1500084 (Refugee) - [2016] AATA 3863

1500084 (Refugee) [2016] AATA 3863 (11 May 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1500084
COUNTRY OF REFERENCE:                  Stateless
MEMBER:Josephine Kelly
DATE:11 May 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 11 May 2016 at 3:27pm
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 dependant.
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 Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant claims to be stateless. He applied for the visa [in] September 2013 and the delegate refused to grant the visa [in] December 2014.
The applicant appeared before the Tribunal on 3 May 2016 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 represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
SUMMARY OF THE LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
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 a protection 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 the applicant 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’).
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF THE CLAIMS AND EVIDENCE, AND FINDINGS
The issues in this case
The issues in this case are whether:
·    the applicant is excluded from the Convention by Article 1D,
·    if not, whether he is stateless,
·    and if so, which country is the country of former habitual residence, and
·     whether he satisfies the refugee or complementary criterion when assessed against that country.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Background
The following findings are not contentious and are based on information provided by the applicant and his representative.
The applicant was born in Amman, Jordan, on [date]. Both his parents were born in Gaza. Their parents had moved there following the 1948 conflict. His father’s parents came from [town], and his mother’s parents from [another town], Palestine. After the 1967 conflict, the applicant’s father went to Jordan. Later, his father and mother married, and moved to Jordan. Therefore, adopting the nomenclature of the Department of Foreign Affairs and Trade thematic report “Palestinians in Jordan and Lebanon” dated 2 March 2015 (the DFAT report), the applicant is an “ex-Gazan Palestinian”.
The applicant’s father died in 2010. Before leaving to come to Australia in August 2013, the applicant lived all his life in Jordan, residing in the same apartment in Amman where his mother and brother currently reside. His [sibling] is unemployed. His mother has never worked outside the home.
One of the applicant’s married [siblings] moved to [country] in 2008. One of his [siblings] moved to [country] in 2010. Another married [sibling] has recently gone there. Both his [siblings] have been granted asylum in [country]. Another of his married [siblings] lives in [country]. The applicant has one married [sibling] living in the same area of Amman as his mother and [sibling] live.
The applicant travelled to [country] to perform the Umrah in February 2012 and visited [Country 1] for six days in February 2013. He left Jordan to travel to Australia [in] August 2013. That travel history is recorded in his Palestinian Authority Passport issued in [town] [in] 2009 and which was valid until [date] 2014. The applicant renewed his passport through the Palestinian delegation in Australia in 2014. He brought both passports to the Tribunal hearing.
The applicant’s claims for protection
The applicant made the following claims for protection. The claims are formulated from his written and oral claims.
He and his family lived in a popular and overcrowded suburb in Amman whose residents are mainly impoverished. He is the [number] of [number] children. They lost touch with one of his [siblings] in about 2001. His father died in 2010 because of poor health services for Palestinian refugees in Jordan. They were registered with UNRWA as Palestinian refugees in Jordan.
The applicant was educated at government schools until he completed his secondary high school certificate. He attended a private university because “we” are not allowed to enrol at a public university. He began his university education in [year] and graduated [in] with a [qualification]. He had an “accumulative average of very good”. He had wanted to study [course] but as a Palestinian he was not allowed to be registered with the Jordanian [professional] society and therefore would not be allowed to work as an [professional].
While at university, the applicant worked for a businessman from the [region] who used to get him to [occupation]. The businessman was known to the applicant’s mother and paid the applicant 60 to 80 Jordanian dinars (JD).
After graduation, the applicant found a job with an unregistered company which employed him as a [occupation] without pay for three months and then with a salary of 150 JD a month for nine months. The employers exploited the applicant’s situation because they knew that he was not allowed to work in Jordan. He was able to get a job because the company was not registered. The employer dismissed him and told him that Jordanian intelligence would not allow him to be employed.
The applicant then found a job as a [occupation]. He worked unpaid for three months and then was paid 200 JD a month. [In] March 2013, the new company boss called the applicant in and said that they had employed him because of his poor background and being a Palestinian refugee and that the applicant should thank them him for employing him and taking the risk knowing that the applicant was not allowed to work in Jordan.
