2001193 (Refugee)

2001193 (Refugee) [2023] AATA 2547 (2 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Latifa Al-Haouli (MARN: 1175724)
CASE NUMBER: 2001193

COUNTRY OF REFERENCE: Saudi Arabia
MEMBER:Alison Murphy
DATE:2 June 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.

Statement made on 02 June 2023 at 10:40am
CATCHWORDS
REFUGEE – protection visa – Saudi Arabia – particular social group – women – family violence – gender-based violence – guardianship system – child born outside of marriage – forced marriage – restricted movements – state protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 January 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of Saudi Arabia, applied for the visas on 25 June 2018. The first named applicant is the mother of the second, third and fourth named applicants. The delegate refused to grant the visas on the basis that the applicants were not owed protection by Australia.
The applicants (with the exception of the third named applicant) appeared before the Tribunal on 17 April 2023 to give evidence and present arguments. The hearing in this matter was held following the hearing for [Daughter A] (AAT proceedings 2001195) who is also the daughter of the first named applicant and sister of the second, third and fourth named applicants. The evidence in the related proceedings has not been disclosed to the applicants in the current proceedings, but the parties in the current proceeding have allowed their evidence to be considered in the related proceedings. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (the complementary protection criterion). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issue in this case is whether any, or all, of the applicants is 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. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Country of nationality
There is no dispute that the applicants are nationals of Saudi Arabia. The Departmental file contains copies of their passports issued by the Kingdom of Saudi Arabia (KSA). They have at all times stated that they are citizens of that country and been accepted as such by the Department. The Tribunal finds that each of the applicants is a national of Saudi Arabia and has assessed their claims against that country as the country of nationality and the receiving country.
The applicants’ migration history
The first named applicant is [an age]-year-old woman, and the second, third and fourth named applicants are her adult daughters, aged [ages] respectively. They arrived in Australia [in] June 2015 on tourist visas accompanied by the former husband of the first named visa applicant and father of the other visa applicants. At that time, their other daughter and sister, the visa applicant in the related review, had been living and studying in Australia for approximately three years. The third named applicant had previously travelled to Australia for approximately two months in 2012, and for each of the others it was their first arrival.
The applicants stayed approximately six weeks in Australia before returning to Saudi Arabia. They each returned to Australia in 2017, with the second, third and fourth named applicants being granted student visas. The first named applicant had her application for a student visa refused and returned to Saudi Arabia before returning to Australia on a tourist visa in 2018. Both the second and fourth named applicants departed Australia for short periods in 2019 and they have all remained in Australia since that time.
Claims for protection
Each of the applicants claim that if returned to Saudi Arabia, they will be subjected to family violence and gender-based discrimination and harm (including forced marriage in respect of the secondary applicants) as well as harm for reasons of their liberal social and political beliefs. The third named applicant also makes claims in respect of her de facto relationship and birth of a child outside of marriage and the fourth named applicant makes claims in respect of her sexuality.
The first named applicant married her husband in a marriage arranged by their families when she was about [age]. They had four daughters, all of whom are now in Australia, and no other children. She has consistently described her former husband as a violent alcoholic who physically and emotionally abused and controlled her, regularly assaulting her and denying her money to care for their children. She received no help from her family, who believed a woman should follow her husband whatever he does. She was unable to access medical treatment for her injuries without his permission under Saudi Arabia’s guardianship laws. She did not seek help from the Saudi authorities because no one can interfere between a husband and his wife.
They separated more than 10 years ago when their children were in high school, around the time her husband was jailed for outstanding debts. She remained living in the family home which she had inherited from her own father. At hearing, she gave evidence that it was not easy to make him leave the family home but he finally did so because they were screaming at each other all the time. He went to live with his [relative] but retained a key to the family home and used it to enter the house whenever he liked. He continued to be violent towards them after the separation, arriving drunk at the house and letting himself in. She had no way of keeping him out but slept with her daughters in a locked bedroom.
She came to Australia in 2015 with the secondary applicants to visit her daughter [Daughter A], who was studying in Australia at the time. Her husband had allowed [Daughter A] to study in Australia because the KSA gave [Daughter A] a scholarship and also paid him money to be her guardian. Her husband consented to the travel of the other applicants on visitor visas on the basis that their mother was accompanying them and they returned to Saudi Arabia after a few weeks.
When [Daughter A] returned to Saudi Arabia in early 2016, she told her mother that she had applied for a protection visa. That was the first time the first named applicant became aware that there was such a thing. When she returned to Australia, it was with the intention that she and her daughters would apply for refugee status and live where they were free. She has not had contact with her husband since her return to Saudi Arabia in 2017. He was angry with her because she had returned to KSA when her student visa application was refused, leaving their daughters in Australia without a guardian. She did not return to the house she had been living in with their daughters, but stayed with [a family member].
Her husband has refused her a divorce and women in Saudi Arabia have no unilateral right to divorce. She fears that if she is returned to Saudi Arabia, her husband will continue to be violent and controlling towards her and he will also forcibly marry their daughters to his male relatives. She holds fears for her daughter [Applicant 3] who has a child out of marriage with her Christian partner in Australia and her daughter [Applicant 4] because of her sexuality.
The delegate accepted that the first named applicant had experienced harm from her husband in the past but did not accept that he had continued to harm her since their separation. The delegate considered that the first named applicant was able to finance the travel and subsistence of herself and her daughters in Australia through money she had inherited and invested and that this was an indication of the liberties she enjoyed in the KSA.
In this regard, the Tribunal has noted the AUSTRAC records showing electronic fund transfers totalling $323,420 from an account held by the first named applicant in Saudi Arabia to her bank account in Australia. At hearing, she confirmed her earlier statements to the delegate that this money formed part of her inheritance and she had transferred it to Australia to support herself and her daughters.
In assessing the claims of the secondary applicants, the delegate did not accept that their father would harm them if they returned to KSA, nor that he would seek to marry them to older relatives as claimed. The delegate considered that [Applicant 4] had not substantiated her claims about her sexuality and the claims about [Applicant 3’s] relationship and were not raised, her child being born some [period] after the delegate’s decision in January 2020. The delegate accepted that the secondary applicants did not accept all aspects of Islam but not that they were atheists.
In assessing the applicant’s claims, the Tribunal has considered the evidence of the applicant and her daughters about their circumstances as well as country information about the status of women in Saudi Arabia. For the following reasons, the Tribunal accepts the first named applicant’s account of her relationship with her former husband to be true.
Firstly, country information supports the applicants’ evidence as to the status of women in Saudi Arabia and the power held by their male relatives under that country’s guardianship laws:
·Consistently with the evidence of the first named applicant, country information indicates that Saudi Arabia operates under a guardianship system, based on a unique interpretation of the Hanbali school of Sunni Islam. First codified into law in the second half of the 20th century, Saudi Arabia’s religious guardianship system is described as ‘uniquely repressive’ even in the context of the violation of religious freedom by many Middle Eastern governments in ways that hurt women.[1]
·The guardianship system, and the consequences of challenging it, are among the systematic, ongoing and egregious violations of women’s freedom in KSA that have caused the United States Commission on International Religious Freedom (USCIRF) to recommend that the US State Department designate KSA a Country of Particular Concern under the International Religious Freedom Act 1998 and to call for a plan to end the guardianship system.[2]
·Initially a woman is placed under the legal guardianship of her father. When she marries, her husband becomes her new guardian. If she divorces or her guardian dies, her guardianship reverts to her father or even a younger brother or a son if she does not have older male relatives.[3] Guardianship laws have been used to justify restricting women’s ability to travel, attend university, marry, or obtain medical care without the permission of a male guardian.[4]
