1928084 (Refugee)

1928084 (Refugee) [2024] AATA 443 (22 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Mr Al Musawi Baker (MARN: 0601647)
CASE NUMBER: 1928084

COUNTRY OF REFERENCE: Saudi Arabia
MEMBER:Denis Dragovic
DATE:22 January 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.

Statement made on 22 January 2024 at 4:09pm
CATCHWORDS
REFUGEE – protection visa – Saudi Arabia – political opinion – opposition to the Saudi regime – religion – Shia – particular social group – women – opposition to regime expressed on social media – fear of killing – Shia prayer practices – detention – sexual assault – employment – right to enter and reside in Bahrain – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 October 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Saudi Arabia, applied for the visas on 22 February 2017.
The delegate refused to grant the visas on the basis that country information was indicative of a liberalisation of the circumstances in Saudi Arabia including the ability for Shia citizens to practice their faith freely.
The applicants appeared before the Tribunal on 5 December 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The applicants were represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence and findings of fact
The first named applicant is a male Shia citizen of Saudi Arabia aged [age] years. He was born in al-Hasa, a region of Saudi Arabia. He moved to Riyadh with his father when he was seven years old and lived there through to [specified year]. It was claimed that the move to the Kingdom’s capital was because there were limited job opportunities for his father in the eastern province, a predominantly Shia area.
In [year] he moved to Jeddah for his studies before travelling to Australia to study at the [University 1] in 2007. In 2015 he graduated with a [Qualification 1] from the [University 1] and returned to Saudi Arabia, specifically, al-Hasa, in 2015 where he stayed for two years.
The first named applicant married the second named applicant in 2005.
The second named applicant is a female Shia citizen of Saudi Arabia aged [age] years. She was also born in al-Hasa region.
It was claimed by both applicants that they fear harm for reasons of their faith, particularly being religious adherents of Shia Islam, and associated with this, their political opinion against a Sunni regime that discriminates and harms Shia.
Substantial country information was provided by the applicants’ representatives about the situation in Saudi Arabia which was usefully summarised and is being reproduced here for the purposes of an introductory overview:
According to the 1992 Basic Law of Governance, the country’s official religion is Islam, and the constitution is the Quran and Sunna (traditions and practices based on the life of the Prophet Muhammad). The legal system is based on sharia as interpreted within the Hanbali School of Sunni Islamic jurisprudence. Freedom of religion is not provided under the law.
The government does not allow the public practice of any non-Muslim religion. The law criminalizes “the promotion of atheistic ideologies in any form,” “any attempt to cast doubt on the fundamentals of Islam,” publications that “contradict the provisions of Islamic law,” and other acts deemed contrary to sharia, including non-Islamic public worship, public display of non-Islamic religious symbols, conversion by a Muslim to another religion, and proselytizing by a non-Muslim...
In April a court sentenced Ahmad al-Shammari to death after he was convicted on charges related to apostasy for allegedly renouncing Islam and the Prophet Muhammad on social media...
The government convicted and imprisoned individuals on charges of apostasy, blasphemy, violating Islamic values and moral standards, insulting Islam, black magic, and sorcery....
Since 2004, Saudi Arabia has been designated as a “Country of Particular Concern” (CPC) under the International Religious Freedom Act of 1998 for having engaged in or tolerated particularly severe violations of religious freedom.
Most recently, on December 22, the Secretary of State redesignated Saudi Arabia as a CPC, and announced a waiver of the sanctions that accompany designation as required in the important national interest of the United States pursuant to section 407 of the Act.
At the hearing the first named applicant outlined his fears of return. He described experiencing discrimination during his childhood, including in the textbooks that were used to teach him in Riyadh. He said that they included material that indicated that Shia should be killed. He claimed that he didn’t disclose to others whether as a child or later as an adult that he was Shia.
The applicant claimed that his family had been discriminated and harassed for many years but as he was living in Australia between 2007 and 2015, he did not know of it all. He described some events that occurred just before and after he returned to Saudi Arabia.
In February 2015 the applicant claimed that his brother was arrested for praying in the Shia way in Riyadh. He was [an occupation 1] [with a specified employer] at that time, and when he was changing shifts following the call for prayer he went to a small room and started praying, but other soldiers saw him, reported him and collected 40 witnesses, that led to the arrest. He was kept in remand until he was made redundant from his job.
He described an incident in 2016 when his father was arrested in his home in Riyadh for praying with a group of other Shia men. The applicant explained that this was necessary as Riyadh does not have a Shia mosque. The father’s activities came to the attention of neighbours as his father would act as an Imam and others noticed that many men were coming to their house at prayer time.
