1908035 (Refugee)

1908035 (Refugee) [2023] AATA 1724 (5 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1908035
COUNTRY OF REFERENCE:                   Jordan
MEMBER:Mr S Norman
DATE:5 April 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(aa) of the Migration Act.

Statement made on 05 April 2023 at 4:35pm
CATCHWORDS
REFUGEE – protection visa – Jordan – religion – Christian applicant’s property dispute with Muslim neighbour and court order against him – neighbour’s harassment and threats escalated and turned religious, including accusation of insulting Islam – neighbour’s standing and contacts in community – country information – certain individuals have disproportionate power – real chance of serious harm – risk does not extend to all areas of country and possibility of relocation – complementary protection – age and physical and mental health make relocation unreasonable – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), (b), (c), 36(2)(a), (aa), (2A)(d), (2B)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
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 Home Affairs on 22 March 2019 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 5 October 2017. The Department delegate’s decision was lodged with the Tribunal.
The applicants attended a Tribunal hearing on 30 March 2023.
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
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Meaningful opportunity to give evidence and submissions:
The applicants referred to health issues to which they were subject (set out more fully below), and the Tribunal has had regard to same prior to finalising this decision. Be that as it may, after considering the evidence, including that provided at hearing, the Tribunal is satisfied the applicants (with the assistance of their agent) were given a meaningful opportunity to give evidence and submissions in support of their case (including at hearing).
The applicants’ receiving country:
The applicants lodged a photocopy of the bio-data page of their Jordanian passports (expiry date of applicant husband passport, [2022][1] - expiry date of applicant wife passport, [2022)[2]). The Tribunal accepts they are citizens of Jordan, and that Jordan is their receiving country. Next, the country information before the Tribunal indicated that expired Jordanian passports may be renewed in Australia.[3] The Tribunal accepts this is correct.
The applicant’s migration history:
[1] PDF – p.79.
[2] PDF – p.84.
[3] EMBASSY OF JORDAN IN CANBERRA, AUSTRALIA, EMBASSY OF JORDAN IN CANBERRA, AUSTRALIA (EMBASSIES.INFO) , ACCESSED 23 SEPTEMBER 2022.
The applicant’s recent migration history follows [Deleted]:
The applicant’s bio-details and the delegate’s findings:
The applicant wife (hereafter the applicant – DOB: [Date] – currently [Age] years) was born in [City 1], Jordan; and the applicant husband (DOB: [Date] – currently [Age] years) was born in [City 2]; and they were married on [Date].[4] Amongst other things, the applicants submitted copies of their marriage certificate; medical reports; travel history of the applicant wife; and a demolition order (explained below).
[4] PDF – p.116.
The applicants attended a PV interview on 6 March 2019 with the Department. In the Department interview, the applicant husband claimed inter alia he received a monthly aged pension from Jordan (JOD 300/ 350 – being AUD 628/ 713); that the monies were deposited into a bank account in Jordan and his sister-in-law arranged the transfer of same to Australia; that he completed military service sometime in the 1970s; that he was born into an orthodox Catholic family and he attended the church, [Church]; and that for reasons set out below, he was subject to insults about his religion.
In the Department interview, the applicant (wife) claimed she received a monthly aged pension of around 370 Jordanian Dinars and this is an entitlement for life; that her sister arranges for the monies to be sent to Australia; that she is [Denomination 1] from 2002 but that she had attended a [Denomination 2] church near where she had lived in Jordan; and that she was previously an Orthodox Catholic. The applicant said she and her husband had resided at the same address in Amman for 23 years - as at the time of their departure from Jordan (though they had lived temporarily with her sister for two months immediately prior to their departure).
The applicant husband had explained (in writing) that their neighbour’s ([Mr A]’s) house was facing the applicants’ house and they shared a pathway; the neighbour (a Sunni Muslim) had resided at the address for more than 10 years and in that time the applicants had been subject to verbal and racial abuse on occasion; the neighbour once said he wished to kill the applicant husband even if it meant he went to jail.
After considering all the applicants’ evidence, the delegate had accepted:
·     The applicants are Christians who lived in Amman, Jordan.
