1812821 (Refugee) - [2020] AATA 1275

1812821 (Refugee) [2020] AATA 1275 (24 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1812821
COUNTRY OF REFERENCE:                   Jordan
MEMBER:Meena Sripathy
DATE:24 April 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 24 April 2020 at 10:40am
CATCHWORDS
REFUGEE – protection visa – Jordan – Federal Circuit Court remittal – religion – practising Christian – forced conversion to Islam – forced marriage and confinement and surveillance – apostasy charges – credibility concerns regarding past harm – implausibility of claims – internal inconsistencies – return to home area between 2008 and 2014 with no harm suffered – risk of future harm – significant governmental and societal discrimination – loss of civil rights – annulment of marriage – lose custody of children – unable to live openly and freely as a Christian and raise children as Christians – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91R, 91S
Migration Regulations 1994 (Cth), Schedule 2
CASES
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
Prasad v MIEA (1985) 6 FCR 155
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
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 to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of Jordan, applied for the visas on 18 March 2014 (the second named applicant, born [date], was joined to the application) and the delegate refused to grant the visas on 30 October 2014. Only the first named applicant (the applicant) made claims for protection, the second and third named applicants claimed to be members of his family unit. The applicants sought a review of the decisions to the Administration Appeals Tribunal (AAT), and on 28 April 2016, the AAT (differently constituted) (‘the first Tribunal’) affirmed the decision.
[In] April 2018 the Federal Circuit Court of Australia ordered the matter be reconsidered by the AAT according to law. The Court found the Tribunal had erred in law by failing to advise the applicant of the source of adverse information before it, thereby depriving him of proper opportunity to consider and make submissions on the implications of this information.
The matter is before the present Tribunal to be considered according to law. The Tribunal has before it the Department and first Tribunal’s files.
The issues in this review are whether the applicant has a well-founded fear of persecution in Jordan for one or more of the five reasons set out in the Refugees Convention; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Jordan, there is a real risk that he will suffer significant harm; and if either of the above are answered in the affirmative, whether the second and third applicants are eligible for protection on the basis of being a member of the same family unit as a person who satisfies either the refugee or complementary protection criteria.
The applicant appeared before the Tribunal on 31 October 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence before the Department
In his application form the applicant provided information that he was born in [year] in Amman, Jordan and is a Christian. He married in May 2012 in Amman and arrived in Australia in January 2014. He states his occupation as [Occupation 1]. He has [number] years education. Prior to travelling to Australia he travelled to [Country 1] in 2012 for one week for his honeymoon. He provided three addresses in Amman, Jordan, between [year]- 2006, 2007-2008 and 2008-2014.
In his reasons for claiming protection the applicant claimed his life is in danger because fanatic Muslims are trying to kill him as they believe he breached a Muslim woman and tried to convert her to Christianity. He claimed her fanatic brothers forced him to embrace Islam and marry her. He managed to escape and went to the family Court and divorced his Muslim wife. He claims he is now apostate and his life is in great danger. He cannot now work or settle down anywhere with his Christian wife.
The applicant provided details of his claims in a Statutory Declaration dated 6 March 2014.
·He was born into a Christian family and grew up in the church and attended [School 1] where he learned about the Christian faith.
·He started working in [year] after finishing secondary school to support his family after his father died [in] 1996.
·He met a Muslim woman wearing the hijab and they became well acquainted. They talked about many topics including religion and she told him how her family treated her and forced her to wear the hijab and memorise the Koran. After their relationship became stronger she asked him to marry her, though it was not possible for a Muslim woman to marry a non-Muslim man. She told him she would embrace Christianity but he refused that, and stopped meeting her.
·After some time he saw her at his church attending services and learning about Christianity.
·[In] January 2007 he was contacted on his mobile and given a residential address. When he attended he found the woman’s 6 brothers, with their long beards and Islamic robes. They were furious with him and claimed he had raped her and forced her to embrace Christianity which they considered an insult to their faith.
·They attacked him, hitting him hard, and he fell unconscious. When he regained consciousness they had taken all his official documents and forced him to sign some documents in a small room. [In] January they brought a sheik and forced him to marry their sister, and change his religion from Christianity to Islam, repeating in front of the priest that he raped their sister. He became her husband against his will. They forced him to live with their sister in their home and threatened his family if he did not obey them. They were always watching him.
·When he finally contacted his family and told them what had happened they did not believe him and decided to stop contacting him because they thought he had embraced Islam.
·[In] 2008 when the pressure on him was loosened he went to the Family Court and divorced his Muslim wife. He also proved he had never had sexual intercourse with her so he could clear his name from the suspicion that he raped her.
·The fanatic Muslim group declared him apostate and condemned according to Sharia law. He started to escape and live in hiding, [until] May 2009 when he learned his younger brother was killed in a car accident. His brother was driving his car and he was thought to be the applicant. The police could find no proof because it was well planned. His family decided to move afterwards but the problem grew bigger.
·In January the church appointed a lawyer to try and prove in court that he had returned to Christianity and was no longer a Muslim. So far the court has not reached such a verdict because they are afraid of disobeying the rules of Islam.
·The applicant is still unsettled and he is officially registered as Muslim but he is a practising Christian. This means his offspring will be considered officially Muslim.
·He tried to lead a normal life in his Church and have a fresh life. He met a devoted woman, named [the third named applicant], and told her everything. They married [in] May 2012. She is pregnant now but threats have not stopped from the fanatic Muslims related to his ex-wife. The last one was [in] 2013 when they stole a vehicle he used to go to work and called his mobile making threats to kill him, his wife and unborn child.
·The applicant states he is [age] years old and loves his religion and wants his child to be born a Christian and live in peace. He does not want to live in fear and so he thought of escaping from Jordan and applied for a Visitor visa to Australia where his sister in law lives.
·He fears return to Jordan for himself, his wife and child. He cannot be declared Christian again and his child will be identified as Muslim. He is an unbeliever of Islam and will always face grave danger.
Attached with the application the following documents were provided in support: applicants’ Jordanian Passports, Family Books and Certificates of Birth and Baptism; Marriage certificate of first named applicant and Muslim ex-wife, their Divorce certificate; police report dated [day]/[month]/2013 regarding theft of vehicle, first named applicant’s Head of Family information. Judgement Notification – Confirmation of Apostasy from Islam, Request addressed to [a bishop] dated [September] 2011, Marriage certificate of first and second named applicants, first named applicant’s Personal Identity Card issued [in] 2011, letter dated 23 November 2013 from [the] General Manager [Company 1], confirming applicant’s employment as [Occupation 1 since] June 2010.
On 23 July 2013 the applicant was interviewed by an officer of the Department. An audio recording of the interview is included in Department file [number] and the Tribunal has listened to this.
The applicant’s representative submitted a post interview submission dated 4 August 2014 addressing issues arising during the interview. The submission addresses the applicant’s claims relating to the impact of the charge of apostasy against him and refers to independent information in support. It is claimed the applicant, having been declared apostate, will face numerous implications including loss of basic civil and legal rights of property inheritance, child custody and marriage and may also face death. It also clarifies the applicant’s responses to certain questions at interview. Also provided were several news articles in support of matters discussed in the submission, and two email correspondence from the applicant’s brother indicating that people having been coming to the family home looking for him still.
Evidence before the first Tribunal Case reference 1418066
In a submission dated 12 March 2016, the applicant’s representative provided a response to the delegate’s decision, addressing the reasons for decision and further supporting country information, in the form of an article in Arabic language obtained from the US Embassy website in Jordan, translated on Google Translate.
The applicant appeared before the first Tribunal at a hearing on 21 March 2016. An audio recording of the hearing is included in the Tribunal file. A summary of evidence provided at the hearing is included in the AAT Decision Record.
On 31 March 2016 a further submission and Statutory Declaration from the applicant was provided. The submission reiterates the applicant’s claims that he is an apostate and faces a real chance of harm on that basis. The applicant’s Statutory Declaration addresses issues that arose at the hearing including his failure to list all addresses in his application form; his response to the matter of the application for [a Country 1] visa [in] June 2007; his responses in his Visitor visa application where he stated his marital status as “never married” and not travelling with a family member; his responses to questions about reciting the Shahada; problems with Salafists in Jordan and response to allegations of fabricated claims and information submitted from a member of the community put to him at the hearing.
Tribunal hearing 31 October 2019
The applicant and second named applicant attended the hearing. The second named applicant confirmed that she has not and does not intend to make any protection claims of her own. She is also not intending to give evidence in support of the applicant and therefore she remained with him throughout the hearing.
At the outset of the hearing the Tribunal informed the applicant of the existence of a Certificate under s438 on Department file [number]. The Certificate covers folios 131-140 and the reason given for non disclosure was that the folios contain matters relevant to the Department’s internal affairs or was given to the Department in confidence. The Tribunal does not accept the former reason is one which can attract public interest immunity and therefore it finds the Certificate is invalid in respect of those folios. The matter covered by those folios relate to the application for a visa at the [Country 1] Embassy [in] June 2007, which was put to the applicant for comment at the first Tribunal’s hearing. The remaining folios refer to information provided to the Department in confidence and the Tribunal finds this is a valid reason for to certify these folios. Notwithstanding this, s438 provides a discretion to disclose the information and given the specific reasons for remittal of the matter from the Federal Circuit Court, the Tribunal proposes to disclose the substance of the information contained in these folios to the applicant for comment. It indicated it will do this during the course of the hearing.
The applicant was invited to make any further submissions on the issue of the Certificate. He indicated that he was familiar with the information contained in the folios as he has the Court Book materials. He would like an opportunity to respond to the information. The Tribunal put the substance of the information to him, that a ‘reliable source’ in Amman told the Post that the applicant provided a false declaration regarding his marital status on his visitor visa application and that he is a Christian who was previously married to a Muslim girl who he later divorced and married another Christian. In response the applicant said that when he filled in his visitor visa application his marriage to his current wife was not registered officially and it was never his intention to hide this information, he just responded as his official documents indicated. He thought if he stated he was married he would have to have proof of this and as it wasn’t registered he did not have such proof so he responded that he was never married. The Tribunal asked why he did not respond that he was divorced then, as he had the divorce order. He said this also is not registered. When asked why not he said the Muslim marriage was not registered therefore the divorce could not be. He said that the Family Book document he has from the Civil Status Department (folio 68) does not indicate any marriage status for him and this is why he responded as never married, consistent with the official record he held from Jordan. The Tribunal put to the applicant that the issue this information may raise is whether he sought to mislead the Department by not disclosing his marital status to increase his chances of being granted a visitor visa. The applicant said he is not so knowledgeable about Australian law to be able to plan this. He repeated it was never his intention to mislead anyone he just answered on the basis of the documents he held at that time. The Tribunal asked why then, soon after his arrival, he lodged a protection visa and declared his wife in that application. He said when he sought advice here he was told the law in Australia recognises the relationship even if not officially married. The Tribunal indicated it may return to this issue later in the hearing.
The applicant confirmed his current address and living and work circumstances. He lives in [Suburb 1] with his wife and two children. He has two sons, born in [date] and [date] in Australia. He is working [full time]. Apart from his wife’s sister he has no other relatives in Australia.
The Tribunal asked the applicant to confirm his addresses as stated in the application form. He said the first address is his family home since birth. His mother lived here until around 2009 and then moved, to the third stated address on the form. He lived with his mother at the first address and then moved to the second address for a short period after he escaped from the people who held him, and then lived with his wife at his mother’s address until coming to Australia.
The Tribunal asked about his work history. He confirmed he worked at two businesses. He worked at [Company 1] from 2010 until he came to Australia. Before that he worked for another company, until he was taken away. He said he did not return to that job when he escaped and resumed his life in 2008.
He confirmed that he travelled to [Country 1] for one week in 2012, for a honeymoon with his wife, the second named applicant. They travelled by air and had no issues departing or returning to Jordan.
The Tribunal asked what he fears about return to Jordan. He said he converted to Islam in the past and he is now afraid because of what the law in Jordan is regarding apostasy. The law does not permit a Muslim to convert his religion. He will suffer loss of his civil rights because of this. They will force him to divorce his wife, he will be unable to get documentation for his children to send them to school, he will lose custody of his children and his wife will also not be able to have custody of the children because they will be considered Muslim and she cannot have custody of them. He will also lose his property and will not be able to get work or open a business. He will be without any rights.
The Tribunal asked how he came to meet [the] woman he claims to have been forcibly married to. She worked in a neighbouring company which was in the same building as his. At the last hearing he said it was a neighbouring building but he meant it was same building but neighbouring company. Her company dealt with [specified goods] and his company was a [specified services] company and so they had transactions with each other. He bought supplies from her company. The Tribunal asked what kind of relationship he had with her. He dealt with her with full respect. He had no intention of having any kind of relationship with her because he knew she was from a strict Muslim background. At that time he had no idea about Islamist extremists. When asked if he had an intimate relationship with her, he said she talked to him and disclosed that she liked him and was prepared to convert to Christianity to be with him. He did not reciprocate with her because of the religious barrier between them. He told her that if she was interested in converting her religion she could speak with the Father at the church. But he was then surprised when he saw her at church. The applicant acknowledged that if there was no religious barrier between them his feelings towards her may have been different. But he was never intimate with her and this is proved by the divorce document which states that the marriage was never consummated even after the time they spent together.
After they met at work, she attended his church for a period of time. He tried to avoid her after that both at church and at work. He said he made it clear to her he wasn’t interested. This went on for several months. At some stage she stopped attending church or work. After some 10-15 days he received a call from a man who said he was her brother. He wanted to meet the applicant to discuss his sister. The Tribunal asked the applicant why he went to meet him, would he not have been concerned about his security. He said he did not think it as so serious at that time. He did not tell his brothers.

When he arrived all her brothers were present and they accused him of having a sexual relationship with their sister and trying to convert her to Christianity. He tried to deny it but they beat him until he was unconscious. When he woke up he was in a room, all his papers were taken from him. His ID card, his drivers licence, and telephone. They kept him in this place for 15-20 days and then came with a sheik and forced him to sign a marriage contract. He tried to tell the sheik he was Christian but he was not interested. After this they took him and the girl to a building in Zarka where there were many more Salafist people. The Tribunal asked if he converted his religion prior to the marriage. He said he did not. He never engaged in any process or recited the Shahada. The marriage was conducted on the basis of the papers they had obtained for him which showed him as a Muslim. Only after they moved him to the building in Zarka and made him attend prayers and the mosque and lectures with them did he engage in prayers and recited the Shahada because he had to. He never recited it willingly. He remained in the building they took him to for over a year. The Tribunal asked why his family did not look for him. He said he understands that they told his family and employer that he had converted to Islam willingly and that is why he was gone, and that is why no one from his family or work came looking for him.
The Tribunal asked the applicant if he told his brothers or anyone before he went to see the girl’s brother. He said he did not because he did not think it was so serious.
The Tribunal put to the applicant its concerns about the plausibility of his claims about what happened to him. It put to him its concerns that he would not have thought it serious when the brother of a Muslim girl who was so forward with him and told him her desire to marry him and convert her religion wanted to see him. Also the plausibility of a sheik agreeing to marry him when he told him he was Christian and not willing to convert to Islam and that he was being forced. It also put to him that it has not found any independent information supporting his claims of forced conversation but rather there is independent information about honour killings. In the circumstances he has described it considers that the weight of independent information suggests it was more likely that the girl and he would be killed to restore honour of the family rather than forcing him to convert under duress and marry. The applicant agreed that they could have killed him and her. He also agreed that the claims sound implausible but it happened to him.
The Tribunal asked if he saw his family in this period. He said at some point they allowed him to talk to his mother and when she was in hospital they allowed him to visit her. It was on this visit that he took the opportunity to go to the [Country 1] Embassy and apply for a visa. The Tribunal noted that at the last hearing he did not mention this until it was put to him by the Tribunal and on this basis it may have some doubts about the truthfulness of his evidence about this. He said last time he was confused what the Tribunal was asking about the purpose of going to Amman, he thought he asked if he had gone for shopping or work and so he answered no. The Tribunal repeated that this explanation may add to its credibility concerns. It put to him that the evidence of the [Country 1] Embassy visa application visit undermines the credibility of his claims to have been held throughout this period, and his credibility is further impugned by his changing evidence to explain it. The applicant stated that he did not deny it at the last hearing, he was just confused about when it occurred.
The Tribunal asked the applicant how he escaped from Zarka. He slipped away just before dawn prayers one day after he felt that he had reassured them that he was genuine in his conversion. He made arrangements with his mother and brothers to stay in a property owned by his brother, but changed from place to place. Soon after that he went to a Sharia court to ask for a divorce from his wife. The Tribunal asked when this was, noting he stated [Month 1] 2008 in the statement. He said this may be a mistake because the divorce document states it was in [Month 2] 2008. He cannot recall the dates clearly now because so long has passed. The Tribunal asked what his Muslim wife’s view was about all of this. He said at the beginning she was not very happy, but over time she behaved as his wife, performing all the duties of a housewife such as cooking and cleaning. He was taken by the Salafists each day for prayers and to the mosque and would only come back at the end of the day. They did not have intimate relations at any time because he did not want to remain with her and he did not want her to get pregnant. The Tribunal asked if he conveyed this to her or discussed his plan to escape with her. He said of course not because he did not trust her. She was hopeful that he would get used to her and accept the situation and be her husband.
The Tribunal asked the applicant if her intention all along was to have a relationship with him rather than an interest in Christianity as he previously stated in his written statement. In response he said after she saw what he was subjected to and that he was forced to convert and marry her she could not continue any interest in Christianity. After he escaped from the situation he never saw her again and does not know what happened to her. He does not care either because she was the reason all of this happened to him.
The Tribunal asked how he obtained the divorce document. He went to the Sharia court and applied for it. It was the same court that issued the marriage certificate. He was able to apply for a divorce without her presence. He asked the court to notify her of the divorce. The Tribunal noted that in his statement he referred to proving to the court the relationship was never consummated, and asked how he did this. He said he just told them, and it was up to her to prove otherwise. He did not provide any proof. The court did not question him. It would be a matter for her to revoke or dispute it.
The Tribunal asked the applicant if he explained his situation to the Sharia court that he was forcibly married and did not intend to convert. He did not because he had no proof of this. He went to the court for the sole purpose of getting the divorce. He had no evidence of anything that happened to him and all the papers were against him. He just wanted to get the divorce and get out of there.
After this he moved from place to place. He went to church and asked for help. He went to a different church to the one he previously attended. It was in a different neighbourhood. He worked, as he had to make a living. He did not return to the same company as previously. For a period he worked for an individual then from 2010 he started working with [Company 1] where he stayed until he came to Australia. The Tribunal noted that his application form indicated he went back to the same place to work in 2009. He said this may be an error on the part of the agent.
The Tribunal asked the applicant about the document he provided titled Judgement Notification. He went back to the Sharia court and explained that he was forced to convert to Islam and wanted to change back to his religion. The process was long and they tried to convince him to change his mind. The matter was adjourned many times to give him opportunities to repent and think it over. They intimidated him and told him the consequences of being an apostate. The Tribunal asked why he sought this declaration of apostasy? He wanted to return to his Christian faith. It asked if he sought legal advice. He said he did, he had a lawyer who initiated the complaint. But after he got the judge\xsee\xse4ment he was surprised to find that he could not be registered as a Christian again.
The Tribunal again asked the applicant why he would go to Sharia court to initiate the apostasy judgement. He said he went soon after divorcing his wife to explain the circumstances of his conversion but they were not interested because they told him he could not prove his story.
The applicant said he is now afraid because of the consequences of being declared apostate he will lose custody of his sons and he will be forced to divorce his wife and she will also not be able to have custody of the children because they will be considered Muslim. This is what the Jordanian law says about effect of apostasy. The Tribunal asked the applicant if the Sharia court judgement has been registered in Civil Court. He said it has not. He would not do this because if he does all of these consequences would follow. The Tribunal put to him therefore if it is not registered these consequences would not follow. He made no further response, repeating that his children would be considered Muslim and he would lose custody of them.
The Tribunal noted that the applicant was able to live, work, get married to his Christian wife, travel to [Country 1] and return to Jordan between 2008 and 2014 and this suggests that he was able to live his life. It also noted that in that time he did not suffer any physical harm from the Salafists or the family of his former Muslim wife and this suggests no one is interested in him. In response he said this is true but now they have two children and the situation is different. He is afraid that he cannot register his children as Christian. Their ID will be Muslim. He does not want to be Muslim if he goes back to Jordan. He is afraid he would lose all his civil rights because he is an apostate.
The Tribunal asked the applicant about the circumstances of obtaining the ID card he provided to the Department, noting it was issued in 2011. He said he lost his previous one and had to apply for a new one. The Tribunal noted that the indication of him as Muslim on that card is inconsistent with the advice in the letter from the lawyer he provided to the first Tribunal, which indicates his ID card would indicate no religion. It also queried with him why he would apply for an ID card while he was in the process of challenging his conversion before the Sharia court. It put to him these matters may lead the Tribunal to have doubts about the credibility and plausibility of his claims. He repeated that he applied for the ID card because he had lost his previous one and needed an ID card. He made no other response about this.

On 8 November 2019 the Tribunal received the following country information from the applicant in support of his application:

·Information about the laws on apostasy from Library of Congress, May 2014, found at : from a research response prepared by the Immigration and Refugee Board of Canada[1] addressing treatment of converts to Christianity
·RRT Research Response JOR35379, 4 September 2009, addressing the law regarding apostasy in Jordan.
[1]

Canada: Immigration and Refugee Board of Canada, Jordan: Situation and treatment of Christians; state protection and support services available (2013-July 2015), 4 August 2015, JOR105234.E, available at:

Relevant extracts from this country information, and other sources, are reproduced below.
INDEPENDENT INFORMATION
Conversions of Christians to Islam
For a non-Muslim man to marry a Muslim woman, the man must convert to Islam as religious Sharia courts have jurisdiction over marriage.[2] The United States (US) Department of State International Religious Freedom Report for 2018 for Jordan states:
According to sharia, marriages between a Muslim woman and a non-Muslim man are not permitted; the man must convert to Islam for the marriage to be considered legal. If a Christian woman converts to Islam while married to a Christian man, her husband must also convert for their marriage to remain legal. [3]
[2] International Religious Freedom Report for 2018 - Jordan', US Department of State, 21 June 2019, p. 3, 20190627102116
[3] Ibid, p7
The report also notes part of the process of conversion:
‘The Sharia Public Prosecution consults with the Council of Churches before converting a Christian to Islam, to avoid conversions for purposes of marriage and/or divorces only, and not religious conviction.’
However information was also located which indicates that procedures set out for conversions of non-Muslims appears at times to be overlooked.[4]
Treatment of converts from Islam to Christianity
[4] When converting to Islam becomes a means of evading legal consequences', 7iber, 30 December 2015, 20191122094502; Social Institutions and Gender Index SIGI 2019 Global Report Jordan', Organisation for Economic Co-operation and Development (OECD), 22 November 2019, p. 5, 20191122091548
In Jordan, there appears to be some differences in the treatment of converts. In the case of converts from Islam it is their personal status legal standing and for Christians who convert to Islam there is questioning and surveillance by the government. Converts from either Islam or Christianity, suffer societal shame.
A 2014, report by the Special Rapporteur on freedom of religion or belief after his mission to Jordan noted:
Even more complicated is the legal situation of converts from Islam to Christianity. This also includes re-converts who, after having converted from Christianity to Islam, later wish to convert back to their original religion. Although the Special Rapporteur could not find any precise data, it seems that the number of reconversions is higher than the number of conversions from Islam. In general, conversions do not take place on a large scale. Although in Jordan conversions away from Islam do not constitute a punishable offence under the criminal code, the civil law implications of such conversions are grave and have clear punitive effects. Depending on the circumstances of each individual case, conversion from Islam can lead to the dissolution of marriage, loss of custody of one’s own children and exclusion from inheritance. On their identity cards, converts are treated as not having any religion, even though they may see themselves as Christian or belonging to another religion. It should be noted that conversion to Islam does not lead to similar consequences, which again accounts for unequal treatment of persons on the basis of their religion or belief.[5]
[5] Report of the Special Rapporteur on freedom of religion or belief, Heiner Bielefeldt, Mission en Jordanie, Addendum 2', UN Human Rights Council, 27 January 2014, 20191204133225
In 2017 an article by Lausanne Global Analysis, reviewing the book, Identity Crisis – Religious Registration in the Middle East, noted that in Egypt, what is referred to as the ‘re-convert’ issue’ (‘reconvert’ being those whose registration was Christian at birth but who changed to Muslim for any of a variety of reasons) was resolved in 2011. In 2011, the legal right to revert to being registered as Christian was clearly established following a multi-year legal process. More than 4,000 people were part of the class action that secured this right. There have been no reported problems with implementation. This contrast with stories from Jordan illustrating discrimination against Christians and the very harsh manner in which the legal system can treat those who have converted from Islam.[6]
[6] LIVING AS A CHRISTIAN, REGISTERED AS A MUSLIM?', JONATHAN ANDREWS, Lausanne Global Analysis, 01 March 2017, 20191204131625;
In the case of a Muslim and their personal status standing, who converts to Christianity, they are still considered Muslims[7] and:
Sharia courts do not recognize converts from Islam as falling under the jurisdiction of their new religious community’s laws in matters of personal status. Sharia court judges may annul the marriages of converts and transfer child custody to a Muslim nonparent family member or declare the children “wards of the state” and convey an individual’s property rights to Muslim family members.
[7] Country Reports on Human Rights Practices for 2018 - Jordan', US Department of State, 13 March 2019, p. 3, 20190314110548
The Freedom of Thought Report 2015, by the International Humanist and Ethical Union notes:
There is no express statutory law against apostasy, however, Sharia courts do not allow a convert from Islam to be subject to other religious denomination courts. Further, an apostate from Islam loses the right to marry and the existing marriage can be declared void. The apostate can not inherit from a spouse and from Muslim relatives. The apostate loses the right of child custody.[8]
[8] International Religious Freedom Report for 2018 - Jordan', US Department of State, 21 June 2019, p. 7, 20190627102116
In society, Muslim:
Converts from Islam to Christianity reported continued social ostracism, threats, and physical and verbal abuse, including beatings, insults, and intimidation from family members, neighbors, and community or tribal members. Some converts from Islam to Christianity reported they worshipped in secret because of the social stigma they faced as converts. Some converts from Islam reported persistent and credible threats from family members concerned with protecting traditional honor…[9]
Law regarding Apostasy in Jordan
[9] Ibid, p12
In 2008 the UK Christian organisation Christian Solidarity Worldwide (CSW) released an in-depth report on apostasy and Islam. This states that Jordan, like most Muslim countries, does not have codified laws on apostasy. According to the US Department of State (USDOS) 2008 religious freedom report, “the Constitution, in Articles 103-106…provides that matters concerning the personal status of Muslims are under the exclusive jurisdiction of Shari’a courts which apply Shari’a in their proceedings”. The USDOS report states that “Shari’a, in theory, provides for the death penalty for Muslims who apostatize; however, the Government has never applied such a punishment”. The report also states that the “Government prohibits conversion from Islam” and “Muslims who convert to another religion face societal and governmental discrimination”. Further: “converts from Islam face legal discrimination and risk the loss of civil rights, including threats to their person and/or family. Shari’a courts have the authority to prosecute proselytizers and converts from Islam”. The report states that "Muslims who convert to other religions often face social ostracism, threats, and abuse from their families and Muslim religious leaders" and details a number of examples of converts facing harm from family. [10]
[10] Meral, Z. 2008, No place to call home: Experiences of Apostates from Islam, Failures of the International Community, Christian Solidarity Worldwide website, pp. 45-46 – Accessed 1 September 2009 ; US Department of State 2008, International Religious Freedom Report 2008 – Jordan, 19 September;
Information from the Christian website Open Doors states: "Many Muslims who become Christians maintain a low profile in order to avoid harassment."[11]
[11] US Department of State 2008, International Religious Freedom Report 2008 - Jordan, 19 September, Section 3; 'Country Profiles - Jordan' (undated), Open Doors website >
Information from the Department of Foreign Affairs and Trade (DFAT) likewise states: “Any individual can file a case at the Sharia court if he/she knows of someone who changed his/her religion from Islam to Christianity. If his/her apostasy is proven in court then the verdict is given that the person is an apostate and is a proscribed person whom any Muslim may kill. The court also issues an order stripping all his/her rights and assets. The court will also nullify the marriage contract if the person is married.” However, DFAT notes that its sources “said that all Sharia court verdicts are automatically appealed at the Sharia appeals court. This higher court has never upheld a Sharia court ruling that stipulates the killing of an apostate”. The USDOS report details a number of apostasy cases and convictions in Shari’a courts from 2005 to 2008. The report observes that the “status of respect for religious freedom by the Government declined during the period covered by this report”, and that the Government’s handling of apostasy cases contributed to the decline.[12]
[12] DIMIA Country Information Service 2004, Country Information Report No. 30/04 – Jordan: How Apostasy is dealt with in Jordan, (sourced from DFAT advice of 24 March 2004), 1 April.

The 2008 CSW report observes that the stripping of the civil rights of those convicted of apostasy results in the risk of “civil death” for a convert, even though apostasy is not a codified “crime” in Jordan. The relevant extract follows:
Jordan
A more subtle situation emerges in…Islamic countries which declare Islam and shari’a law as “the principal source of legislation‟…most of these countries use a mixture of secular and religious laws, limiting shari’a often to personal status law. In such settings, apostasy can become a major offence, even though there is no direct or codified legal stance on the issue.
For example, Jordan has no codified laws on apostasy. Its legal system, being dominantly secular, limits the use of shari’a mostly to the Status courts. Article 104 of the Constitution creates two different court systems on religious matters: a) shari’a courts for Muslims, and b) courts for recognised non-Muslim religions, whose members are exempted from shari’a. Although these courts do not have any criminal punishment mandates, their decisions on civic matters, such as marriage, inheritance and official registrations, can have serious consequences for an apostate.
When a convert is taken to the Status court, accused of apostasy by a relative or spouse, the court refers to shari’a law. Since the court has no authority to hand down a criminal punishment, and because there are significant international implications in response to a ruling of capital punishment, apostasy charges take on the equivalence of the annulment of marriages, denial of inheritance and custody rights, removal of official records and confiscation of identification cards. In this way, even though apostasy is not a codified „crime‟ in Jordan, a convert from Islam faces the risk of ‘civil death’.
During 2005 and 2006 two apostasy cases were heard by the shari’a courts in Jordan. In January 2005, the shari’a appeals court, declaring a Muslim convert to Christianity to be a ward of the state, stripped him of his civil rights and annulled his marriage. The court stated that he no longer had any inheritance rights and that he could not remarry his wife unless he returned to Islam. He was also forbidden from being considered an adherent of any other religion. The verdict also implied the possibility that legal and physical custody of his child could be assigned to someone else. The convert has since left Jordan, recieved refugee status, and resettled in another country. A similar decision in 2006 left another Jordanian man without identification cards, thus depriving him of basic social rights.[13]
[13] Meral, Z. 2008, No place to call home: Experiences of Apostates from Islam, Failures of the International Community, Christian Solidarity Worldwide website, p. 46 – Accessed 1 September 2009
A submission made to the Joint Standing Committee on Foreign Affairs, Defence and Trade’s inquiry into the status of the human right to freedom of religion or belief by Middle Eastern Concern[14], Freedom of Religion or Belief for Christians in the Middle East and North Africa, dated 27 April 2017, provides the following information on apostasy:[15]
[14] MEC is an organisation founded in 1991 in response to needs expressed by Christian leaders in the Middle East and North Africa region: PDF] › DocumentStore
The large majority of citizens of the MENA region do not have the right to change their religion. Indigenous Christians and other non-Muslim religious minorities do have this right – they are free to change religion to Islam or to another minority religion. But with two exceptions there is no freedom to leave Islam, whether to Christianity, to another religion or to no religion at all. The exceptions, in which there are legal processes providing for changes of religious affiliation from Muslim to another confession, are Lebanon and Turkey.
A small number of countries criminalise apostasy from Islam in national codified legislation. Apostasy is proscribed in the Penal Codes of Sudan (Article 126), Mauritania (Article 306) and Yemen (Article 259). Although other countries do not have specific provisions in their Penal Codes, apostasy is proscribed through the force of applicable Islamic law. Many MENA countries are either officially declared as Islamic nations (Bahrain, Iran, Mauritania, Oman, Saudi Arabia, Yemen) or state in their constitutions that Islam is the official state religion (Algeria, Egypt, Iraq, Jordan, Kuwait, Libya, Morocco, Qatar, Tunisia, UAE). Many of these declare Shari’a law to be a source (or the source) of legislation. In the absence of codified legal provisions concerning apostasy, the provisions of Shari’a law are applicable.
All schools of Islamic jurisprudence hold apostasy to be an offence punishable by death for a sane male adult who has been given opportunity to return to Islam. For female apostates, some schools of jurisprudence hold the death penalty to apply, while other hold imprisonment with beatings to apply.
In most MENA countries, therefore, a person born Muslim who chooses to leave Islam faces the most severe legal sanctions.
Few MENA states have carried out judicial executions for apostasy in recent years.9 However, the fact that apostates could in principle be sentenced to death, has both a chilling and an incendiary effect.
Apostasy and Personal Status Laws
While apostasy is not a criminal offence in most MENA countries, legal sanctions can nevertheless be taken against those who choose to leave Islam – particularly through the application of personal status law [ACROSS THE MENA REGION]. Personal status issues are governed by religious law. In countries with recognised indigenous Christian communities, those communities are typically able to govern issues of personal status according to their own religious rites. Through a system of religious registration, one’s religious affiliation is officially recorded and used to determine which personal status court’s jurisdiction one is subject to. Those born Muslim are subject to Shari’a personal status courts, regardless of whether or not they are practising Muslims. An individual who has chosen to leave Islam and embrace Christianity is still under the jurisdiction of the Shari’a court.
Within the Shari’a personal status courts, apostasy is a major offence. While such courts cannot hand down criminal punishments, they have powers to annul marriage, remove custody of children, disinherit, and confiscate or annul other contracts. Such treatment constitutes severe violation of the right to adopt a religion or belief of one’s choice, and has been described by some as ‘civil death’.
One high-profile case in which a confirmed apostate had his marriage annulled, custody of his children removed, his property seized, his legal contracts declared void and was disinherited, is that of Muhammad Abbad Abd al-Qader Abbad. The US Department of State’s Religious Freedom Reportnotes that the court “declared him to be without religious identity,” and that arrest warrants were issued when he and his family departed from Jordan:
On April 22, 2008, the Sweilih Islamic law court found Muhammad Abbad Abbad, a convert from Islam to Christianity, guilty of apostasy, annulled his marriage, and declared him to be without any religious identity. In March 2008 Abbad reportedly was taken to the Sweilih Islamic court without legal representation on charges of apostasy. Accused of "contempt of court" and sentenced to one week's imprisonment, Abbad and his family departed the country. The government issued arrest warrants after their departure.
Information about laws on apostasy in Jordan obtained from the US Library of Congress website[16] states,
While there is no express statutory prohibition on apostasy, conversion trials are heard by Islamic courts and may be instituted by any member of the community. According to Islamic law, there are consequences when Muslims adopt religions other than Islam. For instance, if someone is convicted of apostasy, the Islamic courts adjudicating matters of personal status have the power to void the person’s marriage and deny his/her right to inherit from a spouse and from Muslim relatives.[17]
[16] According to a report by a law firm in Jordan, the concept of penalizing apostasy was confirmed by a decision of the Jordan Cassation Court in Case No. 3574/2005. The principle that an apostasy case can be filed before the Sharia’a Court by any Muslim person against individuals who might be suspected of committing acts of apostasy was verified by a decision issued by the Sharia’a Court on June 30, 1997, in Case No. 1136/43107. Tarik Arida, Apostate from Islam in Jordan, Arida Law Firm, available at .
FINDINGS AND REASONS
Nationality
The Tribunal is satisfied, on the basis of their passports and personal particulars provided that the applicant and second named applicant are citizens of Jordan, and that Jordan is the country of nationality and the receiving country for the purposes of the refugee and complementary protection provisions.
Findings of fact
When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; and Prasad v MIEA (1985) 6 FCR 155 at 169-70.
In the present application the applicant claims he was a Christian who converted to Islam and now seeks to return to his original Christian faith and is afraid of return to Jordan because of his status as an apostate in Jordan, which does not permit a Muslim to convert his religion. He claims that he will suffer a loss of his civil rights, including being forced to divorce his wife, lose custody of his children, lose his property rights and have difficulties obtaining work or openning a business. He claims his children will be considered Muslim and he will be unable to register them as Christian.
The applicant also claims he was forcibly converted to Islam and made to marry a Muslim woman against his wishes. He claims he was beaten and held against his will with his Muslim wife from January 2007 until he escaped [in] 2008 and managed to obtain a divorce from her from a Sharia Family Court. He claims he subsequently approached the Sharia Court and was declared apostate. He claims he lived in hiding after that. His brother was killed in a car accident while driving his car and he believes he was the intended victim, however the police were never able to prove this. He later married the second named applicant in a Christian church but their marriage was not registered. They left Jordan when she became pregnant because he wants his child to be born a Christian and live without fear. He fears return to Jordan because he cannot be declared a Christian there again and he will be in grave danger because he is a non believer of the Muslim faith and he does not want his child to be Muslim.
The Tribunal has carefully considered the applicant’s evidence and claims and makes the following findings of facts on the material before it.
Claims of original Christian faith
The Tribunal accepts that the applicant was born into a Christian family and was a Christian. This is supported by documents provided relating to his parents, including his father’s family book and the applicant’s baptism certificate.
Claims of conversion and marriage to a Muslim woman, and subsequent divorce and marriage to Christian
It also accepts, on the oral and documentary evidence of the marriage and divorce certificates, that he married and then divorced, a Muslim woman. Consistent with independent information, the Tribunal accepts that in order for a Christian man to marry a Muslim woman, he would have had to convert to Islam,[18] the Tribunal accepts that he converted his religion from Christianity to Islam for the purposes of this marriage. The Tribunal observes that this is also consistent with the confidential allegation made to the post in Amman, which sought to expose his claim in his visitor visa application that he was never married. The allegation stated that he was a Christian and was previously married to a Muslim whom he later divorced and married another Christian.
Claims about circumstances of forced conversion to Islam and forced marriage and confinement and surveillance for 18 months
[18] 'International Religious Freedom Report for 2018 - Jordan', US Department of State, 21 June 2019, p. 7, 20190627102116
However for the following reasons, the Tribunal has concerns about the veracity of the applicant’s claims regarding the circumstances of his conversion to Islam and Muslim marriage and divorce. It finds the claims that he was taken by force by the brothers of a Muslim woman, accused of infidelity with her, forced to convert to Islam and then marry this Muslim woman, and subsequently held against his wishes for over 18 months with his Muslim wife, are not plausible or credible and the Tribunal rejects these claims.
The Tribunal finds the applicant’s oral and written evidence about these claims were internally inconsistent and lacked coherence or plausibility. For example in his written claims he indicated that he and this woman were well acquainted for some three years and developed a ‘relationship’ over that time and that she asked him to marry her and offered to change her religion to marry him, although he declined. Before the Tribunal he stated that he never had any intention of having a relationship with her because he was well aware she was from a strict Muslim background. The Tribunal finds that it is inconsistent and implausible in these circumstances that he would then agree to attend a meeting with her brother, alone, and without informing anyone in his own family, because he did not think it was so serious a matter.
It also finds difficult to accept and believe that a sheik would be called to force him to convert his religion to Islam and marry this woman. The Tribunal has been unable to find any independent information that supports a practice of forced conversion in such circumstances consistent with this claim. On the other hand there was information that suggested honour killings occur in Jordan. The Tribunal considers it is more consistent with independent information that the woman in such circumstances is harmed or killed to restore the honour of her family[19], rather than the man being forced to convert and marry her. When these concerns about the plausibility of his claims were put to the applicant he agreed that his claims may be difficult to believe but insisted that these things happened to him.
[19] How to End 'Honor' Killings in Jordan’, Human Rights Watch, 3d April 2017, 20190701092554
Adding to the Tribunal’s concerns about the credibility of these claims, is the information on the Department file that the applicant applied for a [Country 1] visa in person [in] June 2007 which is inconsistent with his claims to have been held against his will and under constant surveillance and scrutiny in this period. He did not mention this in his original claims or in his evidence to the Department and first Tribunal. Only when the first Tribunal put this to him under s424AA at the last hearing, did he change his evidence. In his response he stated that he was permitted on this one occasion to visit his sick mother and it was during this visit that he managed to go to the [Country 1] embassy to apply for the visa because he wanted to leave Jordan. He repeated this explanation at the hearing before the present Tribunal. The Tribunal has considered, but is not convinced about, the explanation provided about the [Country 1] visa application in June 2007.
He also provided inconsistent evidence about when he obtained his divorce from the Sharia court. In his written statement he said he went to the Family Court [in Month 1] 2008 and obtained the divorce from his wife. The document he provided was dated [in Month 2] 2008. At the hearing, he said the discrepancy in the dates may be due to confusion on his part because of the passage of time since these events. The Tribunal has considered this explanation, but in conjunction with all its other concerns, it is not inclined to accept it.
Finally, and significantly, the Tribunal finds that the ability of the applicant to resume his life in his home area in Jordan between 2008 and 2014 is inconsistent with his claimed fears arising from being kidnapped, beaten, forcibly converted to Islam and forcibly married and held against his will for a period of 18 months by extremist and fanatic Muslims. On the evidence before it, the Tribunal finds that he remained living in the same area, continued to attend church, was able to continuously hold his employment from at least 2010 until his departure for Australia in 2014, managed to commence a relationship and marry. He travelled with his wife to [Country 1] on a honeymoon in 2012 and returned to Jordan. The Tribunal finds it difficult to believe that if his claims about his kidnapping and forced conversion and marriage and being held against his will for 18 months were true, he would have able to resume his life unharmed for such a sustained period. It has considered his claims that he lived in hiding in this period; his brother died in a car accident he believes was meant for him; he had his car stolen; and threats were made to him by mobile phone, however the Tribunal finds these are based on assertions by him only, with no supporting evidence and are incongruous with the claims and evidence provided about his employment and marriage in this period and his return to Jordan from a honeymoon to [Country 1], and on this basis the Tribunal does not accept any of these claims. The Tribunal finds on the evidence provided, that the applicant was employed from 2010-2014, attended church and married in this period, and it finds this is inconsistent with his claims regarding the circumstances of his Muslim marriage, escape and divorce and of his fears of harm from Muslim extremists. If these claims were true and there was such interest in him, the Tribunal considers he would been harmed in that period after 2008 when he claims he escaped. His ability to continue living his life over the next six years in his home region without incident of harm detracts from the credibility of his claims.

Taking into account all of the above mentioned concerns, the Tribunal does not accept, as credible or plausible the applicant’s claims that he was threatened or beaten by the brothers of [his ex-wife], forced to convert to Islam and forced to marry her. It does not accept that they took his identification papers from him by force and had them changed to indicate his conversion of religion. It does not accept that he was confined against his will for a period of 18 months by Muslim extremists and forced to practice their religion, or that he escaped this situation. It also does not accept he received threats by phone after that, his car was stolen, or that his brother’s death by car accident was a deliberate act meant for him.
Claims regarding Judgement Notification declaring him apostate
The applicant claimed that subsequent to obtaining his divorce, he approached a Sharia court through a lawyer and a Judgement Notification was issued declaring him an apostate. The Tribunal has concerns about the veracity of this claim.
On his own evidence he says he sought legal advice and the complaint to the court was initiated by his lawyer. However given country information before the Tribunal regarding apostasy in Jordan; that Sharia courts there do not allow a convert from Islam to be subject to other religious denomination courts and the implications for a person of being declared apostate[20] the Tribunal finds unconvincing the applicant’s explanation for why he would initiate such a process himself or why he would instruct a lawyer to initiate this, other than to strengthen his protection claims.
[20] See country information referred to above in paragraphs 52-57 and The Freedom of Thought Report 2015: A Global report on the rights, legal status and discrimination against humanists, atheists and the non-religious', International Humanist and Ethical Union, 06 December 2016, p. 347, CIS38A80123551
In any event, he acknowledged to the Tribunal that the judgement was not registered in a civil court in Jordan and therefore had no legal effect there. Despite its concerns about the veracity of this document and his motivations in obtaining it, the Tribunal will give him the benefit of doubt on this and consider his protection claims on the basis that it is possible if not certain that this document is genuine. Notwithstanding this, it finds, on the applicant’s own evidence, that the document is not presently legally enforceable in Jordan.
Past harm
The Tribunal has considered the applicant’s experiences in Jordan in the period from 2008 when he divorced his Muslim wife until he came to Australia in 2014 and, having rejected his claims of kidnapping, forced conversion, forced marriage and being held against his wishes for 18 months by Muslim extremists, it also rejected his claims that he was subjected to constant threats by phone from Muslim extremists, that his car was stolen, or that his brother’s death by car accident was a deliberate act meant for him. Therefore, it finds he did not suffer any physical incidents of harm in the past in Jordan.
The Tribunal accepts on the evidence that he was unable to register his marriage that was conducted in a Christian church.
Risk of future harm
Having regard to the findings above on the applicant’s claims, the Tribunal will now assess the applicant’s risk of future harm if returned to Jordan. The applicant does not want to be Muslim and he fears the consequences of being declared an apostate, including having his marriage annulled, losing custody of his children, being unable to raise his children as Christian and loss of his civil rights. As a result of these fears he claims he will be unable to live his life freely, openly and safely as a Christian and raise his children as Christians.
The Tribunal accepts that the applicant’s claimed fears are for the Convention reason of religion.
Does the feared harm amount to persecution?
Persecution must involve serious harm, which in s91R(2) is set out to include certain kinds of harm such as threats to life or liberty, significant physical harassment or ill treatment, significant economic hardship or denial of access to basic services that threatens capacity to subsist. Having regard to the findings above, the Tribunal is not satisfied that the applicant faces a real chance of serious harm of the nature of any of the listed matters in s91R(2). As the Tribunal found above, he was able to live without any incident of physical harm or ill treatment for 6 years between 2008 and 2014. There is no evidence to suggest anyone in particular, being relatives of his ex wife or members of any particular extremist group was interested in causing harm or ill-treatment to him in this period. He was able to find and retain employment, and there is no evidence he was denied access to basic services that threatened his ability to subsist.
However, the Tribunal acknowledges that the instances of harm referred to in s91R(2) are not an exhaustive list.[21] Having regard to principles established by the High Court in various cases relating to the concept of persecution[22], the Tribunal accepts that the consequences of the applicant being declared apostate, including annulment of his marriage and loss of custody of his children, are sufficiently grave and consequential to him such as to rise to the level of serious harm for the purposes of s91R(2). In the circumstances of the applicant who was born into a Christian family and seeks to return to that faith, has married a Christian and has children whom he wishes to raise as Christians, the Tribunal also finds that for him not to be able to live openly and freely as a Christian and bring up his children as Christian amounts to serious harm for the purposes of s91R(2) in that it involves denial of a fundamental right to choose his religion and an intolerable interference with his religious beliefs, identity and way of life of sufficient gravity and significance to him that he cannot be expected to tolerate it and as such amounts to persecution.
[21] It would be legally wrong to approach the statutory test in s.91R(1)(b) on the basis that the examples in s.91R(2) were exhaustive: see e.g. VTAO v MIMIA [2004] FCA 927 (Merkel J, 19 July 2004), NBFP v MIMIA [2005] FCAFC 95 (Kiefel, Weinberg and Edmonds JJ, 31 May 2005) and Applicant M93 of 2004 v MIMIA [2006] FMCA 252 (McInnis FM, 24 February 2006).
[22] Eg. Chan v MIEA (1989) 169 CLR 379 at 388, per Mason CJ, MIMA v Haji Ibrahim (2000) 204 CLR 1 at [55], MIMA v Respondent S152/2003 (2004) 222 CLR 1 at [73]
The country information referred to above (see paragraphs 46-57), clearly indicates that conversion from Islam is prohibited in Jordan and converts face significant governmental and societal discrimination. The law in Jordan does not permit a Christian who converted to Islam to re-convert to Christianity. Under Shari’a converts from Islam are still considered Muslims and are subject to Shari’a but are regarded as apostates.[23] While the information indicates the Government has never applied the death penalty for Muslims who apostatize, which is prescribed by Shari’a, the Tribunal accepts that the country information clearly establishes that converts from Islam face legal discrimination and risk the loss of civil rights, including annulment of marriages, denial of inheritance and custody rights, removal of official records and confiscation of identification cards. The information indicates that identity cards of persons seeking to re-convert from Islam to their original religion will reflect them as not having any religion, rather than their actual religion. The country information indicates that any member of society can file an apostasy complaint against an individual in the circumstances of the applicant (see paragraph 54 above).
[23] 'International Religious Freedom Report for 2018 - Jordan', US Department of State, 21 June 2019, p. 3, 20190627102116
On the basis of this country information, the Tribunal is satisfied that there is a real chance, in the sense that it is not a remote or far fetched possibility, that the applicant could face the consequences of being declared apostate and have his marriage annulled or lose custody of his children to the state, and that these consequences, or the threat of such consequences, amount to serious harm.
For the above reasons, the Tribunal is satisfied that the harm the applicant would be subjected to involves ‘serious harm’ as required by paragraph 91R(1)(b) of the Act. The Tribunal is satisfied that the essential and significant reason for the persecution feared is his religion.
Based on the applicant’s past conduct and the country information before it, the Tribunal is of the view that if he returned to Jordan, he may be able to avoid the harm he fears by keeping secret his Christian beliefs and seeking to live discreetly within the confines of his local Christian community. However, the Tribunal cannot require a protection visa applicant to take steps and modify his conduct to avoid persecution. As noted by the High Court, in these cases, it is the threat of serious harm with its menacing implications that constitutes the persecutory conduct (Appellant S395/2002 v Minister for Immigration and Multicultural Affairs, per McHugh and Kirby JJ at [43]).
As noted above, the State prohibits conversion and legally discriminates against converts. Converts have also been known to have been subjected to repeated interrogations by the security forces. In other instances, police protection has amounted to compelling converts to go into hiding, which of itself may amount to deprivation of liberty and, therefore, serious harm within the meaning of s.91R. The Tribunal is satisfied that the applicant does not have adequate and effective state protection available to him. The Tribunal is further satisfied that the applicant would not be able to avoid the persecution he fears by internally relocating within Jordan.
For the reasons outlined above, the Tribunal is satisfied that the applicant’s fear of persecution is well-founded.
For the reasons given above the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant satisfies the criterion set out in s.36(2)(a).
The Tribunal is satisfied that the second named applicant is the applicant’s son and the third named applicant is his wife and are members of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i). As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Meena Sripathy
Member

ATTACHMENT - RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. 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.

100. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
101. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
102. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
103. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
104. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
105. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Member of the same family unit
106. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include partner and dependent child.

Freedom of Religion or Belief for Christians in the Middle East ...