During the arrest they found on his father’s phone a picture of Hassan Nasrallah, the head of the Shia Hezbollah movement, with a caption suggesting that the father looked like him. The photo was created by the applicant’s brother. As a result, the brother was also arrested, detained for [number] days and received [number] lashes. As the father didn’t cooperate with the police, he was imprisoned for six months.
The applicant said that the authorities enquired about him following the father’s activities. I asked how the authorities were unable to find him as he was living in Saudi Arabia at that time. He said that he didn’t have a regular home and instead was moving between Hasa and [another location], and there wasn’t a summons for him. Country information indicates that renting or buying requires registration and identification and as such authorities would have known where he was, but he explained that he would stay with relatives. He said that this was possible as his work was online. He gave two examples, the first of [a specified project] for a private company and the second, tutoring online and marking.
He said that during this time he was socially active in the community, and of these activities most would be considered related to being Shia. As Shia, he said that there are a lot of occasions to meet. These events require preparation, including preparing meals, organising someone to give a speech and collecting donations. He said that his whole family would be involved.
He said that the authorities were enquiring about him routinely, he feared that he was unwanted or under surveillance. While he acknowledged that it could be routine questioning, he felt that he was of interest.
The applicant described an incident in 2016 when he was detained by police and sexually assaulted while in their custody. He said that he was on a train travelling from Riyadh to Hasa and it was the time of noon prayer when he was taken off of the train by the authorities.
Once at the station, he refused initial requests to the contents of his phone, as he said that he had images of his wife which he did not want to share with others. He claims that he was struck by the butt of a rifle, forced him to undress and then he was sexually violated.
He claims that this occurred only because he was Shia as he claims he heard the police officers telling others that he was Shia. He said that he was detained for 12 hours.
The applicant has also claimed that he was denied employment upon his return to Saudi Arabia for reasons of his faith. He said that he applied to 8 vacancies in universities for positions that matched his qualifications but did not hear from them.
He also claimed that he received a different quality of medical treatment for reasons of his faith. He explained at the hearing that because of his identity document showing that he was from the Eastern Province he was not prioritised when needing care.
The applicant claimed that his father has since been detained and interrogated about the applicant’s whereabouts. He claims that their family home in Riyadh has been raided and all electronic devices confiscated. Finding more photos of Shia figures on his phone the father is claimed to have been imprisoned for seven months as a result. He claims that his father has had his passport confiscated and denied the ability to leave Saudi Arabia for ten years.
The applicant noted that he founded two legally registered organisations in [City 1, Australia] that support Shia. He said that the role of these groups was to fundraise and engage with the community about the situation of Shia.
He said expressing political opinions in support of Shia was an ongoing activity for him which even when in Saudi Arabia he has active about, but through the mejlis (Shia gatherings) where he would speak about the war the Saudi state was waging against the Houthis in Yemen, the plight of Shia in other countries and how the Saudi regime would destroy their country.
He claims that others he has associated with in Saudi Arabia have been arrested.
In post hearing submissions for the wife, a passage was included that stated that those protests and marches that she was involved in and listed in the submission and summarised below also involved her husband.
The applicant’s wife, the second named applicant (“the wife”), had claims of her own.
At the hearing the wife said that she enjoys freedoms in Australia that she cannot in Saudi Arabia including freedom of belief. She helped her husband establish the [Community Group 1] in [City 1] which she would be unable to do. Photos were provided of upwards of fifty people attending an event at the [Community Group 1]. She also said that she can drive in Australia, adding that while the law has changed in Saudi Arabia allowing women to drive, many of the women who were pushing for these changes were imprisoned for their actions. She added that she can travel anywhere without her husband’s approval which is still required in Saudi Arabia (country information engaged with below suggests that this is no longer the case).
She described her political activities as participating in rallies in [City 1] including following the upheaval in Bahrain in 2011 and 2012 and other ‘catastrophes’ in the Middle East including in Yemen and Palestine. She said that she expresses her opposition in writing including writing on social media and posting poetry in Arabic, the latter of which she said helps her to express her emotions. In reviewing the applicant’s Facebook page, I found a considerable number of ‘political’ posts regarding the issues she identified as being important to her.