·     The applicants had a neighbour by the name of [Mr A] who harassed them because of their religion from the time they became neighbours.
·     The applicants had a dispute with [Mr A] over a structure the latter built in the common pathway between their houses and the applicants were successful in getting a demolition order in their favour.
·     [Mr A] came to the applicants’ house with another man after the applicants complained to the council and grabbed Applicant 2’s neck.
·     [Mr A] threatened to kill Applicant 2 during a conversation two months prior to incident at the applicants’ home.
·     [Mr A] or his relatives or friends knocked on the door of the applicants’ house the following night after [Mr A] went to the applicants’ house.
·     The applicants saw the letter ‘N’ and a knife in their front door and the person/s who placed them would be [Mr A] or his relatives or friends; or IS or Islamic fanatics.
·     The letter ‘N’ and the knife is a sign used by IS to mark houses owned by Christians whom they intended to kill and to spread this among its fanatics.
·     A lady called Applicant 1 and threatened to kill her and the caller would be one of [Mr A’s] relatives or friends.
·     [Mr A] does not have a big tribe that cannot be dealt with by the authorities in Jordan.
·     [Mr A] has connections with the police but not to the extent that the police would be unable or would refuse to perform its functions especially in relation to criminality and terrorism.
However, and put briefly, after considering the available country information, the delegate was satisfied the applicants had access to State protection in Jordan.
The applicants ongoing problem with their neighbour in Amman, Jordan ([Mr A]):
The applicants had claimed:[5]
·     In 2009, a neighbour ([Mr A]) built a structure on land they shared in front of their house. This blocked their access to sunshine and fresh air but the neighbour had refused to move the structure
·     The applicants subsequently sought an order from the court, and they were successful in obtaining a demolition order
·     The applicant husband said the dispute gave rise to some heated discussions between himself and the neighbour. On occasion, the neighbour would use racially/religiously offensive language about the applicant husband. The neighbour also threatened to ‘kick the applicants out of their home’
·     The neighbour had contacts with the police and the council (at hearing, the applicant said the neighbour’s relative was the local superintendent of police), and for many years he had been successful in avoiding the need to demolish the structure. During this period, the neighbour was also aggressive and threatening to the applicants
·     On 1 May 2017 (well after the order had been given), the applicants complained to the authorities the demolition order had not yet been carried out. The applicants also asked the authorities not to tell the neighbour that it was them who had made this complaint
·     However, the following night the neighbour knocked on the applicants’ front door. The applicant husband opened the door and the neighbour and another man, pushed him inside the home and grabbed his neck (the husband did not subsequently seek medical assistance). The applicant rushed to help her husband and begged the men to leave him alone as he was too weak to defend himself. The applicant also said the man who accompanied the neighbour, had a knife hanging on his side
·     The accompanying man told the applicants they had insulted Islam and the prophet, and this was punishable by death. He then told the applicants they had one week to rectify this by converting to Islam and if they reported the matter to the police, they would be slaughtered like sheep. The neighbour and the accompanying man then left the applicants’ home. The applicants had initially assumed this was a random threat (arising in the context of a heated argument) and they did not take it seriously
[5] PDF – from p.63.
The applicant continued:
·     However, the next night the applicants heard someone trying to push open their front door and also hitting the door handle. They were scared and did not open the door
·     The following morning they opened the door and found writing on their front step (‘N’), which in Arabic was a reference to ‘Christians’, and alongside this was a black knife.[6] The applicants said this was a sign used by the Islamic State of Iraq and Syria (ISIS) to mark houses owned by Christians whom they intended to kill, and also to spread this information among other fanatics
·     At that time, the applicants then understood they were under serious threat so they packed some clothes and belongings and moved to the home of the applicant’s sister (this occurred in early May 2017). The sister lived in a different suburb in [Amman] (approximately 20-30 minutes by car from the applicants’ home).
·     However, the applicants believed they were still not safe, and they also understood this shelter was temporary as the accommodation was in a small house and they had no place to sleep (at hearing, the applicant explained that her sister was also fearful she may be harmed by the applicants’ neighbour or those acting on his behalf)
·     The applicant also said that during their stay at the sister’s house, she received a mobile phone call from a woman who said ‘don’t think you have escaped, we can reach you at any place’ (though the Tribunal does not understand the applicant changed her mobile phone number)
·     The applicants then contacted their son in Australia ([Mr B]) and told him what had happened. The son immediately applied for a Visitor visa for Australia, so they could escape the danger
·     The applicant’s (Australian resident) son had then travelled to Jordan to assist the applicants travel safely, because of the danger to them, and also due to the medical condition of the applicant husband
·     When the applicant husband learnt he would have to depart Jordan and he would not see his house again, he fell sick and was admitted to hospital for heart problems. He was treated in a cardiac unit for minor strokes and high tension. Both applicants also suffered psychological pressure due to their experience
·     The applicants believed that if they returned to Jordan, they would be killed. They said that Jordan is a small country and it was hard to know who would act on the threats they received. They did not believe the police would be able to assist
·     The applicants also said the neighbour ([Mr A]) had a lot of relatives working for the police and it would be easy for them to prevent the applicants from obtaining help. Accordingly, they feared they would not be able to relocate within Jordan; and they had already relocated to the house of the sister of the applicant wife
[6] PDF – p.299 (photograph).
In the applicant statement of 2 March 2022, amongst other things it was said that while in Australia, a relative (the wife’s sister) had gone to their house in Amman and saw hate symbols sprayed on the walls (ie Nazi symbols and upside down crosses - photos were lodged). When the relative had been taking photos, she was approached, yelled at, and told to leave (at hearing it was explained the relative had not entered the property and had only taken photos from the street). However, she was also asked when the owners would return. The relative informed the police while at the property, she then waited for 15 or 20 minutes, but police did not appear.
The applicant husband also said the neighbour was a young man approximately [Age] years of age (or per the applicant [Age range] years old) and was married with children; that he was well represented and had a big family and ‘lots of power’ (it was claimed the Deputy Security officer in the local area – or the local police superintendent - is a friend/relative of the neighbours – and the neighbour’s family/tribe controlled the whole area). The applicant husband said that on one occasion when the neighbour’s relative/s was arrested, a local police station was attacked.[7]
[7] PDF – from p.281 (news article).
The applicant son also lodged a statement dated 2 March 2022. He sought to corroborate that his parents’ neighbour was a well-known and aggressive person in the neighbourhood; that he was a fanatic; and that this man was sacked from his military post arising from allegations related to national security (though no corroborating evidence of this was lodged).
The country information 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 The nature of wasta tends to cement advantage and disadvantage over time. …
3.14 … wasta, in DFAT’s assessment, is not evidence in and of itself of official or societal discrimination… but a central component to understanding how Jordanian society operates.
…..
3.69 … a lack of wasta is not equivalent to discrimination, societal or otherwise.[8]
And:
3.67 … DFAT assesses that there is no official policy for security forces to make life more difficult … However, personality-driven discrimination by individual officers against Palestinians and others can and does occur. … As is the case in much of Jordan, the individual’s wasta would likely determine the quality of redress.[9]
[8] DFAT Thematic Report Palestinians in Jordan and Lebanon 2 March 2015.
[9] DFAT Thematic Report Palestinians in Jordan and Lebanon 2 March 2015.
It was also claimed the applicants were accused of insulting Islam and the prophet, and this was punishable by death. They were told they had one week to rectify this by converting to Islam and if they reported the matter to the police, they would be slaughtered like sheep. The neighbour and the accompanying man then left the applicants’ home. The applicants thought (at least initially) that this was a random threat and did not take it seriously.
After having discussed the evidence with the applicant at hearing, the Tribunal will accept the applicants were engaged in a long standing dispute with their neighbour due to a structure erected by the neighbour; that the applicants had obtained a court order the structure be demolished; that some years later (in May 2017), and after the applicants sought to have the demolition order enforced, the dispute became violent; that the neighbour had more ‘wasta’ than the applicants (including that the neighbour had relatives in the police); and the neighbour, then attacked the applicants and subsequently accused the Christian applicants of insulting Islam.
The Tribunal also accepts the neighbour can and likely may utilise the applicants’ religion in order to put pressure on them to cease and desist their efforts to enforce the demolition order.
Accordingly, the Tribunal accepts the applicants have a real chance of suffering serious harm in their home in Amman, and that an essential and significant reasons for this was due to their religion.

The Tribunal also accepts the applicants have a real risk of suffering significant harm in their home in Amman, and which harm would be intentionally inflicted on them. This harm would be motivated by the property dispute discussed above, and the applicants’ advanced age and infirmity, would further increase their vulnerability. Be that as it may, the Tribunal is satisfied the harm would constitute inter alia cruel of inhuman treatment or punishment (s.36(2A)(d)) in their home.
Christians//extremists in Jordan:
In agent submissions dated 2 March 2022, it was said the applicants now fear Islamic extremists in Jordan (including for reason of them being accused of insulting Islam). Their agent also said the applicants are Christian and would be easily identified as such in Jordan, which is an Islamic country; that there was growing extremism in Jordan (country information in support lodged); and that there is persecution against Christians in Jordan (country information lodged).
Regarding security in Jordan, the country information stated:
The Syrian crisis has had a significant impact on Jordan's economy, straining current infrastructure and resources. In addition, Syria was a key trading partner for Jordan, and Jordan's primary transport route for trade with Europe.
…..
Jordan is coping with a large influx of refugees fleeing the conflict in neighbouring Syria. There are an estimated 1.3 million Syrian refugees in Jordan, of which approximately 650,000 are registered with UNHCR. Since 2017, Australia has committed $279 million in response to the Syria crisis, including over $105 million in support of refugees and their host communities in Jordan.[10]
And:
… Jordan continued to face a persistent threat of terrorist activity both domestically and along its borders, owing in part to its proximity to regional conflicts in Iraq and Syria and the state’s official rejection of Salafi-Jihadi interpretations of Islam. Terrorist entities continue to express interest in attacking both “hard” and “soft” targets, such as high-profile public events, hotels, tourist locations, and Jordanian security services. …[11]
[10] Jordan Country Brief, DFAT, Jordan country brief | Australian Government Department of Foreign Affairs and Trade (dfat.gov.au) , accessed 2 March 2022.
[11] Country Reports on Terrorism 2019: Jordan, US Department of State, Jordan - United States Department of State , accessed 2 March 2022.
Further country information stated:
Jordan’s Salafist movement has facilitated the flow of foreign fighters to Syria, largely to fight with the al-Qaeda-linked Nusra Front.
An influx of Syrian refugees into Jordan since 2011 has further strained the country economically. … Security officials worry smugglers, jihadists, and spies will enter Jordan from Syria disguised as refugees. …
…..
Jordan is part of the U.S.-led coalition fighting against ISIS in Iraq and Syria. Jordan intensified its airstrikes against ISIS following the terror group’s murder of a Jordanian air force pilot in early 2015. Jordan is also participating in the Saudi Arabia-led coalition against Iran-backed Houthi rebels in Yemen. The Jordanian government has also implemented new anti-terrorism restrictions in an effort to curb the spread of jihadist groups.[12]
[12] 'Jordan: Extremism and Terrorism', Counter Extremism Project, n.d., 20230131104925, accessed 23 March 2023.
Regarding Christians in Jordan, the country information stated:
Some church leaders estimate Christians make up approximately 1.8 percent of the country’s population.
…..
In several cities, Christian groups – including Baptists, Orthodox, Anglicans, and Roman Catholics – operate private schools and are able to conduct classes on Christianity. Private schools, both non-religious and religious, are open to adherents of all religions.
Security forces were largely diverted to COVID-19 response and prevention measures, and the nationwide ban on large gatherings negated any need for enhanced security or protection for Christian neighborhoods and churches for holidays and special events, unlike in previous years.
…..
Religious leaders reported continuing online hate speech, frequently through social media, directed towards religious minorities and those who advocated religious moderation. One NGO reported increased online hate speech towards the Christian community in direct response to radio and internet broadcasts of Christian services. Religious broadcasts were an alternative to regular in-person services, which were not allowed under comprehensive lockdowns due to the COVID-19 pandemic. The same NGO reported some negative responses to the presence of an Orthodox bishop during televised, and widely viewed, COVID-19 updates from the government. NGO sources said the negative responses were the reactions of Muslims to their first real exposure to Christianity.
Criticism online and in social media continued to target converts from Islam to other religions. Religious minorities expressed concerns some Muslim leaders preached intolerance. Christians reported they self-segregated into Christian enclaves to escape social pressure and threats.[13]
[13] US Department of State, 2021 Country Reports on Human Rights Practices: Jordan.
Furthermore:
… Due to fears of religious discrimination, Christians in Jordan report being forced instead to rent homes in urban neighborhoods where they were vulnerable to economic exploitation, verbal harassment and discrimination.[14]
And:
Despite dropping a place on the World Watch List, hostility toward Christians has marginally increased. There has been a rise in reported incidents of violence and less acceptance of public expressions of Christian faith, such as openly displaying Bible verses.[15]
[14] 'The Church on the Run. IDP & Refugee Report 2022', Eva Brown, Elizabeth Lane Miller, Rachel Morley, and Helene Fisher, World Watch Research (WWR), Open Doors, 14 June 2022, 20220628123553.
[15] 'The 2022 World Watch List', Open Doors, 2022, 20220517151259.
However, and as stated at hearing, neither the applicants’ evidence nor the country information considered, satisfied the Tribunal that all Christians had a real chance of suffering serious (or significant) harm in all of Jordan. More importantly in their case, the applicants feared the threat to them (particularly from the neighbour of by persons acting at his behest) was ongoing, but they only received one threatening phone call in the two months they resided in Amman (30 minutes drive from their former house), after having fled their home and prior to their travel to Australia. Though the applicant’s sister (with whom the applicants lived for two months prior to their travel to Australia), was claimed to be fearful of being harmed by the applicant’s neighbour (or persons acting at his behest), she was only ever harassed when she attended the applicants’ home in Amman. No evidence was provided that the sister (or any other Christian relative) had taken any steps to protect or otherwise hide herself. In the circumstances, the Tribunal is not satisfied there is a real chance the applicants’ neighbour, or persons acting at his behest, would attempt to trace the applicants (for any reason they feared) should they safely relocate in Jordan.
Therefore, even if the applicants’ neighbour had more ‘wasta’ than the applicants, and even if the neighbour was related to a local police officer, and even if the neighbour (or the person who accompanied him) had accused the applicants of insulting Islam (something even the applicants initially believed was a hollow threat uttered in the heat of the moment), then neither the country information nor the accepted evidence has satisfied the Tribunal the applicants would have a real chance of suffering serious (or significant) harm for this or any related reason, should they safely relocate within Jordan.
Therefore, the Tribunal is not satisfied the applicants have a real chance of suffering serious (or significant) harm, in all areas of Jordan (s.5(J)(1)(c) of the Act – relating to real chance).
Relocation:
Under complementary protection, a consideration is whether the applicant in ‘Australia … is a person 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 the applicant will suffer significant harm’ (s.36(2)(aa)). As noted herein, the Tribunal was not satisfied the real risk of significant harm related to all areas of Jordan (s.36(2B)(a)).
Section s.36(2B)(a), also provides there is not to be a real risk of significant harm in a country if it would be reasonable for an applicant/s to relocate to an area of the country where there is not a real risk of significant harm.
When then considering whether it is reasonable for the applicants to relocate, the Tribunal notes that what is ‘reasonable’, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicants and the impact upon them of relocation. The applicants’ own particular circumstances must therefore be carefully considered. Relevant factors may include age and life experience, sex, health, disability, family responsibilities and relationships, social or other vulnerabilities, financial difficulties or other problems in travelling to or residing in the new place, ethnic, cultural or religious considerations, political and social links and compatibility, language abilities, civil status, skills, educational, professional and work background and opportunities, available or realisable assets, previous stay or employment in the proposed region, any past persecution and its psychological effects. The country information stated:
3.71 There are no legal impediments to … internally relocating within Jordan … [16]
And:
3.55 … Jordanian nationals … are entitled—by law and in practice—to the same benefits as other Jordanians … [17]
[16] DFAT Thematic Report Palestinians in Jordan and Lebanon 2 March 2015.
[17] DFAT Thematic Report Palestinians in Jordan and Lebanon 2 March 2015.
After discussing the evidence at hearing, the Tribunal accepts the applicants could not be reasonably expected to again reside with the ‘sister’ as I accept their residence there was temporary as inter alia the home was small.
Further, and as noted above, the applicant is a [Age] year old female and the applicant husband is [Age] years old. The applicants provided numerous medical reports. Regarding their health, the Tribunal said it would accept that as citizens, they would be able to access all the services (including health services) that are available to all citizens of Jordan. The applicant did not dispute this.
However, the evidence of the applicants’ health included that by [Hospital 1] letter dated 19 February 2019. Regarding the applicant husband, it was stated [Deleted]:
[The applicant husband] sustained [an injury] from a fall on the 16^th November 2018. He was admitted to [Hospital 1] for rehabilitation on the 27^th December 2018.
Since his injury, [the applicant husband]’s family have noted that [he] has had problems with his memory and requested that this be investigated. Cognitive screening showed that [he] has significant memory issues and this in impacting on his ability to remember past events. [His] memory difficulties are likely to be mor pronounced in stressful situations such as when he was being tested and during the interview for Permanent Residency
The Tribunal notes this was one of a number of medical reports about the applicants and lodged with the Tribunal. That being said, it had been explained the applicant husband had tripped and fell forward onto his face in November 2018. He was initially presented to [Hospital 2] but was later transferred to [Hospital 3] and underwent named medical procedures. He was under medical supervision at [Hospital 3’s] [specified] Rehabilitation Section.[18] His social worker in December 2018, said he required ongoing rehabilitation for at least the next six months and his estimated discharge date was 8 April 2019. The social worker also said the applicant husband had significant memory issues impacting his ability to remember past events and it was likely to be more pronounced in stressful situations.
[18] PDF – from p.178.
In a statement dated 8 December 2021, the applicant said the health of her husband had deteriorated; that she was experiencing depression and stress; and that her children take care of her (two children in Australia).
When discussed at the commencement of the hearing, the applicant explained her husband had suffered [specified] damage due to the aforementioned accident, that he had damaged his right hand and leg, that he was now largely wheelchair bound, that he also had a catheter attached, and that he was principally cared for by her (with the assistance of her son with whom they lived in Australia). After discussing same, the Tribunal accepts that the evidence of the ongoing poor health of the applicant husband is accurate. Respectfully, his oral responses at the commencement of the hearing also indicated an apparent lack of competence.
Under s 36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that 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. The judgments of the High Court in SZATV v MIAC and SZFDV v MIAC held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant/s and the impact upon that person/s of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
That being said, and though the Tribunal accepts the applicants would have access to those health and other services available to citizens of Jordan, given their advanced years and given the serious ongoing health concerns, the Tribunal is not satisfied it is reasonable for either to be required to relocate within Jordan- including elsewhere in Amman.
Therefore, the Tribunal finds:
·     There is a real chance the applicants would suffer serious harm in their home in Amman, for reason of their religion (s.5J(1)(a) & (b))
·     There is a real risk the applicants will suffer significant harm in their home in Amman (cruel or inhuman treatment or punishment - s.36(2A)(d))
·     The real chance of serious harm does not relate to all areas of Jordan (s.5J(1)(c))
·     The real risk of significant harm does not relate to all areas of Jordan (s.36(2B)(a))
However:
·     Given the applicants’ age and ongoing infirmity, the Tribunal is not satisfied it is reasonable that they relocate within Jordan (s.36(2B)(a))
Accordingly, and for the reasons given above, the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants satisfy the criterion set out in s.36(2)(aa).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(aa) of the Migration Act.
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.
…

[2023] AATA 1724

5 April 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction