but immoral from the inside.

    Part 4: Islam is used for political purposes. Therefore, dictators must protect it.

    Theory: Origin of Islam. How did Muhammad Create the Islamic State in Medina.

    Part 1: Description of the environment where the Islamic state was formed and originated.

    Part 2: Muhammad's background and negative past

    Part 3: Presenting a major theory regarding Muhammad and Islam's origin.

    Part 4: Muhammad, the person who had ambitions to improve his community.

    Part 5: How has Muhammad turned dark and become a symbol of violence.

    Part 6: Ok, what's now?

32. The applicant wrote in his submission that he did not use any artificial intelligence tools to write the pieces. I accept that the writing is that of the applicant’s as it is written to the same depth and style of English as the applicant used in the hearing. While it could have been massaged by an AI tool to appear written by someone for whom English is not their first language and guided to be at the level the applicant presented, there is no reason for me to suspect this.

33. In reviewing the material, I have concluded that the applicant’s views would be perceived by Muslims to be staunchly anti-Islam. Where his belief lies, whether an agnostic or atheist, or any of the four other beliefs that he identified in his submission to the Department is less relevant in the context of Saudi Arabia. This is because I accept the applicant’s argument that the Saudi regime is dependent upon the acceptance of a political Islam as a central tenet that underpins the legitimacy of the state. Criticism of Islam is criticism of the rulers and the existence of the state, regardless of what one’s true nuanced theological beliefs are.

34. As such, I also find that the applicant’s thoughts would be strongly perceived as being against the Saudi establishment.

    Applicant’s gender identity

35. The applicant presented at the hearing with [Appearance]. He said that he has been experimenting with gender diverse appearances for a few years. He said that he began attending [Activity] classes in August 2023. Before that he started to practice [Activity] at home as early as May or June 2023. He found [Activity] by watching a video and finding himself enjoying it. He said that it gave him an opportunity to be himself and express himself, as well as promoting health and self-expression.

36. The applicant wrote in his pre-hearing submission that such activities put him at risk.

    By [doing Activity] or expressing feminine traits in general, I am committing several violations according to saudi laws which put me at risk.5 Here they are:

    - Cross dressing or imitating the opposite gender.

    - Inappropriate behavior, dress or appearance that goes against islamic culture.

    - Being in a close distance or physically engaging with a person of the opposite gender who is not a relative according to islamic definition.

37. He provided evidence of his attendance at [Activity] classes by way of tickets bought online for classes at [Activity] Centre. The earliest booking he provided evidence of was from 14 August 2023. I note that the hearing invitation for the Tribunal matter was sent on the 6 November 2023. Between the 14 August and the hearing invitation there are receipts for a further 9 sessions.

38. He said that he has always been interested in good health and with lower back pain he was interested in yoga and Pilates which he believes is also perceived to be a female activity.

39. [Detailed information about appearance].

40. The applicant’s preferred activity is working out in the gym, but he identified the gym environment as ‘toxic competitive’ which he associates with masculinity and does not approve of. He said that he wears make up while in the gym but not on the days he plans to do high intensity activities. He said while at the gym he wears short tights which he described as being very feminine.

41. Upon my request the applicant agreed to share pictures on his phone that showed his appearance over the past year prior to when the applicant received a hearing invitation from the Tribunal. The applicant showed a number of photos that reach back to 2020 and are mainly from a gym or change room environment. The photos show the applicant in various clothes that in some cases could be considered effeminate, in other photos it is clear that he has [make-up].

42. I asked if there are other ways that he expresses his identity. He said that he doesn’t approach women as he knows that is considered aggressive by some. He said that he doesn’t mind crying.

43. I asked whether he had undertaken his changed appearances because of the hearing. He said that the hearing invitation had motivated him to accelerate what he had planned to do anyway. He said if he were to be granted protection, he would further change his dress, including potentially wearing [Activity clothing] at [Activity]. He described his identity as experimenting through gradual changes and for example he hasn’t as yet reached the point where he wants to wear [Activity clothing].

44. When I asked what motivates his behaviour, he said that he wants to end toxic masculinity, explaining it to be synonymous with aggression. He further explained his understanding of toxic masculinity as glorifying the wrong aspects of being a man. He described Saudi Arabia as being a culture where men are encouraged to be strong, aggressive, and good at fighting. Conversely, he sees healthy masculinity as being emotionally intelligent. The applicant said that by wearing [makeup] he is sending a message that he is not threatened by such views and that he is not defined by his ability to fight or become rich or pursue women.

