1713152 (Refugee)

1713152 (Refugee) [2022] AATA 1123 (25 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1713152

COUNTRY OF REFERENCE: Jordan
MEMBER:Anne Grant
DATE:25 February 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the fifth named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the fifth named applicant.

Statement made on 25 February 2022 at 1:52pm
CATCHWORDS
REFUGEE – protection visa – Jordan – religion – Christian – particular social group – bisexual – teacher – threats from Islamic extremists – compulsion to teach extremist Islamic curriculum – mental health issues – honour killings – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 8 June 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of Jordan, applied for the visas on 28 September 2015. The delegate refused to grant the visas on the basis that they were not satisfied that the persecution claimed would involve either serious harm or systematic and discriminatory conduct. Further the delegate found that the harm claimed would not satisfy the definition of significant harm, and that there was not a real risk that either of the first and second applicants would suffer significant harm as a necessary and foreseeable consequence of them being returned to Jordan. At that time, claims were raised only by the first and second named applicants. Before the Tribunal, in a submission lodged on the day prior to the hearing, a new claim was raised by the fifth named applicant, [named] ([Ms B]). [Ms B] was a child when the application was lodged but is now [age] years of age.
The first and fifth named applicants ([Ms A] and [Ms B]) appeared before the Tribunal on 27 January 2022 to give evidence and present arguments by video conference hearing conducted using the Microsoft Teams application. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. [Ms B] gave her evidence in English and it was interpreted for [Ms A]. The applicants were represented in relation to the review. The representative attended the Tribunal hearing by video conference also.
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 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c).That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
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). 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), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal is satisfied that all of the applicants are citizens of Jordan, and their claims have been assessed against Jordan as their country of nationality and the receiving country.
The issue in this case is whether any of the applicants is a refugee and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Jordan, there is a real risk that any of the applicants will suffer significant harm. For the following reasons, the Tribunal has concluded that matter should be remitted for reconsideration.
The applicant’s claims for protection
The application for protection claimed that [Ms A] would suffer persecution in Jordan because, as a teacher, she would be forced to teach students an extremist Islamic curriculum, which would be against her Christian faith. It also claimed persecution on the grounds that the family are Christians in a Muslim country. It was also claimed that the second applicant, (‘[Mr C]’) had suffered post-traumatic stress and associated mental health conditions as a consequence of being exposed to information about Islamic extremism, because, in supporting his mother at her work, he had come to know refugee Christian children from Iraq whose families had been brutalised by Islamic State. He subsequently became anxious and fearful of strangers or any Muslim person he encountered who was unfamiliar, believing that they may be Islamic State extremists.
The applicants claim that in 2015 during Ramadan, three men began banging on [Ms A’s] car and abusing her because they saw her drinking water during the fast. [Mr C] was in the car during this incident. They claim that subsequently, the men used the registration details to get her phone number and called to chastise and abuse her for disrespecting Islam. This incident heightened [Mr C’s] fear of Muslim people.
In support of their claims, the applicants provided several documents and articles reporting on problems observed within the Jordanian school curriculum, demands for a restructuring of the curriculum to a more inclusive and less divisive model, and perceptions of anti-Christian messaging in texts and social exercises in schools.
On 23 January 2022, the applicants and their representative lodged a written submission and a statutory declaration by [Ms B]. In summary, the submission made the following arguments:
·     The first named applicant continues to rely on her claims as articulated in her application for protection. She fears that she will be subjected to serious harm and persecution due to her faith as a Roman Orthodox Christian woman in Jordan. She feared harm from Islamic extremists, namely Islamic State.
·     In July 2015, the first named applicant suffered an attack in her vehicle where three Muslim men abused her and began attacking her car because she drank water during Ramadan. The second applicant was in the car with her on that occasion. It is claimed that the perpetrators took a photograph of the applicant’s number plate and subsequently tracked down her husband’s contact details. They then called her and abused her for failing to observe Islamic fasting rules.
·     If the Tribunal finds that the applicant is otherwise credible, it should accept that the post attack phone abuse occurred as described by the applicant - (the delegate found this to be an embellishment and did not accept that it occurred.)
·     The second applicant, [Mr C], developed PTSD as a product of him overhearing stories of terrorism against Christian refugees, and also due to him being surrounded by the child refugees. Similarly there were reports around the same time about a Jordanian pilot, Muath Al-Kasasbeh, who was held hostage and cruelly set alight by Islamic State in February 2015. The second applicant subsequently developed deep anxiety and fear, demonstrating PTSD like symptoms due to fearing persecution by Islamic extremists, and also because he had heard what had happened to other Christian children. The incident with the car reinforced his fear of Islamic extremists.
·     The attack on the car should not be dismissed as a random attack, particularly because of the phone calls which “preceded” it. (It is assumed that this is a typographical error as the claims outlined by the applicant to the delegate and to the Tribunal make it clear that the phone calls were made afterwards.) In any event, their capacity to locate and call the applicants suggest they have access to their home address and other details. It is argued that all of these factors collectively cause the applicant [Mr C] serious harm because they ‘increased the threat to [Mr C’s] life’.
·     The fifth named applicant was [age] years of age when the family came to Australia. She had already noticed that she was different to other girls her age because she was attracted to both the masculine and the feminine stars and singers discussed by her social group. She now identifies as bisexual.
·     Although homosexuality is not illegal in Jordan, social discrimination is widespread. According to a 2013 poll, 97% of Jordanians believe that homosexuality should not be accepted by society. Same sex marriage is not legally recognised and there is no protection for discrimination on the basis of sexual preference or gender identity.
·     Same sex relations are prohibited under Sharia law and conduct contrary to it results in stigmatisation and harassment.
·     The fifth named applicant is now [age] years of age (sic – [Ms B] is [correct age].) During her time in Australia she has lived through an important stage of her development. Should she be forced to return to Jordan, she will not be able to openly identify as bisexual. Persons who identify as homosexual or bisexual often suffer significant psychological, social and medical issues due to the stigmatisation they face. The fifth named applicant refrained from sharing her true feelings and sexual orientation with her family for most of her life.
·     The fifth named applicant felt isolated, ashamed and afraid of being discovered for who she really is, particularly given her strict religious upbringing and being raised in an Islamic country.
·     There have been public actions and expressions against the LGBTQ community in Jordan over recent years, including the targeting of an LGBTQ social affairs online magazine.
·     If the Tribunal were to find that the applicants do not meet the definition of a refugee or a person entitled to protection under the complementary protection guidelines, the submission asks that referral to the Minister for intervention be considered given [Ms A’s] skilled background as a childcare worker.
The statutory declaration by the fifth-named applicant declared as follows:
1. I am a dependant applicant in my mother’s application for an Onshore Protection Visa
and wish to raise some personal concerns I have.
2. As mentioned in the application, I was born and raised into the Christian faith and my
family are devout Christians. In my early years growing up in the Middle East, my family
and I closely followed our Christian beliefs and traditions and were raised to
understand that homosexuality is not accepted, nor did I understand much about it. All
I knew was that it was wrong, and you would be hated by your family and cut off from
the world if you were to pursue such a path.
3. When I was young I was like most kids who would watch TV, be on social media and
read articles about the new ‘it’ celebrity. When attending school, I began to notice I am
different when engaging in conversation with my female friends, who would only talk
about how hot the male was in last night’s episode or how they wished they were dating
the new hot actor and so on. I found it strange that they were only interested in the
male actors whereas I, on the other hand, found an interest in both the actors and
actresses and shared no difference in the level of attraction based on gender. Of
course I felt ashamed and would never share such views or thoughts with my friends
as they were clearly not in agreeance. Over time, I began to hate myself and
questioned whether I was sick or something was wrong with me as my thoughts and
feelings were different to those of my friends. All I knew as a young teen living in Jordan
was that liking the same sex was wrong and forbidden and it was a sickness I needed
to overcome.
4. When we first moved to Australia and I commenced my schooling, I began to learn a
lot more about the LGBTQ plus community and I secretly started to do research at
home by looking up different terms and watching videos on Youtube about the LGBTQ
plus community. At the start, I still believed what I was feeling and the thoughts I had
were wrong so I shut everyone out and lived in fear that my family will notice that I was
acting different and showing interest in both males and females.
5. In my earlier years of schooling in Australia, I tried to seek help from the health and
wellbeing department, but once I was inside alone with the teacher, doubts came over
due to the fact she was also of Middle Eastern background. It made me feel like I was
in Jordan and being open to these persons of authority would ruin my life because of
the deep-rooted culture that was still clouding my thoughts. My self-esteem was
immediately affected and I began hating myself again, praying that God can fix me and
maybe if I hid those feelings deep down inside hide my true self forever, it would
disappear on its own. However, it never did.
6. After moving from one to school to another, I finally settled in my final school, [named], where I made a great group of friends who were open and
accepting of all different people. It was the first time in my life I felt I was not being
judged and am not a horrible person. As the school years went by, I slowly started
becoming open about myself to this close group of friends that I made and one day
after years of living in fear and hating myself and thinking that I was so sick and needed
to be saved, I decided to share my biggest secret with them. I finally came out and felt
somewhat relieved and free.
7. The day I came out to my best friend I remember the fear that took over my whole body. All these questions hit me like rocks; I was shaking and almost to the point of tears. I had just watched of my favourite youtubers (Saiyr’s World 2017) and in that video she explained that she was Bisexual, how she found out and how she felt growing up. After I watched that video something came over me and I was finally ready to let someone in my life know the truth about me. I called my best friend on facetime and before she even picked up I was already crying. Through my tears I asked her to watch the Saiyr’s World video and to call me back. After 22 mins she called me back and I was still crying worried she would make fun of her or bad mouth her for being Bisexual, but she didn’t. She told me that she thought it was amazing that she was out and that she looked happy, proud and free. When I heard what she had to say I then and there felt safe enough to also come out to her about my sexuality. I did it, I said
my truth and my friend looked at me and said these 3 words that I will never forget. I looked happy, proud and free! This was the best moment that I will never forget, until the fear set in again later that night. I knew that I have so many people in my life that will accept me for who I am, but I wouldn’t be able to come out to everyone while I’m so unclear about if I would be staying here in a country that is so accepting or going back to place where I wouldn’t truly be able to live.
8. I spent many years of my life terrified that someone might notice that I was looking at a girl funny, or that my family overseas would find out that I am Bisexual and shut me out from them, or that I might lose my life if the wrong person heard about my sexual identity on the street, but all those uncertainties left me for a while when I was able to come out here in Australia. All those fears don’t affect me here because of the lifestyle of the Australian people. Even though I was young I knew how harsh and unforgiving the laws of being part of the LGPTQ[sic] community are in Jordan. At the age of 12 I had heard stories of both men and women who were ousted, losing their jobs and careers, being run out of the country, cut off from families and being abused daily on the street, and some killed by another family member in a so-called ‘honour killing’ where the law believes it’s a justifiable murder.
9. The laws in Jordan hang over me on a daily basis, knowing that I have no rights at all in a place that I once called my home and this petrifies me to this day. Even with the knowledge that here in Australia, I would be protected if I am attacked by somebody, that I have rights under hate crime Acts, that there are places from me to be myself (like clubs, bars and events), that here the LGBQT plus community is celebrated with pride parades and largely accepted in society. But the biggest most important piece of knowledge that I hold is that I have every right that a heterosexual person has. If one day I find someone that I truly love I don’t have to hide it, I can even get married to the same sex.
10. On 9 December 2017, the law was passed in parliament that allowed same sex
couples to be legally married. I remember sitting in the car with my mum when the
news was announced over the radio and we began talking about how different
Australia sees the LGBTQ plus community. At the time I felt I was ready to share with
my mum how I was feeling for all these years. It took her some time to understand
what I had told her but over the next couple of weeks she came around and expressed
how she was happy I felt safe to come out to her. However, she told me to keep it
private and not let anyone overseas know as she was worried about what the backlash
might be, mainly due to the fact she is worried that we may be going back to Jordan.
11. Although I have been here for over 6 years and in those years I have been welcomed in by the Australian community, there is still a fear about how my family and friends would react overseas in Jordan. My biggest fear, however, is my dad who is slowly becoming more open and understanding of the western culture. He is still not fully aware of my bisexuality and I am worried that although he is becoming more open-minded, it still will not be enough fro [sic] him to understand. I also still worry about the what ifs: what if I was sent back and someone finds out in Jordan? What if no matter how hard I try to hide who I am again after being open for the first time, I’m unable to? What if I lose everything just because I’m different to what is considered ‘normal’ in Jordan? All these questions play on my mind every day because I know if we go back that the life I live now, here in Australia, the normal, safe life will not exist in Jordan.

At hearing, [Ms A] confirmed recent country information which had been noted by the Tribunal. This information suggests that the Jordanian school curriculum has been overhauled since she left Jordan, seemingly to address the very issues she had outlined in her claims and the documents submitted with those claims – namely that the curriculum was using divisive imagery and ideas, excluding other faiths, encouraging division within the Jordanian community and promoting an Islamic-focus that could potentially engender extremism.
[Ms A] noted that despite these changes, there are still elements within the Jordanian community who oppose them, and the new curriculum has not been implemented universally. The applicant said she has a sister who is teaching in a university in Jordan and she reports that the ‘Islamic Character’ aspects of the old curriculum is still applyied in schools.
[Ms A] gave evidence that she and her Christian community friends were able to celebrate Christian festivals and holy days in Jordan, but they felt like theirs was a ‘second class’ system. It was noted that she and her family had lived and worked, and obtained high levels of education in Jordan, which did not suggest that they faced discrimination in those areas due to their faith. [Ms A] agreed but stated that nonetheless, there are restrictions on Christian engagement in public life. For example, there are only 2 seats for Christians in Parliament. Christians can’t join the military, or adopt a child without restrictive procedures not applicable to the Islamic community of Jordan.
When asked how she had faced persecution in Jordan due to her faith, [Ms A] stated that it was more that they ‘didn’t mention it’ – or use their Christian names in public. Everyone in Jordan is expected to obey the fasting rules of Ramadan, for example, even the Christian community.
The applicant referred to the incident where she was abused for drinking water during Ramadan. It was a hot day and she was thirsty. These men saw her and banged on the car, abusing her for drinking water in public. It was noted that they would not know her as a Christian if she was merely driving past, but [Ms A] said that she has a cross hanging on her mirror. Given that she had earlier described ‘keeping their faith to themselves’, the Tribunal asked why she would make such a public display of her faith. The applicant responded that she did not mean to suggest that they had to hide their faith or that all Jordanians are intolerant or likely to harm them because of their faith. However, in the years before they came to Australia, Islamic State had a presence in Jordan and she was concerned that, with them, had come a more militant Islamic community, which was being encouraged by the curriculum taught in Jordanian schools.
After the men banged on her car, the applicant drove off hurriedly. She calmed her son down and realised that there was a potential risk for her and her life. Later, the men called the number connected to the registration and abused her for not respecting Islam or the Islamic rules. When the Tribunal expressed some scepticism about how private citizens would get such information from the traffic department, the applicant stated that ‘it is not like in Australia, there is no privacy. You can get that information easily.’
It was noted that her son had developed anxiety after listening to troubling experiences of Christian refugees from Iraq and that it is accepted that the incident in the car would have had a negative effect on his confidence and anxiety. [Ms A] was asked if [Mr C] is receiving treatment in Australia for any mental health issues. She stated that he has been much better since arriving in Australia, and over the following years he has become more confident and trusting. He is now in high school. Initially, she did take him to mental health appointments but then he refused to go. [Ms A] let the school know about his worries and experiences when he started. A couple of months ago, [Mr C’s] GP had referred him to a psychologist, but [Mr C] prefers to discuss and manage his anxiety with just the GP at this stage. As he is a young adult now, [Ms A] is not involved in his care, but he is doing much better than before.
[Ms A] stated that she believes that her son would suffer harm if he is forced to return to Jordan. She claimed he belongs here, he has an identity; he believes he’ll get ‘lost’ if he returns to Jordan. He is fluent in English and has opportunities and safety in Australia that he would lose if he returns to Jordan.
[Ms A] claimed that she still has a fear that the family will be harmed by Islamic State in acts of terrorism if they return to Jordan. It was noted that general reports and country information suggest that the government of Jordan has taken action to prevent the further incursion of Islamic State into the country and to reject fundamentalist extremism. There have been very few terrorist events or threats in Jordan in recent years. [Ms A] said that the risk of terrorism remains due to the borders with Iraq and Syria. Even though she accepted that there is a relatively low risk of terrorism in Jordan, [Ms A] asserted that there are still cells and an extremist mentality exists there. Her fear is for her children who could be harmed in attacks on Christians if Islamic State start to attack Christians in Jordan, as they have elsewhere.
[Ms A] was asked about [Ms B] and when she told [Ms A] about her sexuality. She recalled that they had been talking about the ‘gay marriage’ vote result and her daughter had asked her if she was ‘open minded’ about the issue. She responded that she wouldn’t judge anyone for their choices. Her daughter asked how [Ms A] would feel if she, [Ms B], was ‘that way’. [Ms A] said it was a real shock. [Ms A] was genuinely distressed when recalling this discussion. She said that it made her reassess a lot of things, such as looking forward to her daughter having a husband and family, and there was a feeling of loss, but she loves her children unconditionally. She confirmed that her child had told her that she was bisexual. She did not tell her any other specific details. [Ms A] confirmed that [Ms B] was (and still is) reluctant to tell her father of her bisexuality because he is more traditional, and though he loves her, she was fearful of his reaction.
[Ms A] added that although there appeared to have been improvements in the curriculum aimed at making Jordan a more inclusive society, it is still a conservative Islamic society and the views of Islamic conservatism are still held by the majority within the community. [Ms A] fears that her children will consequently experience harm if they are forced to return there – [Ms B] in particular.
[Ms A] said that as a bisexual woman in Jordan, [Ms B] will face psychological and emotional harm because she will be unable to live openly in that way – but worse, she will be at risk of rejection, ostracism and physical assault by the conservative Jordanian community – including from her own small Christian community. She will lose her rights, be refused jobs, she will not have any privacy. If she kept her sexuality hidden (and she would have to in fact) she could not live her own life or make same sex choices in her relationships.
[Ms B’s] evidence
[Ms B] gave evidence in an open and honest manner. The Tribunal accepts that she has recently come out to her friends and some of her immediate family as bisexual. The Tribunal also accepts that she witnessed homophobia and rejection whilst living in Jordan up to her [teenage years] which had a frightening and negative impact on her self esteem and growth because she recognised that she was ‘different’ from her friends at quite a young age. Such matters were viewed as abhorrent and sick in Jordan. [Ms B] said she had heard of instances where fathers had killed their daughters over same sex issues and the killing was viewed as ‘legal’ or ‘justifiable’.
As noted in her statement, [Ms B] explained how she was able to use social media and particular ‘YouTubers’ to educate and empower her to accept her own sexuality and ultimately to come out. The Tribunal had the opportunity to listen to an example of the social media account she referred to in her statement prior to the hearing and discussed it with her at hearing. The Tribunal accepts her evidence that she found strength and hope from accounts such as that referred to.
[Ms B] said she has not opened up to her father as he is older and very conservative and she is not sure that he will understand. She said she does not fear harm from him; but she does not think that he is able to accept her truth and so she is apprehensive about taking that step. Of course, she is also worried about having to go back to Jordan with that information ‘out there’; so she has still only told a small number of people.
[Ms B] said that if she returns to Jordan, she will have to ‘act straight’ to be safe. She wouldn’t be able to live openly as bisexual and would be in danger of physical assault and discrimination. Although same sex relationships are not illegal in Jordan, they are not accepted and there are no laws protecting people from discrimination in work or society on the basis of sexuality. She would be at risk if her sexual preference became known in any community in which she lived. It was noted that the country information reflects that there is a small gay community in Jordan and some areas where same sex attracted people are able to meet, such as clubs and bars. [Ms B] said that you still have to be secretive about it because it’s not safe to be open about attending those places. Even though the Prince has spoken out in favour of protections for the gay community in Jordan, he does not have broad support on this issue. Gay marriage is still very clearly opposed and unlikely in Jordan.
[Ms B] explained how the constant belittling, insulting and rejection of LGBTQ people in Jordan would have a contagious effect, and would cause her serious distress. In addition, women are unable to walk alone in Jordan, and can be abused for doing so by strangers on the street. She fears that women in Jordan don’t have the same freedoms as in Australia.
On 24 February 2020, the Tribunal received an email from the representative providing additional country information and advising that [Ms B] had experienced deterioration in her mental health and alarming symptoms since the hearing concluded. Her deterioration was significant enough that her doctor recommended admission to an acute mental health unit, but [Ms B] had preferred to remain at home with CAT team support. The Tribunal accepts this as an indication that [Ms B’s] mental state is extremely fragile, particularly given her expressed fear of returning to Jordan and the unresolved status of the family’s protection application. Whilst the update on [Ms B’s] mental health is appreciated and important, for the purposes of the record it is noted that the Tribunal had already reached a conclusion that [Ms B] was a refugee and was in the process of formalising the decision when this information was received.
Findings of Fact:
The Tribunal accepts the evidence given by the applicants. The Tribunal found them to be frank, truthful and credible. In particular, [Ms A] accepted suggestions about positive changes that had occurred in the area of her expertise (school curricula) since she had departed Jordan, and did not exaggerate the challenges faced by [Mr C] and her daughter here in Australia, or the risks to them both (and the whole family) if they return to Jordan. [Ms B’s] evidence was direct and disarmingly frank.
The Tribunal accepts that [Ms A] is a school teacher who formed a view that the Jordanian curriculum was encouraging Islamic extremism because it excluded or denigrated non Islamic members of the Jordanian community. It is accepted that [Ms A] fears that Islamic State will gain a strong hold in Jordan (as they have in neighbouring countries) and that the Christian minority community in Jordan will then face persecution from them.
The Tribunal accepts that [Mr C] developed severe anxiety and PTSD-like symptoms after learning from refugee children and families of the brutality of Islamic State. He came into contact with Christian refugees whilst [Ms A] was involved in project work with the refugee community.
The Tribunal accepts that [Ms A] and [Mr C] were in a car during Ramadan and they were frightened by abuse and banging on the car when Muslim community members chastised [Ms A] for drinking water in public in 2015. The Tribunal accepts that this increased [Mr C’s] anxiety and ‘his fear of Muslim men.’ The Tribunal accepts that the men also tracked the second applicant’s contact details down and called to abuse [Ms A] for her ‘disrespect to Islam’. It is accepted that this intrusion caused the family distress.
The Tribunal finds that [Mr C] has experienced an improvement in his mental health whilst in Australia but is still seeking assistance for anxiety, currently from his general practitioner.
The Tribunal accepts that [Ms B] is bisexual, and that she has not disclosed her sexuality to members of the overseas Jordanian community or even to all members of her family because she is fearful of their reaction and that she will be harmed if she returns to Jordan and that information has become publicly known and circulated.
Consideration of claims and evidence
The Tribunal notes the following information from a report by the Washington Institute, published on 11 March 2021.[1]
In comparison with other countries in the region, Jordan therefore experiences a low but consistent rate of terrorist activity. Recently, Jordan has seen an average of two terrorist operations every year for the past three decades. The 2020 edition of the Global Terrorism Index (GTI), published annually by the Institute for Economics and Peace in Australia, ranked Jordan 57th globally in national occurrence of terrorist attacks, placing it among countries with “low impact” from terrorism. According to the Shorufat Center for Globalization and Terrorism’s 2020 Jordan Terrorism Index, there have been a total of 133 terrorist operations in Jordan during the period from 1970 to the end of 2020, resulting in 156 deaths and 300 wounded.
As a result, the year 2020 was an exception to the rule, marking the first year since 2011 in which Jordan did not experience any terrorist operations. Other indicators have also shown that 2020 was a year of weakness for ISIS in particular. The Jordanian General Intelligence Directorate confirmed that ISIS membership has fallen from 1250 to no more than 750 in 2020, a result of some members returning to Jordan and others being killed on different fronts. This news confirms that ISIS seemed to have been weakened on all fronts after repeated strikes against its strongholds in Syria and Iraq.
Three failed ISIS operations in June 2020 exemplify the continuing terrorist threat in Jordan.
The first operation was planned for June 2, 2020, when the General Intelligence Directorate foiled the operation planned by two ISIS members targeting the intelligence building in the city of Zarqa. The plan was to use explosives against bystanders and light weapons against one of the static patrols in the Ma’asom neighborhood of Zarqa. The State Security Court investigated two suspects and found they were planning a terrorist operation for ISIS, and that they had held meetings in which they exchanged ISIS publications and news including over ISIS-run channels on the internet.
The second operation was planned for June 7, 2020, when the General Intelligence Directorate discovered and foiled it. The planned operation came from a terrorist cell that included three ISIS members who aimed to use light weapons against central security officials in Irbid, a city located in northern Jordan. The investigations of the State Security Court indicated that the cell had been exposed to ISIS ideas through social media, ISIS publications, and communication with ISIS members outside Jordan through Telegram.
The third operation was planned for June 29, 2020. The State Security Court’s investigations found that a cell of four ISIS members living in Al-Wehdat in east Amman had failed to carry out an attack against a store selling alcoholic beverages and an Armenian Orthodox Church in the Ashrafyeh area near the Al-Wehdat camp. The ISIS members had planned to use automatic weapons. They had also been unable to locally manufacture explosives. The members of the cell admitted that they had heard about ISIS ideas through social media and had failed to joined ISIS in Syria because of the heightened security presence at Jordan’s borders.
[1] Sustained Counterterrorism Efforts Remain Key to Preventing Attacks in Jordan | The Washington Institute
This information about Islamic State actions and frustration of attempted terrorist attacks during 2020 suggests that Islamic State does not have the capacity to conduct effective, frequent, or large scale acts of terrorism in Jordan. It also reflects that the Jordanian authorities are taking steps to minimise what risk of terrorism there is. In addition, the planned attacks during 2020 were principally against intelligence or security agencies. Only one attack was planned against a store selling alcohol and an Armenian Orthodox Church.
Whilst it is therefore accepted that Jordan faces a low but persistent extremist terrorism risk, it must also be noted that the government and its’ security apparatus are committed to eliminating that threat and have experienced considerable success, with consequent reduction on Islamic State numbers and influence within Jordan. The potential for ongoing acts of extremism is not discounted; but the Tribunal assesses that the chance that the applicants’ Christian community or the applicants themselves will be targeted by an act of Islamic extremist terrorism in Jordan is remote, now or in the foreseeable future. In fact, based on their past experience and the country information generally, the Tribunal assesses the chance that any of the applicants will experience generalised terrorism related violence in Jordan is also remote.
According to the official Visit Jordan information page, approximately 6% of Jordanians are Christians, (which equates to a population of close to 600,000.) As indicated to the applicants at hearing, limited country information could be located suggesting that Christians in Jordan face persecution. The first applicant confirmed that Christians have access to school, education, health and social services and to employment. Christians have limited representation in Parliament; but it is also noted that they are, nonetheless, represented. It is also accepted that more recognition is paid to observance of Islamic rites and festivals than those of other faiths. The expectation of all society to publicly observe fasting during Ramadan is an example of this.
The country information provided by the first applicant with her application for protection around the ‘anti-Christian’ or ‘pro-Islam’ curriculum is not in dispute. Indeed, the very issues raised by [Ms A] in her claims and in the articles she provided in support of those claims have clearly been recognised by the education authorities in Jordan following the completion of an extensive review, resulting in some controversial changes to the curriculum.[2] Steps have been taken to modernise and improve the curriculum to pursue an inclusive and cohesive society in the period from 2016 to 2019. To quote from a report published in 2019[3]:
[2] IMPACT-se report on Jordan's new curriculum evaluates a range of topics: moderating the education of Islam for students (with emphasis on diversity and openness); layers of national identity; the idea of good citizenship, which includes gender, economic and environmental responsibility; Jordan's approach toward the West Bank and the Palestinians; unresolved internal conflict toward its peace with Israel and proper conduct toward the disadvantaged.
Main Points
· A complete restructuring of Islamic textbooks
· Islamic education is judicious and conciliatory toward non-Muslims
· Diversity is a central theme
· Hashemite dynasty forms the foundation for Jordan's existence and identity
· Embraces local Christians, ethnic minorities, refugees and other foreigners
· Atheists and polytheists have rights
· Islam as a culture of life: opposition to Islamist terrorism as culture of death
· Manner toward women is respectful
· Jordan is committed to the West Bank and Palestinians, Hashemites to Jerusalem
· Minimal recognition of Israel and the peace treaty is a cause for concern
Religious tolerance is a major component throughout the curriculum, especially since the Christian minority in Jordan was barely represented in previous textbooks.
Christians It is evident the authors of the curriculum have succeeded in portraying Christian members of society positively and as equal citizens. Especially significant are the development of friendships between Muslims and Christians against the background of the rise of ISIS and its popularity among segments of Jordanian society….
Conclusion:
National Identity lies at the heart of any state's educational system and the new Jordan curriculum represents the Hashemite's Kingdom's measured attempt to redefine its own identity. According to an official statement from Jordan's Ministry of Education, "Teaching Islam as a religion of moderation and tolerance is not against the faith." That has been the guiding force behind Jordan's new curriculum, which indeed focuses on tolerance and a more moderate interpretation of Islam. Our findings demonstrate that the new system has by and large fulfilled the stated goals in offering a more moderate Islamic education, while encouraging tolerance and reconciliation within the Hashemite Kingdom. The curriculum fosters national loyalty and solidarity. A culture of good citizenship in Jordan and the world and genuine commitment to peace and compassion, as guiding principles are everywhere throughout the textbooks.

As indicated to the applicants at hearing, there are signs of improvement in the education system towards a more inclusive curriculum and thus society. As [Ms A] acknowledged at hearing, this aspect of the applicant’s concerns appears to have been meaningfully improved in the period since she left the country.
Nonetheless, even if [Ms A] would continue to have objections to aspects of the Jordanian school curriculum, the Tribunal considers that discomfort with the school curriculum, and having to teach that curriculum as a teacher in Jordan is not reasonably considered to cause the applicant serious harm, even if she feels that the curriculum is not in accord with her ‘values’. Nor does it involve targeted or systematic conduct as required by s.5J(4)(c).
[Ms A] claims that the actions of extremists in neighbouring countries against other Christians there has caused [Mr C] harm, and that the applicants all fear harm from Islamic extremists now or in the reasonably foreseeable future, because violence against Christians has occurred in those countries and ‘could’ occur in Jordan.
In reference to the Ramadan incident where [Ms A] was abused for drinking during a fast, it is accepted that this would have been an upsetting and traumatising attack for both [Ms A] and [Mr C] – and for the whole family to be targeted by abusive phone calls. Though it is accepted that the offenders were upset at the time and abused her both in person and by telephone, the Tribunal considers this to be an isolated and random experience. There is no suggestion that the applicant was targeted as a Christian in the abuse that she received, which appeared to occur spontaneously and because she was breaking a fast, publicly. This conduct is extreme, but the Tribunal does not consider that it caused either [Ms A] or [Mr C] serious harm, even in light of [Mr C’s]predisposition to anxiety.
The information and evidence before the Tribunal also does not disclose that the harms feared involve targeted and systematic behaviour towards [Mr C] (or [Ms A] or any of the applicants) by any person or authority in Jordan due to their Christian faith.
In conclusion, the Tribunal finds that there is not a real chance that any of the applicants in this review will be persecuted by Islamic State, the Jordanian education authorities or any other authority or person in Jordan due to their Christian faith. The harms articulated by the applicants, namely that [Ms A] will be required to teach a curriculum which conflicts with her values, and [Mr C] will suffer mental distress due to a fear of Islamic citizens which has arisen due to Islamic State’s persecution of Christians outside of Jordan – do not involve causing either of those applicants serious harm, or systematic and discriminatory conduct as required by s.5J(4). The Tribunal finds also that there is not a real chance that the applicants will be persecuted by Islamic State generally, subjected to bombings and extremist attacks now or in the reasonably foreseeable future in Jordan. These claims are not established.
In relation to the claims raised by [Ms B], this claim has arisen since [Ms B] has been in Australia. Subject to s.5J(6) of the Act, a person may be a refugee in circumstances where the well-founded fear of persecution is a consequence of events that have occurred since arriving in Australia. Subsection 5J(6) provides that any conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unless the person satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening the claim to be a refugee. Although it is no doubt obvious from the Tribunal’s discussion later in this decision, the Tribunal formally states that the applicant [Ms B] has satisfied the Tribunal that her claims to be a bisexual woman are not conduct engaged in by her for the purposes of strengthening her claim to be a refugee, but are a genuine expression and recognition of her sexual identity.
It is noted that same sex relationships are not illegal in Jordan. Nonetheless, the issue is one fraught with societal rejection and hostility. There are no laws to protect against discrimination on the basis of sexuality in the workplace, in employment or in society generally. Public opinion is reported to suggest that 97% of the Jordanian community do not believe that same sex relationships should be allowed.
The Tribunal notes and accepts the following information in a report by OutRight Action International, discussed generally at the hearing with the applicants:
Jordan abolished a colonial-era ban on same-sex relations back in 1951, as such, same-sex relations are not criminalized. So-called “honor-killings” have been outlawed since 2013. However, hate speech from politicians is ripe, and authorities have been known to use morality and public decency laws to target LGBTIQ people. These laws provide legal cover for police and government officials to entrap, harass, and detain LGBTIQ Jordanians with impunity. In 2018, the Jordanian Parliament passed a law which allows for gender confirming surgery for intersex individuals, but criminalizes such surgeries for transgender individuals, further marginalizing trans people. Societal acceptance of LGBTIQ people is low, there is a general perception that being LGBTIQ is un-Islamic and therefore unacceptable in an Islamic country. Although Jordan’s legal system is not based on Sharia law, Sharia courts, which criminalize same-sex relations, hold symbolic weight and operate throughout the country with limited jurisdiction over certain aspects of life. Despite the ban on honor crimes, the concept of honor remains strong, with LGBTIQ people being seen as a strain on a family’s honor. Despite these challenges, Jordan has many unofficial LGBTIQ organizations, which hold demonstrations and build support. As a result, the Jordanian LGBTIQ community has experienced a slight increase in visibility and acceptance, particularly among younger and wealthier Jordanians.[4]
[4] Available here: Jordan | OutRight Action International (outrightinternational.org) undated.
The Tribunal also notes and has had regard to the additional country information sent to the Tribunal post-hearing by the applicants’ representative. In particular the following information is relevant to the issues here under consideration.
According to UK Amera International’s Refugee Legal Aid Information;[5]
Although homosexuality is not illegal under the Penal Code, societal discrimination is widespread. According to a Pew poll from 2013, 97% of Jordanians believe that homosexuality should not be accepted by society. The prohibition of same-sex sexual conduct and relationships under Sharia law can have consequences of stigmatisation and harassment towards this group. LGBTI persons are forced to leave Jordan as a consequence of negative public attitudes, police mistreatment and fear of their family harming them due to their sexual orientation or gender identity. LGBTI issues are largely considered taboo by the media, but when they are discussed, they are often discussed as part of a dangerous Western agenda. A document from Citizens for Justice in the Middle East evinces 'numerous reports of extrajudicial killings and torturing of LGBT people’. As this New York Times article emphasises, members of the LGBTI community fear becoming victims of violence and honour killings, demonstrating the incapacity and unwillingness of the state to protect its LGBTI citizens….
More recently, negative attention has been drawn to members of the LGBTI community in Jordan by elected officials. During the summer of 2017, a Jordanian Member of Parliament (MP) directed the Jordanian Media Commission to open an inquiry into the legality of My.Kali, a Jordanian webzine that is inclusive of LGBTI toipcs. The website, though already blocked by the Jordanian Media Commission since 2007, was publicly declared blocked again, leading to growing online and offline tensions between the MP, who told a Western reporter that homosexuals were not welcome in Jordan, and Jordanian LGBTI activists. Tensions ended up culminating in threats to members of the LGBTI community in Jordan.
In the political frenzy that was provoked by the acts of the MP, the ministers of justice and interior wrote separate official letters declaring their intolerance of LGBT people and clarifying that the government would not defend the rights of LGBT Jordanians. According to the letter from the minister of interior, “Jordan has not and will never endorse any charter or protocol acknowledging homosexuals-known as the LGBT community-or granting them any rights as it is considered a deviation from Islamic Law and the Jordanian Constitution.” He continued by saying that the government would never allow LGBT organizations to meet, and would seek to prosecute anyone who sought to do so. Similarly, the minister of justice declared that “Jordan has not endorsed any international agreement, protocol or pact granting rights to those who are called sexual deviants” because doing so would go against Islamic law.
[5] Jordan LGBTI Resources | Rights in Exile Programme (refugeelegalaidinformation.org)
The Tribunal has also considered the information related to the continuation of so called ‘honour’ killings in Jordan including one where a father brutally murdered his own daughter during 2020. In a ‘Project on Middle East Democracy’ article published 8 March 2020[6], it is noted as follows:
Data on ‘honor killing’ in Jordan are inconsistent and incomplete, as official statistics can be hard to find and many cases are not reported. Even the partial information available since the mid-1990s paints a very disturbing picture. Data from the Ministry of Social Development indicate that nine crimes of this kind were recorded in 1995 and six in 1998. By 2006 and 2007, according to Ministry data, the reported number of cases was 18 and 17 for each respective year. Other statistics suggest that 12 crimes in 2014 were committed under the pretext of honor and eight in 2016. By 2017, Human Rights Watch estimated that between 15 and 20 honor crimes occurred annually. The Jordanian Women’s Solidarity Institute recorded 21 family murders of women in 2019. 2020 ultimately saw a total of 17 honor killings.
[6] Until When?! Honor Killings and Other Domestic Violence Against Women in Jordan – POMED
Although it is noted that [Ms B] does not claim to fear harm from an ‘honour’ killing at the hands of her family, the ongoing occurrence of such events does suggest a troubling persistence of, as put later in the report, a large segment of society that encourages men and grants them the right to commit such crimes against women because of a belief that the victim was at fault in the first place and is responsible for her own heinous death. The conservative nature of the patriarchal society in Jordan is a factor which would potentially impact on [Ms B’s] capacity to reintegrate into Jordanian society and live openly and against societal norms without significant risk of harm and backlash.
[Ms B] fears that she will be unable to live openly as a bisexual woman in Jordan; be unable to pursue a same sex relationship or even express her same sex attraction. She fears that if her sexuality becomes known or is suspected, she will face denial of employment, discrimination and harassment in work and society, and that she could potentially face violence and hate crimes. Understandably, the prospect of having to return to Jordan and the loss of her freedom to express her sexuality causes [Ms B] emotional distress.
The reason for the harm she fears is her membership of the particular social groups of bisexuals in Jordan or bisexual women in Jordan. The harm she fears involves serious harm, (being assaulted, harassed, discriminated against in work or society such that she could not subsist, and social isolation). The harm she fears also involves systematic and discriminatory conduct. The persecution she fears satisfies the criteria in s.5J(4).
The criterion in s.5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s.5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
The general country information is consistent with the fears held by [Ms B] and her mother for her welfare if she returns to Jordan. Her conduct in keeping her sexuality private from relatives in Jordan and even from friends there whilst she is ‘safe’ in Australia is consistent with her stated fear that she will face vilification, rejection, social isolation, violence and discrimination in Jordan if her sexuality were to be generally known. In this particular case, it is accepted that the conservatism of Jordanian society also extends to members of her own Christian community, who share that negative view of homosexuality. The applicant is unable to obtain any redress or protection from the harms she fears, given that the harmful views are clearly shared by those in prominent positions in Jordanian society, from all ethnic or religious backgrounds. After considering [Ms B’s] circumstances overall and the available country information, the Tribunal is satisfied that there is a real chance that the applicant will suffer serious harm in Jordan due to her sexuality now or in the reasonably foreseeable future.
The Tribunal is not satisfied that the applicant could take reasonable steps to modify her behaviour so as to avoid a real chance of persecution and even if she could do so, requiring her to conceal her sexuality is expressly excluded by s.5J(3)(vi). The Tribunal also finds that the applicant is unable to obtain any protection from societal discrimination, harassment and abuse because the views of her potential abusers are shared by the authorities themselves and there are no legal tools (such as anti-discrimination laws) that can be used to protect her from harm.
The Tribunal has carefully considered the claims made by [Ms B] and finds that the fifth named applicant has a well-founded fear of persecution in Jordan, and is a refugee. For the reasons given above, the Tribunal is not satisfied that the first, second, third or fourth-named applicants are refugees.
Complementary Protection
The Tribunal has considered the first, second, third and fourth named applicants’ claims under the complementary protection provisions.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
The applicants claim that they will suffer harm in Jordan as Christians living in an Islamic country. [Ms A] claims she will suffer emotional harm by having to teach a curriculum which she considers to be extremist and anti-Christian. As discussed above, significant changes to that curriculum have been made since the applicants departed Jordan. Nonetheless, the Tribunal does not consider that the harm claimed by [Ms A] in having to teach the Jordanian curriculum is not reasonably considered to be significant harm as defined in s.36(2A).
The applicants claim that [Mr C] will suffer deterioration of his mental health if he is exposed again to Jordan’s Islamic society and the proximity of extremist Islamic elements in the Middle East, such as Islamic State. Accepting for the purposes of consideration that [Mr C] will suffer such a deterioration in his mental health, the Tribunal does not consider that it satisfies the definition of significant harm because it lacks any element of infliction of that harm (or intention to cause harm) by any person or authority in Jordan. Like the delegate, the Tribunal finds that these specific harms articulated by [Ms A] and [Mr C] would not amount to causing either applicant significant harm, even if they were to occur as a consequence of them being returned to Jordan.
In relation to the risk of generalised or extremist violence, (targeted against Christians or other sections of Jordanian society) the Tribunal relies on the country information as articulated above in this decision and its’ finding that there is not a real chance that any of the applicants will suffer serious harm in Jordan from generalised or extremist violence. For those same reasons, the Tribunal finds that there is not a real risk that any of the applicants will suffer significant harm (being arbitrarily deprived of their life, subjected to the death penalty, or to torture, or that they will be subjected to cruel or inhuman treatment or punishment, or to degrading treatment or punishment) due to generalised or extremist violence if they are returned to Jordan.
No other claims (apart from those articulated by [Ms B] and dealt with above) arise on the information and evidence before the Tribunal.
The Tribunal is not satisfied that any of the first, second, third or fourth-named applicants is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Conclusion
For the reasons given above the Tribunal is satisfied that the fifth named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).
The Tribunal is not satisfied that any of the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that they are the parents and siblings of the fifth named applicant and are members of the same family unit as the fifth named applicant for the purposes of s 36(2)(b)(i). As such, the fate of their application depends on the outcome of the fifth named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s36(2)(b)(ii) are met.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the fifth named applicant satisfies s.32(2)(a) of the Migration Act; and
(ii) that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the fifth named applicant.
Anne Grant
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.
…
36     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.
…

[2022] AATA 1123

25 February 2022

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