2001195 (Refugee)

2001195 (Refugee) [2023] AATA 2550 (2 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Latifa Al-Haouli (MARN: 1175724)
CASE NUMBER: 2001195

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 applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 02 June 2023 at 10:19am
CATCHWORDS
REFUGEE – protection visa – Saudi Arabia – particular social group – women – victim of family violence – victim of sexual assault – honour killing – guardianship system – forced marriage – mental health issues – restricted movements – effective 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 applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Saudi Arabia, applied for the visa on 24 December 2015. The delegate refused to grant the visa on the basis she considered that the applicant was not owed protection by Australia.
The applicant appeared before the Tribunal on 17 April 2023 to give evidence and present arguments. The Tribunal also received oral evidence from her mother and three sisters in a related proceeding (2001193). While the hearings were not combined for privacy reasons, the claims and evidence in the related proceeding corroborate those in the current proceeding and the parties have agreed that the evidence of the applicant’s mother and sisters in the related proceeding be considered as evidence in this proceeding. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The applicant was 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 the applicant 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 applicant is a national of Saudi Arabia. The Departmental file contains a copy of her passport issued by the Kingdom of Saudi Arabia (KSA) and Saudi Arabian passports have also been provided in respect of her mother and sisters. She has at all times stated that she is a citizen of Saudi Arabia and she has been accepted as such by the Department. The Tribunal finds that the applicant is a national of Saudi Arabia and has assessed her claims against that country as her country of nationality and the receiving country.
The applicant’s personal background
The applicant is [an age]-year-old female born in Jeddah, Saudi Arabia.
She is the eldest of four sisters whose parents separated while she was still in [school]. Since the separation her father has lived separately from her mother but retains a key to and a room in the house the applicant shared with her mother and sisters. The applicant also has [step-siblings] from her father’s first marriage, but has had very limited contact with them over her lifetime.
After completing high school, she undertook [a subject] and English language studies before undertaking technical and vocational studies in [a named city]. She was granted a student visa to study in Australia, arriving in July 2012. She received a scholarship from the KSA for her Australian studies.
She was accompanied to Australia by her father and guardian, [named]. He remained in Australia for approximately four months apart from a period of about two-and-a-half weeks when he returned to Saudi Arabia in September 2012. Since the end of 2012 he has come to Australia for only two brief periods in June 2015 ([number] days) and December 2015 ([number] days).
The applicant returned to Saudi Arabia for a month in 2014 and a month in January 2016. She has only otherwise departed Australia for a few weeks in August 2016, when she joined her mother and sisters in [Country 1].
The applicant did not complete her Australian studies because of mental health issues she developed on her arrival and continues to experience.
The Tribunal accepts the above matters to be true.
The applicant’s claims for protection
The applicant claims that if returned to Saudi Arabia, she will face serious harm from her father who has been violent towards her in the past and who is her legal guardian under Saudi Arabian guardianship laws. She will also face forced marriage to her cousin and serious harm including honour killing from her husband, father and other male relatives when they discover she has been sexually assaulted and is not a virgin. It is submitted that she has a well-founded fear of persecution for reasons of her membership of the particular social group of ‘female rape victims in Saudi Arabia’; ‘women in Saudi Arabia’ and her status as a domestic violence victim.
The delegate’s decision
The delegate accepted that the applicant had been the victim of a serious sexual assault in KSA. She also accepted that the applicant had been harmed by her father in the past, prior to her parents’ separation. She accepted that the applicant did not agree with some aspects of Islam and questioned the Islamic beliefs and traditions governed by sharia law in KSA. It was further accepted that the applicant may have experienced some degree of societal discrimination in that country because of her gender. The delegate cited country information about the guardianship laws in KSA and accepted the applicant remains under the legal guardianship of her father.