45. In considering the applicant’s gender identity claims, I found his narration of his slow progression in exploring his sartorial options and tentatively experimenting with make up very credible. While he has described it as exploring his gender identity, I find that what he has done to date and described at the hearing is better categorised as how he prefers to express his male identity, namely in a manner that could be traditionally perceived as effeminate.

    Country information

46. Regarding religion and religious beliefs, in addition to there being strict limitations on the religion of the state it is interwoven with the state by way of terrorism laws.

    In Saudi Arabia, meanwhile, a new counterterrorism law published in November 2017 criminalizes “anyone who challenges, either directly or indirectly, the religion or justice of the King or Crown Prince,” and prohibits “the promotion of atheistic ideologies in any form,” “any attempt to cast doubt on the fundamentals of Islam” and publications that “contradict the provisions of Islamic law.” Indeed, public practice of all non-Muslim religions is illegal in the country, including public worship, proselytization and display of religious symbols. It is also illegal for Muslims to convert to another religion.[1]

    [1] type="1">

    The extension of the state into controlling society also appears in other realms including, for example, journalism for which ‘Government policy guidance instructs journalists in the country to uphold Islam, oppose atheism, promote Arab interests, and preserve cultural heritage.’[2]

    [2] 2022 Country Reports on Human Rights Practices: Saudi Arabia, US Department of State

    Limited information on the number of atheists in Saudi Arabia suggests that there is a large portion of the population who does not believe in Islam. ‘According to a 2012 poll by WIN/Gallup International, however, 5 percent of its citizens described themselves as “convinced atheist”—the same percentage as in the United States – while 19 percent self-identified as “non religious.”’[3]

    [3] Hannah Wallace, ‘Men without God: The Rise of Atheism in Saudi Arabia,’ Free Inquiry, Volume 40, No. 2

    The United States Office of Religious Freedom 2022 report found that, ‘Criticism of Islam, including expression deemed offensive to Muslims, is forbidden on the grounds of preserving social stability,’ and that ‘Social media users who post or share content considered to attack religion face imprisonment for up to five years under the Cyber Crimes Law.’[4]

    [4] United States, Department of State, Office of Religious Freedom, ‘2022 Report on International Religious Freedom: Saudi Arabia’

    I note that the Kingdom of Saudi Arabia has undertaken a series of measures to liberalise society. It is relevant to consider what the progress has been on this front.

    Human Rights Watch recognised the liberalisation that is occurring but also noted the lingering concerns in a submission to the 2023 Universal Periodic Review of the Kingdom of Saudi Arabia:

    Although at its last UPR Saudi Arabia supported many recommendations, it continues to commit widespread violations of basic human rights within and beyond its borders. The Saudi government has announced important reforms, for example on women’s rights, but the reforms remain inadequate and the government’s ongoing and historic repression of independent civil society and critical voices impedes progress. Human rights activists and dissidents are in prison or on trial for peaceful criticism.

    Saudi authorities continue to target, arbitrarily detain, torture, and ill-treat political dissidents, human rights activists, academics, and religious leaders. Prominent Saudi women’s rights activist Loujain al-Hathloul was released from prison in February 2021 after spending 1,001 days in detention. She remains banned from travel and has a suspended sentence of nearly three years on charges that define her women’s rights activism as crimes under Saudi Arabia’s terrorism regulations.

    With few exceptions, Saudi Arabia does not tolerate public worship by adherents of religions other than Islam and systematically discriminates against Muslim religious minorities, notably Twelver Shia and Ismailis, including in public education, the justice system, religious freedom, and employment.[5]

    [5] >

    Relevant to the applicants’ case is that as liberalisation occurs there has also been a crackdown on political dissent and the limits of criticism are not clearly flagged. In some cases, such as that of high-profile activist Loujain al-Hathloul, a woman’s rights activist who had defied the driving ban before it was overturned as a part of the liberalising effort and was named one of Time Magazine’s most influential people in 2019, was detained and convicted for her high-profile activities.[6] She was sentenced to five years and eight months imprisonment and was released early in 2021.[7]

    [6] >

    But in other instances, what appear to be low level political statements have led to the imprisonment of people who have a far lower profile than Loujain al-Hathoul. An example of this is the case of Salma al-Shehab who was a Leeds University student and had while in the United Kingdom re-Tweeted Tweets of dissidents whose messages supported the release of political prisoners including Loujain al-Hathloul. Upon returning to Saudi Arabia for a visit Salma al-Shehab was arrested, charged and eventually sentenced to 34 years imprisonment. In a Guardian article she was described as,

