1935724 (Refugee) - [2025] ARTA 1484

1935724 (Refugee) [2025] ARTA 1484 (3 June 2025)
DECISION AND
REASONS FOR DECISION
Representative:  Christopher Kimberly Charles Serow
Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number: 1935724
Tribunal:Deputy President S Roushan
Date:3 June 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 03 June 2025 at 3:01pm
CATCHWORDS
REFUGEE – protection visa – Saudi Arabia – religion and imputed political opinion – apostate from Islam now non-religious – consistent, credible and persuasive account of gradual emotional and intellectual process – rejection by family – social media activity now intermittent to avoid harm after threats – not for purpose of strengthening claim – delay in applying for protection – criminal charges dismissed – country information – atheism officially categorised as form of terrorism – apostacy a capital offence but executions rare – long prison sentences, corporal punishment and large fines – social consequences in conservative society – treaty right to enter and reside in neighbouring countries – similar laws and social attitudes, and coordination on security and surveillance – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), (4)(b), (c), 36(2)(a), (3), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
1935710 (Refugee) [2025] ARTA 1239
Any 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 a [Age]-year-old national of Saudi Arabia. He first arrived in Australia [in] February 2014 on a Student visa (TU-570) granted on 2 January 2014. [In] December 2014 the applicant departed Australia, returning [in] January 2015 on a further Student visa granted on 16 May 2014.
On 12 July 2019, the applicant applied for a Protection visa. The application was refused on 22 November 2019 by a delegate for the Minister under s 65 of the Migration Act 1958 (Cth) (the Act).
On 18 December 2019, 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 EVIDENCE
Evidence before the Department
Protection visa application
Based on the information provided in his Protection visa application, the applicant was born in [City], Saudi Arabia. His father and mother reside in Saudi Arabia.
The applicant is married to [Ms A] and they have [children]. The applicant also has a [child] from another relationship. All of his [children] were born In [City 2], Saudi Arabia. The applicant’s spouse and their [children] travelled with him to Australia and reside with him in [City 3], NSW. [The other child] resides with [her/his] mother in Saudi Arabia.
The applicant completed his schooling in Saudi Arabia and subsequently obtained a ‘Bachelor in the Holy Book’ from [University 1] in [City 2] in 2013. In 2017, he commenced a Master of [Subject 1] at [University 2] in [City 3]. He was employed as [an occupation] in Saudi Arabia from July 2007 to March 2013.
The applicant travelled to [Country 1] for a holiday on two separate occasions in October 2013 and in June 2013 and visited [Country 2] in June 2013.
The applicant described his ethnic group as Arab and religion as ‘no religion’.
In response to questions in relation to his reasons for claiming protection in Australia, the applicant made the following claims.
He left Saudi Arabia because he ‘changed his religion’ and the punishment for ‘changing the religion of Islam in Saudi Arabia is murder’. He did not experience harm in Saudi Arabia, but he fears the Saudi government will kill him if he were to return. He is unable to relocate internally as the ‘Kingdom’s Law is not negotiable, and it is applied in all parts’ of the country.
The interview
The applicant attended an interview with the Department on 23 September 2019, assisted by an interpreter in Arabic and English languages. Where relevant, the applicant's oral evidence to the delegate is discussed in the Tribunal’s analysis below.
At the interview, the applicant submitted the following documents:
·Copy of graduation certificate for Bachelor of The Holy Book degree, dated 2013.
·Copy and translation of his Saudi Arabian Family Book issued in November 2013.
·Copy and translation of his Saudi Arabian [occupation] employment record.
Following the department interview, the applicant also submitted the following documents:
·Copy of scholarship statement from the [Organisation] dated 30 November 2018. According to the document, the scholarship covers tuition, examination, registration and compulsory health insurance fees for the student and their family members as well as a monthly stipend. The scholarship was due to end on 30 April 2019.
·List of the names of the applicant’s [siblings], including their respective estimated birth dates.
·Copy of the academic transcript for a Bachelor of The Holy Book degree, dated [2013].