·Many Saudi women have sought political asylum outside the KSA because of poor treatment by their families under guardianship laws, at great risk to their safety. The Saudi government has actively attempted to extradite these women back to the KSA on behalf of their guardians, cancelling and seizing their passports in foreign airports and tracking them on behalf of their families using unique identifiers associated with their cell phones.[5]
·The guardianship system also places significant and systemic barriers before women seeking to escape or obtain protection from family violence including by way of ‘the extreme difficulty of transferring male guardianship from one male to another and the severe inequality in divorce rules [which] makes it difficult for women to escape abuse.[6]
·The Tribunal notes that the delegate did not accept the first named applicant’s claim that she was unable to secure a divorce after her separation from her former husband. However, country information confirms ‘[w]hile a husband can unilaterally divorce his wife, a woman can only petition a court to dissolve their marriage contract on limited grounds’, and must ‘establish [the] harm’ that makes the continuation of marriage ‘impossible’ within those grounds.[7]
·Women may seek a khul divorce, where a man consents to the divorce in exchange for compensation; or a woman can apply to the courts for a fault-based or faskh divorce, which requires her to prove one of the few pre-established grounds for divorce which includes establishing harm that makes the continuation of their shared life ‘impossible’. What constitutes ‘harm’ and what can be used to establish it is left entirely to the discretion of the presiding judge and ‘Saudi lawyers have noted that audio‑visual material, including photos, voice notes, and text messages, which may be the only records of a husband’s abuse that women have, may not be accepted by judges, who often favour items such as medical and police records’.[8]
·Men in Saudi Arabia can still file cases against daughters, wives or female relatives for ‘disobedience’, which have previously resulted in those women being arrested and imprisoned or forcibly returned to their male guardian’s home. In June 2021 the Saudi authorities amended the Legal Pleadings System to remove language that required the immediate enforcement of court decisions to return a woman to her mahram (being her husband or male relative that she cannot marry) but did not issue accompanying guidance to police and other law enforcement agencies, suggesting that women may still face arrests and forcible return to their families following the change in the laws.[9]
[1] Human Rights Watch, Boxed In: Women and Saudi Arabia's Male Guardianship System 16 July 2016
[2] USCIRF Issue Update: Guardianship, Women, and Religious Freedom in Saudi Arabia (uscirf.gov) November 2020
[3] Ibid
[4] Human Rights Watch, Boxed In: Women and Saudi Arabia's Male Guardianship System 16 July 2016
[5] USCIRF Issue Update: Saudi Guardianship November 2020
[6] Human Rights Watch, Boxed In: Women and Saudi Arabia's Male Guardianship System, 16 July 2016
[7] Saudi Arabia: Law Enshrines Male Guardianship | Human Rights Watch (hrw.org)
[8] Ibid
[9] Human Rights Watch World Report 2022: Saudi Arabia at World Report 2022: Saudi Arabia | Human Rights Watch (hrw.org)
In addition to the country information, the Tribunal considers that the first named applicant and her daughters gave credible and corroborative evidence to the Tribunal about their husband and father’s violence towards them both prior to and since the separation, including (in summary):
·He was physically, verbally and emotionally violent towards the first named applicant throughout their marriage of more than 30 years. The first named applicant gave detailed evidence of that violence, some of which is not repeated here to preserve her privacy. Examples already mentioned in the delegate’s decision (and accepted by the delegate to have occurred) include an occasion on which she was stabbed by her husband and another occasion when he had her admitted to a psychiatric institution after finding contraceptive pills in her wardrobe. At the Tribunal hearing, the first named applicant exhibited extreme distress and described herself as having been ‘destroyed’ by her former husband’s violence;
·Even after the separation, the first named applicant was not able to divorce her husband because laws in Saudi Arabia do not permit women to divorce their husbands, nor do they intervene to protect women who are subjected to violence by their husbands. Despite moving into his [relative’s] house, he kept a key to the house and came and went as he pleased;
·Their husband and father was physically violent towards his daughters, controlling their movements and requiring them to obtain his permission to leave the house for any reason. He did not allow the first named applicant to attend her brother’s funeral and arranged each of his daughter’s marriages to male family members against their will, bar the youngest;
·Their husband and father did not support his daughters’ education except on terms set by him. While he initially consented to the first named applicant accompanying their daughters to Australia to study, he is angry that they haven’t returned to Saudi Arabia to marry as planned and they have blocked all contact from him for several years;
·In April 2019, [Applicant 2] travelled to [Country 1] to meet up with friends. Her mother and sisters were reluctant to dissuade her because of her poor mental health. Medical evidence submitted for [Applicant 2] indicates she was admitted to hospital in Melbourne after a suicide attempt in December 2017 and received mental health treatment in 2018;
·Her father discovered [Applicant 2] was in [Country 1] through social media and demanded she return to KSA, threatening to have her forcibly returned if she did not do so voluntarily. The Tribunal notes that at that time, KSA’s guardianship laws concerning ‘absence from home’ (taghayyub) permitted a male guardian to enlist the help of the state to return a woman to a male guardian’s home, leading women in KSA to remain in abusive relationships and opening them up to threats and domestic violence;[10]
·[Applicant 2] returned to KSA where her father refused to allow her out as punishment for leaving Australia without his permission. He informed her of her imminent marriage to his middle-aged cousin who was already married. She persuaded him to travel with her to Australia to collect her mother and sisters before the wedding. While in [transit] on their way to Australia, she waited until her father was drunk and asleep and stole his credit card to book an earlier flight to Australia, travelling to the airport where she boarded a plane to Australia alone and without her father’s knowledge. After arriving in Australia, she blocked her father and has had no further contact with him since then. The Tribunal viewed [Applicant 2’s] passport at the hearing, and the stamps on that passport support her claimed travel history. [Applicant 2], her mother and sisters each gave consistent evidence of this event, and the Tribunal accepts that it occurred as described;
·Their husband and father has threatened and harmed his daughters while they have been in Australia. In a series of text messages provided to the Department in which he argues with [Applicant 2] about money, he accuses her of always wanting to destroy things and demands that she come back and he wishes her travel had never happened. The Tribunal has also heard credible evidence of serious assaults and threats towards [Daughter A] in the related case.
[10] United States Commission on International Religious Freedom Issue Update: Guardianship, Women, and Religious Freedom in Saudi Arabia (uscirf.gov) November 2020

On the evidence before it, the Tribunal is satisfied that each of the applicants have experienced serious physical and mental harm from their husband and father, both during the period in which he was married to the first named applicant and since their separation. The Tribunal accepts that despite that separation, he remains the male guardian of each of the applicants under Saudi Arabia’s guardianship laws. In his capacity as their guardian, he has subjected them to physical abuse and restricted their travel and movements. In the case of the secondary applicants, he has also limited their educational opportunities and sought to force them into marriages against their will.
[Applicant 4] gave evidence, corroborated by her mother and sisters, that she lives openly as a lesbian woman in Australia. She became aware of her sexuality as a teenager and was bullied at school due to the way she looked and dressed. After cutting her hair short, she was suspended from school for two weeks and beaten and forced to wear a hijab by her father. She was told that if she cut her hair again, she would be expelled from school. In Australia, she has had intimate relationships with women and has attended gay venues and pride events and [detail deleted]. [Applicant 4] provided the Department with photographs of herself and a woman with whom she has had a relationship in Australia. The Tribunal accepts that [Applicant 4] is a lesbian woman as claimed.
[Applicant 3] did not attend the Tribunal hearing, and the Tribunal was advised that she was looking after her baby. A birth certificate issued by Victoria’s Registry of Births, Deaths and Marriages records that [Applicant 3] gave birth to a child in [specified year]. The father of that child is named on the birth certificate and their relationship is recorded as ‘domestic relationship’. The Tribunal accepts that [Applicant 3] is in a de facto relationship with a man in Australia and that they have a child together.
Future risk of harm
While the first named applicant has had no contact with her husband since 2017 or 2018, the Tribunal is satisfied that this is only because she has been in Australia since that time. The other applicants have not had contact with their father for a few years, after blocking him on their social media apps. The exception is [Daughter A], who received the message described above from her father on a messaging app after a period of no contact for several years.
The Tribunal accepts that should the applicants return to Saudi Arabia, they would not be able to avoid their husband and father who remains their legal guardian in that country. In making that assessment, the Tribunal notes that even following reforms to Saudi Arabia’s guardianship laws in 2019 and 2022, discussed below, the influence of the male guardian remains pervasive throughout a woman’s life. A woman cannot choose her male guardian, rather the law defines the order by rank, beginning with her father.[11]
[11] Amnesty International Saudi Arabia codifies male guardianship and gender discrimination 9 December 2022
Given the extent of the harm he has perpetrated on each of them in the past, as well as the content of the messages he has sent to his daughters while they have been in Australia, the Tribunal accepts there is a real chance he will seek to harm them if they return to Saudi Arabia, now or in the reasonably foreseeable future. The Tribunal accepts that harm may include serious physical abuse, the restriction of their movements and actions and attempts to coerce or force his daughters into marriage.
The behaviour that the applicants have experienced from their husband and father is properly characterised as family violence, a complex pattern of violent and abusive behaviours that seek to isolate, degrade, exploit, and control victims. Family violence often takes place between intimate partners but may also occur between immediate and extended families and other communal or extended kinship relationships of mutual obligation or support. While family violence can affect a person irrespective of gender, it is widely acknowledged that women are significantly more likely than men to experience family violence.[12]
[12] Australian Government Attorney General’s Department, Australian Institute of Judicial Administration, University of Queensland & University of Melbourne National Domestic and Family Violence Bench Book June 2021 at 3.1 Contents - National Domestic and Family Violence Bench Book (aija.org.au)
In this case, the gendered nature of the violence directed at the applicants by their husband and father is clear. While there have been various triggers for the abuse suffered by the applicants (for example, their perceived disobedience in failing to return to KSA and blocking his calls and messages), it has its genesis in his beliefs about the role and status of women and his right to dominate them, reinforced and facilitated by Saudi Arabia’s system of male guardianship. For these reasons, the Tribunal considers that the harm the applicants fear from their husband and father is directed at them for the essential and significant reason of their membership of the particular social group ‘women in Saudi Arabia’. The Tribunal considers that the group of ‘women in Saudi Arabia’ is identifiable by the characteristics of gender and nationality and the common characteristics or attributes are not a shared fear of persecution. Therefore the Tribunal is satisfied that the harm feared by the applicants is for reason of their membership of a particular social group for the purpose of s 5J(1)(a).
Effective protection measures
A person will not have a well-founded fear of persecution if effective protection against the persecution could be provided by the state. Section 5LA provides that effective protection measures from the relevant state are taken to be available if the person can access the protection; the protection is durable; and the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
It is important to acknowledge that there have been reforms to Saudi Arabia’s guardianship system since the lodgement of the protection visa application in 2018 and further reforms since the delegate’s decision on 15 January 2020:
·As recorded in the delegate’s decision, in 2019 the KSA introduced a number of royal decrees which removed some guardianship restrictions, including enabling women to obtain passports and travel without the permission of their guardians.[13]
·In June 2021, the Saudi authorities amended the absenteeism law, allowing unmarried, divorced or widowed women to live alone without the consent of the male guardian. Under the previous absenteeism law, guardians could report the unauthorised absence of anyone under their guardianship, which could lead to their arrest, detention or forcible return.[14]
·In March 2022, Saudi Arabia passed its first Personal Status Law (PSL), covering matters related to family life that had previously been subject to the discretionary application of sharia law. These reforms reportedly remove many of the restrictions under the guardianship system, granting women many of the same rights as men in relation to travel, civil status and employment.[15]
[13] Country information cited at page 10-11 of the delegate’s decision
[14] US Department of State 2022 Country Reports on Human Rights Practices: Saudi Arabia at Saudi Arabia - United States Department of State
[15] Amnesty International Saudi Arabia codifies male guardianship and gender discrimination 9 December 2022; Saudi Arabia: Law Enshrines Male Guardianship | Human Rights Watch (hrw.org)
Despite these reforms, women continue to face discrimination under KSA law. The influence of the male guardian remains pervasive throughout a woman’s life, as only men can be legal guardians and only women require the consent of a male guardian to marry and for the marriage contract to be validated. A woman cannot choose her male guardian, rather the law defines the order by rank, beginning with her father.[16]
[16] Amnesty International Saudi Arabia codifies male guardianship and gender discrimination 9 December 2022; Saudi Arabia: Law Enshrines Male Guardianship | Human Rights Watch (hrw.org)
Observers note that the new PSL codifies many of the discriminatory practices of the male guardianship system. For example, women still require their male guardian’s permission to marry. Married women are still required to obey their husbands in a ‘reasonable manner’ and a husband’s financial support is specifically contingent on his wife’s ‘obedience’ and she loses her right to such support if she refuses to have sex with him, live in the marital home or travel with him.[17]
[17] Ibid
It is also reported that the PSL does not adequately protect women from family violence, and the male guardianship system enables abuse by giving men control over critical aspects of their lives; limiting their ability to end their marriages and locking them into abusive situations due to the difficulties of transferring guardianship.[18]
[18] Saudi Arabia: New Personal Status Law Codifies Discrimination Against Women - Amnesty International; Saudi Arabia’s Houses of Horror for Disobedient Women - New Lines Magazine
As noted in the delegate’s decision, male relatives can still obstruct women who defy their wishes through legal and informal avenues and the level of freedom available to women largely depends on their male guardian. For those belonging to conservative families, the guardianship system continues to create serious obstacles.[19]
[19] Country information cited at page 10-11 of the delegate’s decision
While there have been improvements in the manner in which the KSA authorities are reported to investigate and prosecute domestic violence perpetrators, laws and procedures are not clearly defined with the result that some police departments continued to neglect domestic violence cases and enforcement varies from one government body to another. Investigators of domestic violence are also reported to be hesitant to enter a home without permission from the male head of the household, who may also be the perpetrator of violence.[20] Some government and non-government entities continue to require permission from a woman’s guardian before providing services, particularly in rural areas.[21]
[20] US Department of State 2022 Country Reports on Human Rights Practices: Saudi Arabia Saudi Arabia - United States Department of State
[21] US Department of State 2022 Country Reports on Human Rights Practices: Saudi Arabia at Saudi Arabia - United States Department of State
While steps in recent years to reform the guardianship system are described as promising, USCIRF considers the religious guardianship system and its harmful effects remain an ongoing institutional obstacle to equality for Saudi women. It reports the Saudi government has also committed egregious violations against women who challenge guardianship laws or try to flee the country when life under such a system becomes unbearable including arrest, imprisonment and torture including gendered mistreatment such as being photographed naked, forced to perform sexual acts and being sexually assaulted.[22]
[22] USCIRF Issue Update: Saudi Guardianship November 2020
In this case, the perpetrator of the harm feared by the applicants is their husband and father, who is also their guardian. Given his propensity to harm them together with the powers given to him by Saudi Arabia’s guardianship laws, the Tribunal accepts that effective state protection is not accessible to them and the harm they fear extends across all areas of Saudi Arabia for the purposes of s 5J(1)(c). Therefore they are not excluded from having a well‑founded fear of persecution by the operation of s 5J(2).
For these reasons, the Tribunal finds that the applicants meet the definition of a refugee. Therefore they are each persons in respect of whom Australia has protection obligations and they satisfy the criterion set out in s 36(2)(a).
In these circumstances, it is not necessary for the Tribunal to go on to consider the applicants’ other claims for protection.
CONCLUSION
For the reasons given above, the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants satisfy the criterion set out in s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.
Alison Murphy
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 2547

2 June 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Statutory Construction

Remedies