    By all accounts, Shehab was not a leading or especially vocal Saudi activist, either inside the kingdom or in the UK. She described herself on Instagram – where she had 159 followers – as a dental hygienist, medical educator, PhD student at Leeds University and lecturer at Princess Nourah bint Abdulrahman University, and as a wife and a mother to her sons, Noah and Adam.[8]

    [8] >

    Most recently Human Rights Watch reported on Muhammad Al-Ghamdi who was sentenced to death in 2023 for tweets and re-tweets on two anonymous Twitter accounts that had 2 and 8 followers respectively. Human Rights Watch cited the basis of the penalty as being:

    Court documents Human Rights Watch reviewed show that the Specialized Criminal Court sentenced al-Ghamdi to death on July 10 under article 30 of Saudi Arabia’s counterterrorism law for “describing the King or the Crown Prince in a way that undermines religion or justice,” article 34 for “supporting a terrorist ideology,” article 43 for “communication with a terrorist entity,” and article 44 for publishing false news “with the intention of executing a terrorist crime.” Al-Ghamdi’s trial judgment states that he used his accounts on the X, formally Twitter, platform and YouTube to commit his “crimes.”

    …

    The documents say that the court issued the sentence on the grounds that the crimes “targeted the status of the King and the Crown Prince,” and that the “magnitude of his actions is amplified by the fact they occurred through a global media platform, necessitating a strict punishment.”

    …

    The charging document cites as evidence several tweets criticizing the Saudi royal family, and at least one calling for the release of Salman al-Awda, a prominent cleric facing a possible death sentence on various vague charges related to his political statements, associations, and positions, and of other prominent imprisoned Islamic scholars.

    Al-Ghamdi does not consider himself a political or human rights activist, said those with knowledge of the case. He maintains that he is a private citizen who merely expressed some concerns about the Saudi government over the X platform, they said.

    …

    Over the past year, Saudi courts have convicted and imposed decades-long sentences on social media users who criticized the government.

    As the applicant has adopted alternative ways of representing his male gender, ways which could be perceived to be effeminate or alternatively as imitating women, it is relevant to review the country information about the situation of such actions in Saudi Arabia.

    According to France 24, a news agency, ‘In Saudi Arabia, posting a makeup tutorial as a man can get you arrested. Under the kingdom's strict cyber laws, being openly gay or defying gender roles online can have severe consequences.’[9] The claim is made based on the circumstances of Tala Safwan, Mohamed al-Bokari and Suhail al-Jameel who were all imprisoned for reasons given as conveying on social media overtly LGBTI characteristics or supporting the LGBTI community. Relevant to this matter is the situation of Mohamed al-Bokari, a Yemeni living in Saudi Arabia who was charged for among other things, ‘imitating women’. He was sentenced to ten months imprisonment and deportation to Yemen.[10]

    [9] >

    The United States Department of State Human Rights report for 2022 noted that:

    There were reports of physical violence and harassment based on sexual orientation or gender identity.

    Discrimination: The law does not prohibit discrimination by state and nonstate actors based on sexual orientation, gender identity or expression, or sex characteristics and does not recognize LGBTQI+ individuals, couples, and their families. There were reports of official and societal discrimination based on sexual orientation or gender identity in employment, housing, access to education, and health care. Clerics condemned homosexuality during government-approved Friday sermons at some mosques.[11]

    [11] United States, Department of State, ‘2022 Country Reports on Human Rights Practices: Saudi Arabia’

    Considerations

    The applicant has not provided evidence of a social media footprint. He has provided considerable information on his deeply thought through views on Islam, religion in general and how it relates to the Saudi state. I am satisfied that the applicant genuinely holds those views and that they are strongly held views. I am also satisfied that the applicant would, free from fear, share those views widely whether on social media as he suggested or through other channels. I make this finding in part based on how the arguments are crafted, being strident rather than rhetorical. His writing is not a Socratic dialogue but rather a political manifesto. Furthermore, at the hearing he expressed his views passionately and articulately such that I am satisfied that he has long thought through his beliefs but also voiced them to others.

    That the applicant has not sought to express them anonymously may undermine his claims were he from another country, but Saudi Arabia has a widely known history of pursuing critics abroad. Not only has the Saudi regime greenlighted the murder of Washington Post journalist Jamal Khashoggi and in an effort to cover it up dismemberment his body[12] but relevantly to this matter, bribed and coerced three Twitter employees in the United States to leak the details of account holders who were otherwise posting anonymously.[13] The result of this corporate espionage was the release to the Saudi authorities of the names of 6,000 Twitter account holders. While I do not believe the applicant would be a target of extra-territorial efforts such as the fate that befell Khashoggi or others face currently[14], it is a reason why I accept that he has sought not to use the relative safety of Australia to post anonymously.

    [12] >

    As such I find were the applicant to express his views on Islam, religion and religion and the state in Saudi Arabia he would face a real chance of serious harm for reasons of his political opinion.

    With regards to the applicant’s preferred manner of expressing his gender, I find that based on the laws and the practices of the Saudi state the applicant would face a potential prison sentence for ‘impersonating a woman’. I find that wearing make-up and dressing the way he dresses in Australia would lead to the applicant facing a real chance of serious harm from the authorities.

    I find that the applicant’s religion, political opinion, and membership of a particular social group, as shaped by his gender expression, are the essential and significant reasons for the harm (s 5J(4)(a)) he fears.

    In considering whether the harm he faces would be systematic and discriminatory (s 5J(4)(c)) I note that the country information indicates that the harm the state directs at those who dissent, whether against the state religion, the state, or the societal norms enforced by the state, is with intent. The intention is directed to target individuals such as the applicant systematically and discriminatorily.

    For this same reason, the applicant cannot seek protection from the state as the state is the persecutor (5J(2)).

    I find that there is no safe area where the applicant would not face a well-founded fear of persecution within Saudi Arabia as the entire territory is controlled by the authorities (s 5J(1)(c)).

    I now turn to consider whether the applicant could take reasonable steps to modify his behaviour as per s 5J(3). I am satisfied that his political opinion arising from his views of Islam and the state are matters that are fundamental to his conscience such that having to change his views or suppress them would conflict with his conscience. With regards to his gender expression, I find that it is a deeply held view of his identity. As such I find that requiring the applicant to suppress his desire to express his identity by way of appearing effeminate would conflict with a characteristic fundamental to his identity.

    For these reasons I find that the applicant is not excluded from a finding of having a well-founded fear of persecution for reasons of religion, political opinion and gender expression as any changes he would make to avoid persecution would conflict with a fundamental characteristic of his identity and conscience.

    Third Country Protection s 36(3)

    Protection Obligations

    Section 36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by subsections 36(3), (4), (5) and (5A) of the Act. They provide as follows:

    Protection obligations

    (3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

    (4) However, subsection (3) does not apply in relation to a country in respect of which:

    (a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or

    (b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.

    (5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that

    (a) the country will return the non-citizen to another country; and

    (b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.

    (5A) Also, subsection (3) does not apply in relation to a country if:

    (a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and

    (b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.

    This means that 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 unless the conditions prescribed in either s 36(4), (5) or (5A) are satisfied, in which case the s 36(3) preclusion will not apply.

    The Full Federal Court in MIMAC vSZRHU (2013) 215 FCR 35 has held that the term ‘right’ in s 36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question.

    In determining whether these provisions apply, relevant considerations include: whether the applicant has a liberty, permission or privilege lawfully given to enter and reside in a third country either temporarily or permanently; whether he or she has taken all possible steps to avail himself or herself of that right; and whether s 36(3) does not apply because of the operation of s 36(4), (5) or (5A).

    At the hearing we discussed why the applicant cannot seek protection from a third country as he is a Saudi citizen and therefore has rights to enter and reside in any of the Gulf Cooperation Council countries.[15]

    [15] >

    He said that the United Arab Emirates, and the emirate of Dubai in particular, has the least strict interpretation of Islam among the GCC states because of the large number of foreigners. But, he said, he would be perceived differently, as a Saudi Muslim (as opposed to a foreigner or a foreign Muslim) in Dubai.

    I asked why he believes that he would be treated harshly as a Saudi rather than simply as a foreign Muslim. He said that the judicial system can be different to people from different backgrounds and that there is an expectation for people from Saudi Arabia to be more conservative. This, he believes, would influence the way he is treated.

    In a pre-hearing submission, he claimed:

    All GCC (Gulf Cooperation Council) countries have serious abuses toward human rights including freedom of speech, criticism of religions and cross dressing.

    - GCC countries do not provide reliable and comprehensive protection or asylum status to Saudi citizens.

