1711505 (Refugee)

1711505 (Refugee) [2021] AATA 3441 (18 September 2021)

DECISION RECORD

DIVISION:        Migration & Refugee Division
CASE NUMBER:        1711505
COUNTRY OF REFERENCE: Jordan
MEMBER:       Roslyn Smidt
DATE:   18 September 2021
PLACE OF DECISION: Sydney
DECISION:      The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 August 2021 at 2:24 PM

CATCHWORDS
REFUGEE – protection visa – Jordan – religion – Christian now atheist critical of Islam and Christianity – political opinion – supporter of secularisation of constitution – activity on social media and online forums – threats, warnings, blocked posts and suspended accounts – returned failed asylum seeker – mental health – credibility – inconsistent claims and unconvincing evidence – application for protection made after spouse visa refused – activities and interactions exaggerated or manipulated, undated or dating from after spouse visa refused or not clearly identified as the applicant – country information – no legal penalties for conversion or apostacy, and low to moderate ostracism and discrimination – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 5H(1), 5J(1), 36(2), 65

Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 11 May 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who is a citizen of Jordan, applied for the visa on 26 October 2016. The delegate refused to grant the visa on the basis that he failed to attend a scheduled interview and, on the evidence before, her she was not satisfied that his claims were true or his fear genuine.

Criteria for a protection visa

The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a) of the Act. In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1) of the Act, 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-5LA of the Act, 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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

background

The applicant is a [Age] year old man from Jordan. He arrived in Australia on a temporary spouse visa [in] April 2013 and applied for a permanent spouse visa in 2015. This application was refused on 18 January 2016 because the delegate was not satisfied that the applicant was in a continuing relationship with his sponsor. This decision was affirmed by a differently constituted Tribunal on 26 September 2016.

The applicant’s mental health

On 8 April 2021 the applicant provided reports from [Services provider] dated 19 April 2018 and 1 February 2021. The latter states that he was anxious and distressed because he feared returning to Jordan where he would be at risk of suffering serious harm. It also states that he experiences symptoms consistent with PTSD, experiencing trauma visions as a result of visualising himself in similar positions to people he has seen in videos of the treatment of atheists in the Middle East. It states that he had reported having difficulty preparing himself for his hearing and was concerned that he would not be able to represent himself adequately. It also notes that he had not displayed evidence of formal thought disorder or perceptual disturbances.
At the hearing I advised the applicant that I understood that PTSD was characterised by a failure to recover after experiencing or witnessing a traumatic event and asked him to tell me about any traumatic events he had experienced or witnessed. He said he suffered from the symptoms associated with PTSD because after he arrived in Australia, he received threats on [Social media 1] and because his [Social media 1] page was closed in 2018. He said that the repeated rejection of his migration applications had given him nightmares.
I accept that the applicant has experienced symptoms consistent with PTSD due to his concerns about his future. I also accept that he was concerned that he would not cope well at the Tribunal hearing. However, while I have had regard to issues, I do not accept that they significantly hampered the applicant’s ability to provide evidence in support of his case. He did not appear to have any difficulty understanding my questions or comments at the hearing and responded a confident and appropriate manner. In addition, he was represented by a competent legal practitioner who accompanied him at the hearing. Both he and his representative had the opportunities to raise any relevant issues or concerns during the hearing.

summary of claims

The applicant claims that he faces serious or significant harm from religious extremists, the Jordanian government, some relatives and close associates and others in the community if he returns to Jordan because he is an atheist and he has shared his views and criticisms of religion with many people online, mostly on [Social media 1] pages. It has also been claimed that he would be at risk of harm on return to Jordan because he will be seen as an opponent of the Jordanian government as a result of his religious and political activities in Australia. Finally, it was submitted that the applicant would be at risk of harm on return to Jordan because of his membership of the particular social group of failed asylum seekers returning to Jordan.

COUNTRY INFORMATION

The following is intended to provide a context for the applicant’s claims. Unless otherwise stated it is based on information in the ‘US Department of State Report on International Religious Freedom: Jordan. 2020’.
Some 97% of the population of Jordan are Muslims. Slightly less than 2% are Christians. The Jordanian Constitution declares that Islam is the religion of the state, but also provides safeguards for the free exercise of all forms of worship and religious rites provided that they are consistent with public order and morality. The Constitution also stipulates that there should be no discrimination based on religion. It does not address the right to convert to another faith or to abandon religion entirely and there are no penalties under civil law for converting or abandoning religious belief. Converts from Islam report ostracism, abuse from their families and community and pressure from the authorities, but there is no suggestion that anyone has been charged with an offence. Nonbelievers have reported societal intolerance and discrimination.
The judiciary is divided into civil courts, religious courts, and special courts. Religious courts deal with matters concerning personal status Cases involving a Muslim and non-Muslim are heard by a civil court unless both parties agree to use a Sharia court. Members of recognized religious groups which do not have their own courts may take their cases to civil courts, unless both parties to a case agree to use a specific religious court. There are no tribunals for atheists or adherents of non-recognized religious groups. Such individuals must request a civil court to hear their case. Atheists and agnostics are often registered under the religious affiliation of their families.
The penal code contains articles which criminalize acts such as incitement of hatred, blasphemy against Abrahamic faiths, undermining the regime, or portraying citizens in a manner that violates their dignity. Insulting the Prophet Muhammad is punishable by one to three years imprisonment. People who publish material which insults the founders or prophets of religions protected by the Constitution or material which offends religious feelings or belief may face prison or fines.
The government has restricted or disrupted access to the internet and censored online content in recent years. The law gives authorities explicit power to block and censor websites in some circumstances. There have also been credible reports that the government monitored private online communications without appropriate legal authority.
A Canadian Immigration and Refugee Board report dated June 2010 notes that Muslim apostates are most likely to face problems and observes that laws regarding public order and morality may be used against those seen as insulting religion, in particular Islam. It quotes a US academic with long experience in the region who stated that she was unaware of any cases of discrimination against atheists in Jordan, but considered it likely that someone who publicly proclaimed they were an atheist would face a negative reaction from society depending on their social or familial context.
A 15 July 2019 report by the Pew Research Centre provides some limited but useful insights into official and societal attitudes towards religion in Jordan. While it does not specifically address the issue of atheists or non-believers, it indicates that the government seeks to limit extremist views and tensions surrounding religious differences and that while religious hostility is an issue, it is not a significant problem. The report observes that the government imposes a high level of restriction on religious practice, for example monitoring sermons in Mosques and imposing rules which ban discussion of politics during religious services in order to counter extremist views and avoid social and political unrest (pp.20 & 85). After reviewing a number of factors ranging from acts of communal violence to hostility relating to conversions, the report assessed the level of social hostility relating to religion in Jordan as moderate (p.88). The report indicates that there is a low level of inter-religious tension and individual or social group harassment (p.124).
The applicant has referred to the following three cases of people facing charges relating to religious comments or acts.
The first case involved students at university in Mafraq in the north of the country who were attacked by their fellow students and detained in early 2013, after rumours circulated that they had desecrated a Quran and engaged in ‘devil worship’, apparently because they frequently dressed in black and were rock music devotees. An investigation by the university found no evidence to support these allegations, but they were held in detention for an extended period and according to the report provided by the applicant they were sentenced to one month of prison for ‘insulting a religious symbol’.
The second involved a well-known comedian named Ahmed Massad who, according to the article provided by the applicant, faced jail for contempt of religion and offending religious sentiments in 2016. The article notes that he has a huge following on Facebook and YouTube and a history of criticising aspects of Jordanian society which he sees as backwards, and that he had previously faced court on two occasion because of the content of his videos. The outcome of these cases and the nature of the comments which led to the 2016 charge are not recorded. There is no mention of his case in the 2016 or 2017 US reports cited above, which suggests that he was not imprisoned. I have been unable to locate any further information on the case. He appears to continue to reside in Jordan and to have a huge following on Facebook and YouTube.
The third and most high-profile case involved the arrest and murder of well-known writer and activist Nahed Hattar in 2016. Mr Hattar, who describes himself as an atheist, was charged with inciting sectarian strife and racism and insulting religion after posting a cartoon (which he had not authored) on his Facebook page that included a personification of God. He was on bail when he was killed outside the court. His killer was found guilty of carrying out a ‘deadly terrorist act’ and executed in 2017. According to reports there was a spike in sectarian rhetoric online following his arrest, much of which referred to his Christian heritage. The Cybercrime Unit of the Public Security Directorate referred dozens of cases of spreading hate speech related to the cartoon and Mr Hattar’s killing to the judiciary for prosecution and at least 16 individuals where arrested. King Abdullah repeated previous public statements urging citizens to respect the country’s long history of religious tolerance and coexistence, which appears to have reduced the level of sectarian rhetoric. The 2017 US Report on International Religious Freedom in Jordan reported that authorities had detained two individuals for allegedly posting threats on social media against liberal columnists who were receiving continuous threats after Mr Hattar was killed.