In Jordan, as a Palestinian from Gaza, the applicant had to find a job and then go to the Ministry of Labour to obtain permission to work. That approval is subject to the approval of Jordanian intelligence. He started applying for jobs as a [occupation]. Every time he was called for an interview, they would find out that he held a Palestinian passport and that he was from Gaza and not allowed to return there. They would tell him that they would have to obtain approval from Jordanian intelligence and from the Ministry of Labour. Accordingly, they would decline and tell him that there was no job for him. He applied to more than 30 companies. He attached to his statement a list of the names, addresses and telephone numbers of those companies and the date of application.
The applicant complained about the treatment “we” used to receive from Jordanian intelligence every time “we” needed to renew “our” temporary visa, or to obtain a non-conviction certificate or to obtain a driver licence or buy and register a car in his name or own any property. He claimed that every time, he would be interviewed and intelligence would insult him, intimidate him, push him, slap him, and if the officer was nice, he would tell the applicant to disappear from his face and go somewhere outside Jordan and never return. The last time was when the applicant returned from [Country 1] in February 2013. At the airport, he was asked to go to the intelligence headquarters within two weeks. He went and was interrogated about his trip to [Country 1], the reason for his visit, and who he met. At the end of the interrogation, the officer asked the applicant to come back towards the end of his visa. Again, the applicant went [in] April 2013 in order to renew his one year residency. The officer asked the applicant why he wanted to renew it. The applicant said that he was planning to go overseas. The officer said that he would renew it, but once the applicant left, the officer did not want to see his face in Jordan again.
In addition, “we” have no civil, health or education rights in Jordan. “We” are not allowed to own a property, register a vehicle or obtain a driver license. Even having a bank account is not allowed. “We” are treated inhumanely. Sometimes if the applicant was returning home late at night, a policeman would stop him and take him to the station for interrogation about why he was out late at night, where he had been, what he was doing, and who he was visiting. The policeman would also intimidate and abuse the applicant verbally.
The applicant claimed that the most important factor was not being allowed to work and therefore being denied the means of survival.
Consideration of the claims and evidence, and findings
The Tribunal accepts, as did the delegate, that the applicant’s identity is as he claimed. That finding is supported by his two Palestinian Authority passports, his blue “[name]” card, his family’s 1998 UNRWA registration document and the UNRWA Family Record printed [in] February 2015 and the UNRWA certification of the same date that he is registered in Gaza.[1] He has consistently maintained his identity throughout his dealings with the Department and the Tribunal.
[1] UNWRA is the United National Relief and Work Agency for Palestine Refugees in The Near East
Those facts require the Tribunal to consider Article 1D of the Refugees Convention which operates to exclude from the Convention persons presently receiving protection or assistance from a United Nations organ or agency other than the United Nations High Commissioner for Refugees (UNHCR). Article 1D states:
This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations, other than the United Nations High Commission for Refugees, protection or assistance.
When such protection or assistance has ceased for any reason, without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention.
The Full Federal Court in MIMA v WABQ (2002) 121 FCR 251 held that the first paragraph of Article 1D applies to exclude a person from the Convention if the person belongs to a class of persons who were receiving protection or assistance from organs or agencies of the United Nations other than UNHCR as at 28 July 1951, the date when the Refugees Convention was signed, this being the time referred to by the words ‘at present’. The relevant factual issue in relation to the first paragraph is whether the applicant belongs to the relevant class of persons. In the case of a stateless Palestinian applicant, if Palestinians as a group were as at 28 July 1951 receiving protection or assistance then the first paragraph applies. The Full Court in WABQ observed that the United Nations Conciliation Commission for Palestine (UNCCP) and the United Nations Relief and Works Agency (UNRWA) appeared to have been providing protection and/or assistance to Palestinians at the relevant time.
The Tribunal accepts that the applicant belongs to a class of persons, that is, Palestinians, which was receiving protection from the UNCCP and assistance from UNRWA as at 28 July 1951, within the meaning of the first paragraph of Article 1D.
It is therefore necessary to consider the effect of the second paragraph in this case. The Full Court in WABQ held that the second paragraph is also concerned with a class of persons rather than individuals and that it is sufficient if either protection or assistance has ceased for any reason in respect of the class (without their position being definitively settled) for the second paragraph to apply. It will not be sufficient that protection or assistance has ceased in relation to an individual member of the class. Whether protection or assistance has ceased in relation to the class of persons is a question of fact for the Tribunal to determine according to the material before it. In relation to a stateless Palestinian applicant, if it is found that either protection or assistance has ceased in relation to the class, the applicant is entitled to have his or her application for a protection visa determined according to the Convention definition in Article 1A(2): WACG v MIMA [2002] FCAFC 332.
Although the Court made it quite clear that the material before it indicated that such protection as was provided by UNCCP had ceased by the end of 1951[2] or at least by 1964,[3] it also made it clear that this is a factual matter for the Tribunal to determine on the basis of all the material before it at the time of its decision.
[2] MIMA v WABQ (2002) 121 FCR 251 per Tamberlin J) at [146]-[151].
[3] MIMA v WABQ (2002) 121 FCR 251 per Hill J [27]; see also per Tamberlin J at [149].
It is clear from the UN website that the UNCCP has not operated since 1954.[4] The information about the UNCCP is now “archived”. It follows that protection from the UNCCP to the relevant class of Palestinians of which the applicant is a member has ceased without the position of that class being definitively settled.
[4] >
The Tribunal therefore proceeds to determine whether the applicant is entitled to have his application for a protection visa determined according to the Convention definition in Article 1A(2).
It is necessary to determine the country of reference and the receiving country. The Tribunal accepts that the applicant is stateless for the following reasons.
The applicant is an ex-Gazan in Jordan, for the reasons explained under the heading Background. The Tribunal had a considerable amount of country information before it, including the DFAT report, the information provided by the applicant, the information referred to in the delegate’s decision which the applicant provided to the Tribunal.
Based on the country information, the Tribunal accepts that the Occupied Palestinian Territories (OPT) of the West Bank and Gaza Strip do not meet the formal requirements of a state. The Oslo agreements do not acknowledge Palestinian sovereignty over the OPT. The OPT cannot confer citizenship on Palestinians. Australia does not recognise the sovereignty of the State of Palestine which was declared in 1988 but it does conduct official relations through the General Delegation of Palestine in Australia, New Zealand and the South Pacific. Although the applicant holds a passport issued by the Palestinian Authority, the Tribunal accepts that he is not a citizen of the State of Palestine.
The Tribunal accepts that the applicant obtained his passport because his parents were 1967-OPT residents. The applicant said that after his father’s Jordanian passport was cancelled, he and his mother obtained Palestinian Authority passports. Country information set out in the delegate’s report indicates that holding a Palestinian Authority travel document does not give the holder a legally enforceable right to enter or reside in the OPT. Entry and residency is controlled by Israel, as the applicant claimed. Further, the Department has advice that an overseas Palestinian travel document holder who does not have a Palestinian identity card will not be permitted entry by the Israeli authorities. The applicant does not have a Palestinian identity card.
A 2004 Canadian IRB report advised that a person had to hold a valid residence status in the OPT under Israeli regulations. DFAT information indicates that Israel would not typically permit the Palestinian Authority to grant an identity card to a Palestinian who was not registered as a resident of the OPT before November 1995.
Taking into account the DFAT report, other country information before the Tribunal and the applicant’s evidence, the Tribunal accepts that being an ex-Gazan, the applicant has no residency entitlement in Jordan. The Tribunal accepts that he does not have a Jordanian passport, and having a Palestinian Authority passport prevents him from getting a two-year Jordanian passport, albeit, one which does not confer citizenship. However, he resided in Jordan from birth until he left to come to Australia.
For those reasons, the Tribunal accepts that the applicant is stateless and that his country of former habitual residence is Jordan. Accordingly, Jordan is the country of reference for the purpose of assessing his claims under the refugee criteria, and the receiving country for the purpose of assessing his claims under the complementary protection criteria.
The Tribunal accepts that the applicant’s evidence is credible, as did the delegate. The Tribunal accepts that the applicant is registered with UNRWA in Gaza and that his family has never received any assistance from that organisation. The applicant’s father’s situation was quite different from that of the applicant. His father held a Jordanian passport that was issued in 1991 and later cancelled. His father was issued a further passport in 2010 before his death. Copies of parts of both passports were before the Tribunal. The Tribunal accepts the applicant’s evidence that during that interim period, his father held a blue identity card for the whole family. The Tribunal accepts his evidence that he tried unsuccessfully to get a Jordanian passport after his father’s death. His evidence that he was told he could not get one because he held a Palestinian Authority passport is consistent with the country information before the Tribunal.

The applicant’s blue identity card is confusing. It is dated [in] September 2012 but includes a “Date of visit” “[date].07.1996 – [date].08.1996”. It appears to have been issued for the purpose of crossing bridges to the West Bank but the Tribunal accepts the applicant’s evidence that he has no right to enter the West Bank and has never done so. Although he applied for his Palestinian Authority passport in Amman and [Australia], both passports state that they have been issued in [town], where he has never been. The Tribunal finds that the purpose of the blue cards is to be an identity card of ex-Gazan Palestinians in Jordan. The most recent annotation on the blue card is an “extension” from [date] April 2013 for one year.
The applicant denied ever having a residency permit. The Tribunal finds, based on his evidence and from the information at [3.36] of the DFAT report, that the residency permit is not a physical document, but rather it is a permission included on the blue identity card. His residency permission ended [in] April 2014. He has applied for a visa from the Jordanian embassy in [Australia] but has received no response, although he has contacted he embassy. He provided copies of his application and the envelope addressed to the embassy to support his evidence. After the hearing, he provided an original and translation of an email he sent to the Jordanian Embassy in September 2015 that supported his evidence that he had followed up his visa application. The Tribunal accepts that he did this to show that he has no right to return of Jordan and is not wanted there.
DFAT assesses that ex-Gazan Palestinians face a moderate level of official discrimination in Jordan.[5] It continues:
While this discrimination is mostly passive, the relevant policies have the effect of ensuring a low level of access to public services or employment opportunities for Gazan Palestinians. Numerous researchers and NGO representatives with whom DFAT spoke in Jordan spoke of ‘generational poverty’ for ex-Gazan Palestinians, to which the wider Palestinian community is not subject.
[5] At [3.39].
There were some inconsistencies in the applicant’s written and oral evidence, but the Tribunal finds that they were inconsequential. The Tribunal accepts that the applicant was genuinely distressed during the hearing when recounting incidents when he was verbally intimidated, physically struck, detained for several hours and stripped of his clothes. The Tribunal adjourned early in the hearing for a period to enable him to regain his composure. He mentioned one particular intelligence officer he had seen on three occasions who told the applicant the last time, that he did not want to see his face again in Jordan. The Tribunal finds that the applicant was so distressed by some of the incidents that he was reluctant to recount them until pressed to do so during the hearing.
The Tribunal finds that the applicant claims to fear serious harm in Jordan if he returns because of his Palestinian race. The Tribunal finds that the applicant has been seriously harmed in Jordan by government authorities because of his Palestinian race. The Tribunal finds that incident when he was detained and stripped of his clothes and hit in the face was serious harm. Given the treatment of ex-Gazans in Jordan set out in the country information, including the DFAT report, and the applicant’s evidence which the Tribunal accepts, the Tribunal is satisfied that there is a real chance that the applicant will suffer serious harm in the reasonably foreseeable future if he returns to Jordan for a Convention reason, his Palestinian race.
The applicant has a well-founded fear of harm for a Convention reason.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Josephine Kelly
Senior Member