The delegate’s decision
The delegate accepted that the applicant grew up as a Sunni Wahhabi Muslim and that he decided to leave Islam and became an apostate and an atheist in the middle of 2016. The delegate also noted that, at the interview, the applicant had ‘credibly described how his decision did not happen overnight, his doubts about Islam after completing his degree, the emotions he felt, the thought process he went through and the research he undertook.’ However, the delegate did not accept that the applicant had disclosed his beliefs to any family members other than his wife, or that he had engaged in any social media activity relating to his views as an apostate and atheist. The delegate went on to provide an overview of the available country information with respect to the treatment of atheists and/or apostates in Saudi Arabia, including information indicating that ‘apostasy is criminalised in Saudi Arabia and mandates the death penalty.’ She also acknowledged that the country information states that ‘deviation from Sunni Islam may be treated as apostasy’ and that the accusation of apostasy is ‘actively utilised.’ However, she determined that such accusations have been ‘utilised against people such as writers, activists, artists, or lawyers who have shown any serious sign of pushing at the outer boundaries of freedom of expression, or who are critical of the religious authorities, and whose views (rightly or wrongly) are termed “atheist” or as “insulting to religion”.’ On this basis and having found that the applicant does not have the kind of profile that would attract the adverse attention of the authorities, the delegate concluded that the applicant faces no real chance of serious harm if he were to return to Saudi Arabia.
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 respect of 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. In the application form, the applicant appointed Mr Serow as his representative and recipient.
On 14 February 2025, the Tribunal wrote to the applicant, inviting him to attend a hearing on 27 March 2025.
On 19 February 2025, the applicant, using his own email address, submitted documents issued by the [Court] relating to proceedings against him for [offence]. These included orders made [in] November 2024 outlining the applicant’s bail conditions. The conditions required him to report daily and prohibited him from approaching within 500 metres of any point of international departure or from entering any domestic airport.
In an accompanying note, the applicant stated: ‘I would like to inform you that I cannot attend the hearing date because I am in bail time until my case finishes in trial date [in] 6/2025.’
On 21 March 2025, the Tribunal informed the applicant that the hearing would proceed by video to enable his participation in the proceedings.
On 23 March 2025, the applicant wrote to the Tribunal requesting a hearing postponement until 10 June 2025 on the basis that he was on bail and that the police were in possession of his passport.
The Tribunal refused the request on 24 March 2025 and the applicant subsequently confirmed his attendance at the hearing by video on the scheduled date.
The hearing
The applicant appeared before the Tribunal on 27 March 2025 by video to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The applicant clarified at the hearing that he married [Ms A] approximately 15 years ago. While he was married to [Ms A], he entered into a temporary marriage with a [Country 3] national. The applicant’s [other child] was born out of that temporary marriage. He stated that [Ms A] had lodged a separate Protection visa application, which was granted, and that she is currently in Saudi Arabia.
The applicant also provided the following information at the hearing.
He has had no contact with his parents since around 2018 or 2019. He made efforts to reach out to them during that time in order to explain his beliefs and views, but they refused to engage with him. Of his [siblings], he is only in contact with one of his sisters. She is the only family member who is accepting of his views and is not a religious ‘fundamentalist.’ She is herself sceptical about religion and unhappy with her personal circumstances, including her position as a second wife. However, she does not share her views with others due to fear of repercussions.
After completing high school, the applicant commenced a [Subject 2] degree at [University 3] but withdrew after approximately two and a half years. He remained unemployed for six or seven years, during which time he was financially supported by his family. He later enrolled in the [occupation] academy and, after one year of training, began working as [an occupation] in [City 2] in 2008. He remained in that role until around nine months before his departure for Australia. During his time in the [occupation employer], he resumed his university studies, focusing on the Quran and Sunnah. He later applied for, and was granted, a scholarship to study in Australia.
Upon arrival in Australia, the applicant spent several years studying English before being accepted into a Master of [Subject 1] program at [University 2]. However, he did not complete the degree, as he was increasingly preoccupied with religious inquiry and personal exploration of belief systems. His scholarship ceased approximately three years ago. He is currently managing a [workplace] in [City 3].
The applicant explained that he was born into a Muslim family and raised as a Muslim, but he no longer considers himself a Muslim and does not believe in God. His journey away from Islam began with a phase in which he identified as a Qurani, during which time he listened to figures such as Adnan Ibrahim. He later began following prominent atheists, including Richard Dawkins, as well as Arab intellectuals such as Sayyid Al-Qemany and others who have explored and explained the writings of Abdullah al-Qasemi. Through this gradual process, the applicant opened himself to new ideas and came to the view that the religious beliefs he was raised with were not based in reality. He reflected on the historical emergence of religions at different times and in different contexts, which led him to question the universality and exclusivity of any one religion.
