1928271 (Refugee)

[2024] AATA 1779

1928271 (Refugee) [2024] AATA 1779 (18 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Dhanapala Sulaika

CASE NUMBER:  1928271

COUNTRY OF REFERENCE:                   Saudi Arabia

MEMBER:Denis Dragovic

DATE:18 March 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 18 March 2024 at 4:24pm

CATCHWORDS
REFUGEE – protection visa – Saudi Arabia – political opinion, religion and sexuality – social media activity – threats from possibly fake account holders – release of confidential information about anonymous users – no harm, unhindered departure and no approach to family since – personal threat from journalist while in Australia – evolving evidence of same-sex activity in third country and Australia – shame and uncertainty about legality – no adverse inference drawn – fear of harm from authorities, tribe and family members – country information – prevalence and social tolerance of same-sex activity in private despite illegality – extent of authorities’ surveillance of political dissenters – occasional imprisonment of even low-profile people – right to enter and reside in third country requires national identity card, which has expired – expired passport can only be renewed in Saudi Arabia – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(c), (2), (3), (4)(a), (c), 36(2)(a), 65, 423A, 424A
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. 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 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 16 June 2017. The delegate refused to grant the visa on the basis that the applicant’s credibility was in doubt which in turn led the delegate to conclude when making findings of fact that the basis of the applicant’s claims, including, but not limited to his political activity and his homosexuality were not credible and as such arising from what was accepted the applicant did not meet Australia’s protection obligations.

3. The applicant appeared before the Tribunal on 8 December 2023 and 12 March 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.

4. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

   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

    Evidence and findings of fact

    Background

12. The applicant is a [Age]-year-old male citizen of Saudi Arabia. He grew up in Khamis Mushait, a town near Abha city, southern Saudi Arabia.

13. The applicant described hardship during his childhood following his mother divorcing his father, and his father remarrying (the mother was described as very conservative whereas the father was liberal which led to the mother wanting to leave the marriage).

14. Upon his father marrying another woman, the applicant described being beaten by his stepmother and her not cleaning his clothes. He also described his childhood schooling that led him to question about what was being taught about the Jews and Christians or about the West. He recalled being beaten by the teacher following these enquiries.

15. He claimed that from his early teenage years he was not allowed to play with girls and that he had to only socialise with boys. One of his best friends was a fellow student of his own age named [Mr A]. At one stage during their youth, he claimed that he approached this friend and told him that he liked him and this feeling was reciprocated. He said that he had a non-sexual relationship with [Mr A]. When the school year ended [Mr A] moved to Riyadh.

16. The applicant said that a cousin who worked in law enforcement then showed interest in him. This cousin noted that the applicant was missing [Mr A] and the applicant believing that for this reason the man started to touch him on his leg and show affection in other ways, though this did not lead to a relationship.

17. Following graduation from high school the applicant started work. He said that he would browse relationship sites, but nothing developed. He confirmed that he did not have any sexual relationships with either men or women during his time in Saudi Arabia.

    Claimed political views while in Saudi Arabia

18. In 2012 the applicant claims that he downloaded Twitter and started tweeting about politics, religion and homosexuality under the pseudonym, ‘[Pseudonym]’. He said that during this period he would Tweet questions such as why Christians and Jews are presented as enemies or criticism of the government. He described getting into debates with pro-Saudi account holders who he believes to have been fake profiles. He claims that he received threats from these fake profiles but didn’t fear them as they were fake.

19. A New York Times article was provided which gave an example of how Saudi citizens use anonymous accounts to harass dissidents.[1]

    [1] Post hearing submission bundle. ‘Saudi Man Bullied Dissidents via Instagram and Lied to F.B.I., U.S. Says.

20. At the peak of his activity, he claimed to have had [number] followers on that account. He said that he built up his following by being on Twitter ten hours a day. He said that during this period he received a lot of threats as his views were critical of the royals.

21. He believes that the people threatening him were part of the government whose task it was to follow social media and to respond or threaten people on social media. They would also report the accounts to the relevant authorities.

22. The applicant arrived to Australia in March 2017. He raised the revelation in 2019 that three Twitter officials in the United States had facilitated the release of confidential information about anonymous users in Saudi Arabia which led to over 6,000 account details being released to the government.[2] The applicant suspects that his account was one of them. He said that this incident led to him stopping to tweet.

    [2] >

    The details of this incident involving Twitter employees is described on the United States, Department of Justice website as:

    between November of 2014 and May of 2015, Almutairi, 30, of Saudi Arabia, and foreign officials of the Kingdom of Saudi Arabia convinced Abouammo and Alzabarah to use their employee credentials to gain access without authorization to certain nonpublic information about the individuals behind certain Twitter accounts.  Specifically, representatives of the Kingdom of Saudi Arabia and the Saudi Royal Family sought the private information of Twitter users who had been critical of the regime.  Such private user information included their email addresses, phone numbers, IP addresses, and dates of birth.[3]

    [3] >

    I put to the applicant that as the dates of the names being released covered the period that he was active and considering that he did not face any harm and was able to leave the Kingdom, that he would not face any future harm arising from his past Tweets. In response, the applicant asked how it was possible that the journalist (described below) obtained his name.

23. It is not claimed that the applicant was harmed at any stage while in Saudi Arabia for any reason.

24. With regards to his political opinions and the content of his tweeting, he said that it involved the king, the crown prince, the government, the system, the orders and anything that was issued by the government.

25. The applicant had written in his submission that his family and friends knew about his political views, and they advised him to stop. He said that maybe one of his friends had reported him.

26. He said that none of his family have been approached by the authorities. I noted that he mentioned that in the past other’s families had been approached and even detained by the authorities. I asked what this indicated regarding his situation. He said that for those others there was no communication but rather they were directly arrested. Either way, his family has not been detained, charged, or convicted.

    Circumstances after arriving to Australia

27. In 2017 the applicant decided that he needed to improve his English, so he moved to Australia in March of that year to undertake English language classes.

28. While in Australia, in June 2017, he claims to have received a message from [Mr B], who later became the editor-in-chief of [Newspaper], an Arabic language newspaper based in [Country 1].

29. I explained to the applicant that country information indicates that [Newspaper] is a joint venture between the [Country 1 newspaper] and the Saudi [company]. Country information indicates that it was established in [Year].[4] Country information indicates that [Mr B] was working in [Country 1] for a different media group at the time the applicant claimed that he was threatened by him in 2017 nevertheless it is indicative of [Mr B] being a senior journalist. The applicant concurred and noted how close he was to the King of Saudi Arabia. He said that whenever there is a major event in Saudi Arabia he would be there. He claimed that [Mr B] is perceived to be close to the Crown Prince Mohamad bin Salman. He believes him to be tasked with embellishing the image of the Crown Prince.

    [4] [Reference]

30. The applicant said that at the time of the hearing he couldn’t access the ‘[Pseudonym]’ account as it was connected to a Saudi number that was disconnected.

31. The applicant said that he was in a classroom in Australia when he received the message from [Mr B]. He claims that the message was directly addressed to him as ‘you [the applicant – given name]’ saying that his place was in prison and that he should not be criticising the government. Following this message, he immediately left the classroom and went home fearing that the Australian authorities would arrest him. He believed that this would happen because Australia has good relations with Saudi Arabia.  

32. I asked whether it is credible that someone of [Mr B]’s stature would send a threat from his own account to someone of a limited profile such as the applicant. He said that there is no law in Saudi Arabia to protect people from such threats or prevent him from doing so.

33. The applicant said that he did not take a screen shot of the threat. He said that he was in a class at the time when he received it and that he was scared. He thought Australian police would arrest him. He said that because he was afraid, he deleted his Twitter account.

34. After a week he contacted a lawyer. When I asked him why he didn’t take a screenshot and suggested that it was surprising that his lawyer didn’t ask him to do so, he said that his Twitter account was connected to his mobile in Saudi Arabia and as such he couldn’t reactivate the Twitter account after he had deleted it. I put to him that Twitter allows for reactivating the account.[5] He reiterated that the account was connected to the Twitter account in Saudi Arabia number and that the Saudi number wasn’t working in Australia. I asked if he had the Saudi SIM with him, to which he said that he had. I put to him that there was the possibility of activating roaming. He simply said that when he arrived, he bought a Vodafone SIM and that he didn’t reactivate his Twitter account to take a screenshot.

    [5] >

    A Guardian article was provided which reported on Canadian authorities warning a Saudi dissident regarding credible risks to his life in Canada following the killing of Jamal Khashoggi. This man, though, is a prominent activist with half a million Twitter followers, according to the article.[6]

    [6] Post hearing bundle. ‘Exclusive: Saudi dissident warned by Canadian police he is a target’, 21 June 2020

35. Another article was provided of a similar situation of a Saudi dissident living in the United Kingdom.[7] In this case the profile of the dissident is very different to that of the applicant, he ‘had been a senior official in Saudi Arabia’s security service for two decades’ and that ‘Local media reported that a bounty of $250,000 (£200,000) had been placed on his head by the Saudi royal court.’  

    [7] Post hearing bundle. ‘Threatened Saudi dissident told to live like Edward Snowden by Met police.’ 8 June 2023

36. Another article referenced a court case in the United States which involved a former Saudi intelligence official who was accusing the Saudi regime of organising a ‘hit squad to murder him in Canada in 2018’.[8]  

    [8] Post hearing bundle. ‘Saudi Arabia: Collective Punishment for Ex-Official’s Children,’ Human Rights Watch

37. I note that these examples include people with very different profiles than the applicant and as such are only loosely informative to the applicant’s current case.

38. The applicant believes that because [Mr B] contacted him using his real name, [Mr B] was working for and on behalf of the Saudi state and that the Saudi state had access to his details through the Twitter breach.

39. The applicant claimed that he had in the past regularly engaged with [Mr B] on Twitter and hence there was existing animosity. He claims that his comments would receive a higher number of likes on Twitter which he believes infuriated the journalist.

40. I asked him to explain why he thought that a journalist of that stature would be infuriated if someone else received some more likes on a Twitter argument. He said that he is close to the government, like a son, he would be infuriated by someone who criticises the government getting more likes. He believes that he wouldn’t want to be seen as not having his pro-government views liked as much.

41. I accept that the number of years that have passed have made it very likely that the ‘[Pseudonym]’ Twitter account is at the time of this decision permanently deleted.

42. I note that while in the applicant’s original statement there was no mention of [Mr B] and this situation, at the Departmental interview he did present it and engage with it. For this reason, I place no weight on the absence of any written claim in the original submissions.

43. The applicant has another Twitter account, established in 2017 while living in Australia, ‘[Account name 1]’. He said that he has not received threats against him via this account. He said that he is not very active on this account.

44. I noted that of the Tweets he provided to the Tribunal from ‘[Account name 1]’ it appears that he has very low engagement. The applicant’s tweets on this account either have no engagement, a single re-Tweet or a single like.

45. A translation of some of the tweets were provided. In one, the applicant responds to a tweet relating to the murder of Jamal Khashoggi writing, ‘[Deleted]’

46. In a post of his own, under the picture of a letter that had written on it, ‘[Deleted]’. He wrote ‘[Deleted].’

47. In another he writes, ‘[Deleted].’

48. The applicant retweeted a message, ‘[Deleted].’

49. The applicant provided five more translations of his tweets which have a similar narrative.

50. The applicant’s Twitter banner states ‘[deleted]’ with pictures of numerous faces of those presumably imprisoned.

51. In the response to a s424A letter the applicant provided more screenshots and translations of his posts on ‘[Account name 1]’. Most were his own comments, and a few were the applicant reposting another person’s commentary onto his threat. I put to the applicant that either way, his material isn’t observable to the public. He said that the account being protected means that no one else can see what he posts other than those he approves. He said that the account was on protected mode since it was established 2017.

52. The applicant established a third Twitter account. He was fearful that his other account had been hacked. He believes that this one was established in about 2020. He said that this account also has low engagement because he said that all he does is retweet.

53. In the s424A letter I asked the applicant to identify the second Twitter account he claims to have had and to take screen shots of any posts including translations that he believes could lead him to face harm. The applicant responded by providing additional screen shots from ‘[Account name 1]’ and a few from ‘[Account name 2]’ which had [deleted]. The second account appears to be set on protected mode also. When asked about this he said that like his other account it limits those who can see what he posts and that he had it on protected mode since establishing it.

1. In the representative’s submission in response to the s424A letter sent to the applicant after the hearing he wrote:

   [The applicant] claims that one of his friend’s brothers works as an officer at Jeddah airport and has informed him his name is on the watchlist. [The applicant] believes that this is because of his Twitter account communications and will be arrested upon arrival.

2. We discussed this claim. He explained that he had called his friend asking that he check with his brother about his status. He said that he did this after having a phone conversation with the Saudi embassy in Australia regarding the renewal of his passport. He said that the embassy official told him that he needs to go to Saudi Arabia to have his fingerprints done. He believes that this is a ploy to have him return to the country and arrest him.

3. The applicant said that he had checked with a friend in Australia who told him that he didn’t have any issues renewing his passport through the embassy and was not required to return to Saudi Arabia.

4. I asked for any evidence of such advice. He said that because of Saudi bureaucracy he didn’t correspond with them but rather just called and so he doesn’t have any other evidence. He said that he called the embassy twice about renewing his passport, once in 2020 (the same year that his passport expires) and the second time in 2022.

5. At the hearing I searched online for the process of passport renewal. I noted to the applicant that Saudi Arabia had adopted biometric passports and that his passport which he provided to the Tribunal at the hearing was not marked with the biometric symbol and as such was not a biometric passport. I note that country information indicates that the new Saudi e-passport includes fingerprints, facial recognition, and iris scans.[9] I put to the applicant that it would seem reasonable that he would be required to provide all of the new biometric data to obtain a new passport as the country is phasing out the old passports. I indicated that the requirement to go to Saudi Arabia to renew the passport does not appear to be a ploy to have him return.

