2007443 (Refugee)

2007443 (Refugee) [2023] AATA 4526 (23 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2007443
COUNTRY OF REFERENCE:                   Saudi Arabia
MEMBER:David James
DATE:23 October 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 October 2023 at 4:25pm

CATCHWORDS
REFUGEE – Protection Visa – Saudi Arabia – actual and/or imputed political opinion – promoting anti-Saudi regime sentiment – fearing harm from the Saudi authorities –association or communication with Sheikh Safar Al-Hawali’s family – no evidence – not satisfied that the applicant was, or is, of any political interest to the Saudi regime – applicant having ‘outed’ himself on social media –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 91, 411, 423, 499
Migration Regulations 1994, Schedule 2
CASES
ABT16 v Minister for Home Affairs [2019] FCA 836
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
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 17 April 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 the Kingdom of Saudi Arabia (Saudi Arabia), applied for the visa on 29 July 2019. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act and was therefore not satisfied that the applicant was a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Saudi Arabia, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore, the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the Tribunal) on 24 April 2020. The applicant provided a copy of the delegate’s decision with their application for review.
As noted above, the applicant provided a copy of the delegate’s decision with their application for review. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicant a protection visa having considered the material before the delegate. The Tribunal is satisfied that decision of the delegate is reviewable under s 411(1)(c) of the Act.
The applicant appeared before the Tribunal on 12 October 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The applicant was not represented in relation to the review.
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.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even when the possibility of persecution is below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
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.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.
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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Issues
The issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicant was returned to Saudi Arabia, they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Saudi Arabia, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Documentary evidence before the Tribunal
The Tribunal has before it documents submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection, which includes (but is not limited to) the following documents which have been considered by the Tribunal:
·The applicant’s protection visa application submitted on 29 July 2019, and the following listed annexed supporting documents:
oALQST Human Rights letter of support, dated 20 February 2019;
oCountry information media articles including a CNN article and a Financial Times article;
oApplicant’s cancelled Saudi Arabian passport, issued [2013] and expiring [2018];
oApplicant’s current Saudi Arabian passport, issued [date] 2019 and expiring [date] 2023;
oLetter from the [position] of the [Police] Group, dated 5 August 2018 stating that the Manager of [Bank 1] requests that [a named person] visit for discussions with the Follow-up and Collections Department with the borrower [the applicant];
oSupport letter from Prisoners of Conscience [Social Media 2] handler, dated 25 June 2019 confirming the applicant has been in continuous contact with them and helping them since July 2018 in relation to delivering news of the detention of Sheikh Safar Al-Hawali;
oScreenshots of untranslated social media postings from a variety of sources and/or authors;
oScreenshots of untranslated [Social Media 1] media postings from a variety of sources and/or authors;
oScreenshots of purported messages on [Social Media 1] between [Mr A]and [Mr B] dated (purported time stamp)12 July 2018;
oCopy of the front of the applicant’s Queensland Driver’s license.
·The applicant’s application for review (24 April 2020) and the attached Decision Record of 17 April 2020;
·The administrative and movement records of the Department relating to the applicant;
·Applicant’s typed written submissions and outline of personal background and social media history and annexed documents including documents attesting to the applicant being the [Relative 1] of Sheikh Safar Al Hawali.
Claims for protection
The applicant in his visa application made the following claims (as summarised) that:
·He is the [Relative 1] of Sheikh Safar Al-Hawali, a known and influential critic of the Saudi Arabian government. In the 1990’s the Sheikh was imprisoned for advocating against the ideals and policies of the government. In 2018 the Sheikh published a book that was highly critical of the royal family, following which he was imprisoned along with his three eldest sons. The arrests continued with the Sheik’s youngest son, his brother and his three children also being arrested.
·His father was warned to stay silent for the benefit of his family and forced to sign an undertaking to bring any of the applicant’s family members to the government if requested in exchange for the release of the Sheikh’s youngest son;
·His brother received a letter from the government (Navy) to arrange for the applicant’s return and his brother later resigned from his naval position, stating to the applicant that the resignation was attributed to the applicant and that if he (the applicant) returned he would personally take him straight to prison;
·He believes that this was an implicit warning for him not to return;
·He is unsure of the true reason for his brother’s resignation from the Navy;
·He noticed that he was being observed by other Saudi students in Australia and by virtue of his scholarship (Saudi Arabian) he was required to attend regular club meetings with other Saudi students, and he believes that such meetings are conducted to survey the students whilst they study abroad with any concerns being reported back to the Saudi government;
·He became suspicious of a particular student who took an interest in the Sheikh and would prompt the applicant to provide his personal opinions of his ‘[Relative 2, the Sheikh’s] work, he believes that this student had been solicited to approach him and extract information from him; and
·He has been active on social media platforms, particularly [Social Media 2] where he has posted information critical of the Saudi government including a video he claims as gone viral.
