2010057 (Refugee) - [2025] ARTA 752

2010057 (Refugee) [2025] ARTA 752 (13 March 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number: 2010057
Tribunal:Denis Dragovic
Date:13 March 2025

Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria s 36(2)(aa) of the Migration Act.

Senior Member D. Dragovic

Statement made on 13 March 2025 at 7:19 AM

CATCHWORDS
REFUGEE – protection visa – stateless/Palestine/Saudi Arabia/Lebanon – son of Palestinian man and other nationality woman born in Saudi Arabia – expired travel document from Lebanon – no rights in Saudi Arabia, mother’s country or Lebanon – partial international recognition of Palestine – nationality powers controlled by Israel – Saudi Arabia as country of former habitual residence – practically unable to enter and highly unlikely to obtain necessary documentation – country information – likelihood of detention and deportation, or indefinite detention – laws of general application – complementary protection – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1), (4)(a), 36(2)(a), (aa), (2A), (2B), (3), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Al-Anezi v MIMA (1999) 92 FCR 283
Applicant A v MIEA (1997) 190 CLR 225
Applicant S v MIMA [2004] HCA 25
Chen Shi Hai v MIMA [2000] HCA 19
Savvin v MIMA [1999] FCA 1265

SZSPX v MIMAC [2013] FCCA 1715
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 June 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant claims to be stateless. He applied for the visa on 7 August 2017.
The delegate refused to grant the visa on 15 June 2020.
The applicant appealed the decision to the then Administrative Appeals Tribunal. The applicant appeared before the Administrative Review Tribunal (‘Tribunal’) on 17 January 2025 to give evidence and present arguments.
The applicant was represented in relation to the review.
THE RELEVANT LAW
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.
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.
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).
The applicant’s nationality
The applicant is the son of a Palestinian man. He was born in Saudi Arabia[1] where he lived his whole life but no longer has a right to return as he is over 18 years of age and as such cannot obtain a family residency document based on his father's continuing residency[2]. Lebanon provided the applicant his travel document[3] and is where he is registered as a Palestinian[4], but he has never lived there. His mother is [Nationality], but he can't obtain [Nationality] citizenship because the [Nationality] citizenship law requires either the father is a citizen or if only the mother, then that the child is born in [Country].[5]
[1] The applicant’s Birth Certificate for Non-Saudi Citizens was provided to the Department.
[2] An extract of the relevant Saudi Arabian law was provided: Based on submittals by our viceroy No. 3712 dated 17th of and on Council of Shoura’s Resolution No. 80, dated Shabaan 12th, 1371H, (7/5/1952 G) see Article 42
[3] A copy of the applicant’s Document de Voyage pour le Refugie Palestiniens for the applicant was provided to the Department
[4] A copy of the applicant’s UNWRA Palestinian registration card was provided to the Department
[5] See [Country law]
I find that the applicant is not a national of Saudi Arabia nor [Country].
The applicant did not provide any evidence that suggests he is a national of Lebanon. Country information on the Lebanese nationality laws pertaining to Palestinians is strongly indicative of Palestinians not having Lebanese nationality.[6] I find that the applicant is not a national of Lebanon.
[6] [3.8.1]
I find that the applicant is Palestinian based on the documentation provided and the evidence given at the hearing. While the applicant considers himself Palestinian and Palestine is recognised as a state by 146 out of 193 member states of the United Nations, Palestinians may nevertheless generally be considered stateless under international conventions that require other factors to also be met.[7]
[7] >
For the specific purposes of this matter, the Migration Act 1958 alone guides the decision maker on how to consider this case and the relevant question is whether the applicant is a national according to the nationality laws of the relevant state. In this instance, the Palestinian Authority as the government of the Occupied Palestinian Territories[8], does not have a nationality law as it does not have nationality powers, which are instead controlled by Israel.[9] There is no government with authority over the territory of Gaza.
[8] ‘Occupied Palestinian Territories’ is the official Australian government terminology Occupied Palestinian Territories | Australian Government Department of Foreign Affairs and Trade
[9] United Nations Development Programme: >
In the case of a person without a nationality the consideration shifts away from their country of nationality and instead to their country of former habitual residence and is referred to as the receiving country.
The applicant’s country of former habitual residence is Saudi Arabia as he lived there until he came to Australia.
