1935710 (Refugee)
[2025] ARTA 1239
•11 February 2025
1935710 (Refugee) [2025] ARTA 1239 (11 February 2025)
DECISION AND
REASONS FOR DECISION
Representative: Gretel Emerson
Respondent:Minister for Immigration and Multicultural Affairs
Tribunal Number: 1935710
Tribunal:Shahyar Roushan
Date:11 February 2025
Place:Sydney
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.
Statement made on 11 February 2025 at 4:15pm
CATCHWORDS
REFUGEE – protection visa – Saudi Arabia – religion – atheist from a Sunni Muslim family –imputed political opinion – anti-government and anti-Islam views – sexual orientation – LGBT – shared views online – car accident – psychiatric condition – delusions – PTSD – fears being tortured, seriously harmed and/or killed – apostasy is criminalised and mandates the death penalty – discrimination and violence against LGBT people – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Mental Health Act (NSW), s 32
Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 65, 369, 499
Migration Regulations 1994 (Cth), Schedule 2Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
BACKGROUND
The applicant is [age] years old. He is a national of Saudi Arabia. He arrived in Australia [in] September 2018 on a Visitor Visa (subclass 600).
On 6 December 2018, the applicant applied for a Protection visa. That application was refused on 18 December 2019 by a delegate for the Minister of Home Affairs under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for a review of the delegate’s decision to the Administrative Appeals Tribunal (AAT).
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
This decision and statement of reasons is a review of the delegate’s decision by the Tribunal.
CLAIMS AND EVIDNECE
Evidence before the Department
Protection visa application
Based on the information provided in his Protection visa application, the applicant was born in [Governorate 1], Saudi Arabia. His father is deceased and his mother [and siblings] reside in Saudi Arabia. He married Ms [A] [in] January 2011 in Makkah, and they were later divorced [in] January 2016. They have [children]. His ex-wife and [children] continue to reside in Saudi Arabia.
The applicant abandoned his secondary schooling in [year], but subsequently completed a [course] in Jeddah. He was employed as [an Occupation 1] between August 2007 and August 2009. In 2013, he commenced working as [an Occupation 2] and he was employed in this role until September 2018.
The applicant travelled to [City 1] on three separate occasions in 2012, 2015 and 2016, remaining for a period of less than one week on each occasion. He also visited [Country 1] in April 2018 for a short period of time.
The applicant described his religion as ‘Atheist (previously Sunni Muslim).’
In response to questions in relation to his reasons for claiming protection in Australia, the applicant made the following claims.
He fears being ‘attacked, imprisoned, assaulted, subjected to the death penalty, tortured and/or otherwise subject to cruel and unusual punishment at the hands of the Saudi government and Saudi society’. His family ‘threatened’ him with ‘serious violence’ if he did not ‘recant’ and ‘cease to hold’ his ‘anti-government and anti-Islam views’. He fears being harmed by the Saudi authorities and he is unable to relocate in order to avoid the harm he fears.
Statement
On 18 September 2019, the applicant’s then representative, Mr Mitchell Skipsey of the Refugee Advice and Casework Service (RACS) forwarded to the Department a statutory declaration, declared by the applicant on 18 September 2019. In his statutory declaration, the applicant provided a detailed account of his background, including his family composition, education and employment history, and outlined his claims for protection. The following is a summary of the information provided by the applicant.
He fears being ‘tortured, seriously harmed and/or killed’ in Saudi Arabia for the reasons of his political opinion, his religion as an atheist, and his sexual orientation. His fears harm from his family and the Government of Saudi Arabia. His fear extends to all areas of Saudi Arabia, and he would not be protected by the authorities.
He was raised in a strict Sunni Muslim family, but he identifies as an ‘atheist’. His father, who passed away in 2010, was a cattle breeder. His mother and [siblings] reside in Saudi Arabia. He was previously married and has [children] from that marriage. His marriage was arranged and his ex-wife’s family is ‘conservative’ and ‘committed to the Islamic faith’.
When he was [age] years old, he commenced a ‘sexual relationship with a male neighbour’ named [Neighbour A]. They were close friends before entering into ‘a physical and sexual relationship’. The relationship continued until he was [age] years old, when a relative ‘discovered’ their relationship. On that occasion, they had gone to a farm some distance from their homes to ‘spend time together’. The families of both [Neighbour A] and the applicant were ‘furious’ and his family ‘beat’ him ‘very badly’. He was also ‘burnt’ with a ‘very hot spoon’, ‘hung’ from a ceiling fan and suffered many other ‘serious injuries’. His brothers also took his money, abused him, and inflicted ‘serious psychological harm’ on him.