   [9] >

   He said that he can’t rent an apartment or get a driver’s license in Australia because of his expired passport. He said that he has two apartments and land in Saudi Arabia but can’t transfer the money via Western Union as they won’t accept an expired passport. He explained that the rent from the apartment is received by his brother who sends some of the money to him intermittently via a friend in Australia whom he trusts for small transfers such as $1,000. I asked why he can’t send the same amount through his friend every two weeks and that way manage the risk. He said that it would lead to a risk of losing a thousand dollars.

6. The applicant said that he doesn’t post much online because two of his Twitter (‘[Pseudonym]’ account) friends were arrested. He believes that they were on the list of 6,000 names. He said that he knows that they were arrested because they stopped Tweeting. I suggested that they could have stopped Tweeting for many other reasons. He claims that some of their relatives have ended up in prison. He said that the sister of Abdulrahman, one of the friends who was imprisoned, is in London now and country information was provided by the applicant about her.

7. The information provided was in the form of a Guardian article which described how Mr Abdulrahman had a satirical Twitter account which mocked the Riyadh government. He was subsequently sentenced to 20 years in jail. Mr Abdulrahman established the account while living in the United States but on a return visit was detained by Saudi authorities, according to the article.[10] In this case, reporting claims that there is a direct link between the illegal release of 6,000 names from Twitter and Mr Abdulrahman’s initially detention.[11] I note that Mr Abdulrahman ‘disappeared’ in 2018 and as such lends some degree of support to the applicant’s fears as it shows that despite the release of data covering a period ending in 2015 the Saudi state was continuing to pursue people through to 2018 (whereas the applicant left Saudi Arabia in 2017).

   [10] Post hearing submission, article under the title, ‘Twitter and Saudi officials face racketeering lawsuit over jailed satirist.’ 17 May 2023.

   [11] >

   The applicant explained that he is on Twitter once or twice a week in Australia. I asked why not more often. He said that his mother came in 2018, she asked why he wasn’t married. The applicant said that he told his mother that he is gay and that since then she has stopped talking to him. He inferred that he doesn’t want to create more problems.

8. He believes that he will be jailed for his Tweets. Were he not to face that fear he said that he would be Tweeting regularly as he had before.

9. In considering the applicant’s claims of posting anti-government material on Twitter, having received a direct threat from a journalist and his fear that the Embassy is requiring him to return as they know his identity, I will consider this evidence collectively.

10. I accept that the applicant has had three Twitter accounts and I accept that he has made posts that align with those he had provided to this Tribunal. I accept that the applicant has used those accounts to engage with prominent people in debate. While there is no evidence to support his claims of hosting the [Pseudonym] account with [number] followers, there is also little basis upon which to reject his claim. As such I accept that all of the applicant’s claimed accounts had the profiles discussed above including one with upwards of [number] followers at one point in time over a decade earlier and that it included politically and socially sensitive material as described by the applicant.

11. Looking into the future, I note that the applicant has two X accounts that are both protected limiting who can view his posts. I note that he has greatly diminished his activity on X and does not post frequently. There are no claims that the applicant has been politically active in any other way. I find that the applicant’s X settings being on protected are shaped by fear and as such, were he free from fear he would have a public profile. I also find that he would continue to post at the same rate and of the same substance that he has over the past several years as there is no indication that there is a possible trigger for this to have changed into the future.

12. With regards to the applicant’s claim of a direct threat from a prominent journalist and specifically that [Mr B] used the applicant’s name in the threat. I am concerned with the plausibility of this. The evidence before this Tribunal is that the leaks the applicant fears occurred between November of 2014 and May of 2015. The applicant left Saudi Arabia in 2017. He was not harassed prior to his departure, and he was not detained nor in any way challenged as he left. For the applicant’s narration to be accurate it would require not only that his details were a part of the 6,000 names released, but that the list was available to the journalist and that the journalist would have trawled through it to find the applicant and that sometime in 2017 and not before, he would have sent a threat in his own name to the applicant. That the applicant did not take a screen shot immediately, that he did not try to recover his Twitter account and take screen shot later, is baffling even considering his fears. For these reasons I find that the journalist did not make the threat to the applicant in the way described.

13. As for the applicant’s claims that he is on a watch list, it is plausible. I have accepted that the applicant’s name appears on the 6,000 list. It would not be implausible that his name was added to other databases.

14. With regards to the applicant calling the Saudi embassy and asking about renewing his passport, I find that it is correct that the applicant would have to return to Saudi Arabia to renew his passport as the country has transitioned to the use of biometric passports. This would align with a common-sense assumption that embassies would not have the sophisticated equipment required for iris and facial scanning. As such I do not accept that the response the applicant received is indicative of a Saudi government conspiracy seeking to have him voluntarily return to the country so as to be dealt with there for his past activities on Twitter.

    The applicant’s sexuality  

15. Regarding the applicant’s sexuality, he said that sometimes he frequents places where homosexuals go. He said, at the first hearing, that he once had a one-night stand with someone he met and feels guilty about it. He said that he doesn’t want to do this again, but he said that he has never had a relationship with a woman.

16. He added at the first hearing that he used to pay for sex with men and as such he has had ‘some’ male partners. He expressed a concern over the legality of him having paid for sex, but I explained that it is not relevant in the context of the matter before us.

17. He said that he tries to meet people and establish a relationship but many of the people in the places where he frequents are Thais who are seeking money for sex. He named the places where he goes, [Venue 1] in [Suburb] on Saturdays and [Venue 2] in the CBD on Thursdays. He claims to go about once a month to these places.

18. He said that he is sometimes approached by men, and they speak, but he doesn’t believe that they are interested in him.

19. I asked the applicant to provide credit card statements to show that he was spending money in either of the establishments.

20. The applicant submitted [Bank] credit card statements, but none showed any evidence of financial expenditure in [Venue 1]. When this was put to him at the second hearing, he said that he only went there a couple times and he possibly just paid cash or didn’t pay at all for anything.

21. I note that the applicant is a prolific credit card user with daily expenditure for all types of expenses showing on his statements.

22. The applicant provided [Bank] statements between 2018 and 2022 that show the applicant spending money in [Venue 2] on 18 separate calendar days (it is possible that some of those expenditures reach across midnight and into the next day and as such represent only one outing). The expenditures were regularly dispersed across the years.

23. In the second hearing I put to the applicant that there is no evidence to suggest [Venue 2] is a gay club. He clarified saying that it’s not a gay club but that ladyboys come there and his sexual interest is in ladyboys. He added that he doesn’t believe [Venue 1] has lady boys.

24. At the second hearing the applicant shared with the Tribunal screenshots of photos and text messages from his phone with ladyboys whom he had made arrangements to meet and pay for sexual services. We went through correspondence between the ladyboys and the applicant dating back to 2021 and intermittently in the intervening years. The pictures were of the ladyboys including some showing male genitalia and female appearances. There is sufficient evidence in the messages that support the applicant’s claims of having engaged these services as the messages include short exchanges regarding specific locations of the rendezvous, pictures of the entrance to the building, and details of the apartment number and floor in addition to prices and messages communicating plans to meet.

25. The applicant explained at the second hearing that while living in Saudi Arabia he had travelled regularly to [Country 2] to have sex with ladyboys there. He described the accessibility to obtaining sexual services from ladyboys in [Country 2] as easily and readily available. He said that he began these visits to [Country 2] in 2014.

26. At the first hearing, I asked the applicant what he aspires to in a relationship. He said that he hopes to meet someone, a male, who will love him and allow him to live in peace. I asked if he wanted to have a family. He said yes. I asked how this could be a possibility if he wanted to have a male partner. He said that he doesn’t know how this would work, he thought that he doesn’t want to be single for ever. He said that he is very confused and that he doesn’t know. At the second hearing after he had explained that he had some feelings for one of the ladyboys whom he had paid for sex, I asked whether he wanted to have a relationship with a ladyboy in the future. He said that he did but the discussion then engaged with how realistic that aspiration was. He noted that they earn substantial amounts of money and that he wouldn’t be able to dissuade one from continuing their activities.

27. The applicant has provided an evolving narration of his sexual preferences. It began with no mention of his sexuality to preferring men but with limited sexual experiences through to having paid sex with ladyboys. I acknowledge the obligation upon decision makers arising from s423A that requires the Tribunal ‘to draw an inference unfavourable to the credibility of the claim or evidence’ but only if I am unsatisfied by the explanation. In this case I am satisfied. The applicant’s explanation for this evolving narrative is that he didn’t know whether his payment for sexual services was illegal and as such he was afraid to mention it. I also accept that there is an element a sense of shame arising from his actions. For the reason of extensive detailed screenshots and messages being provided to the Tribunal, I accept that the applicant has a sexual predilection towards ladyboys.

    Other claims

28. The applicant said that many of those [deleted] are considered terrorists. He said that [some] of the Saudi men who were responsible for [a Terrorist attack] were of the [Tribe]. I accept this is true as it is reported in [an Official source].[12] There are others who are continuing to fight in [Country 3]. He said that his mother would not avoid seeing him being beheaded. He said that for his mother the most important thing is that Sharia law is enforced.