Regarding the rallies, she claimed to be a part of the organising group for some of the rallies and just a participant of others.
The protests were in support of Shia rights in response to the actions, in some instances, of Saudi Arabia. For example, regarding the war in Yemen the protest was calling for the Saudi regime to stop the war on the Yemeni people. They also protested against the ‘military assault’ on the Eastern part of Saudi Arabia during the Bahrain crisis in 2011. She said that there were explosions in Shia religious places known as Husseiniya and that caused a lot of pain and hence their desire to protest.
I asked her if she were to do the same in Saudi Arabia whether it would cause her problems. She said that she is concerned as to what would happen to her family. She said that some people don’t care about their safety, they post anything even knowing that they could be detained, but she is concerned about her family.
She added that the liberalisation of Saudi society is affecting her as she is a religious conservative. The liberalisation that she objected to was described as open cinemas and music festivals (including Riyadh Season htps://riyadhseason.com/en-US) which is leading to some people having freedom but others not.
As no submissions were made on her behalf prior to the hearing, I provided the opportunity for post-hearing submissions regarding her claims.
In her post-hearing submissions she claimed that:
a.‘As Shiites, we have leaders and scholars who are references that we follow and refer to in matters of our religion. We like to hang up pictures of these great people in our homes, such as the picture of the supreme authority of the Shiites, Mr. Ali Al-Sistani, the picture of Mr. Imam Ali Khamenei, and the picture of Mr. Hassan Nasrallah. I fear to hang up their portraits on the walls as sudden and routine raids that we are accustomed to, may occur at any moment.’
b.‘I feel heartbreak, and pain, because they do not even allow Shi’a women entering these destroyed cemeteries to pray and perform rituals. Whereas, on the other hand, they allowed women and men to mingle in singing festivals and vulgar dance festivals9, which is being held in these recent years under the supervision of the new theory of the rulers.’
c.‘I am in favour of treating women as mature, conscious women who are able to make their own decisions and bear responsibility, and among those rights is the right to travel without an official permit certified by the state and the permission of a guardian. I am a rational, adult person and I can travel anywhere alone without anyone’s approval, of course, through discussion and understanding with my husband and arranging our life’s priorities, but this approval and mandatory official signature is something I would never agree with for an adult woman.’
d.‘The Saudi authorities do not tolerate those who object to them or violate their orders. They deal with us like slaves and not as citizens, especially for being Shi’a. If we disagree, the catastrophe is greater, as we are perceived as second-class citizens and being a woman, I equal to half man in their interpretation.’
e.‘My right to express my opinion freely and without fear or restrictions: The Anti-Terrorism Law, which was later accompanied by the Anti-Cybercrime Law, was put in place in order to silence activists, male and female who should have freedom of expression and the defence of human rights. This is one of the simplest rights that can be exercised by any human being, not just women.’
In the post hearing submission the wife listed the protests in [City 1] that she had participated in and detailed the meaning of each. They included a protest in solidarity for the people of Gaza in 2009; an expression of solidarity with the people of Bahrain and Qatif which she described as being against ‘the barbaric Saudi aggression against Bahrain and Qatif’; in 2012 another solidarity protest in support of Bahrain and Qatif; in 2014 a demonstration to support Palestinians and again in 2014 a demonstration against ‘Saudi aggressive attack’ in Yemen.
She also explained that she participated in four Ashura marches which are commemorations of Imam Hussein’s death. She claimed that they are not allowed in Saudi Arabia (which country information disputes, rather they are not allowed outside of the Eastern Province)[1].
[1] type="1">
The post hearing submission occurred a few months after the terrorist activities by Hamas in Israel on 7 October 2023, and the subsequent military response. This triggered further social media activities by the second named applicant. In her post hearing submission she wrote:
If I were in Saudi Arabia, I would be deprived my right to express my opinion about what is happening in Palestine and Gaza these days and write what I want and what I feel in the form of thoughts, poems, words of condolence, and sometimes thoughts and words. I, fortunately, am in Australia, where I have full right to voice my opinion that is protected and respected.
The wife explained in her submission why the protests and marches ceased upon their return in 2017 to Australia. She wrote that they had together made the decision to stop going to Shia events so as to protect their families in Saudi Arabia. She wrote, ‘We are both not mingling with the Arab and other communities, due to lack of trust in because of our current situation, our fear of Saudi agents and informants in Australia.’
Although it is evident that the applicants have several foundations for consideration of whether they meet the threshold to trigger Australia’s protection obligations, I will focus initially on political opinion.
I accept that both the applicant and his wife have strongly held political views about the Saudi regime. They were openly opinionated at the hearing. Their passion for the Shia Islam and its key people through history was clear from their statements but also emotions. I am satisfied by the evidence provided that the applicants, would, free from fear be vocal opponents of the Saudi regime.
That they have not participated in political protests since returning to Australia in 2017 is not considered anomalous for the reasons the wife provided in her post-hearing submission, namely a fear for their family. This is tied to the claim that the husband’s family have recently been harmed. I accept this because they continue to practice their faith in the heart of what would be Sunni Islam including in Riyadh or the [workplace] despite the Saudi authorities not being accepting of Shia Islam anywhere other than the Eastern Province.[2] I accept the evidence of the applicants as it is plausible, it has been consistent, and it was convincing.
Country information about the freedom to express a political opinion in Saudi Arabia
[2] >
I note that the Kingdom of Saudi Arabia has undertaken a series of measures to liberalise society. This was noted with concern by the second named applicant who is supportive of a more conservative society but one which nevertheless does not infringe upon the rights of women as Saudi Arabia had in the past.
Human Rights Watch recognised these changes 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.[3]
[3] >
Relevant to the applicants’ case is that the reaction of Saudi authorities to political dissent is not clearly flagged. In some cases, such as that of high profile activist Loujain al-Hathloul, an 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.[4] She was sentenced to five years and eight months and released in 2021.[5]
[4] >
But in other instances, what appear to be low level political statements have led to imprisonment. An example of this is the case of Salma al-Shehab who was a Leeds University student and had re-tweeted X posts (formerly Twitter) 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.[6]
[6] >
Another example is that of Israa al-Ghomgham. The United States Commission on Religious Freedom notes that:
On August 6, 2018, al-Ghomgham's trial reportedly began in front of the Specialized Criminal Court. According to Human Rights Watch, she was charged with several criminal offenses, including “participating in protests in the Qatif region,” “incitement to protest,” “chanting slogans hostile to the regime,” “attempting to inflame public opinion,” “filming protests and publishing on social media,” and “providing moral support to rioters.” Prosecutors reportedly pushed for al-Ghomgham's execution.
On October 12, 2018, the office of the UN High Commissioner for Human Rights called for al-Ghomgham's release, saying that the charges against her "appear to lack legal bases" and that she has "had no legal representation during her trial." It also expressed concerns that al-Ghomgham's prosecution is "motivated by the fact that she belongs to Saudi Arabia’s Shia minority."[7]
[7] >
In 2021 she was sentenced to 8 years imprisonment, a year later an appeals court increased the sentence by another 5 years.
Considerations
I have earlier found that the applicants would, free from fear, be vocal opponents of the Saudi government. I have noted how in Saudi Arabia, despite considerable liberalisation, there continues to be what appears to be an arbitrary persecution of political dissent. The applicants are not of the profile of Loujain al-Hathloul but they have undertaken more activities and show cased their views in a more apparent way than Salma al-Shehab and their interests are aligned with those of Israa al-Ghomgham.
In such a situation, it is not difficult to see the second named applicant, or her husband, face a similar situation to Ms al-Shehab or Ms al-Ghomgham. The second named applicant has in the past posted against the regime in veiled language, for example, in May 2015 a post read:
[What justifies] deadly[8] silence for [the treatment of] our Shia in [locations] and everywhere in the world?!! [Details deleted.]
…
[Relief for the Shia is coming].
[8] [Source deleted.]
Although the applicants returned to Saudi Arabia subsequent to that post and subsequent to their initial streets protests in [City 1], the social media posts at least would continue to be available and known to any official who would choose to go through her phone as has occurred to the first named applicant’s family.
I note that the applicants are not simply opinionated minorities, one of thousands of others in the country. They have established a political community under the umbrella of [Community Group 1] in [City 1], they have organised protests and posted on social media. Their political views are intertwined with their minority religious status for which the Shia have experienced a long history of repression in Saudi Arabia. In addition, the second named applicant is a woman whose rights remain curtailed despite many recent reforms. For example, while woman can now access a passport and travel abroad without the consent of a guardian, women continue to require approval for some medical procedures, must obey their husbands and have fewer rights in divorce.[9]
[9] >