However the delegate did not accept that the applicant had been harmed by her father since he separated from her mother and commenced living separately from the family, nor that there was a real chance she would face harm from her father or male relatives in the future. The delegate did not accept the applicant is at risk of being forcibly married if returned to KSA, nor that her subsistence is threatened. Rather the delegate considered that the applicant had not lived with her father for approximately 10 years, that he did not intend to reside with the family again in the future and that he had allowed her to study in Australia. The delegate referred to financial information indicating that the applicant’s father was providing her with some financial assistance, considering that he would not have done so if he were not supportive of her studies. The delegate found that the applicant is from an educated, progressive and privileged family; that she is financially supported by her mother and that she has travelled and lived without a guardian in a foreign country (being Australia).
In relation to the applicant’s claims of fearing harm including honour killing as a victim of sexual assault, the delegate accepted that sexual assault had taken place and the country information supported her claim that she could be accused of a moral crime for not being a virgin. However the delegate was not satisfied that the applicant’s personal circumstances put her at risk of harm as the assault was known only to the applicant and her mother.
Findings of fact
The Tribunal accepts the applicant was the victim of violent sexual assault in the KSA shortly before travelling to Australia. The applicant provided a detailed account of that assault in her written claims and at the departmental interview and the details are recorded at length in the medical evidence provided to the Department and the Tribunal. The delegate accepted that sexual assault took place as claimed and it is not necessary for the Tribunal to reproduce the details here.
At hearing the applicant confirmed that she had told her mother in broad terms that something terrible had happened to help her understand why she was so depressed, but she has not told her the details because she doesn’t want to break her mother’s heart. She is certain her father does not know about the sexual assault, because if he did know she wouldn’t be alive today. She has been receiving mental health treatment related to that sexual assault for much of the period she has been in Australia as evidenced by the medical reports provided to the Department and Tribunal. The Tribunal accepts that assault took place in the manner described by the applicant in her statements accompanying the visa application.
At hearing the applicant gave evidence that her father had been violent and controlling towards her and her sisters all their lives and this had not changed after her mother’s separation from her father. She feared returning to KSA because her father had arranged her marriage to a male relative, and it would be obvious to him after the marriage that she was no longer a virgin. She gave evidence that she had no doubt her father would kill her when he found out.
The Tribunal considers the applicant’s evidence as to her father’s controlling and violent behaviour post-separation from her mother is credible and corroborated by the evidence of her mother and sisters. It is also consistent with the medical evidence that spans a period of almost a decade. Further it is consistent with country information about the position of women in Saudi Arabia and the impact of the male guardianship system. For the reasons that follow, the Tribunal accepts the applicant’s account of her father’s conduct towards her in Saudi Arabia and Australia.
Firstly, there is a significant amount of credible evidence as to the violence the applicant and her mother and sisters experienced at the hands of their husband and father. The applicant, her sisters and their mother each gave credible evidence to the Tribunal about her father’s violence towards them in both Saudi Arabia and Australia, including (in brief summary):
·The applicant’s father was physically, verbally and emotionally violent towards the applicant’s mother throughout their marriage of more than 30 years. The applicant’s mother has given 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. At the Tribunal hearing the applicant mother exhibited extreme distress and described herself as having been ‘destroyed’ by her former husband’s violence;
·The applicant’s father was also 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 applicant’s mother to attend her brother’s funeral and arranged each of his daughter’s marriages to male family members;
·The applicant’s father was forced to leave the family home by her mother after he was jailed due to debt issues. This was possible because the family home had been inherited by the applicant’s mother after her own father died. The applicant’s mother was not able to divorce him 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 sister’s house, the applicant’s father kept a key to the house and came and went as he pleased. The applicant gave evidence that at times they saw him often and other times he would stay away for longer periods. He continued to be violent and controlling towards the applicant and her sisters after the separation, letting himself into their home whenever he wished;