He and [Neighbour A] were forced to leave school and he ceased his studies in [year] because of ‘serious bullying’. [Neighbour A’s] family, due to their social status, sought to blame the applicant and his family for what had happened. The relationship was considered even more ‘shameful’ for [Neighbour A] and his family because of the applicant’s ‘dark-skinned complexion’. He believes [Neighbour A’s] family are likely to have been involved in assisting his brothers to ‘manipulate and harm’ him. He never had any other relationships with men subsequently. As a result of the ‘trauma’ he experienced due to his relationship with [Neighbour A], he tried to conform to ‘Saudi heterosexual social standards and entered into a heterosexual marriage’.
In 2004, when he was [age] years old, he began to question Islam and ‘develop negative views about’ it. Exposure to the Western culture through ‘media and the internet, and conversations with a Hindu friend from India contributed to his questioning of the Islamic faith.
Between 2004 and 2011, he had ‘many conversations’ with community members who shared similar views about Islam and the role the government and the Royal Family play in enforcing Shari'a laws and perpetrating ‘human rights abuses’. He knew it would be dangerous to express these views, so he was ‘quite oblique’ and ‘careful’ in these conversations.
By 2011, his opinions against Islam ‘had begun to harden’ and he had formed the view that he disagreed with a number of Islamic beliefs, including ‘fasting and praying’; ‘discrimination and violence towards members of particular social groups’, ‘inheritance laws which favour male relatives’, and ‘forced or (arranged) and polygamist marriage’. He made his views public under pseudonyms on a number of [Social media 1] accounts and posted statements that expressed his disagreement with Islam. Such statements labelled Islam as a ‘fable’ and ‘disgraceful’ and attracted angry responses from [Social media 1] users. He suspected that members of the mutawwa’in’ were responsible for threatening messages sent to him, such as ‘we will find you’ and ‘we will catch you’. His family began to suspect his discontentment with the faith in 2010 around the period his father died and, consequently, mistreated him, including by misappropriating his funds.
He married his ex-wife in 2011 or 2012 due to social and family pressure to not be perceived as ‘gay’. Subsequently, during his marriage, his mental health declined as he had to hide his atheist view from his ‘very conservative’ Muslim wife. Eventually, following his wife’s request, they separated in 2017 after she had questioned him numerous times about his non-compliance with religious obligations, such as fasting and praying, and pointing out that she knew about his ‘past’. Later, he discovered that his wife was having an extra-marital affair with a colleague, and he resisted pressure from his brothers to ‘honour kill’ his wife because of the affair.
In 2014, he ‘experienced a hallucination’ while driving and had a serious car accident. He believes his brothers had influenced one of his friends to put ‘hallucinogens’ in his ‘tea’. He does not have proof of this claim but felt it ‘fit the pattern of hostility and aggression’ his brothers had showed him.
Between 2015 and 2016, he suffered from ‘psychiatric illness’ that has impacted his ability to ‘confirm’ his recount of events that occurred during this time. In 2016, his [Social media 1] account was hacked, ‘small amounts of money’ would ‘go missing from his bank account’ and his friends ‘cut off contact’ with him. He believed these incidents were instigated by or connected to his brothers with ‘possible financial and/or logistical support’ from [Neighbour A’s] family.
In June 2017, he travelled to [City 1] to ‘escape everything’. In [City 1] he befriended a person named [Mr A] at the airport, who he later suspected being sent by his brothers or [Neighbour A’s] family to harm him. In [City 1] he also dated a Moroccan woman named [Ms B]. [Mr A] witnessed them being intimate and later questioned him about being a ‘homosexual’. Following his return to Saudi Arabia, [Mr A] contacted him and asked for an amount of money in exchange for not divulging what he had witnessed in [City 1].
In April 2018, after he returned from a holiday to [Country 1], he became aware of a ‘conversation’ on an app called [Social media 2] about a Saudi Arabian man in [City 1] ‘engaging in sexual intercourse’ and a circulating video of the incident. After viewing the video, he recognised himself and [Ms B]. Later, his brothers confronted him about the video and threatened to distribute it ‘more widely on social media.
The applicant was unable to leave Saudi Arabia at an earlier opportunity due to the AUD$[amount] worth of traffic fines that he had accumulated, which prevented him from obtaining a passport. Most of the fines were incurred by his brothers who used his car. He also had to pay off a portion of a ’significant loan’ to a bank in Saudi Arabia. It took him until late August 2018 to pay his fines, pay off the loan and make arrangements to come to Australia. He also sought ‘extensive further mental health treatment’, including ‘multiple admissions to mental hospitals in Saudi Arabia’ around this time.