    - My right to enter and reside in GCC countries is based on my Saudi passport or Saudi national ID. Therefore, if my passport or national ID gets expired, lost, stolen or canceled, I no longer have a right to enter, reside or access basic services in other GCC countries and need to return to Saudi Arabia.

    - My passport is already expired. If the tribunal finds that Saudi Arabia is not safe for me, I do not wish to renew my passport or make any contact with the saudi embassy or government for safety and privacy purposes since the saudi embassy requires Australian visa information and reasons for being in Australia as requirement for passport renewal.

    In the post hearing submission, he added the following:

    I would like to add: All the Gulf states are considered a dark and unsafe region. Despite that region being wealthy, it is one of the worst regions in the world in terms of violating human rights and personal freedom. I have never been impressed by those so-called "fancy" cities such as Dubai. They may look nice from the outside. However, they are very oppressive.

    All gulf states communities are based on tribes which have very conservative islamic culture. Moreover, There are strong ties between the governments of the gulf states which makes my option to live in any gulf state as unsafe and unreliable.

    In summary, the applicant fears harm in Dubai for criticism of Islam, promoting non-religious beliefs and for reasons of his preferred appearance.

    I now turn to considering country information on how these issues are dealt with in Dubai.

    Human Rights Watch notes, ‘In the United Arab Emirates, laws prohibit men “posing as” women in order to enter women-only spaces. The UAE has used this law to prosecute gay and transgender people even in mixed-gender spaces.’[16]

    [16] >

    Country information indicates that laws are being used to punish people who are perceived to be dressing in ways that is not appropriate to their gender. In a 2017 BBC report:

    A pre-operative transgender woman and a man, both from Singapore, jailed in the United Arab Emirates for cross-dressing have had their sentences reduced to a fine and deportation, officials say.

    Nur Qistina Fitriah Ibrahim and Muhammad Fadli Bin Abdul Rahman were arrested in Abu Dhabi on 9 August for "wearing women's clothes in public".

    A court found them guilty last week and sentenced them to a year in prison.

    But UAE officials now say they will only have to pay $2,720 (£2,110) fines Article 358 of the UAE's penal code criminalises "indecent attire" as an act of public indecency.[17]

    [17] type="1">

    While in this instance the Singaporeans were not imprisoned, and instead fined and deported,[18] in the case of the applicant, deportation would lead to him being forcibly returned to Saudi Arabia.

    [18] >

    Research by scholars from the London School of Economics found that ‘the most privileged enjoy an extraordinary amount of freedom’, including Arabs, when it comes to LGBTI parties and by inference gender diverse expressions. But the applicant is not of this level of wealth. I do not accept that the applicant could ‘manage’ the fallout of being caught by authorities in the same way that people of substantial wealth were suggested to be able to by the LSE scholars.[19]

    [19] >

    With regards to religion, the United States International Religious Freedom report on UAE states, ‘The law defines blasphemy as any act insulting God, religions, prophets, messengers, holy books, or houses of worship. The law does not directly prohibit Muslims from converting to other religions; but the penal code’s blasphemy provisions punish behavior viewed as contemptuous of the Quran and the Prophet Muhammad or offensive to Islamic teachings.’[20]

    [20] >

    In considering this country information and the applicant’s circumstances I also take into consideration that the applicant has clearly articulated being on a journey of finding and adapting to his preferred ways of expressing his gender. This means that into the reasonably foreseeable future I should give leeway to further adjustments to how effeminate his preferred dress and presentation is.

    The applicant noted that Saudis are held to a different to standard than to other foreigners. Although no country information was provided and none could be found that discuss this issue and provide any insight either way, I accept this to be the case based upon my personal experience of living in the Middle East for several years. I accept that there are nuances to how laws are applied and when exceptions are made. In the case of Saudi citizens, I accept that there would be an expectation that the applicant would endeavour to represent Islam more assiduously than, for example, a Muslim from the United States who would be given more leeway.

    Taking into consideration the applicant’s dual concerns and how any targeting of the applicant for his politico-religious opinions could be influenced by his gender expression and vice versa, and noting that he is a Saudi citizen, I find that the applicant does face a real chance of serious harm into the reasonably foreseeable future in the United Arab Emirates.

    As such, noting the relevance of ss 36(3) to this matter arising from his citizenship of a GCC state, I find that Australia’s protection obligations are not be abrogated by the applicant’s ability to enter and reside in a third country such as UAE because I have found that he has a well-founded fear of persecution in the UAE (s 36(4)). Therefore, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

    DECISION

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

    Denis Dragovic
    Deputy President

    
    

    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.

    …