Department interview
The applicant was interviewed by the Department on 25 May 2019. During the interview the applicant further claimed that:
·Following his ‘[Relative 2]’s’ imprisonment in 1993, his family changed their family name from Al-Hawali to [the applicant’s family name, Family Name 1];
·He was informed about his ‘[Relative 2]’s’ and cousin’s arrests from family members through [Social Media 1] on 12 July 2018;
·On 12 July 2018 or a day after, he called his cousin Abdulrahim Al-Hawali, minutes before his cousin was arrested by Saudi authorities;
·He has two public [Social Media 2] accounts registered in pseudonym names under the tags of [Name 1] and [Name 2];
·He has never made his own comments (adverse to the Saudi regime) on his public [Social Media 2] accounts and all his communications with Saudi activists and the Prisoners of Conscience and ALQST for Human Rights have been through private social media messaging and platforms; and
·His [Social Media 2] hashtag condemning unlawful arrests in Saudi Arabia was televised on [a] news channel.
Delegates decision
The delegate’s decision of 17 April 2020 to refuse the protection visa was made on the information before the delegate. The delegate accepted that the applicant has [Social Media 2] accounts and that he has privately communicated with Saudi activists. However, the delegate did not accept the applicant’s claims in relation to fearing harm from the Saudi authorities due to his association or communication with Sheikh Safar Al-Hawali’s family. Therefore, the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and therefore was not a refugee. The delegate for the same reasons was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Saudi Arabia, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Invitation to attend hearing
On 14 September 2023 the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 12 October 2023 at 9:30 am. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to their application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice.
Country information
The Tribunal notes that the United States Department of State, Bureau of Democracy, Human Rights and Labour in their 2022 Country Report on Human Rights reported that:
NGO’s and press sources reported that authorities regularly detained persons for peaceful activism, government criticism, or political opposition, including nonviolence religious figures, women right’s activists, human rights defenders, and those who the government claimed posted or shared offensive or critical comments on social media. The government nonetheless claimed it held no political prisoners, including detainees who reportedly remained in prolonged detention without charge, while local activists and human rights organisations estimated that political prisoners numbered in the “hundreds”’ or “thousands”.[1]
[1] Saudi Arabia 2022 Human Rights Report, United States Department of State, Bureau of Democracy, Human Rights and Labour, at page 20
Under the heading of ‘Threats, Harassment, Surveillance, and Coercion’ it was reported that:
According to Reporters without Borders (RSF), journalists live under heavy surveillance, even when abroad. RSF states that “electronic brigades” active on social networks hunt and harass journalists, and the government uses high-tech espionage tools to monitor journalists in exile.[2]
[2] Ibid at page 23
Later under the heading of ‘Freedom of Expression’ it was reported that:
The government monitored public expressions of opinion and used legal controls to impede the free expression of opinion and restrict individuals from engaging in public criticism of the government…The government prohibits public employees from directly or indirectly engaging in dialogue with local or foreign media participating in any meetings intended to oppose state policies.[3]
Under the heading of ‘Internet Freedom’ it was reported that:
…The government reportedly collected information concerning the identity of persons peacefully expressing political, religious, or ideological opinions or beliefs online. According to Freedom House, authorities regularly monitored nonviolent political, social, and religious activists and journalists in the name of national security and maintain social order.[4]
And under the heading of ‘freedom of Movement and the Right to Leave the Country’ it was reported that:
The law does not prohibit internal movement, emigration, or repatriation of male citizens. The Government imposes some restrictions on foreign travel…
Foreign Travel: The government regularly restricts foreign travel, especially for human rights defenders, women’s rights activists, and those perceived as critical of the government, as well as their families. In addition, travel documents allowing international travel are unavailable to the Kingdom’s tens of thousands of stateless residents.
The government reportedly confiscated passports for political reasons and revoked the rights of some citizens to travel, often without providing them notification or opportunity to contest the restrictions. Courts regularly imposed travel bans as part of criminal sentencing, restricting an individual’s ability to leave the country after being released from prison. Travel bans reportedly were imposed against individuals being prosecuted for charges related to state security, corruption, labour, financial, or real estate disputes, in addition to other crimes.