His critical examination of Islam intensified after arriving in Australia. While studying English, he met people from a range of backgrounds and engaged in open discussions about religion. He questioned how the Quran could claim to be the only true religion when followers of other religions made similar claims. He considered it unjust for God to judge people according to the geographical accident of their birth. As he pursued his studies and posed questions, he often received superficial or ‘ready-made’ answers. This dissatisfaction led him to conduct deeper personal research. He no longer adheres to any religion. He believes that religious belief is fundamentally linked to a belief in God, and that atheism arises from a reasoned and considered position. However, he does not wish to be labelled as an ‘atheist.’ His current worldview includes a commitment to human rights, animal rights, and the ethical principle of not wishing upon others what he would not wish for himself.
Since 2021, the applicant has expressed his views on [Social media], primarily concerning his reasons for leaving Islam and the inconsistencies or errors he perceived within the religion. He has posted under his own name but, after receiving messages accusing him of dishonouring his community and tribe, he changed his username to ‘[Username 1].’ His activity on the platform is intermittent, at times posting daily, other times deactivating and later reactivating his account. He has not expressed his views through any other public platform or medium due to fear for his safety.
The applicant has attempted to discuss his beliefs with other Muslims, particularly individuals from Saudi Arabia, but these conversations have generally not been well received. His family is aware of his views and has rejected him because of them.
He does not wish to return to Saudi Arabia because he wants to live in a place where he can freely express his beliefs. He fears that in Saudi Arabia, where personal freedoms are restricted and the legal system is based on the Quran and the Sunnah, he would face severe consequences for doing so. He believes that expressing his views openly in Saudi Arabia would result in the death penalty, as apostasy is a capital offence. He feels strongly that he cannot continue to suppress his beliefs and that it is essential to live in a society where he is free to express them.
Post-hearing submissions
On 9 April 2025, the applicant forwarded to the Tribunal a statement in which he provided the following additional information.
After arriving in Australia where ‘people have religious freedom’, he questioned his ‘Muslim beliefs as it was not a choice of [himself].’ He is no longer a Muslim and does ‘not have any interests in learning about another religion’. He is a ‘non-religious person.’ Non-Muslims ‘would face severe treatment and punishment by the government in Saudi Arabia.’ He is not able to live in any of the other Arab states ‘because the government of Saudi Arabia can easily find [him] and they will punish [him] without questions.’ He wants ‘to continue sharing [his] thoughts through social media and write papers about [his] religious thoughts.’
The applicant also submitted the following material in support of his claims.
·Screenshot of the applicant’s [Social media] account with username ‘[2]’ who joined in March 2020 and has 2k followers. The account is linked to the email [Email] and the phone number [Number].
·Screenshots of posts made by the applicant on [Social media] in Arabic between January and March 2025. All screenshots are translated into English. The posts express criticism of Islamic scriptures and religious followers.
·Copy of a notice from the [Court], dated [April] 2025 stating that the criminal proceedings against the applicant are dismissed/struck out.
·Copy of a police report, generated on 4 April 2025 revealing ‘no disclosable court outcomes.’
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 (apostacy) and imputed political opinion. For the following reasons, I have concluded that the decision under review should be remitted for reconsideration.
Apostacy
As noted above, the delegate accepted that the applicant had renounced Islam, identifying as both an apostate and an atheist. The delegate noted that, during the interview, the applicant credibly described the gradual nature of his transition, including the doubts he had developed after completing his degree, the emotional and intellectual process he undertook, and the research he engaged in.
Having considered the applicant’s evidence throughout the process, I am satisfied that he has provided a credible and reliable account of his experiences and beliefs. His evidence before the Tribunal was consistent with his evidence to the Department and was marked by a reflective and unblemished quality. It did not appear rehearsed or contrived. Rather, it revealed a considered and thoughtful personal journey in which the applicant has genuinely grappled with questions of faith and identity. His narrative demonstrated the type of organic and sustained intellectual inquiry that one would expect from a person sincerely confronting religious doubt, particularly in the context of disentangling themselves from lifelong beliefs formed within a highly conservative and religious society such as Saudi Arabia. I found his evidence highly persuasive.
I accept that the applicant has renounced Islam and although he does not identify as an atheist, he does not believe in God or any religion. I accept that members of his family in Saudi Arabia are aware of the nature of his beliefs and have rejected his views. I also accept that he has intermittently been active on social media and has expressed his views anonymously, including posts critical of Islam and religious practices.
In concluding that the applicant ‘as an apostate and an atheist does not show a profile… to attract the adverse attention of the Saudi authorities’, the delegate does not appear to have engaged with or given consideration to why the applicant had not disclosed his views to members of his family or why he would not express his beliefs, including his renunciation of Islam upon returning to Saudi Arabia. I am satisfied that the applicant has moderated and modified the expression of his views to members of his own family, on social media platforms or to other Saudi nationals in order to avoid repercussions and harm. I find the evidence of his online activities 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.
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.
As I have noted in another recent decision where the applicant’s claim of apostacy in Saudi Arabia was accepted,[1] 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.[2]
[1] 1935710 (Refugee) [2025] (11 February 2025).
[2] 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.’[3] 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.[4]
[3] Hakim Khatib, Taboo Of Atheism In Saudi Arabia – OpEd, Eurasia Review, 4 July 2017,
[4] 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.[5] More commonly, atheists face long prison sentences, corporal punishment, and hefty fines.[6] 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.[7]
[5] 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,
[7] 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 sentence. He is unable to leave Saudi Arabia for another nine years and is banned from posting online, using social media and communicating with the news media.[8]
[8] 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.[9] Many atheists are forced to lead double lives, outwardly conforming to religious practices while privately harbouring their non-belief.[10] Despite the risks, a thriving community of sceptics and atheists exists out of sight and beneath the radar of the Saudi authorities.[11] Some Saudi atheists have found community and support through online forums and social media, though these platforms are closely monitored by the authorities.[12]
[9] 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,
[10] Khaled Diab, On Being a ‘Muslim’ Atheist, New Line Magazine, 14 September 2021,
[11] Man ‘sentenced to death for atheism’ in Saudi Arabia, The Independent, 26 April 2017,
[12] 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.[13] 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…[14]
[13] Ibid.
[14] Ibid.
Over the years, reports have referred to the results of a 2012 poll which found that 5 percent of Saudi citizens described themselves as ‘convinced atheists’ (the same number as the US) while 19 percent described themselves as non-religious.[15] However, there are also credible reports that persons in Saudi Arabia hide their atheist beliefs or religious scepticism.[16]
[15] See On Being a ‘Muslim’ Atheist', New Lines Magazine, 14 September 2021, Atheism Among Muslims is “Spreading Like Wildfire”, National Interest, The, 19 September 2021, Men without God: The Rise of Atheism in Saudi Arabia, Free Inquiry, February/March 2020, and God's own country', Qantara, 1 January 2019,
[16] Religious Freedom in the World Report 2021 - Saudi Arabia', Aid to the Church in Need (ACN), 20 April 2021, United States Commission on International Religious Freedom Annual Report 2021.
Having considered the evidence before me, I am satisfied 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 and members of the general public. 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.
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 the right to enter and reside in a country other than Australia. This right may be either temporary or permanent and may arise or be expressed in a range of ways. However, this qualification does not apply where the person has a well-founded fear of persecution or faces a real risk of significant harm in that third country, or where they have a well-founded fear of being returned from that country to another where they would face such harm.
I have considered whether the applicant, as a Saudi national, has a right to enter and reside in any of the Gulf Cooperation Council (GCC) countries, namely Bahrain, Kuwait, Oman, Qatar, and the UAE.
Article 3 of the Economic Agreement Between the Gulf Cooperation Council States stipulated:
GCC natural and legal citizens shall be accorded, in any Member State, the same treatment accorded to its own citizens, without differentiation or discrimination, in all economic activities, especially the following: 1. Movement and residence 2. Work in private and government jobs 3. Pension and social security. 4. Engagement in all professions and crafts 5. Engagement in all economic, investment and service activities 6. Real estate ownership 7. Capital movement 8. Tax treatment 9. Stock ownership and formation of corporations 10. Education, health and social services Member States shall agree to complete implementation rules sufficient to carry this out and bring into being the Gulf Common Market.[17]
[17] The Economic Agreement Between the Gulf Cooperation Council States (The Economic Agreement), United Nations Network on Migration,
GCC nationals have the right to enter and reside in any GCC state. The GCC offers ‘genuine free settlement to the citizens of the six countries.’[18]Beyond the foundational agreements and the establishment of the Common Market, practical measures have been implemented to facilitate the entry and residence of GCC nationals in member states.
[18] The Gulf Cooperation Council: free movement for citizens but not for resident migrants, Future Citizen Institute, 8 October 2018,
The country information sources I have consulted indicates that in the GCC countries, atheists face severe legal and societal repression that renders open expression of nonbelief nearly impossible. While Bahrain’s laws do not explicitly criminalise apostasy, restrictions on religious expression have led to prosecutions for questioning Islamic teachings.[19] Kuwait and Oman impose more strict controls, with laws punishing criticism of religion and arresting individuals for online discussions about freedom of thought.[20] Qatar enforces some of the harshest measures in the region. With apostasy theoretically punishable by death, creating a climate of fear and secrecy.[21] In the UAE, broad anti-hatred laws criminalise atheistic views through heavy penalties.[22]
[19] Bahrain: Quash Religious Freedom Convictions, Human Rights Watch, 3 July 2023,
[20] End Blasphemy Laws: The Campaign to Abolish Blasphemy Laws – Kuwait, 18 June 2020, and Religious Freedom in Oman: State Control, Limited Expression, and Repressive Policies: State Control, Limited Expression, and Repressive Policies, ECDHR, 2024,
[21] The Freedom of Thought Report: Qatar, Humanists International, 1 November 2024,
[22] UAE makes ‘offending God’ illegal, National Secular Society, 5 August 2015,
In addition, GCC’s 2012 joint security agreement called for closer coordination of internal security and surveillance policies, as well as greater information sharing and unified plans for joint actions.[23]
[23] What is the GCC?, Aljazeera, 4 December 2017,
According to Human Rights Watch:
The agreement’s 20 provisions include a vaguely worded article that would suppress “interference in the domestic affairs” of other GCC countries, which could be used to criminalize criticism of gulf countries or rulers. Another provision provides for sharing citizens’ and residents’ personal data at the discretion of Interior Ministry officials. [24]
[24] GCC: Joint Security Agreement Imperils Rights, Human Rights Watch, 26 April 2014,
Article 3 of the agreement stipulates: ‘Each state party should take legal measures on any act considered a crime under its existing legislation when its citizens or residents interfere in the domestic affairs of any other state parties.’[25] Prohibition on ‘interference in domestic affairs’ has been interpreted to include social media criticism of any GCC government.[26]
[25] Ibid.
[26] See Silence is King: The persecution of activists in the Gulf, Amnesty International, 11 October 2022,
The agreement also includes binding extradition obligations among the GCC states. Each country must hand over persons wanted by a fellow member for offenses related to security or politics. In effect, a political dissident or criminal suspect who flees from one Gulf country to another should be returned upon request.[27]
[27] Saudi Arabia: Transnational Repression Origin Country Case Study, Freedom House, 2021,
As noted by Human Rights Watch, ‘each of the GCC countries has prosecuted people solely for exercising their rights to free expression, association, and peaceful assembly’ and that ‘the agreement could extend the reach of those countries into the other member countries.’[28] Freedom House has also noted that ‘such a broad provision, applied within a group of countries that routinely violate human rights through dubious legal proceedings, is ripe for abuse.’[29] By setting ‘broad parameters for cooperation against dissidents, the agreement further facilitates Saudi Arabia’s ‘extraterritorial efforts.’[30]
[28] GCC: Joint Security Agreement Imperils Rights, Human Rights Watch, 26 April 2014.
[29] Saudi Arabia: Transnational Repression Origin Country Case Study, Freedom House, 2021.
[30] Ibid.
I find that the applicant has the right to enter and reside in one or more of the GCC countries. However, as I have found that the applicant will continue to express his religious views, I am also satisfied that there is a real chance he would face persecution in those countries for the reasons of his religion and imputed political opinion. Accordingly, I find that the applicant has a well-founded fear of persecution in the GCC countries, and that s 36(3) does not apply in relation to them.
Conclusions

For the reasons given above, I find that the applicant has a well-founded fear of persecution in Saudi Arabia on the basis of his religion and imputed political opinion. I also find that s 36(3) of the Act does not apply.
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 of hearing:   27 March 2025
Representative for the applicant:              Mr Christopher Kimberly Charles Serow
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.
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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.
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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.
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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.
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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.
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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.
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36     Protection visas – criteria provided for by this Act
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(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.
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February / March 2020,