From the perspective of political opinion, these deficiencies of Saudi human rights are grounds for the applicants to continue to express their opinions and agitate for change. In other words, its not as if the liberalisation under Crown Prince Mohammad Bin Salman has led to a Saudi Arabia society that has met all of the concerns raised by the applicants in the past.
Noting that the possible penalty the applicants would face may amount to decades in prison, without considering the conditions of Saudi prisons that have been noted as including torture and sexual violence[10], it would be an infringement on the applicants by way of a loss of liberty such that it would amount to serious harm. As such I find that the applicants face a real chance of serious harm into the reasonably foreseeable future for reasons of political opinion.
[10] >
I find that political opinion is the essential and significant reason for the harm that they face.
I find that as the state is the probable persecutor, they cannot seek protection by the state.
I also find that there is nowhere in Saudi Arabia that would allow them the freedom to express their political opinions such that they would not face a real chance of serious harm including in Eastern Province.
Third country protection
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).
It is not in dispute that the applicants have the right to enter and reside in Bahrain.[11]
[11] >
But it is required that the Tribunal consider whether the applicants will face a well-founded fear of persecution in Bahrain. In considering this question it is relevant to note that the same considerations apply as I have turned my mind to above, namely, that it is a question of whether free from fear and acting as vocal opponents of the Saudi regime the applicants would be harmed.
In considering this question I note that the Bahrain royal family are close to the Saudi royals. The Bahrain government called upon the Saudis for support in suppressing an uprising in 2011 which the Saudi government did by sending its military into the country under the veil of a coalition of the Gulf Cooperation Council. I note that the applicant and her husband participated in a protest in Australia against the Bahrain government’s actions at that time.
In the following year, a Bahraini citizen who subsequently was granted asylum in the United Kingdom wrote about the situation there noting:
a.That he and others were deprived of their citizenship by the Bahrain government for having participated in the 2015 ‘Tahrir square’ protests
b.He noted how ‘Bahrain now polices not just its own dissenters, but critics of Saudi Arabia too. They threatened to prosecute any citizens who dared question the legitimacy of Sheikh al-Nimr’s execution. The country has even imprisoned critics of Saudi Arabia’s war in Yemen – a war which they eagerly joined. Where Saudi Arabia goes, Bahrain will follow.’
These claims were supported by a Human Rights Watch report which describes how the Bahrain government cautioned residents not to speak up against Saudi Arabia’s war in Yemen[12] and a report by Americans for Democracy and Human Rights in Bahrain that describes how the Bahrain government threatened legal action against critics of the Saudi government’s decision to execute a Shia religious leader.[13]
[12] >
I note that the political situation in Bahrain has a religious edge to it as between half and three quarters of the population is Shia[14] which in turn leads to a concern that the Shia residents are pro-Iran and against Saudi Arabia. The large number of Shia is a reason for the Bahrain government to take the pre-emptive measures of warning citizens about speaking up against Saudi actions such as those detailed above.
[14] >
In considering whether the applicants could find protection in Bahrain I take all of this into consideration including that their primary claim is a political claim but one that has a religious edge to it. I note that in Bahrain political dissent is curtailed including political opinion about its larger neighbour Saudi Arabia. I also note that the Bahrain authorities are particularly sensitive to the aspirations of the Shia residents for the reason of their perceived association with Iran.[15]
[15] ibid
The Bahrain authorities have not been shy about detaining dissidents or as noted above rescinding citizenship most recently detaining pro-Palestinian protestors, again an issue for which the second named applicant has posted extensively on her social media pages.[16] As with Saudi Arabia, there is an element of arbitrariness that makes the risks greater.
[16] >
When considered cumulatively and noting that I am considering whether the applicants’ actions, free from fear, would lead them to face a well-founded fear of persecution in Bahrain, I find that there is a real chance that as vocal critics of the Saudi regime and supports of Shia rights they would face serious harm in Bahrain. As such I find that third country protection is not a viable option.
Conclusion
Noting that I have found the applicants to face a well-founded fear of persecution for reasons of political opinion, I am satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants satisfy the criterion set out in s 36(2)(a).
[Details deleted.]
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy 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.
…

[2024] AATA 443

22 January 2024

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Immigration

Statutory Interpretation

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Judicial Review

Procedural Fairness

Statutory Construction

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