In Australia, he has been receiving ‘trauma-informed counselling’ and has been prescribed anti-depressants. He was admitted to hospital for nine days in May 2019 and was treated for his ‘psychological condition’. He was also involved in an altercation with another person, but the criminal charges against him were dismissed under s 32 of the Mental Health Act (NSW). For this purpose, he met with a psychiatrist who diagnosed him with Post-Traumatic Stress Disorder (PTSD).
He continues to be attracted to men. Growing older, he has ‘become more comfortable with the idea that [he] may be attracted to men’ and he may ‘seek to engage in relationships with other men in accordance with [his] probable bisexual orientation.’ If he were to return to Saudi Arabia, this would place him in ‘mortal danger’. He fears that his siblings or other family members will ‘kill’ him ‘if/when [his] mother passes away’. He fears his siblings and his ex-wife will report him to the authorities and he could face ‘torture and/or death’ because he is an atheist and due to his ‘same-sex orientation’.
Supporting documents
In support of the Protection visa application, the Department was provided with a Psychological Assessment Report, dated 19 September 2019 and authored by Ms [B], registered forensic psychologist. The report was prepared to assist [Court 1] to determine whether the applicant was eligible for diversion into community-based support and treatment after being charged with a criminal offence. The report set out information in relation to the applicant’s family background, and his education, employment, medical, social and offending history.
Ms [B] noted that the applicant had reported suffering emotional, physical and psychological abuse and bullying at the hands of his brothers, who wished to force him to cease his views as an atheist, as well as his ‘homosexual experimentation as a teenager.’ The applicant had reported ‘one or two consenting homosexual experiences in adolescence’, which were not accepted in his community and, as a result, he supressed his sexuality. He had further reported that ‘his homosexual experiences are the source of his mental health issues’ and ‘while he reported currently identifying as being heterosexual, this was on the basis of having been married to a woman.’
Ms [B] reported the applicant ‘experiencing a range of symptoms consistent with complex PTSD’. He has frequent nightmares that relate to his fear of being returned to Saudi Arabia and these have impacted his behaviour and ability to socialise. He was prescribed antidepressants and has been receiving counselling services from [Mental health service 1]. [B’s] clinical opinion was that the applicant has a ‘mental condition for which treatment is available in the community but is not a mentally ill person’.
On 19 September 2019, Mr Skipsey submitted to the Department an extended summary of the applicant’s treatment by Ms [C of Mental health service 1] . According to this summary, the applicant had received ‘brief psychological treatment’ from February 2019 and attended 13 sessions to address his ‘traumatic experiences in Saudi Arabia and current environmental stressors in Australia including separation from family, financial difficulties, social isolation and the precarious nature of his current visa status’. The treatment focused on goal setting, provision of psychoeducation on the impacts of trauma’ and ‘crisis management’ to ensure future safety and mitigating risk of self-harm. The summary noted that the applicant would benefit from receiving professional support around his sexual identity, which is linked to his mental health issues.
The interview
The applicant attended an interview with the Department on 23 September 2019. He was assisted by an interpreter in Arabic and English languages. It was clear from the audio recording of the interview that the applicant and the interpreter had difficulty understanding each other. Where relevant, the applicant’s oral evidence to the delegate is referred to in the Tribunal’s analysis below.
Post interview submissions
On 24 October 2019, following the interview, Mr Skipsey made submissions to the Department, addressing the concerns raised by the delegate at the interview. He also forwarded a further statutory declaration by the applicant, dated 16 October 2019.
In his submission, Mr Skipsey referred to the difficulties with the interpreting at the interview and the differences in dialects of Arabic spoken by each the applicant and the interpreter. Mr Skipsey also urged the delegate to take into account the applicant’s psychological state and his diagnosis at the time of the interview in assessing his evidence.
Mr Skipsey noted that at ‘various points’ in the interview, the applicant’s evidence ‘suggested linkages that were not evidenced, may have appeared far-fetched and implausible, and seemed to impute unusual [generally hostile] motives to other actors.’ The applicant’s ‘perception of these events as they occurred, as well as his recall of those events in Australia and at interview, are each affected by the trauma and poor mental health that he has suffered for many years.’ Mr Skipsey repeated this point elsewhere in his submission by again noting that events or acts attributed to others by the applicant, including the involvement of his brothers and [Neighbour A’s] family in hacking of his phone and ‘entrapment of him based on events in [City 1]’, are the applicant’s ‘beliefs’, ‘mostly outside of [his] direct knowledge, and represent speculation on his part.’ He ‘infers this from the extensive nature of the conspiracy he perceives against him and the shared motives to harm he believes are held by [Neighbour A’s] family and his brothers.’
