1934430 (Refugee)

1934430 (Refugee) [2024] AATA 4473 (9 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Nicole Lojszczyk
CASE NUMBER: 1934430

COUNTRY OF REFERENCE: Saudi Arabia
MEMBER:Nicole Burns
DATE:9 October 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 09 October 2024 at 1:05pm

CATCHWORDS
REFUGEE – protection visa – Saudi Arabia – particular social group – bisexual woman – victim of sexual assault – tattoos – religion – conversion to Shia – atheist – honour killing – guardianship system – restrictions imposed on women – extramarital relations – forced marriage – Gulf Cooperation Council – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
FMN17 v MICMSMA (2020) 274 FCR 612
MIMAC v SZRHU [2013] FCAFC 91
SZTOX v MIBP [2015] FCAFC 77
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 28 November 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is [an age]-year-old woman from Saudi Arabia. She came to Australia in April 2018 and applied for the protection visa on 3 August 2018.
The applicant appeared before the Tribunal on 7 August 2024 to give evidence and present arguments.
The applicant was represented in relation to the review. The representative attended the hearing.
The issue in this case is whether the applicant is owed protection as a refugee or under the complementary protection provisions (set out below). For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
As there is no DFAT report for Saudi Arabia the Tribunal has considered country information from other sources relevant to the applicant’s claims, including country information referred to by the representative in her written submission.
The applicant’s background
Based on the applicant’s generally consistent evidence before the Department and Tribunal, the Tribunal accepts the following about her background, including her family composition, education and work history (in summary):
a.The applicant is from Jubail city, a large industrial city located in eastern Saudi Arabia.
b.Her parents, [and specified family members] presently live together in Saudi Arabia. [One sibling] is working, [and others] are studying at university, and her father is retired.
c.After completing high school the applicant undertook [a subject 1] degree at a university in Saudi Arabia, which she completed in around [specified year].
d.In [year] she moved to [Country 1] to undertake post graduate studies, holding a Saudi Arabian government scholarship. Her father accompanied her initially, whilst she studied [a] language course at [College 1]. Around June that year she went back to Saudi Arabia and then returned to [Country 1] later in the year undertaking a [course] at [College 2], in [City 1]. Her brother accompanied her to [Country 1].
e.Sometime in 2010 her mother and [specified siblings] moved to [Country 1], for just under a year. The applicant lived on campus and they rented a house nearby (in [City 1]). The applicant stayed with them every weekend.
f.The applicant returned to Saudi Arabia to renew her [Country 1] visa, and her mother and siblings returned to Saudi Arabia. The applicant returned to [Country 1] to start a [further] degree (in [subject 2]) in September 2011. Her father and brother accompanied her for a few weeks initially, although he left [Country 1] toward the end of 2011. The applicant lived on campus initially then in an apartment near the university. Her parents visited her every couple of months for a few weeks.
g.In September 2012 the applicant returned to Saudi Arabia before completing her exams, on the instructions of her father who started to suspect she was deliberately delaying completing her studies to stay in [Country 1].
h.In around mid-2013 the applicant started working in administration for a [business 1] in Saudi Arabia. She had some work previously in Saudi Arabia, [in another role].
i.In 2014 the applicant moved to [City 2] in [Country 2] with her family. She got a job in [City 2] at [Employer 1] then moved to work with the same [business] group in [City 3], where she lived in an apartment with her brother until 2018.
j.In 2018 the applicant’s family returned to Saudi Arabia. The applicant did not want to return and her parents would not allow her to continue to live and work in [Country 2] alone/without a male guardian. The applicant then sourced volunteer work in [Country 3] for two and a half months before travelling to [Country 4], [Country 5] and then to Australia, arriving here in April 2018.
k.In Australia the applicant had worked for several years for a company called [Employer 2], until the end of April 2024. At the time of hearing she had been interviewed for a position with a co-working [business], [Employer 3].
l.In Australia the applicant has reconnected with her [siblings] (first), followed by her mother and father (in a limited way): primarily through [specified media], from around 2020 or 2021.
PROTECTION CLAIMS AND EVIDENCE
In summary the applicant claims to fear serious harm from her father, other male relatives, the authorities and the community on return to Saudi Arabia for several reasons. These include because she is a woman; bisexual; atheist; not a virgin; has tattoos; and as a Shia convert (from Sunni Islam). Also on the basis of seeking asylum and her political views against the Saudi regime.
Initially the applicant set out her background and claims in the protection visa application and in a statutory declaration dated 28 June 2019 provided to the Department. In it she claimed in summary as follows:
·She identifies as bisexual.
·From around 16 years of age she no longer considered herself a Muslim.
·She was molested by her uncle at 14 years of age.
·In [year] she was awarded a scholarship from the Saudi Arabian government to study a [degree] in [Country 1] until January 2013.
·Her brother travelled with her to [Country 1] as her male guardian. He returned to Saudi Arabia at the beginning of 2012.
·Towards the end of September 2012 the applicant’s parents requested she return to Saudi Arabia: she did not complete her studies.
·Upon return to Saudi Arabia the applicant was depressed, and stayed home until her father allowed her to work at the end of 2013.
·Her father was forcing her to remove her tattoos she had got in [Country 1]. She kept delaying this.
·In 2014 her family converted from Shia to Sunni.
·In June 2014 the applicant moved with her family to [Country 2]. She worked and lived with her brother in [City 3] whilst the rest of her family lived in [City 2].
·In January 2018 the applicant’s family returned to Saudi Arabia but she stayed in [City 3] to arrange a job transfer there.
·In February 2018 she undertook volunteer work in [Country 3].
·Before she left [Country 2] the applicant sent a text message to her parents, telling them she was leaving.
·[In] March 2018 the applicant travelled to [Country 4]. She called her mother and told her she would not return to Saudi Arabia.
·[In] April 2018 the applicant travelled to [Country 5] and then on to Australia.
Material the applicant provided to the Department in support of the visa application included:
·A copy of a financial sponsorship certificate for student visa purposes, issued by the [Embassy] of Saudi Arabia in [Country 1] on [date]. It indicated the applicant’s official sponsorship was valid until 1 January 2013.
·A copy of [College 2] [course] results for 2011/12 in the applicant’s name. This indicates a leave of absence was approved for the periods from [date] to [September] 2013; [September] 2013 to [date]; and [date] to January 2015. Also that [in] January 2015 the applicant withdrew from the course.
·Copies of email correspondence between [College 2] and the applicant indicating that she informed the university that her parents did not approve of her completing her [further] degree.
·Untranslated email correspondence between [Person A] and the applicant dated 7 December 2018.
According to information contained in the delegate’s decision record, the applicant was interviewed by the delegate on 4 September 2019. On 12 September 2019 her representative provided to the Department a written submission dated 6 November 2019 containing additional information in response to some issues raised at interview.
The delegate was not satisfied the applicant was owed protection and refused her visa application on 28 November 2019. In the decision record the delegate concluded (among other things) that she would not face gender-based persecution in Saudi Arabia on the basis that her family are privileged and noting in certain circumstances individuals like the applicant were capable of standing up against tradition and could access considerable freedom despite the guardianship restrictions imposed on women.
On review the applicant provided a statement dated 29 July 2024 to the Tribunal. In it she states she remains fearful of persecution on return to Saudi Arabia as a woman, who disobeyed her guardians, has experienced domestic violence from her family and as an atheist, who is not a virgin, is bisexual, has tattoos, and sought asylum. She also responded to specific concerns the delegate raised in the decision record. For example how she was effectively imprisoned and restricted by her family at home for significant periods in 2010 and again in 2012/13.
The applicant provided to the Tribunal copies of email correspondence between herself and staff at [College 2] confirming leave for 2013 (as provided to the Department). Also a copy of an email she wrote on 24 September 2014 to the school’s administration team stating that she was still trying to convince her parents to let her finish the course, and another one in January 2015 stating (among other things) that her parents refused to let her travel back to [Country 1].
In a pre-hearing submission provided to the Tribunal dated 30 July 2024 the representative sets out the procedural background to the applicant’s case, her protection claims, and addresses specific concerns raised by the delegate. She also references country information about gender-based violence (GBV), the guardianship system, personal status laws, treatment of lesbian, gay, bisexuals, transgender and intersex (LGBTI) persons in Saudi Arabia as well as case authorities including several Tribunal decisions, which she argues are favourable and analogous to the applicant’s claims. Some of the country information referenced had been contained in the representative’s written submission provided to the Department.
Also provided to the Tribunal were copies of letters[1] from [Psychiatrist A], a [Country 1] based consultant psychiatrist the applicant saw from July to September 2012 and who prescribed her antidepressants at the time. The applicant explained to the Tribunal she obtained these letters after the delegate’s decision. That is because the delegate did not accept her claims to have been prescribed antidepressants at this time (and related matters) because she referred to seeing a ’counsellor’ in [Country 1] at interview, who are unable to prescribe medication. She explains this was an error at interview, not an attempt to mislead. The representative submits these letters from [Psychiatrist A] also confirm aspects of the applicant’s claims. For example the 13 July 2012 letter includes references to the applicant being molested and her parents’ refusal to allow her to return to [Country 1] in 2010.
[1] Dated 13 July 2012, 24 July 2012 and 25 September 2012
At hearing the applicant comprehensively described her background, limitations imposed on her as a female by her family and society growing up in Saudi Arabia, problems that ensued when she sought to question those restrictions including threats, assault, and deprivations, her current circumstances and extant fears if she has to return there, considered where relevant below.
FINDINGS ABOUT THE APPLICANT’S PAST EXPERIENCES AND PROFILE
The Tribunal records from the outset that it found the applicant credible. Her oral evidence was detailed, spontaneous and generally consistent with her written claims before the Tribunal and oral and written claims before the Department. She was able to describe the at times severe limitations imposed upon her as a girl/woman in Saudi Arabia by her family and others, who from a young age questioned cultural and religious practices, and the consequences in doing so. She did not appear to embellish her evidence and acknowledged when she was not sure of the facts of a matter.
The delegate in their decision record noted apparent internal inconsistencies in respect of the extent of control the applicant’s father wielded, which ultimately led them to conclude the applicant was not a victim of family violence. For example the applicant’s claims to have been forcibly imprisoned by her parents at home, but then was also allowed to return to study in [Country 1]. The representative argued the delegate’s findings in this respect are contradictory to the applicant’s evidence about the importance of family reputation to her father, the strict conditions that her ‘freedoms’ were subject, and how quickly those freedoms were removed if she transgressed or acted against social mores. Additionally the delegate’s findings rely on the applicant’s father being a ‘benevolent guardian’ and does not recognise the extent of harm that arises from the guardianship system, it was submitted further.
At hearing (and in her written statement provided to the Tribunal) the applicant was able to describe the ways in which her father’s controlling and repressive behaviour towards her played out, sometimes more so than other times. She acknowledged at times she was allowed greater freedom, for example when she was able to live on campus in [Country 1] by herself, but there were limits: that is she had to check in at home on evenings and stay with her mother and sisters in the house they lived in nearby every weekend. Other times she lived in [Country 1] with her brother as her guardian. She needed her father’s permission to study in [Country 1] in the first place, and his written permission to obtain a passport, which she had to show officials at the airport before she could leave the country.
The applicant explained further how quickly her father would remove her privileges and/or freedoms if he (or her mother) suspected she was taking advantage of the situation, such as when she returned from [Country 1] in 2010, and again in 2012. At hearing the applicant said in 2010, just before she returned to Saudi Arabia from [Country 1] to get her visa renewed, her mother found text messages on her phone from her then boyfriend, which was a huge thing and led to her confiscating her laptop and phone on return, whilst she was locked in her room. She was only allowed out when the family had visitors. The applicant said if she argued her father would slap her and beat her. This occurred for around six months before the restrictions eased and she had more freedoms, but only if she followed the rules and did what they told her to. During these times the restrictions were less but nonetheless the applicant was still under her father’s authority and needed his permission for most matters: for example to work, and to obtain a passport.
The applicant’s father’s controlling and repressive conduct in these and other ways is in certain respects culturally and legally accepted and expected in Saudi Arabia, as indicated in country information about family violence and restrictions under the guardianship system, discussed further below. Whilst there have been reforms to the guardianship system there (since 2019), it remains.

The Tribunal also notes complex patterns of contolling, abusive and at times violent behaviour is a characteristic of family violence, that seeks to isolate, degrade, exploit and control victims.[2]
[2] Australasian Institute of Judicial Administration (AIJA) National Domestic and Family Violence Bench Book (2021), ‘Terminology’; Australasian Institute of Judicial Administration (AIJA), National Domestic and Family Violence Bench Book (2021), Dynamics of Domestic and Family Violence, at >
Accordingly the Tribunal does not share the delegate’s concerns about the applicant’s evidence that the restrictions she was subject to by her family changed at times, particularly taking into account family violence is about patterns of behaviour over time. Further, it does not necessarily follow that because the applicant’s family were privileged she was not subject to family violence and control in the way she has described.
For these reasons the Tribunal accepts the applicant’s claims to have been subject to various forms of family violence and controlling behaviour primarily by her father in the past in Saudi Arabia. This has included physical violence and threats, and other forms of ‘punishment’ such as locking her in her room for several months and isolating her. He exerted control over large and sometimes smaller decisions in the applicant’s life. For example she needed his approval to work, study overseas, obtain a passport, and open a bank account: all when she was an adult. In [Country 2] she had to give part of her salary to her father. She was not consulted when her father decided to move the family to [Country 2] or on return to Saudi Arabia several years later, and he did not allow her to continue to work and live in [Country 2], or to complete her studies in [Country 1].
The Tribunal notes and accepts further the applicant’s claims at hearing that sometime in [Country 3] she received a message from her friend and former colleague ([Ms A]) in [Country 2] who said her father had visited her and threatened her, demanding that she contact the applicant and tell her to contact her family. The applicant then talked to her mother from [Country 3] who was upset that she had left, primarily concerned about what other people would think and how it would affect their family’s reputation. The applicant promised to return to Saudi Arabia after two months volunteering in [Country 3]: however after around two months she called her mother and said she was going on a silent retreat to [Country 4]. She admitted she was trying to buy time to work out what to do.
The applicant said when she called her mother from [Country 4] her father picked up the phone and told her if she did not return home in two days’ time he would come and get her and bring her back to Saudi Arabia in handcuffs. Not long after, the applicant said she received a telephone call from a cousin in Saudi Arabia who said her mother had called and asked her to convince her to return. After she received the threat from her father the applicant said she again destroyed her SIM card. The Tribunal accepts her evidence in this regard.
With respect to her bisexuality claims, the applicant’s evidence to the Tribunal (at hearing and in her written statement) was that she realised she was attracted to women (as well as men) whilst a teenager in Saudi Arabia. She has had casual relationships with men and women in [Country 1], [Country 2] and Australia. Presently she is single but has several gay and/or bisexual friends and is part of the LGBTI community. At hearing she talked about her own struggles coming to terms with her sexuality given same sex attraction is considered ‘disgusting’ culturally, is against Islam, is considered out of nature and is criminalised: therefore for a long time she felt something was wrong with her. She has learnt through some LGBTI friends here this refers to her own internalised homophobia.
The applicant gave examples of the casual way her mother would make homophobic slurs about (for example) Filipino waiters at restaurants in Saudi Arabia. Her mother also told her one time if she had gay children she would kill them.
The applicant said none of her family members know about her sexuality and she is not active on social media, given it may link her to LGBTI persons and associated risks.
The delegate in their decision record was of the view the applicant’s descriptions of feelings towards a female school friend in Saudi Arabia when 16 can be considered part of normal feelings experienced by many adolescent girls and not an indication of sexual orientation. The delegate also stated that even if the applicant had occasional homosexual contact, this does not indicate she adopted a ‘homosexual or bisexual orientation or lifestyle’ or will do so if she returns to Saudi Arabia. On review the applicant explains that she identifies as bisexual, which is not a lifestyle, but her identity. She contends further that she has had casual relationships with men and women in the past and will do so in the future. However, if she has to return to Saudi Arabia there will be no option to have any relationships outside heterosexual marriage with either men or women as her parents will not allow it.
The applicant has consistently claimed to be bisexual and her evidence about her history of experiences with men and women in different countries she has lived in the past has been generally consistent. At hearing she described her own struggles coming to terms with her sexuality, given the environment she grew up in as noted earlier. For these reasons the Tribunal accepts the applicant is bisexual, that she has had casual relationships with men and women in [Country 1], [Country 2] and Australia, and in Australia has several LGBTI friends and is part of the LGBTI community. It accepts she would be bisexual on return to Saudi Arabia, and seek out relationships with men and women, if not for fear of persecution in doing so.
Having found the applicant a credible witness at hearing, whose oral evidence was generally consistent with her written and oral evidence to the Department, and written evidence on review, the Tribunal also accepts the following about the applicant, in summary:
·She does not follow any religion. At hearing she told the Tribunal she began to question the logic and double standards of Islam at school, particularly for women. She pretended to pray in her room and had to fast during Ramadan in Saudi Arabia, however she does not anymore. The applicant’s explanations about why she no longer practices any religion were plausible and consistent with her claims in this respect before the Department.
·She has several tattoos, including on her arms, ankles, hands, wrists, and shoulder blade, some of which were visible at hearing. The applicant had some of the tattoos done in [Country 1] and when asked at hearing why, she said because she wanted to decide what she could do to her body. The only visible tattoo at that time was one on her wrist, which was not visible in public in Saudi Arabia because she was fully covered. When she returned home from [Country 1] after getting the tattoo she told her parents it was a temporary tattoo. The applicant said when she was about to return to Saudi Arabia from [Country 2] and start a job in a [business] there (which did not eventuate as she never returned home), her father had told her she must have the tattoo removed.
·She was subject to sexual assault by an uncle in Saudi Arabia when she was a child. In her statement to the Tribunal the applicant said when she lived in Saudi Arabia she would see him every two weeks, and if she returned she would have to see him and continue to have contact.
The Tribunal also accepts the applicant saw a psychiatrist in [Country 1] several times in 2012 who prescribed antidepressants. As noted, letters from the pyschatrist have been provided to the Tribunal on review. At hearing the applicant spoke about the time she took a lot of her medication just before she had to return to [Country 1] in 2013, not wanting to return and feeling desperate. She was staying at a friend’s house at the time who took her to hospital. The Tribunal accepts her claims in this regard.
The Tribunal notes the applicant’s evidence that she has resumed contact with her family members in Saudi Arabia, including her father. It started with [her sister] contacting her friend in [Country 2] to try and initiate contact. The applicant told the Tribunal she missed her sister, felt guilty and was worried about her and therefore began communicating with her again via [specified media]. [Another sibling] joined after a couple of months and then her mother when she found out. Her father became suspicious, asked her mother about it and was angry when she told him they had resumed contact. He blamed them for treating him like a fool and ‘encouraging’ the applicant. A few months later he demanded to be added to the family’s [media] group: the applicant said she rarely participates and if so it is on a superficial level, such as liking a response. She does it to keep the peace and let her father think he continues to be in control. She does not communicate directly with her father. The Tribunal accepts her evidence in this regard.
ARE THE APPLICANT’S FEARS ON RETURN TO SAUDI ARABIA WELL-FOUNDED?
Given these findings about the applicant’s past experiences and identity (including bisexuality), the Tribunal has considered whether she faces a real chance of serious harm from her family, the community and/or the authorities on return to Saudi Arabia.
In her written submission to the Tribunal the representative contends the applicant faces a well-founded fear of persecution on return to Saudi Arabia on several grounds, as follows:
·Based on her membership of several particular social groups: the first being due to her status as a ‘woman in Saudi’, and her membership of several narrower social groups, identified by gender, nationality and an additional characteristic, variously described;[3]
·Based on her ‘religion’: an apostate of Islam and atheist; and
·Based on her political opinion: in opposition of the views of the Saudi regime relating to women’s rights, the guardianship system, religious freedoms, the Saudi Arabian regime, and the rights of oppressed or minority groups in Saudi Arabia.
[3] That is: Saudi women; who have breached guardianship laws; who have breached other gendered laws and cultural mores; who have had extra marital relationships with men to whom they are not related; who are bisexual; who have been victims of domestic violence; who have left Islam; whose views do not accord with those of the Saudi government or Saudi culture
The representative submits there is a real chance the harmful treatment the applicant experienced in the past will recur if returned to Saudi Arabia, particularly as the male guardianship system there remains despite her being an adult. Her father is effectively her guardian and it is legally and culturally acceptable for him to control many aspects of her life. Despite some changes to the law since 2019, harmful attitudes and laws regarding women persist, and key restrictive elements of the guardianship system remain in place it is submitted (with reference to relevant country information).
The representative also notes flaws in Saudi Arabia’s first Personal Status Law (PSL), introduced in March 2022, as highlighted by organisations such as Human Rights Watch (HRW) and Amnesty International who found the law falls significantly short of international human rights standards.[4] Additionally the representative submits that international organisations such as HRW also raised concerns that the PSL allows judges to exercise their discretion and their own interpretation of Islamic rulings, which contributes to inconsistent and often negative outcomes for women. She argued further that there is little evidence the implementation of the PSL or other changes to legislation and policy have substantially improved the situation for women facing family violence in Saudi Arabia. Legislation criminalising ‘disobedience’ or ‘failure to submit to a guardian’s authority’ still exists and the assessment of whether violence is acceptable or within the bounds of guardianship is still left to the police and judiciary, it is submitted further.
[4] Human Rights Watch, ‘Saudi Arabia: End Male Guardianship’, 8 March 2023, Amnesty International, ‘Saudi Arabia: Personal Status Law codifies discrimination against women’, 8 March 2023,
With respect to the applicant’s sexuality, the representative submits that it would not be possible for the applicant to have encounters with men or women on return to Saudi Arabia, due to the risks attached to same sex and extramarital relationships. Reference is made to country information about bisexual women facing risks of direct state-based persecution; discrimination and persecution of LGBTI minorities; the fact consensual same sex acts continue to be criminalised; and that the attitudes of the authorities and community have not changed since 2019.
Given the applicant’s evidence she would not be considered a virgin because her uncle has sexually assaulted her and because she has engaged in sex with men and women, and the length of time she has been absent, on return to Saudi Arabia she fears her family would take her to a gynaecologist to confirm whether she is a virgin, it is also submitted. The representative refers to country information indicating premarital and extramarital sex remains illegal under Sharia law in Saudi Arabia, with crimes punishable by death. Specifically country information indicates such acts are said to be violations of ‘Zina’ – an Islamic term used in the Quran to describe unlawful sexual intercourse, and judges are afforded discretionary power in deciding how to punish these crimes and will make decisions according to their interpretation of uncodified Islamic law.[5]
[5] US Department of State, ‘2021 Country Reports on Human Rights Practices: Saudi Arabia’, 12 April 2022, >
In addition to legal ramifications, the representative contends that the applicant also fears her father if he became aware of these relationships and the fact she is not a virgin. Extramarital relationships are viewed as shameful and the applicant believes her father may kill her in order to cleanse his honour.
In her submission the representative refers to several Tribunal decisions which she describes as favourable and analogous to the applicant’s claims, as well as containing relevant country information.[6]
[6] 2001193 (Refugee) [2023] AATA 2547 (2 June 2023); 2001195 (Refugee) [2023] AATA 2550 (2 June 2023); and 1906441 (Refugee) [2023] AATA 349 (18 January 2023)
At hearing the applicant said her father on more than one occasion in the past when driving out of the city near the desert in Saudi Arabia said he could bury her and no one would find her. These threats occurred in the context of minor arguments, such as in response to her raising her voice. She is terrified about what might happen to her now if she had to return and he physically had access to her, given the shame she has brought upon their family for leaving (among other things). She explained for her father it is about the shame her actions bring to the family: it reflects badly if he is seen not to be able to control her.
The applicant said she also fears her father’s brothers whom she described as the ‘super crazy strict ones’, although noted as yet she has had no contact from extended family members whilst she has been in Australia.
Additionally the applicant said she will be subject to pressure to marry if she has to return to Saudi Arabia, noting as long as she is alive her parents will try and organise a marriage. Given her age and because she disobeyed her family she will be considered ‘damaged goods’, and face pressure to marry someone older, with multiple wives. Having tattoos and considered not to be a virgin would add to her being considered unsuitable. The applicant added that anyone who would take her would still be her guardian as it is still customary that women are under the umbrella of this person, and men can have up to four wives in Saudi Arabia. There is no choice to have relationships outside marriage, with anyone, and as a woman you have to marry a man the family approves of, the applicant added. She also said he then has access to your body, in a country where marital rape is legal if the wife refuses to have sex with her husband.
The applicant told the Tribunal she also fears the Saudi Arabian government on return because she left without the authority of a guardian and ran away against the guardianship laws in place at the time. Further, she is confident the Saudi Arabian authorities know she has stayed in Australia without a passport and lodged an asylum claim, which they consider a crime. She rang the Saudi Arabian embassy when she was living in [Country 2] to see if she could get any help if she refused to return to Saudi Arabia with her family: the official she spoke to (who was male) laughed and said it is a family matter. The Tribunal accepts her evidence in this respect.
The Tribunal has taken into account these submissions (and the country information contained within it) and the applicant’s evidence about her particular fears upon return to Saudi Arabia, as well as the following independent country information relevant to her claims in determining whether her fears of persecution on return are well-founded.
Status of women, including guardianship laws and family violence
The male guardianship system in Saudi Arabia places every Saudi woman, regardless of her age, under the authority of her male relative, normally her father or husband. That guardian has the power to make decisions on her behalf.[7]
[7] Amnesty International, Public statement 8 March 2023: MDE 23/6431/2023, ‘Saudi Arabia: New Personal Status Law Codifies Discrimination Against Women’
There has been an easing of guardianship laws in Saudi Arabia since 2019, and some other women’s rights reforms have been introduced. Women are now reportedly able to access certain public services, work, obtain a driver’s licence, obtain a passport, travel abroad, register births, marriages, divorces and death without their guardian’s permission.[8]
[8] Human Rights Watch, ‘Saudi Arabia: Proposed Reforms Neglect Basic Rights’, 25 February 2021
Nonetheless reports indicate they did not entirely eliminate the male guardianship system, and women in Saudi Arabia continue to face significant discrimination across different spheres. In the 2024 Freedom in the World report on Saudi Arabia it states:
Women are still subject to extensive legal and societal discrimination, most notably through the guardianship system, in which women must rely on a close male relative to approve many basic activities. Although legal reforms have recently reduced the scope of the guardianship system, it remains entrenched in societal practices and customs, and an individual woman’s degree of freedom depends to a large extent on the attitudes of her family.[9]
[9] Freedom in the World report 2024, Saudi Arabia, 2024
Male guardians can still file cases for parental disobedience (uquq) or absenteeism (taghayyub) against their female dependants, giving guardians effective control over their dependants’ movements.[10] According to the latest US Department of State country report on human rights practices in Saudi Arabia:
The guardianship system no longer required a woman to have the permission of her male guardian (normally a father, husband, son, brother, grandfather, uncle, or other male relative) to move freely within the country, but male guardians and other family members could report women to police for being “absent” from their homes, which could lead to the women being arrested and forcibly returned home or subjected to administrative detention. In 2021, an amendment to the civil procedures law removed provisions for immediate enforcement of court-ordered obedience requirements for women to be returned home, but it was unclear whether police had translated this legal change into practice. Parents and husbands or other male guardians also could file “disobedience” cases against their children, including adult children, and spouses. In such cases, no evidence was required, and cases were referred to the court after a complaint was filed. Such cases could result in arrest and forcible return to the parent or guardian’s home or imprisonment, even of adult women. A husband’s financial support was also contingent on a wife’s “obedience”; a wife could lose her right to support if she refused without a “legitimate excuse” to have intercourse with her husband, move to or live in the marital home, or travel with him.[11]
[10] Human Rights Watch, ‘Saudi Arabia: Proposed Reforms Neglect Basic Rights’, 25 February 2021
[11] United States Department of State, Country Reports on Human Rights Practices for 2023 – Saudi Arabia, 20 April 2024

In the most recent annual report about Saudi Arabia from the United States Commission on International Religious Freedom (USCIRF), it states as follows:
Saudi women have benefited from recent legal reforms but continue to face restrictions on their religious freedom. Many activists who advocated for now-implemented changes to these laws were arrested and—in some cases—subjected to harassment, sexual assault, and abuse in prison. Several women punished for religious expression on social media wrote in support of reforms to the guardianship system and activists who have advocated for its abolition.[12]
[12] United States Commission on International Religious Freedom (USCIRF), ‘United States Commission on International Religious Freedom 2024 Annual Report’, May 2024, p 45
In a USCIRF policy update assessing religious freedom in Saudi Arabia in the context of ‘Vision 2030’, the author states:
Saudi Arabia’s male guardianship system, which is explicitly based on religious concepts, relegates women to the status of legal minors for life. Saudi women continue to face discrimination related to marriage, divorce, child, custody, and inheritance. Guardianship laws designate the father as a child’s primary legal guardian on religious grounds without due consideration of the child’s best interest.
…
The Saudi government has rolled back some aspects of the male guardianship system, though its core tenets remain in place.[13]
[13] United States Commission on International Religious Freedom, ‘Assessing Religious Freedom in Saudi Arabia in the Context of Vision 2030’, August 2024
As noted by the representative in her written submission, in March 2022 Saudi Arabia passed its first PSL, codifying various matters related to family life previously subject to the discretionary application of Sharia law and interpretations of Islamic texts by a male dominated judiciary.[14] In relation to longstanding practices about for example, requiring women to obtain a male guardian’s permission to marry, and requiring married women to obey their husbands in a ‘reasonable manner’.[15] Whilst activists have campaigned for a codified PSL that would end discrimination against women, there was no consultation or input into the bill, and it has been criticised by several organisations, seen to codify discrimination against women. In an analysis of the PSL by Amnesty International they found (among other things) that:
…while the law does introduce some positive reforms, such as setting a minimum age of marriage, the PSL codifies some of the informal yet widespread problematic practices inherent in the male guardianship system and entrenches a system of gender-based discrimination in most aspects of family life, including in marriage, divorce, child custody and inheritance. Amnesty International also found that the PSL does still leave significant scope for judges to exercise their discretion.[16]
[14] Amnesty International, Public statement 8 March 2023: MDE 23/6431/2023, ‘Saudi Arabia: New Personal Status Law Codifies Discrimination Against Women’
[15] Human Rights Watch, World Report 2024: Events of 2023, Saudi Arabia, January 2024
[16] Amnesty International, Public statement 8 March 2023: MDE 23/6431/2023, ‘Saudi Arabia: New Personal Status Law Codifies Discrimination Against Women’
Saudi authorities have subjected women’s rights activists who have repeatedly called for equal rights and the abolishment of the male guardianship system to widespread and ongoing repression. Activists have faced arbitrary arrest and detention, torture and travel bans.[17]
[17] Human Rights Watch, World Report 2024: Events of 2023, Saudi Arabia, January 2024
According to Amnesty International and others, women facing family violence are not adequately protected by the PSL and existing legislation criminalising domestic abuse remains inadequate and not robustly enforced.[18]
[18] Amnesty International, Public statement 8 March 2023: MDE 23/6431/2023, ‘Saudi Arabia: New Personal Status Law Codifies Discrimination Against Women’
Saudi Arabia introduced domestic violence and sexual harassment legislation in 2013. The law criminalises domestic abuse with penalties of up to a year imprisonment or a fine. However reports indicate enforcement varies, with some officials prioritising family integrity over safety for victims. According to Freedom House in their report on political rights and civil liberties in Saudi Arabia in 2023:
A 2013 law broadly defined and criminalized domestic abuse, prescribing fines and up to a year in prison for perpetrators. However, enforcement remains problematic, with some officials prioritizing privacy and family integrity over safety and justice for victims. Prosecutions are extremely rare. Women’s practical ability to leave abusive relationships is severely limited. While women are no longer legally required to live with their husbands under the 2019 reforms to the guardianship system, social taboos and other obstacles often deter them from leaving their family home. There are a limited number of shelters for women escaping abuse, but women are not allowed to leave them without their guardians’ permission.[19]
[19] Freedom House, ‘Freedom in the World 2024, Saudi Arabia’, 2024
According to Amnesty International, Saudi Arabia’s draft Penal Code justifies GBV against women in the name of patriarchal notions of ‘honour’. The draft code protects the perpetrators of abuse and killings of women and girls by exempting individuals from criminal investigations if they committed crimes, including assault or killing, to protect their or another person’s ‘honour’.[20]
Treatment of LGBTI individuals in Saudi Arabia
[20] Draft Penal Code, Article 68, cited in Amnesty International, ‘Saudi Arabia: Manifesto for Repression: Saudi Arabia’s Forthcoming Penal Code Must Uphold Human Rights in Line with International Law and Standards’, March 19, 2024, p 57
Currently Saudi Arabia has no codified laws that criminalise extramarital consensual relations, including same sex relations. However such acts are prohibited based on reference to Sharia law. Under Sharia law consensual same sex sexual conduct is punishable by death or flogging, depending on the perceived seriousness of the case.[21]
[21] Amnesty International, ‘Saudi Arabia: Manifesto for Repression: Saudi Arabia’s Forthcoming Penal Code Must Uphold Human Rights in Line with International Law and Standards’, March 19, 2024, p 47
There is no codified Penal Code in Saudi Arabia detailing all criminal offences and punishments. In its absence, judges determined penalties ‘through individualised interpretations of sharia, which varied according to the judge and the circumstances of the case’.[22]
[22] US Department of State, ‘Country Reports on Human rights Practices for 2023 – Saudi Arabia’, 20 April 2024, p 19
In February 2021 the Saudi Arabian government indicated that it would be adopting a codified Penal Code. According to Amnesty International’s analysis of the draft Penal Code, it codifies ‘illegitimate’ consensual sexual relations as hadd crimes and refers to their punishments under Sharia law if the evidentiary threshold is met. Further it explicitly criminalises consensual sexual relations between two men with prison terms of three to seven years and classifies such acts as ‘indecent assault (also understood as sexual assault)’ and anyone who conducts ‘illegitimate sexual relations’ can be punished up to six months in prison or a fine of up to SAR10,000 (around USD2,700).[23]
[23] Amnesty International, ‘Saudi Arabia: Manifesto for Repression: Saudi Arabia’s Forthcoming Penal Code Must Uphold Human Rights in Line with International Law and Standards’, March 19, 2024, p 48
The US State Department in their human rights practices country report for Saudi Arabia in 2023 states there were no known reports of prosecutions of LGBTI persons for same sex sexual conduct during the year, but widespread stigmatisation and discrimation existed.[24] There were also reports of physical violence and harassment based on sexual orientation or gender identity.[25]
[24] US Department of State, ‘Country Reports on Human rights Practices for 2023 – Saudi Arabia’, 20 April 2024, p 76
[25] US Department of State, ‘Country Reports on Human rights Practices for 2023 – Saudi Arabia’, 20 April 2024, p 77
Further according to the US State Department in the same report:
·The law did not prohibit discrimination by state and non-state actors based on sexual orientation, gender identity or expression, or sex characteristics and did not recognise LGBTI individuals or couples.
·There were reports of official and societal discrimination based on sexual orientation or gender identity in employment, housing, education, and health care. Clerics condemned homosexuality during government-approved Friday sermons at some mosques.
·During the year local newspapers featured opinion pieces condemning homosexuality and calling on authorities to punish harshly individuals engaging in same-sex relations.
·In April, international media reported some LGBTI citizens had been forced into exile, believing they were left with no option but to flee the country. One person interviewed said that soon after he came out as gay, he was effectively detained by his parents and brothers, confined to a room, beaten by his father and brothers, and barred from attending his university classes.
·There was anecdotal reporting of the existence and use of so-called conversion therapy practices on LGBTI persons, but further information was not available from government or other sources. ‘Normalization’ surgeries were not allowed in the country.