Activists, media, and rights groups alleged government used travel bans as part of a broader effort to suppress dissent. Activists estimated thousands of citizens were under travel restrictions, including released activists, relatives of citizens detained in the governments’ anticorruption campaign, and relatives of detained clerics and human rights activists.[5]
[3] Ibid at page 29
[4] Ibid at page 33
[5] Ibid at page 38
The Tribunal also notes that Freedom House in their report ‘Freedom on the Net 2018’ stated that:
Surveillance is rampant in Saudi Arabia. The Government justifies the pervasive monitoring of nonviolent political, social, and religious activists by claiming that they are protecting national security and maintain social order. The authorities regularly monitor websites, blogs, chat rooms, social media sites, emails, and text messages. After the government announced that it would lift its ban on online voice and video call services in September 2017, authorities claimed that all calls would be monitored and censored by the Communications and Information technology Commission. However, it is unclear whether there is the ability to monitor platforms that use end-to-end encryption, such as WhatsApp.[6]
[6] Freedom on the Net 2018 – Saudi Arabis, Freedom House, November 2018
Alkarama, a Geneva based non-government human rights organisation in their 14 July 2023 article ‘Saudi Arabia: Detention of Scholar Safar Al Hawali Arbitrary, Say UN Experts Demanding His Immediate Release’ reported that:
Safar Al Hawali, his sons Abdullah, Abdulrahman, Ibrahim, and Abdulrahim, and his brother Saadallah were all arrested ( alkarama-requests-urgent-un-intervention-following-arrest-religious-scholar) by the authorities between 11 and 13 July. Safar Al Hawala and his son Ibrahim were arrested on the morning of 12 July when State Security officers arrived in an ambulance and raided their home in the village of Hawala. Safar Al Hawali was blindfolded and both he and his son were taken to an unknown location.
Alkarama stressed that these arrests are a direct consequence of Safar Al Hawali's critical outspokenness against the authorities and constitute a form of collective punishment. Al Hawali had recently published a 3000-page book entitled "Muslims and Western Civilization", in which he criticised the Saudi royal authorities’ foreign policies while offering recommendations.
Furthermore, the arrests came in the wake of a wider and unprecedented crackdown on freedom of expression, which began in September 2017. Since then, hundreds of public figures have been targeted, including scholars, academics and human rights activists, most of whom have been arrested solely for expressing criticism of government policies.
In its opinion the Working Group also urged the Government “to ensure that Mr. Al-Hawali’s relatives do not suffer any reprisals for his activities or for the exercise of their own rights”. The experts have expressed their concerns to the Saudi authorities which did not contest Alkarama’s allegations over the harassment and reprisals against the Hawali family, “in particular the alleged arrests of family members as a form of punishment for his activities”.[7]
[7] Saudi Arabia: Detention of Scholar Safar Al Hawali Arbitrary, say UN experts, demanding his immediate release | Alkarama - hearing – 12 October 2023

The Tribunal hearing was conducted at the Brisbane Registry in the English and Arabic languages. The applicant appeared alone and was the only witness to give oral evidence and present arguments at the hearing.
The applicant sought to take his oath on the Quran by stating his name as [the applicant’s given name with the family name] Al Hawali. However, the presiding Senior Member intervened and asked the applicant to take his oath using his legal name [the applicant’s given name with Family Name 1] as he was known to the Department and the Tribunal.
After the applicant took his oath to tell the truth using his legal name the Tribunal then explained to the applicant that the hearing would consider the applicant’s application for a protection visa afresh. The applicant, when questioned by the Tribunal as to his understanding of the relevant statutory framework and concepts as to the refugee and complementary protection criteria said that he had undertaken his own research and that he understood the criteria.
However, given the applicant did not have representation at the hearing the Tribunal provided a brief outline of the refugee and complimentary protection criteria to the applicant, who then acknowledged that he understood the criteria.
The applicant told the Tribunal that he had obtained the assistance of a law firm in preparing his application for the visa and that they had completed the application for him using his words and what he had told them. He explained that he was familiar with the contents of his application and that he remembered reading it and noting that the information contained in the application was an accurate and truthful account of his claims.
The applicant told the Tribunal that he had arrived in Australia in February 2017 on a student visa through a Saudi government [scholarship]. He said he commenced his studies at [a] University and, after completing half of his first semester, he transferred to [University 1]. He told the Tribunal that his Saudi scholarship included the payment of all of his university, living and accommodation expenses.