In my assessment of the applicant’s case I have also had regard to the country information which he provided (see below). Some items confirm the information set out above. Some appear to relate to places other than Jordan. Where it differs from the information set out above, I prefer that which comes from the US Department of State and other sources set out above.

claims and evidence

Protection visa application

The applicant applied for protection on 26 October 2016.
In the answer to questions on the application form, the applicant said that he feared he would be or arrested or killed or persecuted by Islamic extremists if he returned to Jordan because he is an atheist. He said that he had been very quiet, never published anything and kept his thoughts secret while living in Jordan but he had been publishing his thoughts on a [Social media 1] page in Australia (the first [Social media 1] page).
The applicant provided two written statements with this application. The first is dated 10 October 2016. It is confused and difficult to follow. Much of it appears to be general comments on the situation in the Middle East. It also refers to problems faced by the applicant, apparently when he sent a picture to the wrong group of people who accused him of supporting secularism and to people asking his brother when he was going to return. At the hearing on 6 August 2021 it was established that this statement refers to people accessing the applicant’s first [Social media 1] page (see also letter below).
The second statement is undated. It states that the applicant was an observant Catholic until about 2003 when he moved to Amman to study [Subject]. After that he began to question his faith and spent many hours researching religion, mostly on the internet. He learned a great deal and began to question his faith. He spoke to two cousins who worked as ministers for Christian churches but they were unable to provide satisfactory answers to his questions. One of them blocked him on [Social media 1]. After this the rest of his family in [City] learned that he was asking strange questions about religion.
The applicant continued his research and started accessing atheist forums and [Social media 1] pages, but never identified himself or made any comments when visiting these pages in Jordan. The only way people who did not believe in God could express their views in Jordan was over the internet, using a fake name and no photograph to avoid being identified. He did not tell anyone in Jordan about his beliefs.
After the applicant arrived in Australia and had the freedom to publish his thoughts, he began to post things on his first [Social media 1] page and make comments on other atheist [Social media 1] pages. Some of his comments were criticised for being too harsh and in 2015 he set up his own atheist [Social media 1] page where people could say whatever they liked. The page had attracted 250,000 followers by 2016. The applicant provided addresses for this [Social media 1] page and his personal [Social media 1] page.
The applicant said that in Jordan anyone who publishes or expresses atheist ideas is jailed. They also lose many rights including the right to have a job, to form a family, to own a car or to have any dealings with government Departments in their own name. If they are married, they are forced to divorce. In addition to these problems, according to Islamic law, atheism is punishable by death, so killing an atheist who speaks publicly is seen as an honourable act in Jordan, where the vast majority of people are Sunni Muslims.
The applicant noted the case of well-known Jordanian writer, Nahed Hattar, who was arrested after publishing a cartoon seen as anti-Islamic and shot dead by an extremist after he was released on bail. He said that Mr Hatter’s case was widely known because he was a prominent man, but there were many other cases of people who shared his beliefs suffering serious harm. He said that he would be at risk of harm from extremists and the government if he returned to Jordan.
The applicant provided a number of media articles regarding Mr Hattar. The information in these articles is broadly similar to that set out above. One reports that Mr Hattar was born a Christian but considered himself an atheist. He wrote numerous critiques of political Islam and was an outspoken critic of ISIS and Al Qaeda.

The applicant also provided a number of supporting documents including:
   A statement dated 10 October 2016 from the applicant’s brother. It is somewhat confused and difficult to follow. It claims some unknown people had asked when the applicant would return to Jordan and made veiled threats against him and warns him to deactivate his [Social media 1] page.
   Copies of a number of articles criticising Islam which the applicant claimed were examples of the kind of material he published on social media while in Australia.
   Screen shots of articles and comments relating to religion posted on [Social media 1] pages dated between 28 December 2013 and 19 July 2015. Many are in Arabic. Some appear to be abusive or threatening. There is no indication of the location of the people who posted the comments.
   A copy of the 2015 US report on International Religious Freedom in Jordan with highlighted sections which state that atheists and members of unregistered religious groups face legal discrimination and administrative hurdles as personal status matters such as marriage are under the jurisdiction of religious courts; that while there are no civil laws banning Muslims from converting to other faiths and no penalties for doing so, Muslims may face problems because of the operation of sharia courts, and that proselytizing to Muslims can be prosecuted under provisions against inciting sectarian conflict and harming national unity.
   A copy of the Canadian Immigration and Refugee Board report dated June 2010 cited above. The applicant commented that the academic who said that she was not aware of atheists facing problems did not live in Jordan and had only met high ranking government officials. At the hearing on 6 August 2021 it was established that the applicant had no personal knowledge of the academic who made these comments, but he believed that Jordanians would not have spoken to her about matters such as atheism.
   An article in Arabic which according to the applicant sets out or comments on Jordanian law on atheists. It is accompanied by a translation which appears to have been done by the applicant himself and is difficult to understand. It does not provide any clear information about the legal status of atheists and much of it appears to relate to apostasy and provisions relating to family law.
On 2 May 2017 the applicant was invited to attend an interview at the Department of Immigration on 8 May 2017. He claims he was not advised of the hearing and therefore failed to attend.
In her decision the delegate noted she had attempted to locate the applicant’s atheist [Social media 1] page using the address provided and by searching for his name and the word atheism, but without success. On the evidence before her the delegate was not satisfied that the applicant was an atheist or that he had operated a [Social media 1] page for atheists or posted items which supported atheism on his [Social media 1] pages.