·The applicant’s father did not support the applicant’s education except on terms set by him. The applicant wanted to study [a professional course] at university after finishing high school but he viewed that as an excuse for her to work with men. He allowed her to undertake technical studies but not professional studies in Saudi Arabia. He was against her studying overseas until he realised that the KSA would pay him a stipend to accompany her to Australia as her guardian as part of her scholarship. He did not wish to remain in Australia to look after her and returned to KSA after a couple of months. When the KSA stopped paying him the stipend for being her guardian in Australia, he returned to Australia a few weeks later so that the payments would recommence. The payments ceased permanently when he departed Australia again towards the end of 2012;
·When the applicant’s father was living with the applicant in Australia during the early months of her studies in 2012, a male student delivered study notes to her door, causing her father to beat her with [an object]. On other occasions during that period he threatened that if she didn’t obey him he would provide the university with a report he had obtained from an Arab doctor showing that the applicant had transmissible diseases such as hepatitis and blood diseases, in order to force the university to expel her. He never showed her the report he claimed to have and she does not know if it was real;
·His drinking escalated during his time in Australia to a point that she rang her uncle and her step-brother in Saudi Arabia begging them to help by forcing him to return to and remain in the KSA. They refused to intervene, telling her she didn’t need to study and she shouldn’t be in Australia anyway. After he departed Australia her father asked members of the Saudi community in Australia to watch her and she got a message on social media from a man who threatened to give information about her to her father;
·The applicant’s father arranged her marriage to her cousin [Cousin A] not long after she arrived in Australia and all the family are aware of this. [Cousin A] is already married and is not concerned about how long it takes for the applicant to return to KSA and marry him. The applicant’s mother confirmed in her own evidence that her former husband has arranged marriages for each of her daughters except the youngest and that neither she nor they can refuse those marriages. The applicant will not consent to the marriage;
·While the applicant’s father initially consented to his daughters studying in Australia, he is now angry that they haven’t returned to Saudi Arabia to marry as planned and they have blocked all contact from him for several years;
·The Tribunal notes that the applicant’s father provided her with some financial assistance during her studies. AUSTRAC records show that he transferred sums totalling approximately $9000 to her between April 2013 and December 2015. The Tribunal does not consider this to be inconsistent with the applicant’s broader claims, noting that she has always acknowledged that her father permitted her to travel to Australia to commence her studies. Indeed it would not have been legally possible at that time for the applicant to obtain a passport or depart Saudi Arabia without her father’s consent because the laws at the time required a woman’s guardian to apply for and receive a passport for the woman.[1] The Tribunal notes that financial support ended eight years ago, prior to the total breakdown of the relationship between her father and his wife and daughters. The Tribunal does not consider her father’s past financial support to be inconsistent with the evidence of the applicant and her family members as to the control he exercised over them;
·The applicant has not had direct contact with her father since he was last in Australia at the end of 2015. In the second half of 2022, he sent her a message on an [app] threatening her. At hearing the applicant showed me the untranslated message on her phone, saying it referred to the two girls in Sydney who died. A screenshot of the message shows photographs of Asra and Amaal Abdullah Alsehli, which were widely circulated in the Australian media in 2022 after their bodies were found in an apartment in Sydney. Their deaths were reported to be suspicious in nature as their cause of death could not be ascertained and they were reportedly seeking asylum in Australia.[2] An English language translation of the message in the screenshot provided to the Tribunal after the hearing states:
You deleted me from there, did you think I wouldn’t reach you! Is the picture scary? It’s going to become real, I swear to God I’m going to slaughter you, bury you and no one will know, I’m coming soon and will see you [at 7:26pm]
This is your fate and its going to be with my own hands [at 7:26pm]
·Medical records detailed below show that the applicant was being treated for major depressive disorder and anxiety at that time and that she was admitted to hospital after attempting suicide in August 2022.
·The applicant’s evidence as to her father’s behaviour towards her is consistent with the evidence of his behaviour towards her mother and sisters in the related proceeding. For example in April 2019, [Sister A] travelled to [Country 2] to meet up with friends. Her father discovered [Sister A] was in [Country 2] 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, a male guardian was permitted to demand the return of a female to whom he was guardian and the Saudi authorities facilitated such returns;[3]
·[Sister A] 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 [a country] 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 [Sister A’s] passport at the hearing and the stamps on that passport support her travel history as claimed. [Sister A], her mother and sisters each gave consistent evidence of this event and the Tribunal accepts that it occurred as described;
·Their father has threatened his daughters while they have been in Australia. In a series of text messages provided to the Department he argues with [Sister A] about money, he accuses her of always wanting to destroy things; demands that she returns and says that he wishes her travel had never happened. Both [Sister A] and [Sister B] gave evidence that it was very common for their father to threaten them and physically harm them before they ceased contact with him.
[1] Country Reports on Human Rights Practices for 2018 - Saudi Arabia, US Department of State, 13 March 2019, Section 2.d, pages 33-34; Boxed In: Women and Saudi Arabia’s Male Guardianship System, Human Rights Watch, 16 July 2016, p.21
[2] Bodies of Saudi asylum seeker sisters found dead in Sydney repatriated to country they fled | New South Wales | The Guardian
[3] USCIRF Issue Update: Saudi Guardianship November 2020

Secondly, the applicant’s medical records corroborate her family history. She has been receiving mental health treatment throughout her time in Australia and there is significant medical evidence before the Tribunal:
·[Psychologist A], psychologist, provided a report in November 2015, after the applicant was referred to her for treatment by student support services at [her] University where the applicant was studying. [Psychologist A] diagnosed the applicant with post- traumatic stress disorder and notes, among other things, the applicant’s fear of her father; his strictness towards his daughters and her fears of an honour killing because of the shame she has brought to her family as a victim of sexual assault;
·Between June 2020 and October 2022, the applicant received psychological counselling from [Agency 1] after being referred by her GP for symptoms including persistent and severe sleep difficulties; repeated expressions of hopelessness; intense and persistent emotional distress and a suicide attempt which required admission to hospital and support by a community mental health team. She was diagnosed with major depressive disorder and anxiety and was seen regularly by a counsellor in [named location]. In August 2022, the applicant again attempted suicide and was admitted to hospital before being discharged with a referral to [Agency 2]. A copy of the Emergency Medical Discharge Summary from [Health Service 1] dated 7 September 2022 confirms she was admitted to hospital after an intentional overdose;
·A report from a counsellor at [Agency 3] dated 22 March 2023 states that she has been receiving treatment from that service since November 2022. That report notes the applicant’s history of trauma; fear of her father’s violence towards herself, her mother and her sisters and his ongoing attempts to join them in Australia.
Thirdly, independent country information confirms the applicant’s evidence as to the status of women in that country and the power held by their male relatives under that country’s guardianship laws:
·United States Commission on International Religious Freedom (USCIRF) reports that the Saudi guardianship system is based on a unique interpretation of the Hanbali school of Sunni Islam and justify restricting women’s ability to travel, attend university, marry, or obtain medical care without the permission of a male guardian. Initially 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.[4]
[4] USCIRF Issue Update: Saudi Guardianship November 2020
·Country information indicates that initially a woman is 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.[5]
[5] Human Rights Watch, Boxed In: Women and Saudi Arabia’s Male Guardianship System, 16 July 2016
·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.[6]
·Information cited in the delegate’s decision indicates that women continue to face significant discrimination under law and custom as well as widespread exclusion. The Saudi state essentially treats women as permanent legal minors, up until recently requiring them to obtain permission from a male guardian to travel, marry, work or access healthcare. In 2019, the KSA introduced a number of royal decrees which removed some guardianship restrictions, including by enabling women to obtain passports and travel without the permission of their guardians. However experts say male relatives can still obstruct women who defy their wishes through legal and informal avenues and some aspects of the guardianship system remain intact, including the requirement for permission to marry. The level of freedom available to women largely depends on their male guardian and for those belonging to conservative families, the guardianship system continues to create serious obstacles.[7]
·Since the delegate’s decision Saudi Arabia has passed its first Personal Status Law (PSL) in March 2022, covering matters related to family life that had previously been subject to the discretionary application of sharia law. However critics note that the PSL codifies many of the problematic practices of the male guardianship system and entrenches a system of gender-based discrimination including in marriage, divorce and child custody. Under the new PSL 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. While the PSL prohibits a legal guardian’s agreement to a woman’s marriage without her consent, it does not provide any clarity on what consent means or how it should be obtained. A woman cannot choose her male guardian, rather the law defines the order by rank, beginning with her father.[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]
·Premarital sex is taboo in KSA’s conservative society, where virginity is viewed as an absolute prerequisite for marriage. Because an intact hymen is widely seen as evidence of virginity, many women seek out surgeries to restore the membrane, sparking public debate about the permissibility of such surgeries:
One notable fatwa by the prominent Islamic preacher Sheikh Salman Al Ouda argued that hymen restoration procedures were acceptable given the serious consequences some women faced in the event of questions emerging about their virginity.
‘In such a case, it is permissible for her to do it in order to protect herself as well as her life and future. This is a grave social matter that may end up in the murder of women’ Al Ouda said, citing a UN study that found that 5,000 women were murdered annually in so-called honour killings.[10]
[6] USCIRF Issue Update: Saudi Guardianship November 2020
[7] Country information cited at pages 10–11 of the delegate’s decision
[8] Amnesty International Saudi Arabia codifies male guardianship and gender discrimination 9 December 2022
[9] Human Rights Watch World Report 2022: Saudi Arabia at World Report 2022: Saudi Arabia | Human Rights Watch (hrw.org)
[10] Saudi Arabia Religious Police Arrest ‘Virginity Restoration’ Doctor Accused Of Blackmailing Female Patients Online (ibtimes.com)
The Tribunal has had regard to the applicant’s consistent evidence; the corroborating evidence of her family members; the medical evidence submitted to the department and the Tribunal and the country information cited above. The Tribunal accepts the applicant’s father has seriously harmed her in the past and that he remains motivated to do so, having threatened her as recently as 2022 despite the applicant having no direct contact with him for a number of years. The Tribunal accepts that the applicant’s father remains angry at the applicant and her mother and sisters, perceiving them to be disobedient to his wishes that they return to KSA where they will again come under his guardianship.
The Tribunal accepts that as the applicant’s guardian, her father retains considerable power over her life, including the power to bring a disobedience action against her. The applicant will be unable to marry a person of her own choice without his consent and he has already arranged her marriage to a male relative. While the new PSL technically prevents a male guardian from agreeing to a woman’s marriage without her consent, it does not provide any clarity on what consent means or how it should be obtained.[11] The Tribunal accepts that the applicant will not consent to the arranged marriage and that she holds genuine fear of her husband and father discovering she is not a virgin. The Tribunal further accepts there to be a real chance that her refusal to go through with the arranged marriage will cause her father to seriously harm her.
[11] Amnesty International Saudi Arabia codifies male guardianship and gender discrimination 9 December 2022
The abuse that the applicant has experienced from her 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 applicant is clear and has its genesis in his beliefs about the role and status of women and his right to dominate his wife and daughters, reinforced and facilitated by Saudi Arabia’s system of male guardianship. For these reasons, the Tribunal considers that the harm the applicant fears from her father is directed at her for the essential and significant reason of her 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 her 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 by 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 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 pages 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] Ibid
Further 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 pages 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 applicant is her father, who remains her guardian. Given his propensity to harm her together with the powers given to him by Saudi Arabia’s guardianship laws, the Tribunal accepts that effective state protection is not accessible to her and the harm she fears extends across all areas of Saudi Arabia for the purposes of s 5J(1)(c). Therefore she is 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 applicant meets the definition of a refugee. Therefore she is a person in respect of whom Australia has protection obligations and she satisfies the criterion set out in s 36(2)(a).
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
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 2550

2 June 2023

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