He told the Tribunal that he had previously studied in Australia in 2014 and 2015 when he completed [specified] course.
He said that at [University 1] he had started a [degree], but that he stopped his studies in February 2019. He explained that as his grade point average was not sufficient for him to continue with his studies at [University 1], he had been asked to appear before the University’s Review Committee who temporarily suspended him from his studies at the university pending an improvement in his academic results. He said [University 1] had offered to transfer his enrolment to [another] University or another university on the basis of him needing to improve his results so he could later return to [University 1] to complete his scholarship studies.
He said that after being removed from [University 1] he chose not to further complete any university studies, but that he had been awarded a [Diploma] from [University 1] in recognition of the studies he had completed.
The applicant told the Tribunal that he had decided not to complete his studies in [discipline] as he did not believe he would be able to successfully complete his degree. He explained that after he had ceased his studies, he received notification [that] his scholarship including his living allowance had been cancelled. He said he did not have this letter anymore as his mental health at the time of his scholarship being cancelled was not very good and he could not remember what he had done with the letter.
He told the Tribunal that he was stressed at the time of his scholarship being cancelled as he was concerned about going home. He said that for some time he suspected other Saudi students at [University 1] had been monitoring him by asking him about his [Relative 2] Sheikh Safar Al Hawali. It was his belief that these students would often be around him and tried to entrap him by asking him questions about Al Hawali and whether he supported his [Relative 2], who had been arrested together with his sons by the Saudi authorities in July 2018.
When asked when he first experienced difficulties with his studies at [University 1], he told the Tribunal that he had been experiencing difficulties in his first semester at [University 1]. In response to the Tribunal’s query as to whether that was before the arrest of Al Hawali, he told the Tribunal that it was so, and that he was failing some of his subjects prior to the arrest of his [Relative 2] as he was competing with high distinction students.
Under questioning he discussed his family in Saudi Arabia, outlining the careers and family situation of his parents, his father being a retired [military Rank 1]. He also outlined the respective careers, children and marriages of each of his [brothers] and [sisters].
In reply to the Tribunal, he said that none of his siblings or parents had experienced any trouble or adverse attention from the Saudi government, notwithstanding that his father’s [relative] was supposedly the Saudi religious figure, Safar Al Hawali.
When asked if he could provide any evidence of his relationship with Safar Al Hawali and that Al Hawali was in fact his paternal [Relative 2], the applicant told the Tribunal that he had no such information or evidence. He explained that his family was from the Al Hawali tribe of the Al Bahah Region in Western Hejaz. He said that Al Hawali was his family’s traditional village and that his family clan was the Al Hawali clan. He further said that his family still maintains a family home in the [region].
The applicant told the Tribunal that he understood the Tribunal’s concerns as to his claims relating to his family and that he is the [Relative 1] of Safar Al Hawali, as he has no official documents and/or information from his family to support these claims.
He explained that his family had changed their family name from Al Hawali to [Family Name 1] in around 1993 when he was approximatley[age] years old. He said that at that time, his [Relative 2] Safar Al Hawali had been arrested and was imprisoned by the Saudi authorities and his family and other families from the clan had to clear their names and go to the King to disown Safa Al Hawali. He said some families did disown his [Relative 2] and others did not. He said his father had disowned his [relative] Safar Al Hawali, but he did not have any of the details about the circumstances of how his father did this, and how his family then changed their family name.
In reply to the Tribunal, he again said he did not have any documents as to his name change nor did he have his original birth certificate or any other documentation as to his family’s heritage and background.
The applicant said that he had been active on social media especially [Social Media 2] after he had arrived in Australia, especially so after the July 2018 arrest of his [Relative 2] Safar Al Hawali. He said he regularly posted commentary that was critical of the Saudi government. He explained that he used his registered handles (accounts) of [Name 1] and [Name 2] to post information about the Saudi authorities. He said he used these sites so as not to be identified and as such to protect his father, his mother, and his siblings and their families.
Under questioning he conceded that his posts [did] not contain any personal commentary from him, and it did not identify him [by name] as the author and/or the host of these sites.
When questioned as to how he had been identified through his social media postings, he told the Tribunal that one of his postings on [Name 2], in which he appeared had been picked up by [a news outlet] on their news media platform and that later [in] June 2019 he again appeared on [Name 2] in a video he posted, in which he claimed to be [his birth name, with Family Name 1] and the [Relative 1] of Safar Al Hawali. He said that in this video he posted he had produced his Saudi passport and his Saudi driver’s license both of which recorded his [current name]. He told the Tribunal that as this post had recorded over [number] likes and over [number] views, he believed he had self-identified himself or ‘outed’ himself as a critic of the Saudi regime. He said that shortly after he posted the video, he had been told by his mother that the Saudi authorities had called upon his father [in] June 2019. He said the Saudi security officers who had spoken to his father had asked if a member of his family would come to Australia and bring the applicant back to Saudi Arabia.
When questioned as to what evidence he had of this visit by the Saudi authorities upon his father, his reply was that he could only tell the Tribunal that his mother had told him about this in a telephone call on a date that he no longer recalled, and that his father had since disowned him. Under further questioning, he conceded that no other members of his family and/or their respective families had been so contacted by the Saudi authorities since ‘outing’ of himself [on social media in] June 2019.
The applicant under further questioning agreed that he had not earlier raised in his application or told either the Department or the Tribunal that his father had been questioned by Saudi security officers immediately after he had posted this video in which he had identified or ‘outed’ himself. He agreed that this information was ‘new evidence’ and he further explained that there had been a lot of things he has not mentioned and that was because he did not have evidence for them.
In reply to further questioning the applicant then produced his mobile telephone on which he identified his posting [on social media in] June 2019. Upon the request of the Tribunal the applicant then emailed the site of this posting to the Tribunal.
He told the Tribunal that he had been posting anti-Saudi government comments ever since the arrest of his [Relative 2], and cousins in July 2018, and had been in contact with the Saudi opposition in London and Canada, as well as Alkarama, an Arabic rights organisation based in Geneva.
The Tribunal, with reference to the letters of support that the applicant had provided to the Tribunal with his 5 October 2023 submission, questioned the applicant as to how and why he had been referred to as the [Relative 1] of Safar Al Hawali in these letters. The applicant conceded that he had identified himself to these organisations as the [Relative 1] of Safar Al Hawali and that there had not been any independent confirmation and/or documentation provided to these organisations by himself or any other person and/or organisation or authority in which his family heritage and purported family relationship and/or connection to Safar Al Hawali had been confirmed. As such, the Tribunal has given little weight to these documents in so far as they purport to identify the applicant as the [Relative 1] of Safar Al Hawali. However, the Tribunal does accept that these documents support that the applicant had been in contact with these organisations after the arrest of Safar Al Hawali and his sons in July 2018 through his [social media accounts].
It was the applicant’s evidence at the hearing that he had become aware of the arrest Al Hawali and his sons as he had been in contact with his cousin through [Social Media 1] via telephone calls and text messages, and that he had spoken to his purported cousin Abdulrahim Al Hawali at the time of his arrest. The applicant in this regard relied upon screenshots that he had earlier provided to the Department which he claimed evidenced his contact with his cousin Abdulrahim Al Hawali. The screenshots and their English translations identify [Social Media 1] messaging between [Mr A] and [Mr B]. It was the applicant’s evidence that these names were the names used by the applicant and his cousin so as to avoid being identified by the Saudi authorities. However, the applicant was unable to provide any information that supported that [Mr B] was Abdulrahim Al Hawali or that he was the author of any of these messages.
Additionally, the applicant also told the Tribunal that he no longer used [Social Media 1] and had closed his account. As such there is no way to confirm that the screenshots of the purported messages are genuine.
As to the posting [in] June 2019 at [time] on [Name 2], the Tribunal upon review of same found it to be an untranslated 38 second posting in Arabic in which the applicant apparently appears and briefly holds up a passport which, given the distance and resolution of the posting was unidentifiable. The posting as provided to the Tribunal also records that it has had 351 reposts, 27 quotes, 759 likes and 25 bookmarks.
Under questioning the applicant was unable to provide any reasonable explanation in the view of the Tribunal as to why this ‘new evidence’ that his father had been spoken to by the authorities after he had ‘outed’ himself had not been referred to in his application for the visa and/or provided earlier to the Department and/or the Tribunal, given it had been posted [in] June 2019, just over a month prior to his application for the visa.
The applicant’s explanation as to why he had only now provided a link to and the details of his posting, was that he had lawyers complete his application form and although he told them his story, they may not have recorded all of the relevant information in his application. In that regard, the Tribunal highlighted to the applicant that it had been his evidence at the hearing that he was familiar with the contents of his application and that the information contained within it was to his knowledge all true and correct. He further explained that he had not known how he could and/or should respond to the Tribunal’s invitation to attend the hearing, as he could no longer afford lawyers, and that he had been uncertain how to present evidence to the hearing, notwithstanding that he had earlier on 5 October 2023 forwarded his own written pre-hearing submissions to the Tribunal.
Under further questioning, the applicant told the Tribunal that, in the posting where he had ‘outed’ himself [in] June 2019, he had stated in Arabic, words to the effect, ‘that if all we can do is talk, then we should all talk’ and that he had also briefly expressed support for his [Relative 2] Safar Al Hawali.
The Tribunal then questioned the applicant as to why he had sought to identify himself in this posting as a supporter and relative of Safar Al Hawali and potentially placed himself and his family at risk. The applicant told the Tribunal that he needed to express himself, and that it was not about himself, but the greater benefit that his announcement would bring. He further added that he believed that as we can all only speak we should speak, and to do so without violence.
Under further questioning the applicant told the Tribunal that after he had ‘outed’ himself in this posting, he had then realised he could not return to Saudi Arabia. He explained that it was this posting that caused him to fear returning to Saudi Arabia as he believed he would be arrested, imprisoned, and most likely killed because he had self-identified himself as the owner of t[the account] [Name 2] and the [Relative 1] and supporter of his [Relative 2] Safar Al Hawali.
It was put to the applicant that, after his scholarship and allowance had been withdrawn by the Saudi authorities and his Australian student visa was likely to also be cancelled, he had purposedly ‘outed’ himself from Australia so that he could claim it was unsafe for him to return to Saudi Arabia. The applicant in reply acknowledged that it could be so seen as convenient and that he understood the scepticism of the Tribunal, but that he had only made the posting so he could express himself honestly by identifying who he really was, and what his views were as to the Saudi authorities and the unjust treatment of his [Relative 2], Safar Al Hawali.
FINDINGS AND REASONS
The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.
Country of reference
According to the protection visa application, the applicant claims to be citizen of Saudi Arabia and provided a copy of the bio data page of his Saudi Arabian passport. Based on this material the Tribunal finds that the applicant is who he says he is, and a national of Saudi Arabia. Saudi Arabia is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
Analysis
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.
The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[8] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[9] This is consistent with the established proposition that it is for the applicant to make his or her own case.[10]
[8] Section 5AAA of the Act.
[9] Ibid (with effect from 14 April 2015).
[10] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal; that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[11] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[12] and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.
[11] Fox v Percy (2003) 214 CLR 118
[12] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[13] A similar approach is taken in the Department’s Refugee Law Guidelines[14] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[15] which provide useful guidance for this Tribunal.
[13] SZLVZ v MIAC [2008] FCA 1816 at [25].
[14] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[15] UNHCR, re-issued February 2019 at [203]–[204].

The Tribunal found that the applicant was throughout the hearing unable to provide any documents and/or convincing explanation as to the lack of documents or other information that supported his claims of being the [Relative 1] of the Saudi cleric and dissident Safar Al Hawali.
The Tribunal found that much of the applicant’s evidence in support of his claims was vague and without detail and that he had conveniently ‘outed’ himself as a Saudi government critic through a video he posted [on social media] shortly prior to making his application, so that he could rely upon the same as being the critical identification of himself as a critic of the Saudi regime. However, given the low number of reposts, quotes, likes and bookmarks that this post has to date recorded together with the very brief production of his passport on the video the Tribunal is satisfied that the risk that the applicant has been identified through this post and attained an anti-Saudi government profile is most remote and unlikely.
The Tribunal, for the reasons outlined below, finds that the applicant purposely created this basis for his claims of persecution arising from his supposed actual and/or imputed political opinion by ‘outing’ himself as the author of earlier [posts], and his claimed family relationship to the imprisoned cleric Safar Al Hawali.
For the reasons outlined below, the Tribunal finds that the applicant is an untruthful and unreliable witness who has sought to create a perception that he has been politically active in supporting and promoting anti-Saudi regime sentiment, and that he is a supportive family member of the imprisoned Saudi cleric Safar Al Hawali.
Actual and/or Political profile of the applicant
The applicant claims to be the [Relative 1] of the Saudi cleric and dissident Safar Al Hawali who was most recently arrested and imprisoned together with his sons by the Saudi authorities on or about 13 July 2018.
In regard to this claimed family relationship, the applicant claims that as a result of Al Hawali’s earlier arrest and imprisonment by the Saudi authorities in around 1993, the applicant’s family (after disowning his paternal [Relative 2] and pledging loyalty to the King) was permitted and assisted by the Saudi regime to change their family name from Al Hawali to [Family Name 1].
Given the applicant has not produced his original birth certificate or any other official documentation as to his family’s official name change, and that it was his evidence at the hearing that none of his family had ever experienced any negative contact or dealings with the Saudi officials as to his supposed [Relative 2]’s writings and preachings, it is not accepted that the applicant’s family did change their name from Al Hawali to [Family Name 1] with the support of the Saudi regime, so as to avoid being connected and associated with the Saudi cleric and dissident Al Hawali.
Further it seems highly unlikely that if his father had been the [relative] of such a prominent dissident as Al Hawali, as he is described above in the country information, he would have been able to continue in his career as a [senior military commander] and later rise to [Rank 1]. Likewise, it seems most unlikely that one of the applicant’s brothers would have, given this claimed family connection to Al Hawlai, been able to pursue a career with the Saudi Navy.
The Tribunal for the reasons outlined above has rejected in their entirety both the applicant’s claim of a family connection to the Saudi cleric and dissident Al Hawali and the claim of being the [Relative 1] of Safar Al Hawali.
The applicant, with reference to a letter from the Military police to his brother serving in the Saudi Navy, claimed that his brother had been questioned and either encouraged or forced to resign from the Navy because of his family’s connection to Safar Al Hawali. However, the translated version of this document, which has been provided to the Tribunal, does not support this claim.
The contents of the translated version of the document relied upon by the applicant provides a direction and/or request for his brother to attend [Bank 1] with the borrower, the applicant. Under questioning the applicant agreed that the document he relied upon, did relate to a loan in his name which his family has since paid out. It was the applicant’s evidence at the hearing that this letter was the catalyst for his brother’s subsequent resignation from the Navy. However, the applicant was unable to provide any confirmation of his brother’s claimed dismissal or resignation from the Navy, or evidence of any connection between this letter and his brother’s claimed dismissal or resignation from the Navy.
Further, the applicant under questioning at the hearing was unable to explain how a request and/or a direction to attend a bank and discuss a loan was a form of harassment and/or persecution that was aimed at his brother because of the supposed family connection to Al Hawali, especially given it had also been his evidence that none of his siblings had experienced any negative attention from the Saudi authorities either in the past or since the most recent arrest of the cleric Al Hawali in 2018.
In this regard, the Tribunal is not satisfied that the letter from the Military police to his brother [was] motivated by, or evidence of, the applicant and/or his brother having gained an anti-Saudi government profile. The tribunal is also not satisfied that the applicant was, or is, of any political interest to the Saudi regime.
Although the Tribunal accepts that the applicant had been active on social media using his [accounts] of [Name 1] and [Name 2] after the arrest of Al Hawali in July 2018, the [comments] he posted [on social media] through these accounts were predominantly [re-posts] of reports and articles posted by others commenting on the Saudi regime’s human rights breaches and activities. The applicant relies upon the posting of two [posts]: one of his [posts] a video which later appeared on [a news] site in which he is portrayed but not identified; and a further posting of a video [in] June 2019, using his [account], where he ‘outs’ himself by briefly producing his passport. In this video posting [in] June 2019 the applicant claims that he calls for people to speak out and briefly shows his purported passport and purportedly on his evidence (as no translation was provided to the Tribunal of the posting), he expresses his support for the cleric Al Hawali and identifies himself as the cleric’s [Relative 1].
This posting was for the first time identified and produced to the Tribunal at the hearing as the applicant had not previously provided it to the Department or referred to it during his interview with the Department. Notwithstanding that it was his evidence at the hearing that this ‘outing’ of himself on this posting together with the subsequent interview of his father shortly after the posting by members of the Saudi security services was the catalyst for him fearing harm from the Saudi authorities and the reason he later, within about six weeks made his application for protection he did not refer to or produce this posting until the day of his hearing.
The applicant’s explanation for his delay in raising, referring to and producing this posting to the Department and/or the Tribunal and for failing to raise that his father had been questioned by the Saudi authorities after he had posted this video was to the effect that he thought he had told his lawyers about this evidence. He stated that, when his lawyers completed his application for him, they must have failed to include this information in his application. He further explained that when he had been invited to attend a hearing before the Tribunal, he could not afford his lawyers anymore and as such he was uncertain and confused as to how he should present this evidence to the Tribunal, and so had decided to present this evidence at the hearing.
The Tribunal does not accept this explanation as being reasonable for the reasons outlined below. The Tribunal finds that it is implausible that the applicant would fail to raise and/or ensure that this evidence was included in his application and/or later refer to the same in his interview with the Department. Additionally, as to his failure to provide this evidence to the Tribunal prior to the hearing, it is implausible that the applicant would not have recognised the significance of this evidence and have provided this evidence to the Tribunal prior to the hearing given the Department’s refusal of his visa and the contents of the Protection Visa Decision Record.
Given it was the applicant’s oral evidence at the hearing that his ‘outing’ in the [June] 2019 video he posted, together with the supposed interactions between Saudi security officers and his father, were the catalyst for him to fear harm from the Saudi authorities and to make his application for protection, it is simply unbelievable and unexplained as to why he would not have raised this evidence earlier than at the hearing given their obvious significance to his case.
As to this ‘new evidence’ and his conduct in Australia, in so far as the applicant having ‘outed’ himself on social media as both the [Relative 1] and a supporter of the cleric Al Hawali, the Tribunal notes that subject to s 5(J)(6) of the Act, a person may be a refugee in circumstances where the well-founded fear of persecution is a consequence of events that have occurred since arriving in Australia. However, s 5(J)(6) provides that any conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of particular social group or political opinion, unless the person satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening their claim to be a refugee.
For the reasons outlined above, and on the evidence before it, the Tribunal is not so satisfied that the applicant ‘outed’ himself in the video of [June] 2019 which he recorded whilst in Australia and then posted on social media was conduct engaged by the applicant otherwise than for the purpose of strengthening his claim to a be a refugee.
As such, and in accordance with the provisions of s 5(J)(6) of the Act, the Tribunal has disregarded the applicant’s recording and posting of his [June] 2019 statement on social media in making a determination, as to whether the applicant has a well-founded fear of being persecuted for reasons of an actual and/or imputed anti-Saudi regime political opinion.
Additionally, as to the applicant’s claim that, following his posting of this video his father was interviewed shortly after by Saudi security officers, the Tribunal notes that this claim was made for the first time by the applicant at the hearing. Section 423A of the Act, provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made, or evidence not presented before the primary decision was made.
Given the significance of this evidence as outlined by the applicant in his oral evidence in so far as it being together with his social media ‘outing’ of himself, the catalyst for him forming his fears of harm and the reason he made his application for protection, the Tribunal for the reasons outlined above is not satisfied that his explanation for not earlier raising this evidence is reasonable. As such, the Tribunal, in accordance with the provisions of s 423A of the Act has drawn an unfavourable inference about the credibility of this evidence and has rejected this evidence in its entirety as being fabricated and a creation of the applicant so as to bolster his claims of persecution.
DECISION
Refugee criterion
Based on the information before it, the Tribunal rejects the applicant’s claims of fear of persecution in their entirety and having considered all of the applicant’s claims both individually and cumulatively, finds there has been no evidence of persecution or fears of persecution for the reasons provided in s 5J of the Act. The Tribunal, for the reasons outlined above finds that the applicant is not a credible and reliable witness. The Tribunal finds that the applicant does not face a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal finds that the applicant’s fears of persecution are not well-founded as required by s 5J of the Act and therefore, the applicant is not a refugee within the definition of s 5H of the Act.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection
Having concluded the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has also considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
As noted above, the Tribunal is not satisfied that any of the applicant’s claims meet the refugee criterion. Additionally, the Tribunal has found that the applicant is not a credible and reliable witness. It is for the same reasons that the Tribunal is not satisfied that the applicant meets the refugee criterion, that it is also not satisfied that the applicant meets the complementary protection criterion. In that regard the Tribunal as outlined above is also not satisfied that the applicant’s posting and ‘outing’ of himself though his [June] 2019 posting of his video does firstly identify him, given the brief production of his passport, and secondly, given the brief innocuous comments he made and the very limited reposts and likes of the video, that it has resulted in him gaining an adverse profile with the Saudi authorities. Therefore, given the evidence before it, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Saudi Arabia, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
The Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Additional findings
Additionally, there is no suggestion that the applicant satisfies 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa.
As the Tribunal has found that the applicant does not meet the refugee and complimentary criteria and does not satisfy the criteria in s 36(2) of the Act the Tribunal has not found it necessary to assess s 36(3) of the Act as to whether the applicant has a right to enter and reside in a country other than Saudi Arabia.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
David James
Senior Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 4526

23 October 2023

Key Legal Topics

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Standing

Statutory Construction