In his statutory declaration of 16 October 2019, the applicant also addressed the concerns raised by the delegate at the interview. In relation to the delegate’s questions as to why he had not engaged in tweeting in Australia about politics and religion, he stated that he had deleted all his [Social media 1] accounts before leaving Saudi Arabia. The ‘biggest reason’ he tweeted frequently while in Saudi Arabia was because ‘that was the only way that [he] could express [himself] freely and [he did not] have to pretend to be a different person.’ He does not need to do this in Australia because he can ‘freely talk about’ what he wants. He also prefers not to tweet in order to ensure ‘that there is no risk that the Saudi government would impose consequences for [his] children.’ In addition, he continues to have poor mental health and ‘being engaged in active political discussions on Arabic-language [Social media 1] would not be good for [his] mental health.’
The delegate’s decision
The delegate expressed significant concerns regarding the credibility of the applicant’s claims in relation to his sexuality. These concerns related to the ‘vague details’ in his evidence, the ‘absence of physical evidence’ to support the applicant’s three-year relationship with [Neighbour A], and the ‘absence’ of any same sex relationship since his relationship with [Neighbour A]. The delegate ultimately found the applicant to have fabricated his claims of sexuality and did not accept that he is a ‘homosexual (bi-sexual)’.
With regard to religion, the delegate accepted that the applicant has ‘renounced his Islamic faith (apostacy)’ as he no longer actively practices the ‘religious observances’ associated with being a member of the religion. He found ‘no evidence to support the applicant being either agnostic or atheist’ but found him to be ‘rather generally irreligious’. The delegate further accepted that the applicant has fears in relation to having renounced Islam, as well as his political opinion. Nevertheless, he found the applicant was able to continue to live in Saudi Arabia after abandoning his Islamic faith without facing adverse attention or incident for two years and concluded that ‘he would not be forced to modify his behaviour in a way that would conflict with a characteristic fundamental to his identity or conscience.’ The delegate found the applicant’s claims in relation to his use of social medial to express his views to be fabricated and placed ‘considerable weight’ on the absence of evidence to support the view ‘that he has openly expressed his anti-Islamic or anti-regime views in public, particularly social media channels.’ The delegate also observed that there is no evidence to suggest the authorities are aware of or would become aware of his religious beliefs and opinions of the Saudi authorities in the reasonably foreseeable future.
The delegate concluded that the applicant does not have well-founded fear of persecution as the chance of him facing serious harm for the reasons of his ‘religion (apostasy) and associated (imputed) political opinion’ is remote. The delegate was not satisfied that he would be persecuted for any of the reasons listed in s 5J(1)(a) of the Act and is therefore not a refugee as defined in s 5H of the Act. The delegate was also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Saudi Arabia, there is a real risk he will suffer significant harm. The delegate was not satisfied that the applicant was a person in whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.
Evidence before the Tribunal
Pre-hearing submissions
On 18 December 2019, the applicant applied for a review of the delegate’s decision.
On 28 May 2024, Mx Emerson of RACS was appointed as the applicant’s representative.
On 10 January 2025, Mx Emerson forwarded to the Tribunal a submission in support of the review application. The submission included an updated statutory declaration from the applicant, declared on 10 January 2025, copy of transcript of proceedings before [Court 2], dated [March] 2019 and bank transactions showing money spent at [a gay bar] on Oxford Street, as well as documents previously submitted to the Department, namely Ms [B’s] Psychological Assessment Report, summary of psychological treatment report by [Mental health service 1] and a discharge report from [a hospital], dated [May] 2019.
In their covering submission, Mx Emerson provided a summary of the applicant’s claims and addressed the concerns raised by the delegate in his decision record. It was submitted that while the applicant’s mental health ‘is currently in a better place and he is no longer receiving treatment’, he ‘continues to suffer the effects of post-traumatic stress disorder arising from his previous experiences in Saudi Arabia. He tells us that this affects his memory, his ability to sleep, and at times he can find it difficult to remember dates and details.’
In his updated statutory declaration, the applicant reiterated his claims for protection and fears of harm from his family and the Saudi authorities. He detailed his present struggles with his mental health and how this has impacted his ability to engage in further sexual relationships with men after [Neighbour A]. He stated that he has grown more ‘comfortable’ in exploring his sexuality in Australia and has attended social events in bars and clubs on Oxford Street and around Kings Cross ‘in recent years’. He does not have photos of himself attending Mardi Gras as he usually attends alone. He has engaged with sex workers on a website called ‘[Website 1]’. Through this service, he has met transgender women. He does not share his sexuality on social media in fear of people in Saudi Arabia identifying him and this ‘negatively’ impacting his children.
The applicant also submitted a witness statement from his employer and friend, Ms [D], dated 13 January 2025. Ms [D] stated in her statement that she manages [a workplace] in Sydney and the applicant is her employee as [an Occupation 3]. She has known him since 2021 and sees him approximately four times per week. They also occasionally go to the pub for drinks after work. The applicant has told her ‘about his sexuality and that he likes males… [He] finds it difficult to date in Australia due to his lack of English and lack of job security. He has also told her that ‘he does not what to be a Muslim and he does not follow or agree with the government in Saudi Arabia.’
The hearing
The applicant appeared before the Tribunal on 16 January 2025 to give evidence and present arguments. Mx Emerson also attended the hearing. Where relevant, the applicant’s oral evidence at the hearing is referred to in the Tribunal’s analysis below.
Post-hearing submissions
Following the hearing, Mx Emerson submitted screenshots of the applicant’s posts on [Social media 3] regarding his beliefs about Islam and religion and provided further submissions in relation to the applicant’s claims.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The applicant claims to fear persecution in Saudi Arabia on the basis of his religious views, imputed political opinion and sexual orientation. For the following reasons, I have concluded that the decision under review should be remitted for reconsideration.
Religion
The applicant has provided reliable and credible evidence throughout the process regarding his religious views. He has consistently claimed to be an atheist.
The delegate, despite expressing concerns regarding the credibility of other aspects of the applicant’s claims, which I do not share, accepted that the applicant has renounced Islam and that he is or would be perceived to be an apostate. The delegate also accepted that the applicant fears harm for ‘reasons of his religion (apostasy) and associated (imputed) political opinion.’ In his decision record, the delegate went on to provide a comprehensive overview of the available country information with respect to the treatment of atheists and/or apostates in Saudi Arabia. On the basis of that information, he found that ‘apostasy is criminalised in Saudi Arabia and mandates the death penalty.’ He further accepted that ‘individuals are required to visibly comply with religious practices’ and that ‘it would be reasonable to conclude the applicant would be required to engage in Islamic practices if returned to Saudi Arabia.’ Nevertheless, for reasons that I find confounding, the delegate concluded that he did not ‘consider such activity would be considered as egregious as to be commensurate to serious harm.’ Noting that the applicant had continued to participate in religious observances in the two years prior to his departure, without exploring the reasons provided by him for doing so, the delegate found that the applicant would not be forced to modify his behaviour in a way that would conflict with a characteristic fundamental to his identity or conscience. Again, without considering the explanations put forward or the applicant’s likely conduct upon his return to Saudi Arabia, the delegate found that ‘the applicant’s profile ensures the chance of his irreligious beliefs or anti-regime sentiment coming to the attention of the Saudi authorities is remote at best’ on the basis that ‘there is no evidence to support that he has openly expressed his anti-Islamic or anti-regime views in public.’ I do not agree with these evidently erroneous conclusions.
At the hearing, I was able to further examine and probe the applicant’s claims regarding his views and found his evidence to be consistent with past claims and highly persuasive. I accept that he is a committed atheist and identifies as such. I am satisfied that the applicant had modified his behaviour in Saudi Arabia and demonstrated compliance with Islamic religious practices in order to conceal his true religious views to avoid persecution. I accept that he had found this to be ‘distressing internally’ as he did not wish to ‘pretend to be Muslim and undertake all of these actions that I did not myself believe.’[1] I also find that, being well aware of the consequences, the applicant did not express his views publicly in order to avoid harm. I accept that he had expressed his views anonymously on social media in Saudi Arabia and I accept his reasons for subsequently ceasing to do so. I also accept that he resumed his online activities under another pseudonym in Australia in 2022. I find the evidence of this activity, namely the screenshots of the applicant’s posts on [Social media 3] demonstrating his critical views on Islam and religion, to reflect a genuine expression of his beliefs. I am satisfied that the applicant has not engaged in this activity in Australia for the purpose of strengthening his claim to be a refugee.
[1] The applicant’s statutory declaration of 18 September 2019.