    [12] [Reference deleted]

29. At the first hearing he said that if he returned to Saudi Arabia he would return to live in his father’s house where his step-wife continues to live. The house is across three floors with six apartments where his married siblings live. I put to him that he is a young male, and she is an elderly woman and I asked how she could harm him. He said that she would know of his sexuality or his political views and so she could do anything to harm him. He said that she would know because they live in a small community, and everyone knows the business of others.

30. At the second hearing, after having provided evidence of his ownership of two apartments including one in Jeddah, he said that he does not fear his stepmother and instead suggested that any mention of his fear of her was related to when he was young. I accept this but note my concern with the applicant’s credibility considering how the applicant’s claims changed.

31. The applicant claimed that because he is [Age] years old within his culture anyone who reaches his age is perceived to be gay if they are not married. I asked about those who are over thirty and not married, whether they are harmed by the community. He said that they are marginalised, no one speaks to them, and no one pays them respect. He said that there is no reason for someone not to get married.

32. At the second hearing I noted that country information indicates that 25.2 percent of Saudi men aged between 25 and 34 years are unmarried.[13] I indicated to him that his claims regarding perceptions of single men being gay and isolated were not credible considering the country information. The applicant said that the situation is different in southern areas of Saudi Arabia where people get married early. He said that he is worried about when he visits Abha. He said that in the past when he would be asked about marriage, he would say that he is busy with work, and focusing on other things in life. He said that people are pushy and that they would continue to ask. He said that when you belong to a tribe, there are traditions such as those emanating from Islam where you are expected to get married. He gave the example that before this year’s Ramadan he would call his uncles and they would ask why he is staying in Australia for so long. He would make excuses that he is still studying.

    Relevant country information

    [13] >

    I noted to the applicant that there is widespread coverage of the Saudi government’s liberalisation program,[14] but I acknowledge that while the country has ‘opened-up’ in recent years it continues to crack down on some political commentary. 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.[15] She was sentenced to five years and eight months and released in 2021.[16]

    [14] >

    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) while in the United Kingdom 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 subsequently reduced to 27 years.[17] 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.[18]

    [17] >

    More recently Human Rights Watch reported on Muhammad Al-Ghamdi, a retired teacher, 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.

1. Regarding homosexuality, I read to the applicant some country information pertaining to the situation:

   The reporter for the Atlantic states that being homosexual in Saudi Arabia involves a “contradiction-to have license without rights, and to enjoy broad tolerance without the most minimal acceptance”. She goes on to explain that in the Middle East, sexual practices are not linked to sexual identity (ibid.). Homosexual relations are tolerated; it is a behaviour that can, in fact, be transitory and does not define the person (ibid.).

   "I used to have the feeling that I was the queerest in the country," he recalled. "But then I went to high school and discovered there are others like me. Then I find out, it's a whole society."

   The Country Reports on Human Rights Pratices for 2010, published by the United States (US) Department of State, note that in Saudi Arabia in 2010, “[c]onsequent to the illegality and severe punishment applicable [for homosexuality], there were few reports of societal discrimination, physical violence, or harassment based on sexual orientation” (U.S. 8 Apr. 2011, Sec. 6).

2. I noted that it appears that society is accepting of homosexuality even if legally there is severe punishment. The applicant responded that society won’t accept homosexuality. He said that ‘Suhail’ was arrested and imprisoned for three years because he was wearing shorts.[19] I noted that ‘Suhail’ has been described as a ‘gay social media personality’.[20] He said some of those who live private homosexual lives would end up in the same situation as he has in that the family asks about when they will marry and then as with his mother, they stop speaking with them.

   [19] >

   I noted that other material indicates that there is a degree of unspoken acceptance of bisexuality among young men and women.[21] He said that probably there are such people as the articles describe, but he said that he is not of that type in the sense that he said that he likes men.

   [21] and >

   I put to the applicant that there appears to be a difference between those who publicly express an image associated with homosexuality and are perceived to be undermining the norms of Islamic society such as Suhail, as opposed to those who privately have homosexual relationships. He said that there are some people who live private homosexual lives like that.

3. The applicant provided country information about items that were confiscated during raids that included bows, hats, and pencil cases which were rainbow coloured. In one report an official said that they had been on the lookout for ‘slogans’ that violate the rules of Islam and public morals.[22] He asked rhetorically, how people with his sexual orientation can we live with people with those ideologies.

   [22] Post hearing bundle. ‘Poisonous message’: Saudi officials seize rainbow-coloured items in homosexuality crackdown.’ 2022

   Considerations

4. With regards to the issue of tribal members being involved in the [Terrorist attack] in [Country 4], I note that the applicant has not been harmed by his tribe nor the government despite living in Saudi Arabia through to 2017, [Number] years after [the attack]. This period is sufficiently long to allow for any direct or even indirect harm by the state to the tribe and its members. There is no evidence before this Tribunal that anyone associated with the tribe has been impacted whether by the government seeking to enforce some order over the tribe and its members or the tribe seeking to pressure members to undertake further acts. When this was put to the applicant, he clarified that his only fear arising from the tribe relates to them finding out about his preferences for ladyboys. To avoid doubt, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from the history of his tribe’s association with the events of [the attack].

100.   The applicant has been involved in political commentary on what was previously known as Twitter and now X. At some stage the applicant had a following on Twitter of around [number]. Despite this size of following and there being a security breach at Twitter during the period the applicant was involved online, the applicant was not identified, he was not harmed, and he left Saudi Arabia without any trouble. But as noted earlier, there is evidence of the Saudi state only following up on an individual in 2018, after the applicant had already departed Australia. This is critical. For the reason of the Abdulrahman case, I cannot dismiss that the applicant’s name and details are known to the Saudi security services and that for whatever reason, whether bureaucratic processes or limitations on resources, the applicant was not followed up with prior to leaving. As such I find that the applicant is known to the Saudi state through the Twitter leak.

101.   This exposes the applicant through his previous ‘[Pseudonym]’ account to possible harm.

102.   I find that the applicant’s current two X accounts are not known to the Saudi state. But unless the applicant were to delete them entirely prior to his return, I find that they would become known to the Saudi security apparatus. This would occur on the basis of having already accepted that he is on the list of 6,000 names and as such would be of interest to the authorities upon his return. It may involve someone at immigration checking his phone and the activity on his X account or alternatively authorities later detaining him and doing so then.

103.   That he is on a watchlist does not necessarily mean that he would be arrested immediately upon return. It may simply indicate additional review measures or trigger internal monitoring when he passes through immigration.

104.   At this stage the applicant’s further Tweets and such things as his banner including support for the LGBTI community and prisoners of conscience would become known.

105.   From the country information identified above, the evidence before the Tribunal is of a Saudi state that does not clearly flag where the red line lies for citizens not to cross. That a retired teacher tweeting from an anonymous account with a few followers could be sentenced to death but a high-profile political activist ‘only’ a few years is difficult to reconcile other than the state fearing international opprobrium arising from its actions towards the latter. That there is such ambiguity in how the state acts including pursuing individuals years after information about their actions are known to them leads me to find that the applicant’s situation is tenuous. Does this amount to a real chance? There is insufficient information to know to what extent the Saudi regime has pursued others on the 6,000 list. Are all being monitored? Are some or only a few? Considering the resources of the Saudi state it would be reasonable to assume that at the very least all are being monitored electronically. At this stage it becomes relevant to consider the applicant’s other claim, namely his interest in ladyboys.  

106.   The applicant has over the years shown an interest in sexual activities with ladyboys. He claimed at one stage of the hearing to have had a non-sexual relationship with a man, but it was not clear if this was in reference to a ladyboy or not. It would be beyond the expertise of this Tribunal to distinguish between sexual preference and sexual orientation, and as the below reasoning shows, unnecessary. For the purposes of this decision, I have taken the view more favourable to the applicant which is that he has a sexual orientation towards ladyboys.

107.   In considering whether such sexual activity could continue were he to return to Saudi Arabia, I note that the applicant’s evidence was that it can. The applicant had previously travelled to [Country 2] for weekends when he wanted to engage in such activities. Due to both countries being members of the Gulf Cooperation Council movement between them is unrestricted for citizens of either country. As such there are no impediments for the applicant to continue to fulfil his desires albeit presenting some greater logistical hurdles than are present while he was living in Melbourne, Australia.

108.   The applicant did not experience any harm over the years that he frequented [Country 2] and during the hearing the only fear he identified arising from his travels was not that he’d be caught by the authorities but if someone among his tribe found out. Noting that he has not claimed to fear harm arising from any future seeking out of ladyboy services in [Country 2] and as he has not experienced any harm in the past for doing so, I find that the applicant could, upon return, continue to pursue his sexual orientation as he had in the past and would not face a real chance of serious harm or a real risk of significant harm.

109.   With regards to his aspirations of a future relationship. The applicant has expressed vague expressions of wanting to have a relationship in the future without having had a relationship of substance in the past. Had the applicant some history of relationships that had failed, but somewhat resembled at the onset what he aspired to for the future, his hopes for a relationship may present differently in the context of this decision, but the applicant has a long and exclusive history in two countries of seeking out paid sexual services of ladyboys. This appears to be his preferred way of living. As such I do not accept the applicant’s claims that he has a genuine desire to seek out a ladyboy in Saudi Arabia and openly live with her and have a family with her as he has not progressed down that path in Australia. As such I do not consider this integer of his claim further.  

110.   The applicant has claimed that he fears harm for reasons of his tribe finding out. The applicant’s tribe is in Abha, southern Saudi Arabia. The applicant has an apartment in Jeddah where he has lived and worked in the past. He has travelled to [Country 2] to pursue his relationships for approximately three years. Country information indicates that Saudi Arabia has tolerated homosexuality which, while not the same as engaging with paid prostitution with a ladyboy, is indicative of the sanctity of private affairs. As put to the applicant, in reviewing the country information that was discussed with him it appears that in Saudi Arabia that which isn’t publicly aired as threatening to the image of the Islamic nation is tolerated. This is not to say that were the tribe to find out he would be warmly embraced, but rather that there wouldn’t be a zeal to dig deeper into the applicant’s private activities while living in Jeddah and travelling to [Country 2]. Without such zeal I find that the tribe would not find out about the applicant’s activities in [Country 2]. I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from the tribe for reasons of his sexual orientation.

111.   I accept that there are cultural traditions within a tribe that lead to certain expectations and preconceived notions including that he should be married by a certain age. But the applicant is not returning to the tribal [heartland]. He would be returning to a major city in Saudi Arabia where he has worked and lived before. I place considerable weight on country information that indicates a quarter of Saudi men aged between 25 and 34 years are unmarried.[23] That the number is so large is strongly indicative that society would not form prejudices towards this cohort such that they would experience serious or significant harm. While the applicant said that the statistics would be different in the south, a claim that rings true as it is rural and within the tribal rather than cosmopolitan context, this would statistically indicate that the figure of single men would be even higher in urban areas where he would be living. If the number of men who are single in Jeddah is higher than a quarter then even were his tribe to be surprised and questioning of him, the large number of others in a similar situation within the Jeddah community would be a basis upon which he could justify his situation. While some from his tribe may visit or he may be called upon to visit them, I find that the questioning and follow-up of when he will marry, and any other personal questions would not amount to serious or significant harm.

[23]  But considering that the applicant would be monitored, at least electronically, and as such his interests in [Country 2] potentially exposed through his calls, messages, and internet activity, what would otherwise have been a low-risk activity suddenly becomes high risk. For the reasons of the Saudi state’s ‘high-tech surveillance systems’[24], I find that the Saudi authorities would find out about the applicant’s rendezvous, I find that such activities would not be looked upon as being within the private sphere or as occurring beyond the borders of the country and as such of no concern. I also find that such activities would highlight the applicant’s risk to the state as someone who objects to the Islamic profile of the country and the role of the religion. It would lead to the applicant’s risk of being targeted by the state for his political past and any ongoing messaging increasing.

[24]  Considering the murkiness of the Saudi state’s stance towards political dissent and the ambiguities of who is arrested and what sentence is made, I find that the applicant’s sexual orientation and past and present political commentary on social media will intersect such that he faces a real chance of serious harm into the reasonably foreseeable future.

114.   I find that political opinion is the essential and significant reason for the harm (s 5J(4)(a)).

115.   In considering whether the harm he faces would be systematic and discriminatory (s 5J(4)(c)) I note that it is the state that is persecuting political dissidents in an intentionally targeted manner and as such find that it is systematic and discriminatory.

116.   For the same reasons the applicant cannot seek protection from the state as the state is the persecutor (5J(2)).

117.   I also find that the applicant cannot modify his behaviour as it is the actions that he has already undertaken under the alias ‘[Pseudonym]’ that are known to the authorities that will be the genesis of the applicant facing a real chance of serious harm (s 5J(3)).

118.   I find that the applicant cannot relocate as the entire state of Iran is controlled by the authorities (s 5J(1)(c)).

119.   I have also considered whether according to s 36(3) the applicants have a ‘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.’ The applicant is a citizen of Saudi Arabia and as such as the right to enter [Country 2], a member of the Gulf Cooperation Council. [Country 2] is the country into which he had often flown to and engaged in his sexual activities with ladyboys.

120.   Of relevance is the method of accessing work rights and other services that he would require to reside in [Country 2]. Country information indicates that a country’s identity card suffices. But the applicant’s government issued identity document has expired as of January 2021 as has his passport. The applicant would be unable to enter [Country 2] from Australia. As has been accepted earlier, he cannot access a new passport via the embassy for reasons discussed earlier. Country information indicates that he will need to request a new identity document and then book an appointment. This will also require him to be in Saudi Arabia. As such, while the applicant in theory has the right to enter and reside in [Country 2], without valid identity or passport documents he will have to transit through Saudi Arabia, engage with the government and run the same risk that I have considered above.

121.   As such I find that the exception to Australia’s protection obligations under s 36(3) is not met.

122. When considered overall, I find that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

DECISION

123. 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.

…