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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] AATA 3863
Decision Date: 11 May 2016

CaseChat Overview and Summary

The applicant, an "ex-Gazan Palestinian" born in Jordan, sought protection in Australia. The dispute concerned his eligibility for a protection visa, with the primary issues being whether he was excluded by Article 1D of the Refugee Convention, whether he was stateless, and if so, what his country of former habitual residence was, and whether he met the refugee or complementary protection criteria when assessed against that country.

The Tribunal was required to determine if the applicant was excluded from the Convention by Article 1D. If not, it needed to ascertain if he was stateless, identify his country of former habitual residence, and then assess whether he met the refugee or complementary protection criteria in relation to that country. The Tribunal considered Ministerial Direction No. 56, relevant policy guidelines, and country information from the Department of Foreign Affairs and Trade.

The Tribunal found that protection from the UNCCP had ceased for the applicant's class of Palestinians, and that the Occupied Palestinian Territories did not meet the formal requirements of a state. It accepted that the applicant was stateless, as he was an ex-Gazan Palestinian with no residency entitlement in Jordan, and holding a Palestinian Authority passport prevented him from obtaining a Jordanian passport. Jordan was determined to be his country of former habitual residence and thus the country of reference for assessing his claims. The Tribunal accepted the applicant's evidence as credible, including his account of experiencing serious harm from Jordanian authorities due to his Palestinian race, and concluded that he had a well-founded fear of harm for a Convention reason.

Consequently, the Tribunal was satisfied that the applicant met the criterion set out in s.36(2)(a) of the Migration Act and remitted the matter for reconsideration with this direction.

Orders

Orders of the court

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Background

Background to the litigation

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].

Evidence

Evidence Before The Court

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 FINDINGSThe 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.

Decision

Reasons for decision

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).DECISIONThe Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.Josephine KellySenior Member

Ratio Decidendi

Legal Principle Established

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