As noted above, the applicant does not have documentation that would provide him entry to Saudi Arabia. Nor can he access the same rights he had access to previously due to his age. Instead, he would have to apply for entry and residency as any other Palestinian would.
But relevantly, the definition of ‘receiving country’ in s5(1) of the Act does not provide guidance when it is impossible for an applicant to enter the receiving country.
As such, despite it appearing counter intuitive, I must consider whether the applicant holds a well-founded fear of persecution or triggers Australia’s protection obligations under Complementary Protection were he to return to a country that he is practically unable to return to.
Caselaw that supports this approach diverges on the important question of whether considerations should be based only on past harm[10] for applicants who cannot return to their place of former habitual residence or in line with the general test, present and future harm.[11]
[10] Al-Anezi v MIMA (1999) 92 FCR 283 at [20]: ‘… if a claimant were unable for any reason to return to the country of former habitual residence, he or she was a refugee if, and only if, the reason for the claimant’s absence from the country of former habitual r residence was a (past) well-founded fear of persecution; it did not matter that the well-founded fear did not continue.’ Available at
[11] Savvin v MIMA [1999] FCA 1265 at [61]–[62]
Adopting the latter approach as the preferred approach for reasons outlined by Dowsett J in Savvin v MIMA creates some further uncertainty. If undertaking the present and future risks test, do I assume that the applicant has documents that allow him to reside in Saudi Arabia as there is no way that he would be able to enter and reside without them or base an assessment on his current status, which is that he lacks the necessary documents?
In SZSPX v MIMAC [2013] FCCA 1715 Barnes J notes:
[42] It is not in dispute that the question of whether the Applicant had a well-founded fear of persecution in Iran in this context had to be addressed on the basis of what would happen if he were to return to Iran, and not on the basis of whether he could return to Iran. It was necessary for the Tribunal to consider not whether the Applicant could in fact return to Iran as an undocumented child, but rather whether the Applicant had a well-founded fear of persecution in the reasonably foreseeable future as a member of the particular social group of undocumented children in Iran (or undocumented persons in Iran) if he were returned to Iran.
The preferable approach in SZSPX, identified by Barnes J, would have been that the Tribunal member had worked under the assumption of the child being undocumented because the parents of the child refused to pursue the necessary documentation.
In this case, the issue isn’t a question of choice of whether the applicant obtains the necessary documentation as opposed to a hard barrier. It would be speculative to assume and most probably highly unlikely that the applicant would be able to obtain the necessary residency documents to allow him to reside in Saudi Arabia before being detained by the authorities for being unlawful even if he wanted to pursue them.
As such this decision proceeds from the artificial assumption that the applicant can somehow appear, immigration cleared, in Saudi Arabia but without the necessary documentation. I now turn my mind to consider the applicant’s claims in these circumstances.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
The applicant’s detention in Saudi Arabia
Starting from the assumption that the applicant can return to Saudi Arabia, be immigration cleared, but without any documents, I find that the applicant will quickly be detained as an illegal migrant.
There is a range of country information available about detention in Saudi Arabia and deportation from Saudi Arabia. Reporting indicates that for some, the conditions constitute significant hardship and for others it is a rapid deportation.
The Global Detention Project has detailed the situation of people without proper documentation, finding, ‘Saudi Arabia detains many migrants, including women and children, in inhumane conditions solely due to their lack of valid immigration status. Recent human rights and media reports have documented instances of torture and beatings, along with inadequate food, water, and bedding.’[12]
[12] >
The source material for these findings, though, is the situation of a specific cohort of Ethiopians who fled Yemen and crossed into Saudi Arabia. Riyadh has caught thousands in multiple sweeps which has led to substantial overcrowding in detention centres and ill treatment before deportation could be facilitated. An Amnesty International report detailed the circumstances of the same cohort.[13]
[13] >
Conversely, when looking at the specific situation of a Lebanese man who was found in breach of Saudi immigration laws, his experience is different. A Lebanese singer who was deported described being detained for 50 days but largely in solitary confinement and not in overcrowded cells. He was questioned, as he had come to the attention of the Saudi authorities due to his public support of Hezbollah. The singer told the Associated Press that other than the solitary confinement he was treated ‘respectfully’.[14]
[14] >
In Saudi Arabia’s national report to the United Nations’ Human Rights Council working group on the Universal Periodic Review, Saudi Arabia submitted:
The Ministry of the Interior has adopted protocols for arrest and deportation that conform to international standards, including the principle of nonrefoulement and the detection of possible victims of trafficking in persons. In cooperation with UNODC and IOM, the standing committee to combat trafficking in persons has provided training to more than 4,000 persons.[15]
[15] >
Relevantly, in the same cycle of review the final report did not include any recommendations by member states regarding Saudi Arabia’s immigration detention or deportation laws and practices.[16] While omission of considerations isn’t necessarily evidence, in this instance, where prison conditions are considered, I find the absence of a recommendation relevant.
[16] >
Based on the evidence available to the Tribunal the most likely outcome will be that the applicant is detained with the intent of being repatriated on a flight home. I find that the situation of the thousands of Ethiopians being detained does not apply to the applicant in this situation. This is because the Ethiopian deportation operation was a specific large-scale effort to return hundreds of thousands of Ethiopians separate to routine deportation processes.[17]
[17] >
Unfortunately, there is little evidence to understand the pathway the applicant faces. The situation of the Lebanese singer is relevant, but I note that in that case the singer was identified and detained because of his political musings. Fifty days of solitary confinement would amount to serious and significant harm as it substantially breaches the United Nations Standard Minimum Rules for the Treatment of Prisoners[18] which suggests that anything longer than 15 consecutive days is prolonged and should be prohibited.
[18] >
But the applicant in this case would only be detained for reasons of not having a legal right to remain rather than for reasons of having spoken out politically. In such a situation I find that he would not be detained in solitary confinement for 50 days.
Instead, I find that he will be detained until the paperwork can be arranged for his repatriation. But this leads to the question of whether Saudi Arabia would be able to repatriate a Palestinian refugee who holds an expired Palestinian travel document (expired 2018).
The deportation process from Saudi Arabia to Lebanon
Recalling that the law requires me to consider the applicant as having somehow appeared in Saudi Arabia there is no basis upon which to assume that the applicant, having appeared in Saudi Arabia, would be able to access Australian support to facilitate onward travel. Instead, the applicant would be dependent upon Saudi officials to facilitate the travel to Lebanon as he would be in their immigration detention system.
The applicant’s representative helpfully brought to the Tribunal’s attention the Danish Ministry of Immigration and Integration research report on the return of Palestinian refugees to Lebanon from countries where they have sought asylum. Although the applicant would be returning from Saudi Arabia where he hasn’t sought asylum, the evidence suggests that the information in this report remains applicable.
The report divides the approach taken by the Lebanese authorities into two streams: Palestinians who have legal residency in the country they would be repatriated from and those who do not hold legal residency status.
The applicant would not have legal residency in Saudi Arabia. The report explains the process in such instances:
when the application for a new travel document or laissez-passer is submitted to a Lebanese embassy together with the required documents, the embassy will send the documents to the MFA’s Foreigner Section in Lebanon. Here a committee will process the case and make a decision about whether the person should be issued a new travel document or laissez-passer.
When processing such cases, the MFA will look at a number of issues such as whether the person entered his/her current country of residence illegally, which countries the individual stayed in on his/her way from Lebanon to the current country of residence etc. If a PRL for instance has stayed in Turkey for a while on his/her way to Denmark, the Lebanese authorities expect that he/she will be sent back to Turkey and not Lebanon.
…
The diplomatic source (2) advised that Lebanese authorities were very reluctant to allow PRLs to return to Lebanon if they did not have a residence permit in their current country of residence (e.g. rejected asylum seekers or persons whose residency permit have been revoked).
According to the diplomatic source (1), since the Lebanese elections in May 2018, the Lebanese MFA has stopped issuing travel documents to PRLs residing abroad whose asylum applications have been rejected or whose residence permits have been revoked in the foreign country where they are staying. Similarly, the diplomatic source (2) mentioned that readmission of such PRLs has been completely stalled by the Lebanese authorities since May 2018.
…
As far as the diplomatic source (1) knew, since May 2018, no European country had succeeded in returning rejected PRL asylum seekers to Lebanon, whether it was a voluntary or forced return. Other European colleagues had informed the source that it was likewise impossible for their respective countries to deport rejected PRL asylum seekers to Lebanon. The source had not heard any European colleague stating that his or her country did not have a problem in this regard.
…
After the meeting with the delegation on 9 January 2020, the diplomatic source (1) had received information that one European country had lately succeeded in returning 18 rejected PRL asylum seekers to Lebanon, and few other European countries had also returned a few (max. five) PRLs. All these cases were voluntary returns.

Noting that the above report was based on a fact finding mission in January 2020 I now turn my mind to considering, without any primary source material as evidence, what the situation is now, five years later.
In doing so, I note that the same Danish report looked at the motivation behind the refusal to facilitate the return of Palestinians who were unlawful in their countries of residence.
According to the diplomatic source (1), the above-mentioned practice by the Lebanese MFA is based on an order from the former Minister of Foreign Affairs and Emigrants, Gebran Gerge Bassil. The order stipulates that no return of refugees from abroad should be approved by the MFA. The minister’s argument was that Lebanon already had enough refugees and that it did not receive sufficient support from the international community with regards to the large number of refugees in Lebanon. During the elections in May 2018, one of the main promises of the minister and his party, the Free Patriotic Movement, was to reduce the number of refugees in Lebanon. According to the source, the Lebanese government is generally not unhappy about PRLs leaving the country.
…
The diplomatic source (2) found it unlikely that the government’s strict policy towards refugees in Lebanon would change in the foreseeable future given the current political climate and fiscal challenges that Lebanon is currently facing.
Lebanon hosts the largest number of refugees per capita and per square kilometre in the world.[19] The refugee population in Lebanon varies depending upon the definition and estimates of those unregistered. Regardless of the definition, the population has dropped marginally by approximately 1-2% per year since 2020.[20] Gebran Gerge Bassil, the former Foreign Minister who made the order that no refugees should be approved by the MRA, remains in parliament[21] as the head of the Free Patriotic Movement and head of the Strong Lebanon bloc, which is one of the largest blocs in Lebanon’s parliament.
[19] <a href=' Refugee Statistics 1960-2025</a> or alternatively >
In the past year the Lebanese government has continued with its efforts to see refugees return to their countries of origin.[22] To date, Lebanon has been highly dependent upon United States assistance to continue to support the refugee population.[23] But with the recent cessation of USAID funding and the Trump administration’s flagging of a much reduced foreign aid budget that focuses on humanitarian assistance only,[24] Lebanese politicians will be under pressure to increase efforts to remove more refugees. This is already evidenced in popular anger towards Syrian and Palestinian refugees in 2024.[25]
[22] ibid
[24] Op cit CSIS
As a result of this situation, I find that the Lebanese authorities will not assist the Saudi authorities in facilitating the applicant’s return to Lebanon. I find that the applicant will be perceived by Lebanon to be Saudi Arabia’s problem.
What will Saudi Arabia do with the applicant?
Saudi Arabia is not a signatory to the 1951 Refugee Convention but under domestic law some refugees are given residency including an estimated 400,000 Yemenis, 670,000 Syrians and 250,000 Rohingya.[26] But these appear to be ad hoc measures rather than a dedicated pathway available to all.
[26] Maja Janmyr, Charlotte Lysa, Saudi Arabia and the International Refugee Regime, International Journal of Refugee Law, Volume 35, Issue 3, October 2023, Pages 251–271
Without a Saudi sponsor the applicant is unable to regularise his stay as his father had. Without travel documents the applicant is unable to be repatriated to Lebanon. Despite being a Palestinian he cannot move to Gaza or the West Bank as movement to both are controlled by Israel and there is no basis to find that he would be allowed to travel to these locations. It is possible that the Saudi authorities, realizing that they are unable to find a viable solution for the applicant, would place him on a pathway to residency, but reaching such a conclusion would be speculative and highly unlikely.
I note country information indicates that there are reports of migrants remaining in detention ‘because their embassies did not provide return tickets or complete their documentation.’[27]
[27] >
Country information regarding the nationalities of those detained in longer term detention which has been the focus of international observers indicates that they are African and South Asians only[28], but noting that the applicant has no pathway to residency or deportation, I find that there is a real chance that he will be detained together with these migrants in similar conditions.
[28] >
I find that the applicant will be detained shortly after return to Saudi Arabia, and that after the applicant is refused entry into Lebanon, he will be moved to longer term detention facilities while the authorities determine what they will do with him. In effect he will remain in indefinite detention as no solution will be found.
I find regardless of the detention centres’ conditions that indefinite detention amounts to serious harm.
I now turn my mind to consider whether there is a Refugee nexus by considering whether the applicant is a member of a particular social group, namely “stateless Palestinians who are undocumented in Saudi Arabia”.
A person is a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society.
I find that the characteristic shared by the group is being a stateless Palestinian and undocumented. I find that in Saudi society such people would be perceived as sharing this characteristic as it would be known that they are Palestinian and that they do not have Saudi residency. I also find that this characteristic distinguishes the group from society.
I find that his membership of this particular social group is the essential and significant reason for the harm arising from indefinite detention (s 5J(4)(a)). In some instances, harm arising from a law does not trigger Australia’s protection obligations.
I now turn my mind to consider whether the laws that would lead to the applicant being detained indefinitely amount to what are considered as laws of general application. In Applicant A:
… the feared persecution must be discriminatory. … [It] must be “for reasons of” one of [the prescribed] categories. This qualification ... excludes persecution which is no more than punishment of a non-discriminatory kind for contravention of a criminal law of general application. Such laws are not discriminatory and punishment that is non-discriminatory cannot stamp the contravener with the mark of “refugee”.[29]
[29] Applicant A v MIEA (1997) 190 CLR 225 at 233.
Is the indefinite detention the applicant faces discriminatory? The Saudi authorities are not indefinitely detaining all undocumented migrants. In some cases, such as with Ethiopia, the authorities have arranged for forcible deportation[30] but there is no evidence that Saudi Arabia is undertaking such efforts with Lebanon, and secondly, relevantly, such actions require the acquiescence of the receiving country which I have found will not occur.
[30] >
The Saudi authorities, as noted above, have found pathways for Rohingya, Syrians and Yemenis to residency but despite an ongoing humanitarian crisis in Gaza, Saudi Arabia has not initiated any effort to find pathways for the Palestinians.
This is because Saudi Arabia, as with other Arab states is reluctant to take Palestinian refugees.[31] There are two reasons[32] for why Saudi Arabia along with other Arab states are not accepting Palestinian refugees. The first being a politically driven effort to ensure the continuing existence of Palestine and the insistence of a right to return for those displaced from the land; and secondly, a fear of the demographic and political shift that a large influx of Palestinians would have on their own countries.
[31] [deleted]
[32] >
These two concerns are unique to the situation of the Palestinians as the Saudis have welcomed hundreds of thousands of other Arab and non-Arab people displaced from violence in Yemen, Syria, and Myanmar.
It is also, though, the case that not all laws of general application that are discriminatory amount to persecution. This is, for example, where the law is ‘appropriate and adapted to achieving some legitimate object’.[33] What is a legitimate object was detailed in Applicant A by McHugh J as summarised in Applicant S v MIMA [2004] HCA 25:
legitimate object will ordinarily be an object the pursuit of which is required in order to protect or promote the general welfare of the State and its citizens. His Honour gave the examples that (i) enforcement of a generally applicable criminal law does not ordinarily constitute persecution; and (ii) nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory.
[33] Applicant A v MIEA (1997) 190 CLR 225 at 258.
This was expanded on in Chen[34]:
Whether the different treatment of different individuals or groups is appropriate and adapted to achieving some legitimate government object depends on the different treatment involved and, ultimately, whether it offends the standards of civil societies which seek to meet the calls of common humanity. Ordinarily, denial of access to food, shelter, medical treatment and, in the case of children, denial of an opportunity to obtain an education involve such a significant departure from the standards of the civilised world as to constitute persecution. And that is so even if the different treatment involved is undertaken for the purpose of achieving some legitimate national objective.
[34] Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19 (13 April 2000)
Does the Saudi government’s decision to prevent Palestinians from finding a pathway to residency ordinarily promote or protect the ‘general welfare of the State and its citizens’? It could be argued, and has been argued[35], that it does due to the fear of Hamas and general instability. In considering this, I acknowledge that it is an incredibly complex and vexed question that I cannot do it justice in this forum. Instead, I find that as there is a plausible argument that it does suffices to answer the question in the affirmative.
[35] >
Does the discriminatory omission of Palestinians from residency pathways offend the standards of civil societies? I find that it does not because the justification of supporting the establishment of a Palestinian state and in turn preventing pathways to citizenship in neighbouring countries has been a pressing concern for decades and yet has been accepted as a price worth paying by the international community.
As such, I find that the applicant’s indefinite detention will occur for discriminatory reasons based on there being no real prospect of removal but find that the law that allows for it has a legitimate object.
Complementary protection
As introduced at [8] having found that Australia’s protection obligations are not triggered by s36(2)(a), the alternative consideration known as Complementary Protection, requires the Tribunal to consider whether the applicant faces a real risk of significant harm.
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
Unlike s36(2)(a), there is no requirement for the harm the applicants face to be for one of the five identified essential and significant reasons discussed above. Instead, though, there is a need that the Tribunal is satisfied that there is a real risk that the applicant faces significant harm and that it is harm of the type identified in the above paragraph. I am satisfied that the first named applicants will face torture, cruel or inhuman treatment and/or degrading treatment based on the same reasoning above.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
I have found above that the applicant faces indefinite detention. Does this amount to significant harm as defined in s36(2A)? The answer depends on the conditions the applicant faces in Saudi detention centres.
A report by Al-qist, a human rights group focused on Saudi Arabia, details the conditions in detention centres. The reporting[36] is based on the experiences of a group of Ethiopian detainees who were moved around various detention centres and prisons:
·Detainees said there were no toilets at all at al-Dayer detention centre and people used a corner of the room. One said he did not wash his body for four months.
·In Jeddah and Mecca prisons, detainees interviewed for the reports estimated that there were between 60 and 80 people detained in each cell.
·Interviewees said the Saudi authorities kept them in cramped, insanitary rooms with up to 350 other migrants for months on end, and two men had been in detention for a year. Detainees did not have enough room to all lie down, so they took turns sleeping on unclean blankets without mattresses.
·Migrants shared between two and five toilets with 350 other detainees and had no access to shower facilities or soap. Migrants also reported abuse by guards and severe beatings if they asked for medical attention or complained about their conditions of detention.
[36] >
Human Rights Watch also reported[37] on the case of the Ethiopian migrants:
·Detainees alleged to Human Rights Watch that they are held in extremely overcrowded rooms for extended periods, and that guards have tortured and beaten them with rubber-coated metal rods, leading to at least three allegations of deaths in custody between October and November.
·Six out of nine interviewees said that they witnessed guards beat migrants so severely that they were taken from the detention room and were never returned. In one case, a 27-year-old man from Ethiopia witnessed the unlawful killing of three other detainees, two of whom were beaten so badly by the guards that they died immediately as a result of their injuries; the third died two hours later. Human Rights Watch was not able to independently verify the allegations.
[37] >
The United States Department of State report[38] on Saudi Arabia’s prisons and detention centres found:
Prison conditions were harsh and life threatening due to deaths caused by medical neglect. NGOs stated prison and detention center conditions reportedly failed to meet international standards; other problems included harassment and denial of family visits.
…
Abusive Physical Conditions: There were reports authorities caused prisoner deaths by withholding medical treatment and mistreated prisoners with disabilities.
…
In April, the Mixed Migration Centre (MMC), an international network carrying out research and analysis on migration, reported interviews conducted in January with Ethiopian returnees from Saudi Arabia revealed arbitrary and prolonged detention, averaging 11 months. Furthermore, according to the MMC, detainees lacked food, water, and general hygiene in detention centers and suffered abuse and death at the hands of detention center officials; poor sanitary conditions caused the spread of diseases such as tuberculosis.
[38] US Department of State, 2023 Country Reports on Human Rights Practices: Saudi Arabia
I note that the Saudi king has in the past commuted judicial punishments by way of a royal pardon but there is no evidence that suggests the king becomes involved in migration matters.[39]
[39] ibid
As noted earlier, I have found that the applicant would be detained over the long term in the same circumstances as the cohort of unlawful migrants that were reported on by HRW and other international observers.
Based on this finding and noting that it would amount to indefinite detention in ‘harsh and life threatening’ conditions as described above, I find that the applicant faces a real risk of significant harm in the form of cruel and inhuman treatment.
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa). I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
I have also considered whether according to s 36(3) the applicant has a ‘a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.’ There is no evidence before me that a stateless Palestinian has a right to enter and reside in another country apart from Australia. As such I find that the exception to Australia’s protection obligations under s 36(3) is not met.
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(aa) of the Migration Act.
Representative:   Mrs Maryanne Issa (MARN: 1577048)
Date of hearing:   17 January 2025
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
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5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
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5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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