Evidence provided to the Tribunal

Pre-hearing submissions

In October 2017 the applicant provided electronic links to his [Social media 1] pages and a number of documents including:
   A letter from [Ms A] which states that she has known the applicant for three years and could confirm that he was raised a Christian and is now an atheist. It states that the applicant would be killed if he returned to Jordan because of his online posts and his beliefs. It also states that the applicant’s spouse visa application failed as a result of the incompetence or actions of his migration agent and she intended to lodge a complaint regarding this. At the hearing the applicant said that he and [Ms A] met in Australia and she had helped him with his application about three years ago, but they are no longer in close contact.
   An undated report in a publication called ‘The Freedom of Thought Report’ which states that law in Jordan is entirely based on religious law, that it is illegal to register an atheist group or a non-religious NGO and that such groups are persecuted by the authorities. It states that conversion from Islam is prohibited and that the penal code makes insulting Islam or the Prophet Mohammad a crime punishable by up to three years in prison. It also states that there is no law against apostasy, but apostates lose certain rights. The only mention of atheism is testimony from someone who states that he came out as an atheist in 2008 but did not face any problems because his family and most people close to him held similar views. However, he feared that he would face harassment if he disclosed his views outside his immediate circle.
   An article dated 1 June 2016 which states that Jordanian comedian Ahmad Massad faced jail for contempt of religion and offending religious sentiments.
   A report published by the Arabic Network for Human Rights Information dated 9 May 2017 which notes that anti-terrorism laws and other actions in Jordan have resulted in the closing of websites and arrests of people in Jordan for political activities. The only example cited is Nahed Hattar who was charged with an offence for posting an anti-ISIS cartoon seen as offensive to Islam and later murdered.
   Several reports on the arrest and murder of Nahed Hattar.
   What appear to be numerous comments posted on the Jihad Watch website in August 2016. The applicant is not identified in any of these comments.
   A report dated 2 May 2014 on the murder of a Christian woman whose father killed her because she had converted to Islam.
   An article dated 23 June 2005 on the murder of several women, including a Christian woman, in Palestine by family members.
   A photograph of police with an untranslated Arabic article.
In a statement dated 1 April 2021 the applicant said that after his spouse visa was refused, he was fearful of returning to Jordan and his former representative advised him to apply for protection. He prepared a statement and supporting evidence, but later discovered that not all of this material was provided to the Department. He claimed that the delegate was unable to access his [Social media 1] accounts because his previous representative had not provided the relevant links. He also claimed that he had not attended the hearing because his representative failed to advise him it had been scheduled.
The applicant again stated that he had lost his Catholic faith before leaving Jordan. After moving to Amman, he became more aware of other religions. Sometime later he decided to get a [tattoo]. He was aware that those who got tattoos were regarded as bad people who were likely to belong to gangs. He contacted his cousin [Mr B] who was a member of an evangelical church and internationally famous to ask for his advice. [Mr B] told him that getting a tattoo would be disrespectful and he should not change his body as it was a gift from God. The applicant found this response quite strange and had the tattoo done.
Following this the applicant started to question his faith. He could not reconcile the view that getting a tattoo was against Jesus when many worse things happen to innocent people and they are not helped. He contacted [Mr B] to seek his opinion on things he was exploring such as the theory of evolution and asked him why these things were not mentioned in the Bible. [Pastor B] became annoyed with him and eventually blocked him on [Social media 1].
The applicant said that he had also contacted two other cousins who belonged to the same church as [Mr B] and asked them similar questions. They also blocked him on [Social media 1].
The applicant realised it was not safe to have conversations which appeared to question religion. He felt isolated but continued to research religion. He read Islamic views criticising Christianity and information from Christians denouncing Islam. By the time he left for Australia he was questioning everything.
The applicant said that after moving to Australia in 2013 he created a public album on his personal [Social media 1] account called ‘[Name 1]’, and between 2013 and 2015 he posted facts about religion and some 500 photographs about Islam and Christianity. He also joined all the atheist groups on [Social media 1] using his own name and posted his opinions on these pages.
One of the groups the applicant joined was a Jordanian group which was created after the he left Jordan. He chatted with the administrator of that group’s [Social media 1] page who lived in Amman. He was surprised that such a group existed and that the administrator was safe speaking about atheism while living in Amman. The group began to delete the applicant’s posts because they were seen as too harsh, so in 2015 he started his first [Social media 1] page. It was Arabic language page called ‘[Name 2]’. This page was open to the public and eventually had 535,000 followers.
The applicant said that he had posted harsh and honest criticisms of Islam and Christianity on the [Social media 1] page he created. He also continued to post comments on his own [Social media 1] page. Almost immediately he began to receive threats, but he was not greatly concerned because he was in Australia. He also received warnings from [Social media 1] at least once a week that his posts did not meet community standards. [Social media 1] regularly removed or blocked his posts, sometimes for up to a month. The page had another two administrators who could continue post items when he could not. He also used two aliases with administration rights so he could continue to access the page when it was blocked. In 2017 he set up an atheist [Social media 2] which he called ‘[Name 3]’. He uploaded [videos] to the [page]. He was also interviewed by someone called [Mr C] on his ‘[Name 4]’ [page].
The applicant said that his first atheist [Social media 1] page was shut down in February 2018. He was upset because he had invested a lot of time establishing the page and because it meant he no longer had evidence to provide to the AAT. He reached out to friends in the atheist community asking them to report the closure of his page on their websites and for help getting his page re-instated. He also appealed to [Social media 1] and after a few weeks his page was back online. He decided to establish another [Social media 1] page (the second [Social media 1] page) in case of future problems.
The applicant said that he had to start from scratch and rebuild his following. He continued to post on the page every day, but he has modified the tone of his comments. For example, in the past he had posted a photograph of an old man marrying a young girl and said that the man was a paedophile rapist copying his prophet, but he now used less offensive language and did not refer directly to Jesus, Mohammad, Islam or Christians. He continued to receive threats, but not as many as previously. He said that his page had [number] followers at the time of his submission.
The applicant said that he feared he would be arrested at the airport if he returned to Jordan because he had exposed himself as an atheist and the authorities might be aware of his views. He said that government would jail him and publicise his court date which would place him at risk of harm like Nahed Hatter. He said that he also feared harm from his family members, neighbours and close friends. He said that both his brother [Mr D] and his mother had asked him to deactivate his [Social media 1] page as they were fearful of what might happen to him if he did not.
The applicant also provided a copy of a report from a counsellor at Counsellor at [Services provider] dated 19 April 2018 which states that he lived in Amman for about five years before moving to [Country 1] to work for [Employer]. The report said that he started questioning his religious beliefs at a young age, for example asking his parents about Adam and Eve and why humanity has to suffer now because of their actions. In about 2008 he began to watch [a Country 2] Catholic priest based in [Country 3] preaching against Islam on television. In his view the priest did not provide adequate answers in defence of Christian beliefs, so he asked a cousin who was a priest about these issues. He was not satisfied with the answers he received and this began his transformation to atheism.
According to the counsellor’s report the applicant said that he joined many atheist-based [Social media 1] pages and frequently made comments and shared his thoughts on religions, including Islam. He began to receive serious threats, including comments from people who stated that they knew where he lived. Following that he stopped posting comments and all activity on [Social media 1] for some time.
In a submission dated 8 April 2021, the applicant’s representative submitted that he would continue to promote atheism if he returned to Jordan and argued that it would be an error of law to suggest that the applicant could escape harm in Jordan by suppressing his religious views. She submitted that information from the US Report on International Freedom and other sources suggests that non-Muslims face hostility, prejudice and persecution in Jordan such that the applicant would face a real chance of experiencing serious or significant harm from the Jordanian government and some Muslims. She noted the case of university students who were sentenced to one month in prison for insulting a religious symbol because their dress and musical taste indicated that they were devil worshippers and information from Atheist Alliance International which states that atheists in Jordan lose most of their civil rights, that marriages may be dissolved, that they lose children and inheritance rights. The article also notes that Jordanians can be very intolerant of atheists and most do not reveal their beliefs. She also noted provision in Jordanian law which she submitted restricted freedom of expression and placed the applicant at risk of harm because of the nature of the material on his [Social media 1] page.
In support of his claims that applicant provided a number of documents including:
   Translations of threatening comments the applicant claims were posted in response to comments he made on unidentified [Social media 1] pages. The translations are dated October 2017. None of the posts are dated. Some include [the applicant’s given name]. There is no indication of the location of the people who posted the threatening comments.
   Translation dated February 2018 of an undated [Social media 1] post by someone called [Mr E] which purports to share a message from [Social media 1] which states that someone using the name [User name] had anonymously reported a page called ‘[Name 5]’ which had then been removed.
   Several messages from [Social media 1] regarding removing posts or temporarily blocking [Social media 1] pages. Most are undated and do not identify the page or post involved. One is dated 28 September 2016. It names the applicant and states that a post had been removed because it goes against [Social media 1]’s standards on dangerous individuals and organisations.
   A screen shot of an undated message which the applicant posted on [Social media 1]’s community help page. It states that his first [Social media 1] page has been disabled after four years due to pressure from Muslim groups. It states that the page is about free speech and freedom in the Middle East. It states that the applicant had never harassed anyone or posted anything which was against [Social media 1] rules and had operated non-stop before being closed. It states that the page had 1 million followers and fans and that it is central to his claim for protection in Australia which will fail if he is unable to show the page to the Tribunal.
   An undated message from the applicant to ‘[Name 6]’ which is identical to the message he posted on the [Social media 1] business page regarding the disabling of his first [Social media 1] page.
   Undated screen shots of the activity on unnamed [Social media 1] pages, one of which states that page had been visited over 39,000 times and received 535,500 likes in the previous month.
   Screen shots of several page insights for [Social media 1] pages. Most do not identify the page in question and provide a day and month for the post, but no year. They state that the page in question had more than 500,000 likes and reached over 1 million people. One is dated 2 to 29 March 2021 and includes a photograph which appears to be the same as the photograph which appears on the applicant’s [Social media 1] pages. It states that the page in question had reached over 94,000 people.
   An exchange between [Mr F] and an unnamed person between 16 April 2014 and 12 June 2014 using [Social media messaging]. One comment mentions adding an ex-Christian living in Amman to the group, another talks about blocking someone. The applicant does not appear to be mentioned anywhere.
   Information on Unified Arab Criminal Code apparently prepared by the League of Arab States which appears to include provisions for the death penalty for Muslim apostates.
   A post on [Social media 1] page dated 20 February 2018 which includes a link to a video dated 19 February 2018. I have reviewed this video. It shows a man who identifies himself as an ex-Muslim activist. It states that [Social media 1] routinely closes atheist pages in response to complaints from Muslims. The only specific case mentioned involved an unnamed person who needed the page to demonstrate that he was an atheist and avoid being sent home. Pictures in the background are the same as pictures on the website which the applicant claims belonged to him.
   A link to a [Social media 2] called ‘[Name 3]’. I have accessed this [page]. It contains a number of videos, all but one of which was uploaded three years ago. The other is two years old and shows [an] event. I have not reviewed the content of all videos but the first shows an American man criticising all religious beliefs. None of them appears to have been created by or to feature the applicant.
   A link to the applicant’s interview with [Mr C] from ‘[Name 4]’ [page]. I was unable to access this video.
   A link to the applicant’s second [Social media 1] page. I have accessed this page. It has nearly [number] followers. The main activity appears to be reposting items from elsewhere accompanied by brief comments, some in English, some in Arabic. Some appear to be comments on religion. According to a section headed ‘page transparency’, the page was created [in] April 2016 and its name was changed [in] August 2019.
The applicant attended a hearing of the Tribunal on 12 April 2021.
I asked when and why he had begun to question his Christian beliefs. He said that the trigger was the attitude of cousin who had a high position in the Church when he asked for his opinion on tattoos. Following that he researched why tattoos were bad and found many criticisms of Christianity, some of which he believed, were correct. I asked what he had discovered about Christianity that was most objectionable. He said that it was the idea that God was Jesus and the story of Adam and Eve and he also objected to requirements such as the requirement to pray every Sunday. I noted that these were beliefs set out in Catholic teachings which he would have been aware ofbefore commencing his research. He said that he was not allowed to question his beliefs. I advised him that I was still somewhat confused about his reasons for leaving his faith. He said that he began to doubt many of the stories in the Bible such as the creation story and stories relating to miracles. He also objected to the belief that women had to be in pain all their lives. He said that it was a slow process which began in about 2003 and by 2005 he had lost his faith.
I asked the applicant what being an atheist meant to him. He said that he had problems with the word ‘atheist’ because it was a very religious word. He said that he did not believe anything without proof. He did not believe in the Bible or Jesus or any kind of greater power. He only believed in science.

I asked the applicant if he had been involved in activities relating to religion or atheism between the time he lost his faith and his departure from Jordan. He said that he had joined all of the atheist groups in Jordan. When asked to name these groups he said that one was called ‘[Name 8]’, but the first group he joined was a group called ‘[Name 9]’ which he found on [Social media 1]. He said that he had joined this group about 2013 or 2014. I observed that this appeared to be after he arrived in Australia and asked if he had been involved in any groups before leaving Jordan. He said that he had joined many groups with many names. I noted that he had stated that the first group he joined was a [Social media 1] group called ‘[Name 9]’ and asked if that was correct. He said that he had done research in Jordan, but he had been unable to leave any comments or even to like posts. I asked again which atheist group he had joined first. He said that it was ‘[Name 8]’ and he had joined in about 2004 or 2005. I observed that he appeared to be changing his evidence which caused me to doubt his claims. He said that he had joined so many groups that he could not recall all of them. I observed that it seemed unlikely he would have forgotten the first group he joined and even more unlikely that he would have been confused about whether it was in about 2005 in Jordan or about 2015 in Australia. He said that he was confused because after he arrived in Australia, he joined every group he could find and started posting on their pages. I advised him that it was my understanding that it was easy to access the internet and [Social media 1] in Jordan and it seemed unlikely that he would have been unable to make comments on posts made by these groups. He said that to do so would have caused problems.
I asked the applicant if he had joined any atheist groups apart from ‘[Name 8]’ before he left Jordan. He said that he had joined 10 or more atheist groups while still in Jordan, most of which were based outside the country. Most people on these pages used fake names and fake addresses. I asked what he meant when he said that he had joined these groups. He said that he had become a follower on their [Social media 1] pages, but he did not post anything while in Jordan.
I asked the applicant if he had told anyone he had lost his faith before he left Jordan. He said that he had told a cousin who also had doubts about his religion. This cousin was shocked but did not cause him any problems. He said that his immediate family was now aware that he had abandoned his faith. They have not rejected him, but other relatives have.
I asked the applicant if he had joined any groups or participated in any activities while in Australia that were not online. He said that he had only been involved with online groups and activities and only joined one online group based in Australia. It was called ‘[Name 6]’. He used to communicate with members of that group in the past but stopped when he established his own page (in about 2015). I asked why he had not contacted or spoken to like-minded people in Australia. He said that he did not need friends who were atheists to share his thoughts as he shared his thought on his page. In addition, he was busy with his family and commuting from [Town] and Canberra.
The applicant said that he had established a [Social media 1] page dedicated to atheism in 2015 after the administrator of the Arabic pages on which he was posting his views began to complain about the harsh nature of his comments, because they feared the comments would cause problems. He said that while he was still a follower of these groups, he had not posted anything on any of these pages or interacted with them in any way since 2015, but later said that he occasionally posted something funny on the Australian page.
The applicant said that the purpose of his [Social media 1] page was to share his thoughts and reach his goals. He said that his first goal was to make Jordan a secular state and remove Sharia law from the Jordanian Constitution.
The applicant said that his first [Social media 1] page had remained active for three years from about 2015 to 2018 and eventually had a following of 500,000 people. I asked how he had gained such a large following. He said that he had not done anything in particular. People liked what he wrote and followed him. He said that his first [Social media 1] page was shut down because of complaints by Muslims who conducted a campaign against pages dedicated to atheism.
I observed that the delegate had stated in her decision that she had accessed the applicant’s personal [Social media 1] pages but there were no posts relating to atheism and she had been unable to access the page he claims was dedicated to sharing his views on religion. The applicant maintained that he had posted material about atheism on his personal page and said that the delegate had not been able to access the page dedicated to atheism because his representative had not provided the appropriate link. I noted that the delegate had used the address provided and had also tried to locate the page using keywords, and observed that even if a link was not provided it seemed unlikely that the delegate would have been unable to locate a page in this way. He said that it was an Arabic language page and it was not easy to find a [Social media 1] page without the link.
I observed that the applicant’s principal aim appeared to be to pressure or influence the government in Jordan and bring change rather than to join a group of like-minded people and asked how he hoped to achieve this goal. He said that his page was very popular in the Middle East. All of his followers are Arabs, mostly from Jordan. He said that he had [number] followers and his page reached at least 2 million people a week. I asked if he had engaged in any activities aimed at achieving his goal apart from posting on his [Social media 1] page. He said that he had been asked to do an interview on atheism on an Arabic [Social media 2] called ‘[Name 4]’ about three years ago.
Later in the hearing the applicant said that he spent hours day and night writing posts for his [Social media 1] page. Given his stated aim of changing the Jordanian constitution, I asked about his knowledge of Jordanian constitutional law. He said that he had nothing to do with the government, he was only interested in religion. I observed that he had stated that his first aim was to change the Jordanian constitution which appeared to be an issue of law and politics. He said that he sometimes wrote about these things, but mostly he wrote about the Bible and the Koran and matters of that nature. He added that he wanted to change everything; the way people think, the Constitution, the fact that people are always killing each other. I advised the applicant that it was not my understanding that there was a great deal of killing on religious grounds in Jordan. He agreed that killing for religious reasons was not common in Jordan and he had been referring to the Middle East more generally. He said that his main interest was in opposing all religions and he wanted Jordan to change.
When asked about his specific fears, the applicant said that he feared everyone but he particularly feared Muslims who were likely to kill him or harm him physically in some way because of his views on religion. He said that the government would not protect him and were likely to expose him to risk by revealing his details such as they did with Mr Hattar. In addition, he would lose all of his rights, such as the right to marry or have a job.
The applicant offered to show me his current [Social media 1] page which was dedicated to atheism in order to demonstrate that he could access and control the page. I advised him that I accepted that he could access a [Social media 1] page which promoted atheism. I advised him that I had concerns about evidence relating to people’s activities on [Social media 1] as it was easy to manipulate. Posts can be added or removed and dates can be changed. The applicant said that he did not engage in these activities. I reviewed the page following the hearing.
I observed that it appeared that while Mr Hattar was known to be an atheist, it appeared that he had faced problems in Jordan because of his opposition to the government and the publication of a particular cartoon which was seen as insulting God. The applicant said that Mr Hattar was well known as an opponent of the government but his atheism was not widely known, which was why he had not faced problems until shortly before his arrest and death.
I advised the applicant it was my understanding that neither atheism nor apostasy were crimes in Jordan, although the latter could result in the loss of some rights. He said that this was not correct as they were both illegal.
I advised the applicant I had a number of concerns about the evidence he had provided about his beliefs and his activism as an atheist. For example, I noted that he appeared to have given differing accounts of when and why he became an atheist and the claim that he had accumulated a following of some 500,000 on [Social media 1] by doing nothing more than post his views on religion.
The hearing continued on 17 May 2021.
I asked the applicant if he had lived or worked outside Jordan before he came to Australia. He said that he had been in [Country 1] for a month or two in about 2011 or 2012, but he did not work there. I noted that he appeared to have told his psychologist in 2018 that he left Jordan about five years after he moved to Amman and went to work in [Country 1]. He said that he had worked in [Country 1] for about a month, but he did not like the work and returned home. He said it was not a real job, just to see if he liked it and wanted to stay.
I asked the applicant when he spoke to his cousin about getting a tattoo. He said that it was sometime between 2009 and 2011. I observed that it seemed a little strange that he would not recall more precisely when this conversation occurred, given that he claimed it was an important event which ultimately led to his loss of faith. He said that it was in 2010 at the latest.
I asked the applicant about his relationship with [Mr B]. He said that they were second cousins, but they were close. I asked what he could tell me about [Mr B]’s church and why he had joined an evangelical church, given that the applicant’s family were Catholics. He said that [Mr B] had liked that church better than the Catholic church and gradually became a member. He said that [Pastor B] was a little older and they had not grown up together, but then said that the families had been close from the time he was quite young. He said that [Mr B] was not wealthy, but he was fine. He said that [Pastor B] came from an average family, neither well off nor poor.
I asked why the applicant had spoken to [Mr B] about the tattoo and his doubts rather than someone from this Catholic faith. He said it was because they had hung out for a couple of years. [Mr B] used to invite him to his church and tried to involve him in the evangelical church, but he was not convinced.
I advised the applicant I had some doubts about his claim that [Mr B] was his cousin. I advised him that it was my understanding that [Mr B] came from a disadvantaged background and had joined the evangelical church because of problems in his youth, and observed that the applicant did not appear to have much knowledge of his life. He maintained that he was [Mr B]’s cousin.
I advised the applicant that I had difficulty understanding why he would have approached a member of an evangelical church if he had doubts about his Catholic faith. He said it was not an issue of different branches of Christianity. His questions related to all religions, not the particular beliefs of any faith. He said that his discussions with [Mr B] about the tattoo and other matters were a trigger, but he questioned everything.
I noted that it appeared that the applicant had told his psychologist in 2018 that he had questioned the Catholic faith at an early age, for example asking his parents about Adam and Eve. His doubts began or increased when he watched a television program featuring an [Country 2] Catholic priest who spoke against Islam in 2008. This caused him to speak to a cousin who was a priest, but his cousin failed to provide any satisfactory answers. Prior to leaving Jordan he joined many atheist-based [Social media 1] pages. He frequently made comments on these pages and including his views on Islam. He stopped this activity after receiving negative comments. I observed that this appeared to be significantly at odds with the evidence he had provided to the Department and the Tribunal and invited him to comment.
The applicant said that he had watched the [Country 2] priest and this had been part of the process which led to him losing his faith, which also involved talking to his cousin and the other things he mentioned in his application. He also confirmed he had made comments regarding religion on [Social media 1] pages while still in Jordan. He said that making comments was different from posting. I asked him to clarify what he had done in Jordan. He said that he had not posted anything, but he had made comments on other people’s posts.
I noted that the applicant had stated during the first hearing that he had told one cousin that he had lost or was questioning his faith, which appeared to be at odds with his earlier evidence that he had not told anyone about his doubts. The applicant said that he had not changed his evidence. He said that he had consistently mentioned this cousin in his statements. When asked he confirmed that this cousin was not a member of [Mr B]’s church.
I advised the applicant that I accepted that he had had some association with a [Social media 1] page or pages which posted information on atheism. I also advised him that it was my understanding that it was easy to manipulate [Social media 1] pages. For example, it is possible to change the name of the founder of the page, the administrator of the page and the dates of posts. It is also possible to boost the number of followers of a page in a number of ways. I noted that he was not the only administrator on the [Social media 1] page which he claimed to have established in 2018. I advised him that while I had not reached a conclusion, I had significant doubts about his claims in relation to his religious beliefs and if I concluded that he had not provided an honest or accurate account of his beliefs or activities in relation to atheism I might conclude that he had been active online purely to bolster his claim for protection and that he had exaggerated the extent of his involvement in online activities.
The applicant said that he had never tried to change dates on [Social media 1] or [Social media 2] and he did not believe that this was possible as they were very honest and reliable.
I advised the applicant that while I accepted that being critical of religion or promoting atheism in Jordan could cause some problems, it was not my understanding that people were arrested or denied rights merely because they were atheists. The applicant said that in any Arab country you could be arrested and charged for sharing harsh opinions. He added that recently introduced or activated laws on electronic crimes could be used against people who used the internet in unacceptable ways. These laws were not specific to atheism but could be used against him.

Hearing on 6 August 2021

A further hearing was arranged to clarify several matters not fully addressed in earlier hearings.
I noted that it had been submitted that the applicant would be at risk of harm on return to Jordan because of his status as a failed asylum seeker. I asked why he believed that the Jordanian authorities would be aware of his protection visa application and why he believed he would face problems for that reason. The applicant said that he had never claimed to fear harm because he had applied for protection and added that he did not fear the authorities in Jordan. I observed that he had previously claimed to fear harm from both the government and sections of the population in Jordan and assured him that I would consider all of his claims.
I noted that the applicant had stated that his first [Social media 1] page was removed by [Social media 1] in 2018, but it was not entirely clear when this had occurred. He said that he had first been closed in February 2018 and he reached out to other atheists for help at that time. He established the second [Social media 1] page in early 2018, but as his first page was reinstated a few weeks later he did not begin to use it at that time. He said that the first page was permanently removed in mid to late 2018, but also suggested that while it was not publicly visible, he could still access it. He said that the removal and reinstatement of his first page by [Social media 1] could explain why the delegate had not been able to access it. I noted that the delegate had attempted to access the page in 2017, not 2018. I also advised him that information on the [Social media 1] page for which he had provided a link indicated that it had been established in 2016, not 2018. He said that his first page was established in 2016 but provided no further comment.
I noted that he appeared to have written and posted the items on [Social media 1]’s community page and the [Name 7], which referred to the closure of his first [Social media 1] page. He said that this was correct. He said that he had posted this material in order to demonstrate to his representative that he had previously controlled a [Social media 1] page with a large following and that he was to have the page re-opened.
I observed that it appeared that the video posted on the [Name 7] [Social media 1] page was also made and posted in response to his requests for assistance. He said that was correct. He did not know the identity of the person who made the video but said that he believed he was involved in human rights. I observed that the video suggested that the person who made the video had accessed his [Social media 1] page, but it appeared to have been made during a period when the page was not operational. His response was somewhat confused but indicated he had provided screen shots from the page with his plea for help.
I noted that the applicant had previously stated that he had joined a group called ‘[Name 8]’ before coming to Australia. He said that was correct. He said that the group had been established many years ago and had been operated by someone called [name] and someone called [Mr F], who had later been forced to flee Jordan. I asked him what he could tell me about [Mr F]. He said that they were not close and he did not know much about him. He said that had exchanged random comments while he was in Jordan and when he was in Australia. I noted that [Mr F] was a well-known figure who had formed a group [in] 2018, but did not appear to have established a [Social media 1] group prior to that. I also noted that [Mr F] appeared to have first begun to lose his faith in mid-2013. The applicant maintained that he was telling the truth.

FINDINGS OF FACT

After considering all of the evidence, I find that the applicant is not a truthful or a credible witness.

Loss of faith and involvement with atheism in Jordan

I found the applicant’s evidence regarding his loss of faith and engagement with atheist websites in Jordan confused and unconvincing.
In the first place, he has given differing accounts of when and why he began to question his beliefs and when and why he became an atheist. The written statements provided to the Department in October 2016 suggest that he began to question and research matters of faith shortly after he moved to Amman in 2003 and that he spoke to two cousins, who were Church ministers, about these matters at about that time. In 2018 he told a counsellor that he first began to question his beliefs as a young child and he began to have more serious questions and spoke to a cousin, who was a priest, after watching [a Country 2] priest on television in 2008. In a written statement provided in April 2021 said that he first contacted his cousin in about 2010 to ask his advice about whether he should get a tattoo [and] that it was only after his cousin told him that this was unacceptable that he began to question his faith and research religious matters.

When asked about these differing accounts at the hearing the applicant said that they were all true and they were part of the process which resulted in his decision to become an atheist. I acknowledge that loss of faith and the decision to become an atheist is likely to be an extended process involving a number of different factors. However, this does not explain the applicant’s failure to provide a coherent and reasonably complete account of when and why he became an atheist in his submissions to the Department or, more significantly, why he would indicate on different occasions that he first began to question his faith shortly after moving to Amman in 2003, in 2008 after watching [a Country 2] priest on television and after his cousin told him not to get a [tattoo], a symbol of his faith, in about 2010.
Secondly, he has given differing accounts of his involvement with atheist forums and [Social media 1] pages before he arrived in Australia. In his submissions to the Department he said that he had accessed some atheist pages and forums but had never identified himself or made any comments on these sites. His evidence at the hearing regarding his engagement with other atheists in Jordan was confused to the point of incoherence but suggested that he had access or joined a significant number of forums or [Social media 1] pages in Jordan. He initially said that he had not left comments or even liked posts on atheist pages in Jordan because it would have been to dangerous. However, when I pointed out that he appeared to have told a counsellor in 2018 that he had made comments on atheist [Social media 1] pages before leaving Jordan he confirmed that this was correct. He said that he had left comments, but he had not posted anything.
Thirdly, he has given differing accounts of who was aware of his views on religion before he left Jordan. Prior to the hearing he said that he had not told anyone about his views, although he had asked questions of his cousins who belonged to an evangelical church which alerted them and his family to the fact that he had doubts. At the hearing he claimed for the first time that he had told a cousin who shared at least some of his views about his loss of faith.
Fourth, I find the applicant’s claim that [Pastor B] is his cousin lacking in credibility. His evidence at the hearing regarding his relationship was [Pastor B] was vague and unconvincing. More significantly, according to information provided by [Pastor B] when interviewed on different occasions, he was born into a family who did not practice their faith and grew up in a rough neighbourhood. He was expelled from school and jailed three times because of his sometimes violent behaviour. He joined [a] Church at the age of [Age] after attending a youth event and went on to become Pastor of that church and is now coordinator for the Eastern Mediterranean area for the church. If [Pastor B] was the applicant’s cousin and their families had been close since he was a child, I believe he would have been aware of his troubled background and how he came join the evangelical church. As the applicant pointed out, [Pastor B] is very well known. I believe he falsely claimed they were related because their names are similar and he believed this would bolster his claim for protection.
While I acknowledge that the applicant has experienced some symptoms consistent with PTSD and that truthful witnesses may provide somewhat different accounts of events on different occasions, I do not accept that the significant problems with the applicant’s evidence can be explained in this way.. After considering the relevant evidence, I do not accept that he became an atheist before he left Jordan. It follows that I do not accept that he discussed his views or doubts about religion with cousins who were priests or pastors or who shared his doubts, or that he accessed forums or [Social media 1] pages dedicated to promoting or sharing views on atheism when he lived in Jordan. I believe these claims were all concocted to support an application for protection after his application for permanent residence on spouse grounds failed.

Engagement with atheism in Australia

The applicant claims to have actively and frequently promoted his views on atheism and criticism of religion in general and Islam since he arrived in Australia in 2013. According to his evidence all of this activity occurred online, mostly on [Social media 1]. In order to properly assess this evidence, it is important to have some understanding of how [Social media 1] operates.
As pointed out at the hearing it is relatively easy to manipulate information which appears on [Social media 1]. Multiple [Social media 1] pages can be established using aliases. It is possible to ask friends or acquaintances to post items to create a false impression of the level or nature of online activity or to create a desired reaction by posting items which do not genuinely reflect the views of the individual concerned. [Social media 1] pages established for groups with shared interests may allow anyone to post a report or share a video, the content of which has not been verified by anyone and may not be true. [Social media 1] pages can be published or unpublished (made visible or invisible) at any time by the administrator (the person who controls the page). Posts can be added or removed by the administrator. Dates on posts can be altered, making it possible to post numerous items on the same day and make it appear that they have been added over an extended period of time. [Social media 1] pages can have multiple administrators and administrators can be added or deleted at any time. It is possible to change the date a page was created and to remove the name of a creator and replace it with someone else. It is possible to increase the number of followers of a page in a short period of time in a variety of ways.
None of this means that the activity on [Social media 1] provided as evidence should necessarily be disbelieved or ignored or given little weight. However, in my view careful scrutiny of material from [Social media 1] is appropriate, particularly in cases where there are significant problems with the credibility of an applicant for unrelated reasons.

Activities prior to September 2016

As discussed above, I do not accept that the applicant was an atheist when he arrived in Australia in 2013. I find that he concocted these claims to support his application for protection. It follows that I do not accept that he began to post items promoting atheism on his [Social media 1] page or to engage with other atheists immediately or shortly after he arrived in Australia because he was finally free to do so. There is no suggestion that he lost his faith and became an atheist after arriving in Australia and therefore no credible evidence before me which suggests that he had any interest in atheism prior to the refusal of his spouse visa application in September 2016. Furthermore, no verifiable or convincing evidence has been provided which confirms the claim that he posted items criticising religion and promoting atheism on his own or anyone else’s [Social media 1] page or elsewhere prior to the refusal of his spouse visa on 26 September 2016.
The articles provided by the applicant in October 2016, apparently as examples of the kind of material he posted online, are not screen shots. The only evidence that he posted them online is his claim that this occurred. In these circumstances and in light of my findings regarding his credibility set out elsewhere in this decision, I have given them no weight to these items.
The screen shots from [Social media 1] provided by the applicant in October 2016 appear to be insults and threats in response to posts promoting atheism or criticising Islam on unidentified [Social media 1] pages. Many of them are undated. The only time the applicant is clearly identified is a thumbs up relating to an undated, untranslated comment made by [someone]. These messages could have been posted at any time by anyone, including the applicant using an alias or his friends posting at his request. I note the applicant’s evidence that he established aliases in order to continue to administer his [Social media 1] page when it was suspended or threatened with suspension. In any event, in the absence of dated items which clearly identify the applicant they do not corroborate the claim that he was threatened after post items insulting religion and promoting atheism prior to September 2016 or at any time. I have given them little weight.
The screenshots of [Social media 1] posts provided in April 2021 are undated. While some mention the name ‘[the applicant’s given name]’, none clearly identify the applicant. Again, they could have been posted by anyone on any [Social media 1] page at any time. In the absence of dated posts which clearly identify the applicant or his [Social media 1] page they do not corroborate the claim that the applicant posted material which insulted religion and promoted atheism prior to September 2016. I have given them little weight.
In September 2016 the applicant provided the Department with an address for what he claimed was a [Social media 1] page he established in 2015. The delegate was unable to access the page using the address provided. It is not entirely clear when the delegate attempted to access the page, but it is reasonable to suppose that it was around the time of the scheduled interview in May 2017. In written and oral submissions to the Tribunal in April and May 2021, the applicant said that he believed that the delegate was unable to access the page because while his adviser provided the address, it was not in the form of an electronic link. There is no suggestion that the address provided was incorrect or incomplete and it should therefore have been sufficient for the delegate to access the page. On 6 August 2021 the applicant suggested that the delegate could not access his page because it was sometimes suspended or removed by [Social media 1] in 2018. As pointed out at the hearing, the delegate attempted to access the page in 2017, not 2018. That said, it is plausible that the page was not accessible because it was suspended or disrupted for some reason when the delegate attempted to access it. I accept that a [Social media 1] page corresponding to the address provided by the applicant may have existed at some time. However, in the absence of any reliable evidence to the contrary and in light of my finding regarding the applicant’s credibility set out above, I do not accept that it existed prior to the refusal of the applicant’s spouse visa application in 2016.
The applicant has also provided a number of what appear to be screen shots of what appear to be insights into the activities of a [Social media 1] page which received likes of over 500,000. The [Social media 1] page does not appear to be named and none of the posts provides the year in which the activity occurred. In the absence of any indication of the years in which this activity occurred it does not corroborate his claim that he established a [Social media 1] page in 2015 or at any time prior to September 2016.
After considering all of the relevant evidence, I do not accept that the applicant created a [Social media 1] page dedicated to promoting atheism in 2015 or that he posted items criticising religion or promoting atheism on that [Social media 1] page or elsewhere prior to the refusal of his spouse visa application in September 2016.
In reaching this conclusion I have considered the letter from the applicant’s brother dated 10 October 2016. However, he is a close relative of the applicant, not a disinterested party. While I have had regard to his evidence, it does not overcome my concerns regarding applicant B's truthfulness regarding his beliefs or online activities.
I have also had regard to the letter from [Ms A]. However, it provides very little information regarding the applicant’s claim for protection and without the opportunity to question her about her knowledge of his activities in Australia I have given it little weight.
Finally, I have considered the messages purportedly exchanged with [Mr F] in mid-2014 which the applicant claims are evidence of his involvement with other atheists at that time. However, his evidence regarding his association with [Mr F] is inconsistent and at odds with public statements made by [Mr F] himself.
According to the applicant’s written submissions provided in April 2021, [Mr F] founded a [Social media 1] group called ‘[Name 8]’ after he (the applicant) left the country in early 2013 and they connected and chatted online after he arrived in Australia. According to the applicant’s evidence at the hearing, [Mr F] co-founded [Name 8] before he left for Australia in April 2013 and while they were not close, they exchanged random messages before and after that time.
[Mr F] is a high-profile Jordanian atheist. According speeches he gave in 2017 and 2018 he began his journey from fundamentalism to atheism in mid to late 2013, after the applicant left for Australia. The speeches give a reasonably detailed account of when and how he became an atheist. They state that he established an organisation called [name] from Jordan’ in 2018, but do not mention any involvement with a group called ‘[Name 8]’ or any other atheist group prior at any time.
I do not accept that the applicant had any association with [Mr F] at any time. I believe the he sought to associate himself to [Mr F] after locating him online and that the messages provided as evidence of their association were manufactured in order to support his case.
After considering all of the relevant evidence I do not accept that the applicant posted items promoting atheism or criticising religion on his own or anyone else’s [Social media 1] pages or anywhere else prior to the refusal of his spouse visa application. It follows that I do not accept he or members of his family in Jordan were threatened because of these posts.

Activities online after September 2016

I accept the applicant posted some items criticising religion and promoting atheism on [Social media 1] pages and elsewhere after his spouse visa application was refused in September 2016. However, I believe he did this solely in order to obtain protection and remain in Australia and I am not satisfied that he has provided an honest or accurate account of his online activities.
In the first place, even if I ignore my findings regarding the applicant’s beliefs and involvement with atheism prior to 2016, I found the applicant’s evidence regarding the nature of his activities and his reasons for promoting atheism online confused, contradictory and unconvincing.
According to his statement dated April 2021 he ceased making harsh comments and offensive language after his first page was closed in 2018 and he no longer mentioned Jesus, Mohammad, Islam or Christians. At the hearing he said that the first goal of his online activity was to make Jordan a secular state and remove Sharia law from the Jordanian Constitution. While the Jordanian Constitution names Islam as the religion of the state, Sharia law only applies to Muslims and only in relation to matters of personal status and religion. When I asked the applicant about his knowledge of the Constitution later in the hearing, he said he did not know anything about the government and he was only interested in religion. When I reminded him of his earlier evidence regarding the purpose of his page, he said that he sometimes wrote about these things but he mostly wrote about the Bible and the Koran. I have difficulty understanding how the applicant could have written about the Bible and the Koran without mentioning Jesus or Mohammad or Islam or Christianity.
Secondly, I have accessed the applicant’s current (second) [Social media 1] page using the link provided. It confirmed that the page had over [number] followers and that the applicant has posts relating to atheism and religion. However, the claim that he spends hours a day writing and posting for that page is not borne out by the activity on the page. I have not reviewed all of the items. However, while there appear to be relatively regular posts which refer to religion, they are not daily or numerous. They are mostly reposted from other sources and while some are accompanied by brief comments from the applicant, none appear to be lengthy expressions of his opinions. I also note that information on the page indicates that it was created in 2016, not 2018. At the hearing the applicant suggested that this was because his first page was established in 2016. However, he has consistently claimed that the first page was established in 2015. I find this to be a further indication that he has not provided an accurate or honest account of when or why he established pages on [Social media 1].
Thirdly, a significant portion of the material which the applicant has provided as evidence of his online activities is material which he created and posted online himself. As he confirmed at the hearing on 6 August 2021, he wrote and posted the undated messages on the [Social media 1] community help page and the [Name 6] [Social media 1] page. Clearly these posts are not independent evidence of the applicant’s online activities prior to February 2018 and I have given them no weight in relation to these matters.
I also note that these posts state that his first [Social media 1] page operated non-stop because it never contravened [Social media 1] rules, which is at odds with the [Social media 1] post dated 28 September 2016, which states that one of his posts had been removed because it breached [Social media 1] rules. It is also at odds with his April 2021 submission which states that he made harsh comments which caused other atheist [Social media 1] pages to remove his posts prior to 2015 and that he received repeated warnings from [Social media 1] that his posts did not meet community standards and that his page was regularly removed or blocked, sometimes for up to a month prior to 2018. The post also indicates that the applicant’s first [Social media 1] page was established in early 2014 (four years before the page was removed in early 2018) and had it acquired one million followers, which is at odds with his evidence to the Tribunal that the page was established in 2015 and had at most slightly more than 500,000 followers. I find these discrepancies further indications that the applicant is not an honest or reliable witness.
According to the applicant’s evidence at the 6 August 2021 hearing, the video posted on the [Name 7] [Social media 1] page was created by someone in response to his request for assistance in February 2018. There is nothing in the video which suggests that the person who posted the video had any source of information apart from the applicant or that he or anyone else independently verified that information. In my view this video does not provide independent evidence of the existence or closure or the nature of the activity on the applicant’s first [Social media 1] page. I have given it little weight.
Fourthly, I accept that the applicant established a [Social media 2] called ‘[Name 3] video [page]’ and posted some videos. However, all but one of the videos on his [page] was posted some three years ago and while some videos appear to relate to religion or atheism, none of them appears to have been created by or to feature the applicant. It appears that these videos where all posted at the same time shortly after the applicant applied for review of the delegate’s decision. In these circumstances and in light of my earlier finding in relation to the applicant’s credibility, I find these items were made to create the impression that he is an activist atheist and not out of genuine belief or commitment.
I also attempted unsuccessfully to access the applicant’s interview with [Mr C] on his ‘[Name 4]’ [page] using the link provided and by searching for [Mr C] or ‘[Name 4]’ by name. It is perhaps possible that the applicant was interviewed by [Mr C] about atheism at some time. However, if this occurred, given my finding on the applicant’s credibility and willingness to manufacture evidence, I believe it was arranged by the applicant in order to provide evidence to support his claims. In any event, the video does not appear to be online anymore.

Fifth, the most recent screen shots provided which the applicant claims show threats which were posted on his [Social media 1] page were translated in October 2017, before the time he claims to have established his current page. As discussed above, I have concerns about this evidence, but even if I accept it at face value the posts are at least nearly four years old and no evidence of recent threats has been provided. The recent activity on the applicant’s current [Social media 1] page does not suggest that he has been very active online or that he has posted harsh or insulting items or comments regarding religion. This accords with some of his evidence about his activities since 2018. In these circumstances, while I accept that the applicant’s [Social media 1] posts may have attracted some threats or insults at some time, including since 2018, I strongly doubt these threats were ever frequent or that he has received numerous threats from extremists or anyone else recently.
In my assessment of the applicant’s claims I have considered the screen shots and other evidence which he has provided relating to his online activity. As discussed above, many of the items provided by the applicant are undated and do not clearly identify the [Social media 1] page to which they relate making it difficult to assess their relevance or reliability. Furthermore, as discussed above, it is possible to manipulate the material which appears on [Social media 1] in a range of ways. The applicant clearly has some knowledge of this as he stated at the hearing that he had established several aliases on [Social media 1] in order to access his page when he was barred or suspended. I also note that someone with some design and computer skills could have created some of the documents which appear to be screen shots taken from a [Social media 1] page. That said, it may be that some of the items provided by the applicant relate to his [Social media 1] activity. For example, it is possible that he posted offensive or controversial material on his [Social media 1] page which was blocked at some time. However, in light of my findings on the applicant’s credibility and willingness to concoct claims and manufacture claims, I am not satisfied that that the screen shots and other documents provided by the applicant provide an accurate account of his online activity and I have given them little weight.
After considering all of the relevant evidence, I accept that the applicant has posted some items relating to religion or atheism on his own [Social media 1] page or pages and elsewhere since the refusal of his spouse visa application in September 2016. However, I find that he did solely to support his application for protection. I also find that he has greatly exaggerated his online activities and the threats which his posts attracted and that he manufactured or misrepresented evidence regarding the extent and nature of his online activity in order to support these claims. I do not accept that he administered a [Social media 1] page which had over 500,000 followers by early 2018 or that that page was closed by [Social media 1] in 2018 due to pressure from Muslims or that he posted numerous items which were harshly of religious figures or religious beliefs of that he has received and continues to receive numerous death threats and insults in relation to posts on his [Social media 1] pages or that members of his family in Jordan received threats or warnings because of his activities online.

Findings of fact: Conclusions

I do not find the applicant to be a truthful credible witness. I find that he falsely claimed to be an atheist following the failure of his spouse visa application in order to obtain a protection visa and remain in Australia and that he has manufactured and misrepresented evidence in order to support that claim. As I do not accept that he is an atheist, it follows that I do not accept that he will identify himself as an atheist or engage activities to promote atheism or criticise religion if he returned to Jordan.

CONSIDERATON OF THE APPLICANT’S CLAIMS

As discussed above, I do not accept that the applicant is an atheist or that he would identify himself as an atheist or engage in any activities to support or promote atheism if he returned to Jordan. However, I accept that he has falsely identified himself as an atheist on his [Social media 1] page and posted some items which discuss or promote atheism online while in Australia (albeit solely to support his application for protection). I have therefore considered whether he would be at risk of harm on return to Jordan because he was perceived to be an atheist or to have transgressed Jordanian law or social conventions by denigrating religion or religious leaders. However, for the following reasons I am not satisfied there is a real chance that he would suffer serious or significant harm for these reasons.

Fear of the authorities

In his written and some oral submissions to the Department and the Tribunal the applicant said that atheism was illegal and he feared that he would be arrested for expressing these beliefs on return to Jordan. At the hearing on 6 August 2021 the applicant said that his fears on return to Jordan related to people in the community, in particularly Muslim extremists, not the authorities. This suggests that he has withdrawn his the claims regarding his fears of arrest. Nevertheless, I have considered his earlier claims.
As discussed above, atheism is not illegal in Jordan and there is nothing in the evidence which suggests that Jordanian atheists are at risk of arrest for that reason alone. Atheists (and others) may face criminal charges for acts such as incitement of hatred, blasphemy against recognised faiths, insulting the leaders of those faiths or publishing material which offends religious feelings or belief. However, the evidence does not suggest that these laws are likely to be applied to people who do nothing more that state that they are atheists or question religious beliefs. I note that while [Mr F] clearly faced threats from some religious groups or individuals in Jordan, despite publicly proclaiming that he had become an atheist by at least 2017 and establishing a group [in] 2018, he was not arrested or charged with any offence prior to leaving the country in 2019.
There is no credible evidence before me which suggests that the applicant has been involved in acts or published material which would result in him facing charges for any of the acts described above. And even if I accepted that he posted harsh comments criticising religion prior to 2018 (which I do not), according to his evidence the page on which they appeared has been off-line for some three years and his more recent posts have avoided insults and harsh words. In these circumstances and in light of my finding that he would not identify himself as an atheist or engage activities which promote atheism or criticise religion if he returned to Jordan, I do not accept that there is a real chance that he would be arrested because of items which he has posted on [Social media 1] or other online platforms while in Australia.
I have also noted the applicant’s claim that atheist lose many rights including the right to have a job or form a family. This appears to be based largely on information from Atheists Alliance International cited in the applicant submission of April 2021. There is no indication of the relevant laws or policies which set out these claimed requirements. As noted in the country information section above, Muslims who convert or abandon their faith may have their marriages annulled or face other problems due to the provisions in Sharia law. However, there is no suggestion that atheists are routinely stripped of all or most of their civil rights. If such draconian measures were in place, I believe that they would have been mention in the reports cited in the country information section above. I do not accept that Atheists Alliance International report is accurate in relation to this issue. In any event, the applicant is not an atheist and I do not believe that he will be viewed as an atheist by the Jordanian authorities if he returns to his homeland. I am not satisfied that he faces a real chance of suffering official discrimination which amounts to serious or significant harm because the Jordan authorities or anyone else perceives him to be an atheist because of the material he posted online while in Australia.

Fears of people in the community

The applicant claims that he would be at risk of serious harm from Muslim extremists and other religious people in the community in Jordan because he is an atheist.
While it is possible that some people in Jordan have accessed the applicant’s [Social media 1] page and seen his posts on atheism, there is no credible evidence before me which suggests that he has done more than re-post some relatively mild items regarding religion and atheism in recent times and no credible evidence that he is well-known in Jordan because of his online activities. I do not accept that he is an atheist or that he would express views or become involved in activities in support of atheism or against religion if he returned to Jordan. In these circumstances, I believe that there is no more than a remote possibility that he would be of any real or continuing interest to Muslim extremists or anyone else in Jordan because of his online activities in Australia.
[Mr F]’s case again provides some useful insights into the situation for atheists who actively promote their beliefs in Jordan. As noted above, he has been publicly expressing his views and promoting atheism since at least 2017 and he established [a group] from Jordan in 2018. He continued to reside in Jordan for significant periods of time until 2019 when he left because of the threats he was receiving. While this confirms that high profile people who openly advocate atheism are likely to face significant problems in Jordan, it also suggests that someone who does not have a high profile and who does not participate in any activities which promote atheism or harshly criticise religion after returning to Jordan would not be at risk of harm from religious extremists or others in the community.
I am not satisfied that there is a real chance that the applicant would face serious or significant harm at the hands of Islamic extremists or other religious people or anyone else in the community on return to Jordan because his online activities in Australia would cause him to be viewed as an atheist or as someone who was against religion.
In reaching this conclusion I have noted the evidence which suggests that atheists may face some social discrimination in Jordan. However, as discussed above, I do not accept that the applicant is an atheist or that he is generally perceived to be an atheist in the Jordanian or that he would claim to be an atheist or engage in activities which support or promote atheism in Jordan. In these circumstances I am not satisfied that there is a real chance that he would face social discrimination amounting to serious or significant harm if he returned to Jordan.

Fear of harm from relatives and close associates

The applicant claims that his immediate family accept his beliefs, but he is at risk of harm from his relatives and close associates because he is an atheist and has been critical of religious belief. As discussed above, I do not accept that the applicant is an atheist or that he has done more than reports relatively mild comments on atheism and religion on his [Social media 1] page since sometime after September 2016. In these circumstances I do not accept that he would have told his relatives or close associates in Jordan that he was an atheist and I find it highly unlikely that they would believe that he is an atheist. In any event, there is no suggestion that any of his relatives or close associates are religious extremists and even if I accept that some of them hold the mistaken belief that he is an atheist or that he is harshly critical of religious beliefs, there is nothing in the evidence which suggests that there is a real chance he would face serious or significant harm because of this.

Fears related to political opinion

It has also been submitted that the applicant would be at risk of harm on return to Jordan because he will be seen as an opponent of the Jordanian government because of his religious and political activities in Australia.
There is no credible evidence before me which suggests that the applicant has expressed opinions or been involved activities which would cause him to be viewed as an opponent of the government of Jordan. The only activity mentioned in his submissions is his online posts regarding atheism and religion. Atheism is not an offence in Jordan and no credible evidence has been provided which suggests that the applicant’s comments contravene Jordanian law or would be perceived as attempting to undermine the regime. As noted above, the applicant stated that at the hearing the main aim of his [Social media 1] page was to change the Jordanian constitution, he later changed his evidence and said that he had no interest in the government.
I do not accept that there is a real chance that the applicant will face serious or significant harm on return to Jordan because he would be perceived to be an opponent of the government.

Failed asylum seeker

In submissions provided in April 2021 it was claimed that the applicant was at risk of harm on return to Jordan because he would be a failed asylum seeker. No supporting evidence was provided in relation to this claim and I am unaware of any evidence which suggest that the Jordanian authorities detain or charge or otherwise harm citizens merely because they sought protection abroad. In any event, the applicant said he had never made this claim and withdrew it at the hearing.

The applicant’s spouse visa application

There was some discussion of the applicant’s failed spouse visa application during the hearing as it appeared that it might raise issues related to his credibility. . The applicant said that he had been in a genuine relationship at the time his case was decided and he expected to be granted residency but his application failed because his representative was incompetent and failed advise him that a hearing had been scheduled for his case. In any event, it is not my role to revisit the applicant’s spouse visa application and nothing in the evidence he provided in support of that application or the reasons it failed has any relevance to my consideration of his protection visa application. However, for the reasons set out above, I find that he concocted the claim that he was an atheist and had been active on [Social media 1] after this application failed in order to remain in Australia.

Does the applicant meet the refugee CriteriON?

After considering the applicant’s claims individually and cumulatively, I am not satisfied that he faces a real chance of suffering serious harm for reasons of religion or political opinion or any other reason if he returns to Jordan now or in the reasonably foreseeable future. Therefore, I am not satisfied that he has a well-founded fear of persecution in Jordan for any of the reasons set out in s.5J(1).

Does the applicant meet the complementary protection criteriON?

After considering the applicant’s claims individually and cumulatively, I am not satisfied that he faces a real risk of suffering significant harm on return to Jordan for any reason. Therefore, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Jordan, there is a real risk that he will suffer significant harm.

Conclusions

For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s.36(2).

decision

The Tribunal affirms the decision not to grant the applicant a protection visa.

Roslyn Smidt
Member

Attachment - Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)      severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)      pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)      that is not inconsistent with Article 7 of the Covenant; or
(d)      arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)      for the purpose of obtaining from the person or from a third person information or a confession; or
(b)      for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)      for the purpose of intimidating or coercing the person or a third person; or
(d)      for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)      for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:

(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H Meaning of refugee

(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)      in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)      in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J Meaning of well-founded fear of persecution

(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)      there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)      the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2) A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3) A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)      conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)      conceal an innate or immutable characteristic of the person; or
(c)      without limiting paragraph (a) or (b), require the person to do any of the following:
(i)             alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)            conceal his or her true race, ethnicity, nationality or country of origin;
(iii)           alter his or her political beliefs or conceal his or her true political beliefs;
(iv)           conceal a physical, psychological or intellectual disability;
(v)            enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)           alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4) If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)      that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)      the persecution must involve serious harm to the person; and
(c)      the persecution must involve systematic and discriminatory conduct.
(5) Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)      a threat to the person’s life or liberty;
(b)      significant physical harassment of the person;
(c)      significant physical ill‑treatment of the person;
(d)      significant economic hardship that threatens the person’s capacity to subsist;
(e)      denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)       denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6) In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)      disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)      disregard any fear of persecution, or any persecution, that:
(i)             the first person has ever experienced; or
(ii)            any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)      a characteristic is shared by each member of the group; and
(b)      the person shares, or is perceived as sharing, the characteristic; and
(c)      any of the following apply:
(i)             the characteristic is an innate or immutable characteristic;
(ii)            the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)           the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures

(1) For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)      protection against persecution could be provided to the person by:
(i)             the relevant State; or
(ii)            a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)      the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2) A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)      the person can access the protection; and
(b)      the protection is durable; and
(c)      in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

Protection visas – criteria provided for by this Act
…
(2) A criterion for a protection visa is that the applicant for the visa is:
(a)      a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)      a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)             is mentioned in paragraph (a); and
(ii)            holds a protection visa of the same class as that applied for by the applicant; or
(c)      a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)             is mentioned in paragraph (aa); and
(ii)            holds a protection visa of the same class as that applied for by the applicant.
(2A)            A non‑citizen will suffer significant harm if:
(a)      the non‑citizen will be arbitrarily deprived of his or her life; or
(b)      the death penalty will be carried out on the non‑citizen; or
(c)      the non‑citizen will be subjected to torture; or
(d)      the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)      the non‑citizen will be subjected to degrading treatment or punishment.
(2B)            However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)      it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)      the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)      the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 3441

18 September 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction