1500666 (Refugee) - [2016] AATA 4200

1500666 (Refugee) [2016] AATA 4200 (25 July 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1500666
COUNTRY OF REFERENCE:                  Jordan
MEMBER:Shahyar Roushan
DATE:25 July 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii)that the other applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 25 July 2016 at 2:02pm
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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
Application for a protection visa
The first named applicant (the applicant), a [age] year old citizen of Jordan and a Muslim, arrived in Australia [in] August 2013 on a [particular visa]. She applied to the Department of Immigration (the Department) for a Protection visa [in] June 2014. The second named applicant (the applicant daughter) has relied on her membership of the applicant’s family.
In a statement attached to her application for a protection visa, the applicant made the following claims:
She was born in [City 1] and grew up in [City 2] and [City 3]. She has completed [number] years of education and was employed as a [occupation] in Jordan.
In Jordan, the applicant was engaged to [Mr A], whom she met in 2004 at [location]. They were ‘in love’ for four years before becoming engaged (entering into an Islamic marriage contract (katb al-kitab), but not consummating the marriage) in 2008. After she was diagnosed with a [medical] condition in 2009, the engagement was broken off by [Mr A] and she was ‘divorced in absence’. As a result, she became ‘socially stigmatised’. Her friends, at the instigation of their parents, stopped talking to her and young men did not want to approach her.
The applicant then met [Mr B] online. He was a Facebook friend of one of her distant relatives. He was studying [overseas] at the time but he visited her in Jordan. She felt compelled to ‘accept’ him because of her ‘status as a divorced woman’. She told him about her previous relationship, as well as her [medical] condition. He asked her not disclose her previous relationship to his parents.
[Mr B] is [a particular sect] and [they] do not like to marry ‘from outside’. Their attitudes and lifestyle is also different to other Jordanians. When [Mr B] posted a photo of him kissing the applicant, his [sibling] called him to tell him that this was inappropriate. They also have their own laws. When [Mr B’s relative] shot a man to death, he was not charged by the authorities and was released after paying an amount of money.
The applicant married [Mr B] on [date] in Jordan and she came to Australia in March 2012. Despite marital tensions, she quickly fell pregnant. This caused further problems, including financial difficulties. The applicant returned home three months later to give birth. Her return, however, caused further problems as people thought that she had separated from her husband. [Mr B] visited her in Jordan after their [child] was born.
During her time in Jordan, in July 2013, the applicant came to know an Australian-Jordanian woman by the name of [Ms A] through Facebook. She wanted to have friends in Australia in order to avoid the problems she had previously experienced.
After the applicant returned to Australia, she started living with [Mr B] again. They were happy at first. She obtained employment and they moved to a new house. She also met with [Ms A] socially. However, a few months later, her problems with her husband resumed and he became verbally and physically abusive towards her. He shouted at her and occasionally hit her.
The applicant’s relationship with [Ms A] also deteriorated as she decided that she did not want to continue to have a friendship with her. This caused further problems between the applicant and [Mr B] as he had also developed a friendship with [Ms A] and her husband. On one occasion, due to this disagreement, [Mr B] hit the applicant and spat on her. Soon after, she went to [Ms A] house and overheard [Ms A] telling [Mr B] that the applicant was ‘a bad woman’ and that she had continued her relationship with [Mr A]. [Ms A] advised [Mr B] to cancel the applicant’s visa, to send her to Jordan and to keep their daughter. A physical altercation erupted between the applicant and [Ms A] and they had to be separated by the latter’s husband. [Mr B] also tried to pull the applicant away, but she fell. [Mr B] pulled her on the ground towards their car and, as she was being pulled, [Ms A] continued to hit her. In the car, [Mr B] pushed her and punched her in the face. During the altercation, [Mr B] divorced her under Islamic tradition by telling her that she was divorced. Eventually, a bystander intervened and the applicant was able to go to the police station. She made a statement to the police and the police issued an AVO against [Mr B]. That evening, when she called her family to inform them, she found out that [Mr B] had already given an account of the incident to both his and her family. He had also spoken to the applicant’s ‘more traditional’ uncle, who berated the applicant in relation to how she had approached the problem. Her family was highly critical of her decision to turn to the Australian authorities. [Mr B’s] [sibling] contacted the applicant’s family in Jordan to convey to them that what she had done was ‘unacceptable’ and if [Mr B] was sent back from Australia without his wife ‘they will never forget’. [Mr B’s] [sibling] also had an altercation with the applicant’s [sibling] about the incident. They have said that they do not want the applicant’s [child] to be raised ‘with so much disrespect and independence as [the applicant]’ and that they are prepared to ‘slaughter’.
The applicant fears being subjected to honour killing because she is ‘a divorced or separated woman and mother’ and that she is ‘a woman who experienced domestic violence and approached the authorities for help’. She fears being killed by members of her own family or members of her husband’s family. [Mr B]’s family [belong to a] [tribe] and her former [husbands relative] has killed a man in the past. They believe that justice must be carried out according to the [tribe] laws. Divorced women in Jordan face serious ‘harassment and persecution’. If she were to return to Jordan, she would have no male guardian and she would be unable to find work or accommodation. The authorities in Jordan would not protect her.
In support of her application, the applicant submitted a copy of an AVO issued by the NSW police against [Mr B] on [date], naming the applicant and her daughter as ‘protected persons’.
Interview
The applicant was interviewed by a delegate of the Minister [in] October 2014. Where relevant, the applicant’s evidence to the delegate is referred to below.
The Delegate’s Decision
The delegate refused the application [in] December 2014. The delegate accepted that the applicant had suffered violence at the hands of [Mr B]. However, she found that, as the applicant had separated from [Mr B] in May 2014, the applicant’s evidence did not support a finding that there is a real chance that she will be at risk of serious harm in Jordan by the family of her estranged husband. She also found that the applicant would have access to effective protection in Jordan.
Application for Review
The applicant applied for a review of the delegate’s decision. In support of the application for review, the applicant submitted a statutory declaration and a number of other documents in support of her claims, including:
·Evidence of her current residential address.
·A psychological evaluation report, dated [in] July 2016, and authored by [Ms B], a registered psychologist, stating that the applicant suffers from depression and anxiety, the symptoms of which began ‘after discovering her –in-laws had threatened to take her [child] away from her’.
·A support letter from the applicant’s caseworker at [organisation].
·News articles and reports relating to the prevalence of violence against women in Jordan.
The applicants appeared before the Tribunal on 21 July 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 applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
Analysis, Reasons and Findings
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
The Tribunal found the applicant to be a credible witness. She provided largely consistent evidence throughout the process and the Tribunal did not form any significant concerns in relation to the reliability of her evidence.
The Tribunal accepts the applicant’s account of her past experiences at the hands of [Mr B]. The Tribunal accepts that [Mr B] divorced the applicant under Islamic law, after assaulting her, in May 2014, which resulted in an AVO being issued against him. The Tribunal accepts the applicant’s evidence that by approaching the authorities, she has caused offence to [Mr B] family in Jordan, who had an expectation that the matter be resolved through the men in the couple’s respective families or a religious figure. The Tribunal accepts the applicant’s evidence that [Mr B] belongs to a [tribe] and traditional family, capable of committing acts of violence. The Tribunal accepts that [Mr B] [relative] has killed a man in the past and his [sibling] is highly conservative. The Tribunal accepts that the applicant’s actions in Australia had caused much consternation amongst [Mr B]’s family members in Jordan and that they had made threats against the applicant through her family in Jordan. She was accused of being ‘bad’ and not respectable. The Tribunal accepts that [Mr B]’s family had threatened to take away the applicant’s [child] if the applicant returned to Jordan. The applicant claimed at the hearing, and the Tribunal accepts, that she would resist any attempt by [Mr B] and his family to take custody of her [child].
The applicant stated that persons in the community have spread gossip and false rumours about her, which might have reached [Mr B]’s family in Jordan. The applicant referred to information provided to the Department by an anonymous source, accusing her of falsifying claims of domestic violence in order to secure an immigration outcome. The Department did not place any weight on this information and, in light of the evidence provided by the applicant in relation to her experiences, the Tribunal considers the information to be malicious and false. The Tribunal further accepts the applicant’s claims that the fact that she is now living alone in Australia, without a male guardian, as well as her past relationship with [Mr A]may have fuelled gossip and accusations that she has transgressed social and moral norms of the Jordanian society.
The applicant gave evidence at the hearing that, since their separation, has not engaged in violent or threatening conduct towards her in Australia. The Tribunal, however, is of the view that in Jordan [Mr B] may behave differently. The Tribunal is of the view that the applicant’s conduct and circumstances are perceived by [Mr B] and his family to have brought shame upon them and injured their honour. While the country information before the Tribunal indicates that honour crimes in Jordan are often carried out by the brother or father of the victim, in view of the applicant’s past experiences, the Tribunal considers [Mr B] and his family to have the capacity and the motive to perpetrate violence on the applicant.
The country information before the Tribunal indicates that:
In her paper on honour crimes in Jordan, Catherine Warrick writes:
The concept of honor (sharaf) has to do with social standing on the basis of moral behavior; men's honor is intimately connected to the sexual chastity of their female relatives. Thus a woman's or girl's bad conduct would not only embarrass her family but would impugn the honor of the entire family, particularly the men, who have the right and duty of defending this honor. [1] (emphasis added)
[1] Warrick , Catherine (2005). The Vanishing Victim: Criminal Law and Gender in Jordan, Law and Society Review, 39, p. 315.
In Jordan honour crimes are a common response to perceived violations of family honour. An honour crime is a violent crime carried out by family members against girls and women who are believed to have committed some sexual indiscretion, or to have caused gossip related to sexual behaviour ‘that besmirches the honour of the family’.[2] Sexual indiscretion can range from engaging in an extramarital affair to being the victim of rape. Molly Lower explains that ‘the indiscretion need not actually take place in order for a family to feel its honour is lost—suspicion of indiscretion alone can have as damaging an effect on a woman’s reputation, and by extension, her family. When it is decided that a woman’s honour is lost and her family’s honour in need of restoration, it is usually a male family member who perpetrates the crime’.[3] Lower notes that Jordan has received worldwide attention for this issue as an estimated 25 women are killed per year in honour crimes, and one in four homicides is an honour killing.[4]
[2]Ibid.
[3] Lower, Molly, Honor Crimes in Jordan: The Politics of Islamic Rhetoric in the Article 340 Debate, The WVoice, Vol. 1, No. 7, August 12, 2013, Ibid.

According to Warrick:

In Jordan, girls and women have been killed for adultery, premarital sex, flirtations, speaking to or corresponding with males outside their families, being seen in the presence of an unrelated male, and marrying against the wishes of their families… There is little reliable demographic information on the victims and perpetrators, but the crime is often associated with conservative sectors of society, rural areas, and poor families. It is not limited to these groups, however, and anecdotal evidence suggests that the question comes up even in mainstream, urban, professional families.[5] (emphasis added)
[5] Warrick , Catherine, n1, above.

On 3 June 2014, Channel NewsAsia reported that despite increased global awareness of honour killings, more and more women in Jordan are falling victim to it. The report referred to a study conducted by Cambridge University and published in June 2013, which found that a significant proportion of teenagers in Jordan think that honour killing is morally right.[6]

[6] Hindawi, H, Honour killings on the rise in Jordan despite increased global awareness, Channel NewsAsia,

In a 2012 article, Al Monitor reported that

Every year, 20 Jordanian women are killed because of “family honor.” The actual number is higher but their deaths are not officially recorded. Pressure by civil society organizations has failed to curb these crimes and attempts to change the laws that protect the perpetrators have also failed. Activists who oppose these crimes are accused of spreading “obscenity”... The geographic distribution of honor crimes indicates that they are not associated with modernity or religiosity, nor with social or ethnic factors.[7]
[7] Fdailat, M, Jordan's 'Honor' Killings Persist Despite Reform Efforts, Al Monitor, 10 August 2012,

Warrick notes that in most cases honour killings are premeditated, and they are typically extremely violent.

Victims are not merely quietly done away with to restore family honor; instead they are killed with multiple stab wounds or gunshots, bludgeonings, or strangling, occasionally in public…
In many cases, the perpetrators present themselves to the authorities and announce what they have done, confident of a light penalty (if, indeed, they are prosecuted at all […]). As with the marriage loophole for rapists, the law allows the crime victim to disappear; her death is redefined as a justifiable homicide, her own actions (or alleged actions) become an element in the crime, and the murder victim vanishes, leaving in her place a wicked woman who had to be killed for the honor of her family and the morality of society.[8] (emphasis added)
[8] Warrick , Catherine, n1, above.

The country information submitted by the applicant also suggests that honour crimes may not necessary be based on ‘sexual honour’. According to Hadeel Abdul Aziz, a lawyer and director of the Justice Centre for Legal Aid, honour crimes are sometimes committed because a woman has ‘violated social norms’.[9] Referring to the case of Batool Haddad, a Christian girl who converted to Islam and was subsequently killed by her male relatives, Deena Dajani from No Honor in Crime, a local activist group, stated that Haddad had made a personal decision that ‘defied norms’ and that her murder ‘was a reaction to her act’. She further stated that Haddad’s death is ‘a manifestation of a deeper problem, one where using violence to punish women for perceived disgrace is accepted’.[10]

[9] Whitman, E, Loophole halts justice for honor killing victim in Jordan, Al-Monitor, 9 May 2014.

[10] Ibid.

Successive US Department of State’s Country Reports on Human Rights Practices in relation to Jordan refer to numerous honour-crime cases being reported every year, while many such crimes went unreported.[11] According to the US Department of State’s Country Reports on Human Rights Practices in Jordan in 2015:
The Ministry of Justice indicated that seven so-called “honor crimes” were referred to the judicial system through October, with one case still under investigation, while NGOs reported 14 potential honor crimes through September. Activists reported that many such crimes went unreported. The Supreme Criminal Court’s panel of judges dedicated to cases involving honor crimes in recent years has routinely imposed prison sentences of up to 15 years to perpetrators of such crimes. The Cassation Court, which reviews the Supreme Criminal Court rulings, generally decreased the sentences by half. The Supreme Criminal Court did not issue any rulings on honor crimes cases during the year. In November 2014 the courts issued one guilty verdict in an honor crime case, initially issuing a death sentence that was reduced to 10 years’ imprisonment when the victim’s family dropped their personal rights, meaning the family chose to no longer legally pursue the case. Generally, when the victim’s family chose not to pursue the case, the government completely dismissed proceedings. In “honor crime” cases, the family of the victim and the family of the alleged perpetrator were often the same, since the perpetrator and victim usually were related…Observers noted that if a woman marries her rapist, according to customary belief, her family members do not need to kill her to “preserve the family’s honor.… [12]
[11] US Department of State 2012, Country Reports on Human Rights Practices 2011 – Jordan, Sec.6, US Department of State 2013, Country Reports on Human Rights Practices 2012 – Jordan, Sec.6, and US Department of State 2014, Country Reports on Human Rights Practices 2013 – Jordan, Sec.6, and US Department of State 2014, Country Reports on Human Rights Practices 2013 – Jordan, Sec.6,
[12] US Department of State 2016, Country Reports on Human Rights Practices 2015 – Jordan, Sec.6,
The sources consulted suggest that as a matter of police and government practice, women who are believed to be likely victims of an honour crime can be placed in ‘protective custody to prevent their relatives from harming them.[13] The US Department of State reports:
Through their administrative detention authority, governors continued to place potential victims of honor crimes in involuntary protective custody in the Women’s Correctional and Rehabilitation Center in Jweideh detention facility and Umm al-Lulu detention facility, where some women remained for more than one year.… The government reported that 74 minor girls were placed in protective custody at the Dar al-Khansa Center during the year. A woman detained in protective custody can be released only after her family signs a statement assuring her safety, and both the local governor and the woman agree to the release.[14]
[13] Warrick , Catherine, n1, above..
[14] US Department of State, n12, above.
More generally, the US Department of State Report provides the following additional information:
The government did not effectively enforce the law against rape, and violence and abuse against women was widespread. Women’s rights activists speculated that many incidents went unreported because violence against women remained a taboo subject due to societal and familial pressures... Observers noted that, while judges generally supported a woman’s claim of abuse in court, due to societal and familial pressure, as well as fears of violence such as honor killings, few women sought legal remedies.[15]
[15] Ibid.
In his paper on violence against women in Jordan, Diab Al-Badayneh observes:
Violence against women in the Jordanian society is widely regarded as a family matter that affects large numbers of children and adults across their life span… Jordanian women are victimized physically, psychologically, and sexually by a wide range of behaviors that occur in a variety of cultural and social context.[16] (emphasis added)
[16] Al-Badayneh, D, Violence Against Women in Jordan, Journal of Family Violence, July 2012, Volume 27, Issue 5, pp 369-379.
On the basis of the evidence before it, the Tribunal finds that if the applicant were to return to Jordan there is a real chance that she will face serious harm at the hands of [Mr B] and members of his family. The Tribunal is satisfied that, the fact that the applicant is now divorced from [Mr B] under Islamic law and in the process of divorcing him under Australian law, does not reduce her chances of facing serious harm in Jordan. The Tribunal is satisfied that the harm involves a threat to her life or liberty and significant physical harassment or ill-treatment and therefore involves ‘serious harm’ as required by paragraph 91R(1)(b) of the Act .
The Tribunal has considered whether the applicant could avoid the persecution she fears by internally relocating within Jordan. The Tribunal is of the view that as a single, divorced woman with an infant child the applicant would be completely reliant on her own family and would be compelled to reside with them. The Tribunal is of the view that in these circumstances there is a real chance that [Mr B] and/or members of his family would be able to locate the applicant if she were to return to Jordan.
The evidence before the Tribunal suggests that [Mr B] and his family’s motives in harming the applicant are personal. The Tribunal is not satisfied that in harming the applicant they are essentially and significantly motivated by any Convention reason. Rather, the harm feared by the applicant is a personal matter to do with traditional concepts of ‘family honour’ and transgression of social norms. While, on the basis of the country information before it, the Tribunal accepts that women in Jordan form a particular social group within the meaning of the Convention, [Mr B] and his family do not wish to inflict harm upon the applicant because she is a woman, but because she has insulted or injured their ‘honour’ or defied norms.
Although the harm feared by the applicant is not Convention related, the Tribunal is of the view that the Convention test in this case may be satisfied by the selective and discriminatory withholding of state protection for a Convention reason from serious harm that is not Convention related (see MIMA v Khawar (2002) 210 CLR 1).
The sources consulted by the Tribunal strongly suggests that systemic discrimination against women in Jordan, and particularly victims of honour crimes, is entrenched in legislation, law enforcement and administration justice and reflects widespread unwillingness by the state to recognise the abuse involved or to take meaningful action against the problem. Indeed, it is more tragic than it is ironic that the police regularly imprison women who are potential victims of honour crimes for their own protection. Should the applicant be subjected to such ‘protection’ as a result of her situation, the deprivation of liberty, of itself, may amount to serious harm within the meaning of s91R.
On the basis of the evidence before it, the Tribunal is satisfied that the applicant would not be able to access state protection in Jordan for the reason that she is a member of a particular social group, namely women in Jordan. The Tribunal is satisfied that the authorities in Jordan would not be willing or able to protect the applicant from the harm she fears. Thus, the absence of state protection is an intrinsic part of the persecutory harm, and in this context, women in Jordan can be seen as a particular social group. In view of the country conditions in Jordan, the Tribunal finds that state protection would be withheld from the applicant for the Convention reason of her membership of a particular social group. The Tribunal finds that there is a real chance that the applicant would be denied protection by the Jordanian authorities from the harm she fears at the hands of [Mr B] and members of his family for the reason of her membership of the particular social group of women in Jordan. The Tribunal, therefore, is satisfied that the applicant has a well-founded fear of persecution for a Convention reason.
The Tribunal is satisfied that the applicant has a well-founded fear of persecution for a Convention reason in Jordan. The Tribunal is satisfied that the applicant does not have a legally enforceable right to enter and reside in any country other than her country of nationality. The Tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act (see Applicant C v Minister for Immigration and Multicultural Affairs [2001] FCA 229; upheld on appeal, Minister for Immigration and Multicultural Affairs v Applicant C (2001) 116 FCR 154).
For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations. Therefore the first named applicant satisfies the criterion set out in s.36(2)(a).
The Tribunal is not satisfied that the other applicant is a person in respect of whom Australia has protection obligations. Therefore he does not satisfy the criterion set out in s.36(2)(a) or (aa). However, the Tribunal is satisfied that she is a member of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i). As such, the fate of her application depends on the outcome of the first named applicant’s application. As the first named applicant satisfies the criterion set out in s.36(2)(a), it follows that the other applicant will be entitled to a protection visa provided she meets the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii)that the other applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Shahyar Roushan
Senior Member