There were aspects of the applicant’s claims regarding past events or incidents attributed to his brothers or others that I found to be far-fetched and highly questionable. For example, his claims that a friend ‘had put some hallucinogens into [his] tea’ causing him to have a car accident and because his brothers ‘wanted [him] to lose [his] mind,’ that his phone had been hacked and his [Social media 1] account accessed, that small amounts of money would go ‘missing’ from his bank account, and that his brothers borrowed his car and deliberately got involved in minor vehicle accidents.[2] The applicant, however, acknowledged in his statutory declaration of 18 September 2019 that he did not witness and only drew conclusions about these incidents later. He also acknowledged that his ‘memory from this period is not good due to the stress [he] was under,’ and that he ‘was suffering from psychiatric illness which may have affected [his] perception of some events.’ I am of the view that the claims referred to must be viewed in the context of the trauma and poor mental health that the applicant had experienced over a number of years. I further accept that the applicant was diagnosed with PTSD and place weight on Mr Skipsey’s submission of 24 October 2019, in which he noted:
[The] psychological literature documents a significant linkage between PTSD and persecutory delusions. Persecutory delusions typically involve unwarranted linkages between events that a person experiences, and attribution of those events to other parties who intend harm to the person – or, in other words, perceiving a conspiracy or an intent to harm the person despite the fact that this may not be the simplest or most likely explanation. A growing literature has identified and continues to study the strong linkages between the two conditions, whereby PTSD and trauma contribute to a person’s development of persecutory delusions and other psychotic symptoms, and/or where persecutory delusions are caused by the same traumatic roots as PTSD.
[2] Ibid.
I do not draw any inferences adverse to the applicant’s credibility on the basis of these claims and do not consider them to undermine the reliability of the other claims I have already accepted.
I find that the applicant will continue to express his religious views if he were to return to Saudi Arabia and that the only reason he would seek to limit or restrict the expression of his views is his fear of harm. I accept that he would be prevented from expressing his religious views in Saudi Arabia. I also accept that he would be punished if he were to express his views or was not seen to comply with religious practices.
The country information sources I have consulted indicate that atheism in Saudi Arabia, a nation where Islamic law predominates, remains one of the most extreme taboos, with severe consequences for those who openly identify as non-believers. Atheism is not only socially stigmatised but also legally condemned, leading to severe repercussions for those who openly declare non-belief. The Saudi legal system, rooted in a strict interpretation of Shari'a, categorises apostasy as a capital offense, with individuals facing harsh penalties, including imprisonment, corporal punishment, and societal ostracism for expressing atheistic views.[3]
[3] Daniel Costa-Roberts, Saudi court sentences man to 10 years, 2,000 lashes for atheist tweets, PBS News, 27 February 2016, and Caryle Murphy, The Rise of Atheism in Saudi Arabia, Where Talking About Atheism Is Illegal, Global Post, 16 June 2014, >
In 2014, Saudi Arabia took the drastic step of officially categorising atheism as a form of terrorism. The government introduced a series of laws that defined terrorism as ‘calling for atheist thought in any form, or calling into question the fundamentals of the Islamic religion on which this country is based.’[4] This conflation of atheism with terrorism highlights the perceived threat that non-belief poses to the Saudi state, which derives much of its legitimacy from its role as the custodian of Islam's holiest sites.[5]
[4] Hakim Khatib, Taboo Of Atheism In Saudi Arabia – OpEd, Eurasia Review, 4 July 2017,
[5] Saudi Arabia: Categorizing feminism, atheism, homosexuality as crimes exposes the Kingdom’s dangerous intolerance, Amnesty International, 12 November 2019, >
The legal consequences for atheists in Saudi Arabia are severe. Atheists are considered apostates and apostasy is considered a capital offense. While executions for apostasy are rare, the threat of capital punishment looms large for those who openly renounce Islam.[6] More commonly, atheists face long prison sentences, corporal punishment, and hefty fines.[7] According to Khaled Diab,
In Saudi Arabia, one of the most repressive theocracies in the world, those found guilty of atheism or “apostasy” can be flogged pitilessly or receive capital punishment. For example, in 2017, one man, named in the media as Ahmad Al-Shamri, who allegedly renounced Islam and Muhammad on social media, was reportedly sentenced to death.[8]
[6] The lonely atheist: why renouncing your religion in Saudi Arabia can ... National Secular Society, Saudi Arabia is worst country to be an atheist, report says,
[8] Man ‘sentenced to death for atheism’ in Saudi Arabia, The Independent, 26 April 2017,
In 2013, Raif Badawi, a Saudi blogger was sentenced to 10 years in prison, lashes, and a substantial fine on charges of ‘insulting Islam’ through his liberal blog. Mr Badawi was released in 2022 after serving his 10-year prison. He is unable leave Saudi Arabia for another nine years and is banned from posting online, using social media and communicating with the news media.[9]
[9] One year after his release from prison, Saudi blogger Raif Badawi is still not free, Reporters Without Borders, 10 March 2023, >
Atheists in Saudi Arabia also face significant social consequences due to the deeply conservative nature of Saudi society. Openly declaring oneself as an atheist can lead to ostracism, loss of employment, severing of family ties and mental health struggles stemming from the need to conceal one's beliefs. Prominent clerics and social leaders propagate rhetoric that frames atheism as a threat to societal order, inciting hatred and hostility that further marginalises individuals who deviate from the predominant religious norms.[10] Many atheists are forced to lead double lives, outwardly conforming to religious practices while privately harbouring their non-belief.[11] Despite the risks, a thriving community of sceptics and atheists exists out of sight and beneath the radar of the Saudi authorities.[12] Some Saudi atheists have found community and support through online forums and social media, though these platforms are closely monitored by the authorities.[13]
[10] Freddie Hayward, The lonely atheist: why renouncing your religion in Saudi Arabia can be deadly, 6 September 2021, Caryle Murphy, Atheism explodes in Saudi Arabia, despite state-enforced ban, Salon, 12 June 2014,
[11] Khaled Diab, On Being a ‘Muslim’ Atheist, New Line Magazine, 14 September 2021,
[12] Man ‘sentenced to death for atheism’ in Saudi Arabia, The Independent, 26 April 2017,
[13] Hannah Wallace, Men without God: The Rise of Atheism in Saudi Arabia, Free Inquiry Volume 40, No. 2,The Saudi government has responded to the perceived spread of atheism with increased repression and surveillance. In addition to the anti-terrorism laws, the state has implemented programs to ‘inoculate’ children against atheism and Western influences.[14] As noted by Hannah Wallace:
For many Saudis, the social implications of professing atheism can often be as severe as any legal punishment. As the birthplace of Islam and the site of the faith’s two holiest mosques, Saudi Arabia is intimately connected with the Islamic faith. This is combined with the state’s use of religion as a political tool designed to prevent any form of challenge to the status quo…[15]
[14] Ibid.
[15] Ibid.
On the basis of the evidence before me, I find that if the applicant were to return to Saudi Arabia there is a real chance that he would be subjected to serious harm, including threats to his life or liberty, significant physical harassment and significant physical ill treatment at the hands of the Saudi authorities, the religious police, members of the general public and his family. I find that such treatment amounts to serious harm under s 5J(4)(b) of the Act. I am satisfied that the harm the applicant fears involves systematic and discriminatory conduct as required by s 5J(4)(c). I find that the essential and significant reason for the persecution feared by him is his religion and imputed political opinion.
I am satisfied that the real chance of persecution relates to all areas of Saudi Arabia. I am also satisfied that the only reason the applicant would seek to limit or restrict the expression of his views is his fear of harm. I am satisfied that he could not take reasonable steps to modify his behaviour so as to avoid a real chance of persecution. As the applicant’s fear of persecution is from the authorities, I find that effective state protection against the harm he fears is not available to him in Saudi Arabia. Therefore, I am satisfied that the applicant has a well-founded fear of persecution in Saudi Arabia.
Sexuality
While the above findings are sufficient to dispose of this matter, I consider it appropriate to briefly address the applicant’s claims of sexual orientation.
I have no hesitation in accepting the applicant’s claims regarding his sexual experiences as an adolescent in Saudi Arabia. I accept that following the exposure of his same sex relationship with a neighbour, he was subjected to serious physical and psychological harassment and abuse by members of his family. I accept that he was severely traumatised as a consequence and never subsequently had any other relationships with men, including in Australia.
At the hearing the applicant stated that he identifies as bisexual because he is attracted to both men and women. He gave evidence, and it has been submitted on his behalf, that he has continued to explore and practice his sexuality in Australia at his own pace. When asked how he has given expression to his sexuality in Australia, he stated that he has attended the Sydney Gay and Lesbian Mardi Gras and has talked to people with similar feelings. When prompted for more information, he said he has visited a gay venue on Sydney’s Oxford Street on a number of occasions and has spoken to other men at the venue. On two occasions he had exchanged telephone numbers with other men, but no other contact had ensued. He added that on one occasion he has had sex with a transgender sex worker. He did not claim to have expressed his sexuality or sexual identity in any other way.
I accept Mx Emerson’s submission that the applicant’s ‘discretion and gradual exploration of his sexuality in Australia has not been entirely out of choice; it has been impacted by his past experiences of harm in Saudi Arabia and the trauma that has resulted from these experiences.’ Evidently, this trauma is so deep that has continued to guide and shape the applicant’s expression of his sexuality in Australia, where, over the past six years, he has had the freedom and the opportunity to manifest his sexual identity. This may suggest that if the applicant were to return to Saudi Arabia, he would persist with his established pattern of limited expression of his sexual orientation. Nevertheless, I am mindful that his same sex relationship during his teenage years became known within his social sphere and continued to influence others’ perception of him. I am also mindful that, against this background, even a minimal or discreet outward indication of his same sex attraction could result in accusations and adverse treatment in Saudi Arabia.
The situation of homosexuals and bisexuals in Saudi Arabia is marked by extreme legal and social repercussions, with homosexuality criminalised under strict interpretations of Islamic law. Individuals engaging in same-sex relations face severe penalties, including flogging, imprisonment, and potentially the death penalty for repeat offenders or married individuals.[16] This harsh legal framework fosters a climate of fear, where LGBTQ+ individuals are often subjected to arbitrary arrests, human rights violations, and societal ostracism, leading to a pervasive culture of silence and concealment regarding sexual identity.[17] Accusations can lead to severe consequences, including harassment and abuse, particularly for those who are publicly identified as LGBTQ+.[18] The Committee for the Promotion of Virtue and the Prevention of Vice actively pursues and arrests individuals suspected of homosexuality.[19] According to the Human Dignity Trust:
There is substantial evidence of the law being enforced in recent years, with LGBT people being frequently subject to arrest. Some of those arrested have been executed by authorities. Due to the opacity of Saudi Arabia law enforcement, it is not possible to provide accurate estimates of the number of arrests, prosecutions, and executions.
There have been consistent reports of discrimination and violence being committed against LGBT people in recent years, including murder, assault, harassment, and the denial of basic rights and services. Societal stigma and the absence of LGBT organisations limits reporting of discrimination.[20]
[16] Human Rights Watch, Audacity in Adversity: LGBT Activism in the Middle East and North Africa, 16 April 2018,
[17] Ibid.
[18] Nadia Labi, The Kingdom in the Closet, The Atlantic, May 2007,
[19] Human Dignity Trust, Saudi Arabia, 17 December 2024,
[20] Ibid.
In January 2022, three men were decapitated after being convicted of charges related to same-sex relations and, in 2019, five men were executed as part of a mass execution after being convicted of same-sex intercourse.[21] In its World Report 2025, Human Rights Watch reported:
The authorities continue to repress the rights of lesbian, gay, bisexual, and transgender (LGBT) people and have eliminated discussion of gender and sexuality from the public sphere online and offline.[22]
[21] Gerardo Bandera, Which countries impose the death penalty on gay people? Fair Planet, 13 July 2024,
[22] Human Rights Watch, World Report 2025: Saudi Arabia - Events of 2024,
Social attitudes towards LGBTQ+ individuals are heavily influenced by cultural, religious, and familial norms. The majority of the population adheres to traditional interpretations of Islam, which generally condemn homosexual behaviour, contributing to a climate of fear and repression for those who identify as gay or bisexual. Many LGBTQ+ individuals face severe societal pressures to conform to heteronormative expectations. These pressures can manifest in various ways, including familial mistreatment and violence. Personal accounts reveal that some individuals experience extreme emotional and physical abuse from family members, who may resort to tactics intended to enforce traditional gender roles.[23]
[23] Durgham Abusalim, Behind the #WeWillRespectHomosexualRights campaign in the Middle East, Mondoweiss, 17 February 2016, Human Rights Watch, Audacity in Adversity: LGBT Activism in the Middle East and North Africa, 16 April 2018,
Therefore, I find that if the applicant were to return to Saudi Arabia, there is a real chance that he would face significant physical harassment, significant ill-treatment and significant discrimination. I find that such treatment amounts to serious harm under s 5J(4)(b) of the Act. I am satisfied that the essential and significant reason for his fear of persecution is his membership of the particular social group of bisexuals, homosexuals or LGBTQI+ persons in Saudi Arabia. For the purpose of s 5LA of the Act, I find that effective protection measures are not available to the applicant in Saudi Arabia. I also find that the applicant cannot take reasonable steps to modify his behaviour so as to avoid a real chance of persecution in Saudi Arabia as such modification would require him to alter his sexual orientation or conceal his true sexual identity contrary to the requirements of s 5J(3) of the Act.
Conclusions
I find that the applicant has a well-founded fear of persecution in Saudi Arabia on the basis of his sexual orientation and his religion. I also find that the applicant has no presently existing right, however expressed, to enter and reside in any other country under 36(3) of the Act.
For the reasons given above, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Date(s) of hearing: 15 January 2025
Representative for the Applicant: Gretel Emerson
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.
…
February / March 2020,
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