·LGBTI organisations and advocacy regarding LGBTI issues were illegal. The government did not allow any such organisation to operate nor were there reported LGBTI rights advocacy events of any kind.[26]
[26] US Department of State, ‘Country Reports on Human rights Practices for 2023 – Saudi Arabia’, 20 April 2024, pp 76 - 79
In September 2019 Saudi Arabia’s Ministry of Interior approved public decency regulations identifying 19 punishable offences, including some that are vaguely defined and open to misinterpretation.[27]
[27] Amnesty International, ‘Saudi Arabia: Manifesto for Repression: Saudi Arabia’s Forthcoming Penal Code Must Uphold Human Rights in Line with International Law and Standards’, March 19, 2024, p 49, Arab News, ‘All you need to know about the new Saudi public decency code’, 28 September 2019,
In 2022 Saudi Arabia’s grand mufti stated that homosexuality is punishable by up to five years in prison and an $800,000 fine.[28]
[28] Freedom House, Freedom in the World 2024, Saudi Arabia, 2024
All sexual activity outside marriage is criminalised in Saudi Arabia, and the death penalty can be applied in certain circumstances.[29] Premarital sex is illegal under Sharia law, and hospitals and health centres could report extramarital pregnancies to police, including pregnancies that resulted from rape.[30]
[29] Freedom House, Freedom in the World 2024, Saudi Arabia, 2024
[30] US Department of State, ‘Country Reports on Human rights Practices for 2023 – Saudi Arabia’, 20 April 2024, p71
In its annual report for 2023 the United States Commission on International Religious Freedom states:
The Saudi government also continued to restrict the lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI+) community's freedom of religion or belief. Same-sex relations are punishable by death based on the government’s interpretation of religion, though the government has not executed anyone on these grounds in recent years.[31]
[31] United States Commission on International Religious Freedom 2023 Annual Report, April 2023
Reports indicate that Saudi Arabia has jailed members of the LGBTI community on religious grounds and has arrested LGBTI social media influencers on the basis that their content could ‘negatively impact public morality’.[32]
[32] Kellyn Both et al, ‘Our Identities Under Arrest: A global overview on the enforcement of laws criminalising consensual same-sex sexual acts between adults and diverse gender expressions’. International Lesbian, Gay, Bisexual, Trans and Intersex Association, November 2023, pp 205 - 209
According to the US Department of State’s International Religious Freedom report on Saudi Arabia for 2023:
On July 7, imam and preacher of the Grand Mosque in Mecca Sheikh Faissal Ghazzawi delivered a Friday sermon at the Grand Mosque in Mecca warning against the growing immoral tendencies in the society, especially sexual perversion, saying that homosexuality is a heinous crime.[33]
[33] United States Commission on International Religious Freedom 2023 Annual Report, April 2023
In this case the Tribunal accepts the applicant has been subject to her father’s controlling and restrictive behaviour, including at times physical abuse and threats to seriously harm her. It accepts his behaviour fluctuates and becomes more restrictive and controlling in response to perceived disobedience, such as when she returned home from studying in [Country 1] in 2010 and again in 2013: on both occasions she was locked in her room for several months, without access to her phone or computer and as a result, was severely isolated. It accepts the applicant, even when an adult, was not consulted about key decisions that affected her life such as the family’s move to [Country 2] and return to Saudi Arabia. It accepts even when allowed greater freedoms, such as being able to work and travel to [Country 1] to study, this was only possible with the applicant’s father’s permission including for her to obtain a passport.
As noted, such complex patterns of controlling, abusive and at times violent behaviour is characteristic of family violence. Research indicates that whilst family violence can affect a person irrespective of gender, it is widely acknowledged that women are significantly more likely than men to experience family violence.[34] Given family violence is characterised by such complex patterns it does not necessarily follow that the applicant no longer faces a risk of family violence at the hands of her father on return to Saudi Arabia, even though she is an adult and has resumed contact with her family members in Saudi Arabia, including her father. The applicant has explained she was initially in touch with her sisters and then her mother, and finally her father who pressured her mother. Her contact is limited and on surface level and in many ways done to acquiesce, so her father thinks he still exerts some level of control.
[34] Australasian Institute of Judicial Administration (AIJA) National Domestic and Family Violence Bench Book (2021), Dynamics of Domestic and Family Violence, at 3.1
The Tribunal accepts the applicant’s claims that her father is angry she did not return to Saudi Arabia (from [Country 2]) as expected, among other things. She would return to Saudi Arabia effectively under his guardianship. He has exercised control over her decision making in the past and would likely do so again in the future. He has threatened her, and been verbally and physically abusive, including isolating her and restricting her movements at times, usually in response to her tyring to exert more autonomy and/or if she failed to meet his expectations.
As noted, whilst the Saudi Arabian government has removed some restrictions under its guardianship system, including with the introduction of the PSL in 2022, it still exists. As indicated in the above country information the PSL does not adequately protect women from family violence, and the male guardianship system allows abuse by giving men control over critical aspects of their lives, limiting their ability to end a marriage, for example. Male relatives can still obstruct women who defy their wishes through legal and informal means, and there are strong cultural practices that still give primacy to male decision making, within the family and elsewhere.
The Tribunal also accepts the applicant has been under pressure to marry by her parents in the past – noting her oral evidence at hearing that they wanted her to marry a cousin but she resisted. It accepts her claims that on return that pressure would still be there, and despite a relaxation in the guardianship laws, and noting the new PSL technically prevents a male guardian from agreeing to a woman’s marriage without her consent it remains unclear what consent means or how it should be obtained.[35] If so, she is unable to marry a person of her own choice, or not marry at all.
[35] Amnesty International, ‘Saudi Arabia codifies male guardianship and gender discrimination’, 9 December 2022
The Tribunal also notes country information (as set out earlier) indicates it remains strong customary practice for parents to decide who someone marries in Saudi Arabia. In the applicant’s case she would have limited options to continue to resist or choose not to marry.
Further the Tribunal accepts the applicant’s claims that she is not a virgin, has had relationships with men and women, has several tattoos, and does not wear a hijab. She claims to continue to have tattoos and not wear a hijab and wishing to have relationships with men and women is not conceivable in Saudi Arabia, and in many instances considered criminalised behaviour, and punishable.
In these circumstances and given the above country information about risks women who try to exercise autonomy face and the lack of protection for family violence, as well as persons involved in same sex activity in Saudi Arabia face, the Tribunal accepts the applicant faces a real chance of serious harm on return there for the combined reasons of her gender and sexual orientation. Her atheism (among other things) significantly increases her risk if that becomes known: although it has been unnecessary for the Tribunal to make separate findings in these respects.
The Tribunal is satisfied that the harm feared by the applicant includes physical violence capable of constituting significant physical harassment and/or significant ill treatment pursuant to s 5J(5) of the Act. Also the possibility of forced marriage.[36] The perpetrators of these forms of harm include her father, other male relatives, members of the Saudi Arabian community and the authorities.
[36] In FMN17 v MICMSMA (2020) 274 FCR 612 the Federal Court – considering the complementary protection criterion – found that forced marriage may meet the definition of significant harm in s 36(2A) of the Act
The Tribunal is satisfied the applicant’s gender and membership of the particular social group of ‘women in Saudi Arabia’ and ‘bisexuals in Saudi Arabia’ constitutes particular social groups, as defined in s 5L of the Act, and are the essential and significant reason for the harm feared pursuant to s 5J(4)(a). The applicant’s gender is innate, and her sexual orientation a characteristic so fundamental to her identity or conscience that she should not be forced to renounce it. These defining characteristics are not a shared fear of persecution. As such, the Tribunal finds that particular social groups of which the applicant is a member satisfy s 5L of the Act and that the applicant fears harm for an s 5J(1)(a) reason.
The Tribunal is also satisfied the persecution which the applicant fears involves systematic and discriminatory conduct, as required by s 5J(4)(c) of the Act, in that it is deliberate or intentional and involves her selective harassment for reason of her gender and her sexuality. Family violence is widely acknowledged to be forms of GBV which disproportionately affects women and girls, as noted earlier. Risks bisexuals face in Saudi Arabia from the authorities and others is clearly directed at them due to their same sex preferences, which is not tolerated as the country information above indicates.

The applicant fears persecution from the authorities as well as non-state actors such as her father, who in effect remains her guardian, despite relaxation of the guardianship system and laws in some respects, as noted. Country information indicates state control over most aspects of civilians’ lives, particularly women. Also that extra marital relations are criminalised, there is inadequate protection against family violence, and severe gender restrictions. As such, the Tribunal is not satisfied that effective protection measures are available to the applicant in her home area in Jubail city, provided by the state, party or organisation. The Tribunal finds that the applicant would not be able to access effective protection if returned to Saudi Arabia for the purposes of s 5LA(2) of the Act.
It is submitted returning to a different part of the country would not protect the applicant from being harmed by her family members as she would be unable to live there separately from her family. Country information indicates the ongoing restrictiveness of the guardianship laws and significant barriers women who experience family violence face. Despite some changes to the law since 2019, harmful attitudes and laws regarding women persist, and key restrictive elements of the guardianship system remain in place. These submissions are supported by the country information set out earlier. For these reasons and noting the perpetrators of the harm feared by the applicant include the state, the Tribunal finds the real chance of persecution the applicant fears is based on her gender and sexuality in all areas of Saudi Arabia as required by s 5J(1)(c).
Requiring the applicant to modify her behaviour would require her to alter or conceal her sexual orientation or gender identity or enter into or remain in a marriage to which that person is opposed, is impermissible pursuant to ss 5J(3)(c)(v) and 5J(3)(c)(vi) of the Act.
For these reasons the Tribunal finds the applicant has a well-founded fear of persecution for reasons of her membership of the particular social groups of ‘women in Saudi Arabia’ and ‘bisexuals in Saudi Arabia’ if she was to return to Saudi Arabia in the reasonably foreseeable future. The Tribunal therefore is satisfied she is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Given this finding it is unnecessary for the Tribunal to consider whether the applicant faces a well-founded fear of persecution for the other reasons advanced or that arise in this case, including as an atheist, and prior to that someone who had converted from Sunni to Shia Islam.
Third country protection
Section 36(3) of the Act provides that Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail themselves of a right to enter and reside in a country apart from Australia. There are exceptions to this qualification which operate, broadly, where a person has a well-founded fear of being persecuted or faces a real risk of significant harm in that country or has a well-founded fear of refoulement from that country to a place where they face such treatment.[37]
[37] Sections 36(4)–(5A).
The Tribunal has considered the relevant authorities which provide guidance on the scope and application of this provision, particularly the decisions in MIMAC vSZRHU [2013] FCAFC 91 and SZTOX v MIBP [2015] FCAFC 77. In the latter case, the Court confirmed that the ‘right’ in s 36(3) is not confined to a right which is sourced in domestic law, such as a statute, regulation or other legislative instrument. Rather, the source of the right might also lie in an executive act, such as a Treaty, executive policy or other executive instrument.
In the applicant’s case as a Saudi citizen she may have a right to enter and reside in any of the Gulf Cooperation Council (GCC) countries, which along with Saudi Arabia include: Bahrain, Kuwait, Oman, Qatar, and the UAE. Part of the cooperation includes simplified entry and visa procedures. Country information indicates to enter a GCC country as a visitor requires a valid passport or travel document to enter the country, and in some cases a residence permit.[38] In her evidence to the Tribunal the applicant said sometime after resuming contact with her mother from Australia she said her father knew her Saudi Arabian passport had expired. The applicant explained her passport expired in 2019 and she was too afraid to contact the embassy here to have it renewed. The Tribunal accepts her evidence in this regard, noting a copy of her passport on the Departmental file.
[38] Entry visa for residents of Gulf Cooperation Council (gdrfad.gov.ae)
At the time of this decision, the Tribunal observes that the applicant’s Saudi Arabian passport issued [in] 2014, expired [in] 2019. It accepts she has been too afraid to renew it and it accepts she is not in possession of a valid Saudi Arabian passport. The Tribunal accepts the applicant would not be granted entry to any of the GCC member states if travelling from Australia without a current passport. Current judicial authority indicates that the right referred to in s 36(3) must be an existing right, and not a past or lapsed right, or a potential right or expectancy.
The Tribunal therefore finds that the applicant does not have a presently existing right to enter into a GCC country. The Tribunal finds that s 36(3) does not apply to the applicant.
For the reasons given above the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Nicole Burns
Senior Member
ATTACHMENT - Extract from Migration Act 1958
5 (1)     Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)   severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)   pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)   that is not inconsistent with Article 7 of the Covenant; or
(d)   arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)   that is not inconsistent with Article 7 of the Covenant; or
(b)   that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)   for the purpose of obtaining from the person or from a third person information or a confession; or
(b)   for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)   for the purpose of intimidating or coercing the person or a third person; or
(d)   for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)   for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)   a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)   if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)   in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)   in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J   Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)   the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)   without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)   the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)   a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)   significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L   Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)   a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)   any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)   protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36   Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)   a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)   a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)   a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 4473

9 October 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies