1713360 (Refugee)

1713360 (Refugee) [2021] AATA 1440 (8 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1713360
COUNTRY OF REFERENCE:                   Jordan
MEMBER:Mr S Norman
DATE:8 April 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 April 2021 at 11:48am
CATCHWORDS
REFUGEE – protection visa – Jordan – ongoing violence from first husband – women in Jordan – failed asylum seeker – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, 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 26 May 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act). The applicant who claims to be a citizen of Jordan, applied for the visa on 14 September 2016.
The Department delegate’s decision was lodged with the Tribunal.
The applicant attended a Tribunal hearing on 26 March 2021. Oral evidence was also taken from the applicant’s husband, who had independently lodged a Protection visa application (AAT # 1713361 – the applicants agreed to the hearings being combined). The Tribunal was assisted at hearing by an Arabic interpreter. The applicant’s agent also attended the hearing.
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). 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
At the Department Protection visa (PV) interview, the (now) [age] year old applicant confirmed that she and her (now) [age] year old husband (AAT # 1713361) had independently lodged PV applications. However, there was no claim made they were members of the same family unit for the purposes of their PV applications.
Meaningful opportunity to give evidence and submissions:
The applicant lodged a range of medical reports. Amongst other things it was claimed the applicant was the subject of ongoing treatment for such things as anxiety and depression. In submissions to the Tribunal, it was claimed:
·     At the Department interview, the applicant and her partner were said to have been “scared, tense, anxious and panicky fearing they would be deported back to agony and death in Jordan” (doctors report included). That “due to the agony they have been through they will be sending doctors [report to explain their] lack of concentration and the anxiety we live with”. One doctors report dated 21 June 2017 stated the applicant:
·     [Details deleted].that the applicant’s current partner (her second husband) had a finger that was bleeding and painful and this happened when walking to the train station to attend the Department interview
·     that the interpreter at the Department interview did not “interpret the exact meanings of our answers because there were lots of wrong answers which lead to misunderstanding of lots of issues”
·     that the applicant now wanted an Arabic interpreter from Jordan or Palestine (arranged by the Tribunal); and that
·     the Department decision was (words to the effect) wrong
The Tribunal is aware it is required to provide applicants with a meaningful opportunity to put evidence and submissions, including at hearing. At the end of the hearing, the agent had said there had been some misinterpretation by the interpreter but after the Tribunal noted it believed the applicant had been able to provide meaningful responses to material questions, he accepted the errors were minor. That being said, and after having discussed the claims at hearing, the Tribunal is satisfied the applicant was given an appropriate opportunity to put her case.
The s.438(1) & (2) Certificate:[1]
[1] Department file (Department) – folio 80.
The abovementioned Certificate was said to cover folios 78-79 and folio 80 of the Department file. It was said the information was given to the Department in confidence. After having considered the information,[2] the Tribunal accepts the Certificate is valid and that the information was given in confidence.
[2] Department – folio 78.
The information referred to indicated the applicant and her second husband were fairly ‘well off’ in Jordan, and that her version of events in Jordan was false, and that ‘Jordan is a reasonably safe country’.
At the hearing, and after having put the gist of the information to the applicant by way of s.424AA, the Tribunal noted the information in the report was unable to be tested and neither was the Tribunal able to ascertain the motivation for lodging it. The Tribunal also said it was satisfied the confidential information related to the applicant’s material claims that would be tested inter alia in the course of the Tribunal hearing. In reply, the applicant agreed to the Tribunal proceeding with the hearing, and the Tribunal has not considered the information referred to in the Certificates further.
The applicant’s identity / receiving country / safe third country / passport expired:
The applicant was granted a Tourist (Subclass 600) visa in Amman on 19 May 2016; and she arrived in Australia on that visa [in] June 2016. The applicant then lodged her PV application on 14 September 2016. The applicant lodged a copy of the face-page of her Jordanian passport (# [deleted][3]), valid until [2019]. The Tribunal accepts the applicant’s identity is as listed in her passport; and that she is a national of Jordan as she claimed; and that Jordan is the applicant’s receiving country.
[3] Department – folio 67.
Further, and as stated at hearing, the evidence seen by the Tribunal included that a Jordanian citizen could renew their passport online with the assistance of the Embassy of Jordan in Canberra.[4] The applicant did not dispute this at hearing. The applicant’s husband advised the Tribunal he had previously renewed his own passport in Australia.
[4] See Embassy of Jordan in Canberra – Embassy of Jordan in Canberra (jordanembassy.org.au), and refer to the bottom of the homepage where the ‘renew/issue passport’ tab is located.
Based on the lack of any material evidence before it, the Tribunal is also not satisfied the applicant has protection in a safe third country, pursuant to s.36(3)-(5) of the Act.
Ongoing violence by [Mr A] (the applicant’s first husband):[5]
[5] Department - from folio 78.
As noted above, the applicant arrived in Australia [in] June 2016 and she applied for the PV on 14 September 2016. In her associated statement, she claimed:[6]
· Her father is ‘like a Sheikh or leader of [a] tribe’. He follows tribal law and is respected by most government and police officials
· She entered an arranged marriage to her paternal cousin ([Mr A] – her first husband)
[6] Department – from folio 62.
In an undated statement lodged with the Tribunal, the applicant said inter alia she was forced into an arranged marriage [in] October 1993 to her cousin ([Mr A]). The applicant continued:
·     However, [Mr A] was violent and abusive towards her and refused to allow her to continue studying. He also ensured her movements were highly restricted
·     She attempted to seek a divorce however her father had initially refused
·     On one occasion after being beaten by [Mr A], she fled to her parent’s house with her son (born [year]). When her parents saw her they were angry and agreed to allow her to divorce [Mr A]
·     She said [Mr A] asked that she be returned to him (‘take her back’), but she and her family refused continuous requests
·     The applicant was eventually divorced [in] October 2000. However, [Mr A] continued to attempt to convince her to remarry him. The applicant also said that [Mr A] did not provide any child support for their child
Regarding domestic violence, the country information before the Tribunal stated:
Women’s and Girls’ Rights
Jordan’s personal status code remains discriminatory, despite a 2010 amendment that included widening women’s access to divorce and child custody. ….[7]
…..
married women are the most susceptible to domestic violence, constituting 80 per cent of victims, according to a study released on Monday.[8]
[7] Human Rights Watch, World Report 2019 – p.322.
[8] MARRIED WOMEN MOST SUSCEPTIBLE TO DOMESTIC VIOLENCE – STUDY, Site: accessed on 17 February, 2009
After discussing it with the applicant at hearing, and considering the country information, the Tribunal accepts the applicant was mistreated, both physically and emotionally, by her first husband prior to separating from him before their divorce [in] October 2000.
The applicant’s written claims continued:
·     The applicant said she met her second husband [in] 2006. They met again in Amman, where she had then been working. The applicant and her now second husband, decided to marry but her family were hesitant because her second husband is an ethnic Palestinian/Jordanian citizen
·     The applicant and her second husband eventually married [in] January 2008 and they were happy
·     At the Department interview, the applicant was also recorded as saying her father and brother acted as witnesses at her second wedding even though she could have married her second husband without their approval[9]. At hearing, the Tribunal was also advised the applicant’s father had given permission for the second marriage to take place
[9] Department decision – p. 4.
The country information stated:
3.38 … few Jordanian families will agree to their daughter marrying an effectively stateless man, and having effectively stateless children.
However, neither the applicant nor her second husband are stateless (effectively or otherwise), and:
3.70 DFAT notes that Palestinian [as is the second husband] and East Banker [as is the applicant] intermarriage occurs, though the extent of this is unknown (largely because Palestinians in Jordan are Jordanians, so separate statistics are not considered necessary).[11]
[11] DFAT Thematic Report, Palestinians in Jordan and Lebanon, 2 March 2015.
The country information also stated:
3.12 In Jordan as elsewhere, certain individuals and groups have disproportionate access to power and influence. In Jordan and the broader Arab world, this phenomenon is referred to as ‘wasta’, though it varies in importance from country to country. Wasta can affect business, bureaucratic, political and social dealings.
3.13 … Generally speaking, most Palestinians in Jordan have little wasta when dealing with government bureaucracy, which is dominated by East Bankers. DFAT has been told that Palestinian businesses will frequently employ East Bankers with wasta in positions that liaise with the bureaucracy. The apparent need for East Banker ‘front men’ has been described by some to DFAT as evidence of discrimination against Palestinians. However, DFAT assesses it more as an acceptance of the situation as it is. … Moreover, as some industries are dominated by Palestinians, some Palestinians have more wasta—and thus a greater ability to obtain quicker, cheaper or better service (or prevent those with which they are in dispute from easily obtaining these services)—than many East Bankers in relation to these industries.
3.14 Thus, wasta, in DFAT’s assessment, is not evidence in and of itself of official or societal discrimination against Palestinians, but a central component to understanding how Jordanian society operates. [12]
[12] DFAT Thematic Report, Palestinians in Jordan and Lebanon, 2 March 2015.
The applicant said her own family took almost two years to approve the marriage, and the Tribunal accepts this to be correct. The Tribunal notes her Jordanian citizen husband is of Palestinian ethnicity and that he had previously served in the Jordanian army. The Tribunal also understands the husband would therefore have access to some influence (wasta) in Jordan (which he initially conceded at hearing and which the Tribunal accepts is correct). The Tribunal also accepts the applicant married her second husband as claimed, and that her own family had (at least initially) approved the marriage.
Next, the Tribunal has not seen evidence that mixed (East Bank Jordanian citizen / ethnic Palestinian Jordanian citizen) marriages in Jordan or marriage outside tradition (often first cousins), without more, give rise to a real chance of serious (or significant) harm in Jordan. When discussed during the hearing, the Tribunal understands the applicant as claiming she feared harm principally from her family and [Mr A] in Jordan (though other issues are discussed below). In the circumstances, and after considering the country information, the Tribunal was not satisfied the applicant has a real chance of suffering serious (or significant) harm in Jordan, for reason of her mixed marriage. The applicant’s written claims continued:
· [Mr A] subsequently attempted to ‘kill her second husband by forcing his car off the road and her second husband was hospitalised’
At the hearing, it was claimed that after the January 2008 wedding, the applicant and her second husband commenced to live in their intended principal home (the first home or house), within a refugee camp. Around four months later, the applicant said [Mr A] attempted to kill her second husband. However, at the hearing the second husband conceded he did not see who drove the vehicle that put his car off the road. After repeated questions, the Tribunal understood the second husband believed his treatment by the applicant’s father (after he visited the family home on being released from more than 20 days in hospital – and without any word from the applicant his wife), indicated that [Mr A] must have been at fault. The Tribunal had doubts that [Mr A] (the first husband) was involved in the motor vehicle accident. However, for the purposes of this decision, and though he was not driving the other vehicle, the Tribunal proposes to accept that [Mr A] had some involvement in the early 2008 motor vehicle accident. The applicant’s written claims continued:
·     Shortly after the motor vehicle accident (early 2008), the applicant went to her father for help, however he, along with his brother ([Mr A]’s father), said she should remarry [Mr A]
·     The applicant was then detained at her father’s home and he had refused to allow her to visit her second husband in hospital
·     After his release from hospital, the second husband went to the applicant’s parents’ home, however his father-in-law threatened and humiliated him
·     The second husband had then reported the applicant’s home detention to the police, however they refused to take a report, after they found out the father-in-law was from an important tribe
The Tribunal accepts the claims regarding the home detention and refusal to accept the report by the police, to be correct. For instance, the country information stated:
3.67 Despite being a numerical minority, the majority of the security forces, including the police, are East Bankers. DFAT assesses that there is no official policy for security forces to make life more difficult for Palestinians. However, personality-driven discrimination by individual officers against Palestinians and others can and does occur. It is unlikely that any complaints made by Palestinians of abuse by law enforcement agencies would result in legal redress. As is the case in much of Jordan, the individual’s wasta would likely determine the quality of redress.[13]
[13] DFAT Thematic Report, Palestinians in Jordan and Lebanon, 2 March 2015.
The Tribunal also understands that such domestic issues (as being detained by a parent) may be considered private family matters by the Jordanian police, and it is plausible the second husband’s report would not have been investigated, and or that he would have been insulted as he claimed. The Tribunal therefore accepts this to be correct. The applicant’s written claims continued:
· After four days, the applicant managed to escape from her father’s house and she and her second husband decided to relocate away from the area
· The applicant then claimed that she and her second husband ‘kept on moving to different areas for nearly 6 years and it was difficult to attend university and be on the run at the same time’
The Tribunal proposes to accept the applicant was detained by her father and escaped after four days. However, the Tribunal notes that in the PV application, the applicant provided a single residential address for the period January 2008 to June 2016. Regarding the claim to have gone into hiding, and to have been ‘on the run’ during this same period, the Tribunal was advised at hearing that after she escaped, the applicant and her second husband had travelled immediately to the home of one of her second husband’s relative in Mafraq (some 40/45 kms from her parent’s home), and they had then gone to live in the first home (where they had always intended to reside after getting married), which was located in Irbid refugee camp (being one of two houses owned by the second husband, and the second house was located around 15 kms away).

As noted at hearing, this was the locality where the second husband owned/operated a [store] for around three years, and from where he travelled in his van [for work], both during the period he operated the [store], and for a few years afterwards. The second husband said that as he feared further harm from [Mr A], he did not open the shop regularly, but it none-the-less still operated and he still regularly drove his delivery van.
If the applicant and the second husband feared [Mr A] or the applicant’s family, given the power/connections the Tribe to which [Mr A] (and the applicant) belonged was claimed to have, the Tribunal doubts they would have operated a [shop] in Irbid (some 45 kms from [Mr A] and or her parents), and that the second husband would have [worked in his job], for several years or at all. That is because if the applicant’s father is a Sheikh in a powerful Tribe (as was claimed), the Tribunal believes it very likely the applicant could be traced by her father (or her uncle – [Mr A]’s father) through connections. The Tribunal understands that most persons need to work to survive in their countries of residence. However, if the applicant’s claims were true, the Tribunal believes they (the second husband) may have more probably opted to work more discreetly than was claimed.
Next, during the period (around 8 years) when the applicant and her second husband were claimed to be ‘on the run’, the applicant worked for more than five years as [a professional], in and around Irbid (which is the area where her family and [Mr A] resided). The delegate noted the applicant had remained employed full time [until] July 2016.[14] The Tribunal does not accept it is plausible the applicant (or her second husband) would not have been traced and located when she had been [working], if she or the second husband, were of ongoing adverse interest to her family or [Mr A], as was claimed.
[14] Department – folio 30.
Next, the applicant’s (now [age] year old) son attended [school] in Irbid and [graduated]. He is now employed in [Country 1]. The applicant and her son resided with the applicant’s parents up till the time the applicant married her second husband ([January] 2008), after which they lived with the second husband, but the son’s education continued and his whereabouts would have continued to be known to his maternal grandparents (his maternal grandmother was said to have raised him). The Tribunal is not satisfied it is plausible the applicant’s whereabouts would not have been identified by locating or following her son, if she was of ongoing adverse interest as claimed.
Next, the applicant obtained a Tourist visa to [Country 2].[15] She conceded she had been granted [Country 2] visa on 6 July 2015 which had remained valid until 1 July 2020, however, she had not travelled to [Country 2]. At the Department interview, when asked why, the applicant said she was unable to travel independently to [Country 2] where the couple knew no-one willing to accommodate her. She was also reluctant to leave her son behind (the son was then around [age] years old). Therefore, she remained at their residence in Irbid until it was the annual public school holidays of July 2016. However, the applicant had also advised that she and her second husband had decided she should apply independently for a visit to [Country 2], and that if granted, he would follow her there later.
[15] Department – folio 64.
The Tribunal does not accept it is plausible the applicants would not have sought protection in [Country 2], or at least made more serious attempts to have sought protection in [Country 2], if they feared harm for the reasons they claimed, or if they feared the harm they claimed between 2008 and 2016. The [age] year old female applicant did say that she could not travel independently, but this would presumably have been considered and accepted by the applicants, prior to her even applying for and being granted a visa to [Country 2].
Next, the applicant’s second husband had worked in [Country 3] between March 1982 and June 1998. When asked, the second husband said he worked for a business in [Country 3] that had ‘gone bankrupt’, and though he tried for three years (at the end of his stay in [Country 3] – between 1995-1998), he had not been able to secure other work. However, and irrespective of whether the applicant attempted to secure work in the three years before or after June 1998 (at which time he returned to Jordan), or at some other time, the fact he did not claim to have made serious efforts to obtain work in [Country 3] between 2008 and 2016, has satisfied the Tribunal the harm claimed to be feared by the applicant and her second husband during this period, is not plausible.
Next, though the second husband claimed to own two houses in Jordan (15 kms apart), there was no claim that he and the applicant resided in the second house, in order to escape the harm they claimed to fear. The Tribunal does not accept it is plausible they would not have relocated to the second house on a more permanent basis, if the harm they claimed to fear was true.
The applicant claimed she was subject to ongoing threats and harassment. However, when discussed at the hearing, the Tribunal understands that after she married her second husband, she was only (materially) threatened/harmed on three occasions. The first was at the time of the early 2008 motor vehicle accident, and the second when she was detained by her father around the same time (discussed above). The third was the December 2014 incident discussed below.
Regarding the December 2014 incident, the applicant had claimed that she and her second husband had travelled to Mafraq to live in the home of a relative of the second husband (for one month as that relative was staying elsewhere at the time). Mafraq was around 45kms from their own home (in Irbid) and the second husband may have also been working [around] the area.
The applicant continued that an in-law had identified the second husband in the area when he had been working (in Mafraq). Around one week later, [Mr A] had travelled to the house in Mafraq and knocked loudly on the door. He subsequently fired a gun into the house. The applicant and her second husband had escaped and returned to their own home in Irbid. The Tribunal understands they remained there unharmed until the second husband travelled to Australia in December 2015, and she travelled to Australia in June 2016 (18 months later). Therefore, the applicant and her second husband travelled to live in their own home in Irbid and resided there for over one year without any claimed harm (after the claimed December 2014 incident). This is one reason that caused the Tribunal to find that the applicants could reside in their own home in Irbid, and not have a real chance of suffering serious (or significant) harm.
Be that as it may, when then asked if this incident had been reported to the police, the applicant said no. The second husband said he did not report the matter to the police as he had not been successful on the first occasion (in early 2008). However, the Tribunal noted the alleged attack had taken place in a Palestinian dominated area (village), where it may be presumed that the incident would have been witnessed by other residents of the village, that the firing of a gun into the house was a serious incident and would presumably require ‘substantial wasta’ to evade any consequences (none claimed and [Mr A] apparently still resides in Jordan), and it also did not appear plausible that an incident as serious as this, where the applicant’s family was powerful, would not be reported to the police. Further, it did not appear plausible the applicant’s family would tolerate her life being put at risk like this.
After then considering the evidence, the Tribunal is not satisfied the alleged shooting would not have been reported to the police, if it had occurred. The Tribunal understands that some convictions may be avoided in Jordan, but Jordan is not a lawless State and the alleged incident constituted a serious crime. The Tribunal therefore does not accept the incident occurred as claimed or at all. If it had, the Tribunal is satisfied it would have been reported to the police by the applicant, her second husband, and or a witness. If it had occurred, the Tribunal is also not satisfied the applicant and her second husband would have then (fairly) immediately returned to the claimed safety of their usual home in Irbid.
Next, the second husband said he now had diabetes and would not be able to protect the applicant in Jordan (though as stated herein, the Tribunal was not satisfied the applicants have a real chance of suffering serious or significant harm in Jordan). The Tribunal understands that health treatment available to all Jordanian citizens, would be available to the applicant and her second husband in Jordan – though better treatment would be available to them if they held medical insurance:
3.9 The health status of the Palestinian population is, likewise, essentially identical to other Jordanians (noting that the overall population’s health status is wide-ranging, in line with the wide-ranging socio-economic levels that exist in the country). For instance, a 2008 study in the Bulletin of the World Health Organization reveals there is “essentially no difference” between the infant mortality rates of Palestinians and other Jordanians in Jordan.[16]
[16] DFAT Thematic Report, Palestinians in Jordan and Lebanon, 2 March 2015.
There is no material evidence before the Tribunal that the second husband would be denied those health services that are available to all Jordanian citizens; or that he would have only limited access to those health services that are available to all Jordanian citizens.
After having then considered the implausibility findings and the other adverse findings above, the Tribunal is not satisfied the applicant and her second husband were in hiding, or on the run, as they claimed, between early 2008 and 2016. Neither is the Tribunal satisfied the applicant would have a real chance of suffering serious (or significant) harm for any reason discussed above, should she return to Jordan.
Next, in submissions to the Tribunal, the applicants lodged:
· Statutory declaration dated 24 February 2021, stating the witness had known the applicants since 1984; that the witness was aware the applicants were subject to threats
The applicant also lodged translated versions of what was said to be 4 voice messages received (from her sister). The summary of the message follows:
·     Undated - try not to come back, the cousin was in a bad state of mind and yelling wants his son back, stay where you are, he is our cousin and we do not want our relationship troubled
·     Undated - do not come back, your ex-husband is threatening to kill you and is in bad shape, he threatens you and your Palestinian husband, we do not want more troubles
·     Undated - be careful, the man is threatening that he would kill you on your return
·     Undated (no name was associated with this voice) – your husband has come to the house threatening to kill you if you return to Jordan, he smashed everything in our house, he smashed everything saying why did you marry the Palestinian and travel with him, you should be careful, we did not know what to do
The applicant did say her family are very angry at her for joining her second husband in Australia (even though they had resided together for almost 8 years in Jordan). The applicant fears she will now be killed by her family.
At the hearing, and when initially asked, the applicant said she spoke to or contacted, no-one in Jordan. When the Tribunal reminded her she said (in her PV application) that she had contact with her son[17] (at least prior to his travel to [Country 1][18]), she conceded this was correct. When the Tribunal then noted that a number of voice recordings were lodged from her sister in Jordan saying not to return, she also conceded this was correct (though the Tribunal remains satisfied the applicant does not have a real chance of suffering serious harm in Jordan). When pressed, the applicant also conceded that she spoke regularly with her brothers in Jordan, but they only exchanged (words to the effect) ‘polite greetings’. The Tribunal is satisfied this is further evidence that the applicant is not a reliable witness. The Tribunal is not satisfied the applicant’s family are angry with her for any reason she claimed. However, and more importantly, the Tribunal is not satisfied the applicant has a real chance of suffering serious (or significant) harm in Jordan, for any reason discussed above.
[17] Department – folio 39.
[18] The applicant also had claimed her first husband had unsuccessfully attempted to prevent her son from travelling to [Country 1] (immediately prior to the then [adult] son’s departure approximately two years prior to the Tribunal hearing).
Next, the applicant said she could not find work in Jordan. The Tribunal noted she was a trained [in a profession] with many years of experience, but she believed the competition was too strong. Be that as it may, there is no material evidence before the Tribunal that has satisfied it the applicant would be denied work for a prescribed reason (or that she would be targeted personally). The applicant did say that young persons are preferred for teaching positions, but without material evidence to the contrary (and none was found), the Tribunal remains satisfied the applicant’s tertiary education qualifications and her many years teaching experience, would make her competitive when seeking work commensurate with her skills in Jordan, if she wished to find that work. The Tribunal is not satisfied the applicant has a real chance of suffering serious (or significant) harm in Jordan, for any reason discussed above.
Honour crime:
Regarding family violence, the delegate noted that East Bankers or Trans Jordanians (as is the applicant) is a description used for members of the largely Bedouin tribal communities who were inhabitants of the territory east of the Jordan River as opposed to the Palestinian territories.[19] The applicant's family originated from a northern Bedouin tribe. A 2012 academic paper noted that, violence against women for reasons of family honour among Bedouins is higher than that among other sub-populations in Jordan.[20] Further, that sources considered by the delegate noted that Jordanian tribal honour codes were particularly applied to the conduct of women or girls in their personal relationships.[21]
[19] 'Jordan: Background and U.S. Relations', United States Congressional Research Service, Jeremy M. Sharp, 01 April 2013, CIS25524.
[20] 'Reflections on sex research among young Bedouin in Jordan- Risks and Limitations', Routledge, Noha M. Al-Shdayfata and Gill Green, 01 January 2012, CIS961F9402251.
[21] 'Crimes of Honor In Jordan and the Arab World', Lubna Dawany Nimry, Lubna Dawany Nimry - Attorney at Law, 01 June 2009, CIS17945.
Sources also indicated that so-called "honour" crimes targeting males in Jordan were relatively rare. Although reports of violent reprisal crimes against males involved in extra-marital or pre-marital relations were in evidence,[22] sources generally indicated that honour violence was directed at women[23] (the applicant had lodged a Human Rights Watch report titled ‘Recorded Honour Killings on the Rise in Jordan’, dated from around October 2016). Honour crimes in Jordan were also said to be underreported and some misreported as suicides or accidents.[24]
[22] 'Jordan – JOR40065 – Palestinians – Discrimination – Marriage – Honour Killings', Refugee Review Tribunal, Refugee Review Tribunal, 05 April 2012, CR0DEDD73472, p.12.
[23] TRIBUNALS NO SUBSTITUTE FOR REFORMS ON 'HONOR KILLINGS', Site: accessed on 10 September, 2009
[24] 'Jordan - Country Reports on Human Rights Practices 2013', US Department of State, 27 February 2014, OG1F18C9086, p.26.
When discussed at hearing, the Tribunal said it may not accept the applicant or her second husband would be subject to an ‘honour crime’ in Jordan. The applicant believed her family and or [Mr A] would harm her on return. However, and for the reasons set out above, the Tribunal is not satisfied the applicant would have a real chance of suffering serious (or significant) harm for this reason on return to Jordan. Otherwise, the Tribunal is satisfied the applicant and her second husband, would have been located by her immediate or extended family, in the eight years the Tribunal is satisfied they principally resided at their own home in Irbid.
Women in Jordan:
The applicant said she was deprived of her basic rights since her early childhood; that she was forced to marry (the Tribunal accepts this to be correct - though she had subsequently been allowed to divorced); that after she married she was forced to give up studying (the Tribunal accepts this to be correct - though she had subsequently returned to her study in Jordan and obtained tertiary qualifications); that she was bashed by her first husband before her parents decided they should divorce (the Tribunal accepts this to be correct); that she was hit by her own father prior to her second marriage in January 2008 (the Tribunal accepts this to be correct); but that she is now happy with her second husband since their marriage in January 2008 (the Tribunal also accepts this to be correct); and that [Mr A] is still chasing her (though as stated above, the Tribunal has not accepted she has a real chance of suffering serous (or significant) harm by [Mr A] or her immediate or extended family in Jordan); and that as a woman she has no rights and is considered inferior.
At hearing, the Tribunal said it accepted the applicant may have been subject to the domestic violence she claimed by her first husband, and from her own father prior to her second marriage, but that her second husband (whom she married in January 2008) treated her well. She accepted this was correct. When discussed further, the applicant said she may have trouble in Jordan as she no longer dressed according to normal Islamic dress codes for women in Jordan. The Tribunal noted (words to the effect) she was dressed in a hijab at hearing, and her clothes were otherwise conservative. She said this dress code was not appropriate in Jordan, but she had accommodated this style of dress as being appropriate for an Islamic women in Australia.
That being said, the Tribunal will accept the (now [age] year old) applicant may prefer not having to dress in the manner she did in Jordan (in which manner she had dressed for around the first approximately [number] years of her life). The Tribunal noted at hearing that it may not (and now does not) accept this would constitute serious (or significant) harm for her on return. The applicant did not agree. However, her claim was not to have objected to the dress code in Jordan, just that she had preferred to dress in the manner she did in Australia. There was no evidence that satisfied the Tribunal she would not willingly (and voluntarily) accommodate the dress code in Jordan should she return, as she had done in Australia. Also, the Tribunal does not accept the fact of having to do so (by the present applicant) gives rise to serious (or significant) harm.
Regarding other limitations on women in Jordan, the Tribunal noted the applicant appeared happy with her second husband and other than the harm she claimed to fear from [Mr A] and her family/tribe (discussed herein), she would not suffer any serious (or significant) harm on return. The applicant did not agree. However, the Tribunal is not satisfied the present applicant would suffer serious (or significant) harm in Jordan in the reasonably foreseeable future, for any reason related to her gender.
Failed asylum seeker:
At hearing, the Tribunal put the gist of the following to the applicant for comment. A Canadian Immigration and Refugee Board paper from 2008 stated:
Information on the treatment of failed refugee claimants who are returned to Jordan and persons who have exited the country illegally could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.[25]
And:
3.68 The General Intelligence Directorate (GID) is Jordan’s internal security organisation. It seeks to prevent any threats to the regime from materialising, and will closely monitor anyone—Palestinian or East Banker—it perceives as a threat. DFAT assesses that the GID does not discriminate against Palestinians because they are Palestinians, but will closely monitor individuals seen as a threat through the prism of Jordan’s national security interests.
[25] Canada: Immigration and Refugee Board of Canada, Jordan: The treatment of failed refugee claimants who are returned to Jordan, persons who have exited the country illegally or persons whose permission to leave has expired; whether there is a distinction made between citizens of Jordan, stateless Palestinians from the Occupied Territories, and stateless Palestinians who reside in Jordan under United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) registration, 5 August 2008, JOR102879.E, available at: 24 March 2021].

When asked about return to Jordan as a (possible) failed asylum seeker and after a lengthy stay in Australia, the applicant felt she would be shamed by her family and tribe if she returned to Jordan as a failed asylum seeker. The Tribunal said it doubted many (if any) persons in Jordan would understand the Australian visa process, and given she advised her second husband’s daughter resided in Australia and (words to the effect) they could have remained in Australia as a result of being (ie) sponsored by the daughter, it may be far more likely that no-one in Jordan would understand how she remained in Australia, unless she chose to tell anyone.
The applicant said she was still fearful of returning to Jordan as a failed asylum seeker. However, based on all evidence herein, the Tribunal is not satisfied the applicant has a real chance of suffering serious (or significant) harm for this reason on return to Jordan.
Finally, even considering the accepted claims cumulatively, the Tribunal is not satisfied the applicant has a real chance of suffering serious (or significant) harm in Jordan.
For the reasons given above, the Tribunal is not satisfied 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).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Mr S Norman
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.
…

[10] DFAT Thematic Report, Palestinians in Jordan and Lebanon, 2 March 2015.

[26] DFAT Thematic Report, Palestinians in Jordan and Lebanon, 2 March 2015.

[2021] AATA 1440

8 April 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Natural Justice