2319900 (Refugee)

2319900 (Refugee) [2024] AATA 4195 (23 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Jaskiran Rekhraj
CASE NUMBER: 2319900

COUNTRY OF REFERENCE: Jordan
MEMBER:Rosa Gagliardi
DATE:23 August 2024
PLACE OF DECISION: Australian Capital Territory
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 23 August 2024 at 3:45pm
CATCHWORDS
REFUGEE – protection visa – Saudi Arabia – political opinion – opposition to the Saudi regime – particular social group – mental health issues – fear of killing – protests – corruption – detention – torture – employment – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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 30 November 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Jordan (a matter the Tribunal accepts) applied for the visa on 5 December 2017.
The delegate refused to grant the visa on the basis that they did not accept the applicant would face serious harm on return to Jordan and therefore did not attract Australia’s protection obligations as outlined in s.36(2).
The applicant appeared before the Tribunal on 22 August 2024 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the visa applicant has a well-founded fear of persecution for reasons set out in s.5J(1) of the Act, and there is a real chance that if he returned to Jordan now or in the reasonably foreseeable future, he would be persecuted for one of those reasons, and whether he would suffer serious harm. Alternatively, the Tribunal must assess whether the visa applicant meets the complementary protection criteria.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Claims at the time of application
In his statement with his application, and in later statements the applicant reiterated that he had been a student at [University 1] and when he was around [age] years of age he started to speak out against the government and the King. He joined protests at university in 2005 where people spoke out against the government. He joined the protests because he was unhappy with how the government was dealing with the money they were receiving from foreign countries as aid.
The applicant also became aware of articles that reported on Queen Rania’s lavish spending on clothes and the King was using public funds to for his family’s profligate lifestyle. The applicant also wrote that the King received huge amounts of money for the construction of public infrastructure, but nothing was ever built.
The applicant was reported to the Jordanian intelligence services by who the applicant believed his friend [Friend A]. [Friend A] and the applicant had a conflict because [Friend A] had not repaid the applicant money he had loaned him. The applicant’s suspicion he was reported by [Friend A] was based on the fact that [Friend A’s] brother was in the intelligence service.
The applicant was arrested by the intelligence services [in] 2005 and was tortured in the General Intelligence Directorate (GID). He was detained for [number] days as reflected in the [Agency 1] information provided to him and he was released [in] September 2005.
The applicant recounted that when he was arrested, he was [at a location]. They took the applicant to his family home and were parading him around the neighbourhood in handcuffs. They went into the applicant’s family’s house and started searching for things in his room. His family was shocked and crying and asked what they were looking for, but they did not respond.
On leaving the applicant’s house, the applicant claims he was driven away blindfolded and put in a room where there were [number] men and where [most] of them interrogated about his alleged connections and travel to Syria and also revealed they were aware of his attendance at protests. The officers were in effect accusing the applicant of being of a terrorist and working against the Jordanian state in collaboration with neighbouring states such as Syria and Iraq. They told him he was blacklisted and that he would not be able to join the army. They tried to recruit him to join the intelligence services to annul his name on the blacklist.
The applicant refused to work with them and also could not answer many of their questions because he had no connections or associations and as not a terrorist. The applicant during these [number] days was beaten, and on occasions he passed out. [He suffered injuries], and he was bruised, and he bled all over his body. His feet were so badly beaten, and his skin ripped off and forced to walk on vinegar and salt so that his wounds stung.
He was hung by his hands in the air for around [period] on three different days. [He suffered another injury] when he was punched in the face. The applicant was checked by a doctor employed by the intelligence service to determine the level of beating he could endure.
He was kept in a cold and dark room and there was a light with a dimmer and when they entered the room the light would be used to shine directly in his face. At times he was denied the capacity to use the bathroom and at times denied food.
Around two weeks after he was placed in detention the applicant was visited by [Agency 1]. It was the first time that he was able to take a shower and go outside to be in the sun. His bruises and cuts from the beatings were still visible to [Agency 1].
The applicant was never given an official reason for why he was released and was not charged with any offence. Nonetheless, his life never returned to normal in Jordan. In the first instance, the applicant was called in by the intelligence services every year, particularly when terrorist attacks occurred in neighbouring countries, or an event occurred in Jordan. When Daesh was gaining momentum in Syria he was called in for questioning and was asked if he was interested in joining them or if he was already working for them.
Given he was on the blacklist the applicant had to obtain permission from the intelligence services, every time he wished to travel outside Jordan for leisure purposes. He also had to submit evidence he was not being investigated by the police. Leaving the country was stressful. When he went to [Country 2], for example, as a tourist his father was required to give a guarantee to the officials and that if the applicant did not return to Jordan, they would arrest his father.
Further, in the words of the applicant:
After leaving (detention), I was psychologically, financially and morally shattered. I lost a lot. Firstly, my studies as I couldn’t take my end of semester exams so had to study an extra year. I lost financially because of my prevention (sic). I lost a lot of friends because when I returned, I used to receive vague and incomprehensible looks from the students and the faculty, which made me a different person. I would go to lectures and rush back to my room to get away from everyone looking at me like that. It was like this for a long time, which made a psychologically broken person. I am now on medication to help me psychologically.
The applicant expressed concerns that if he returned to Jordan, given he was perceived as a political activist and because he had been outside of his country for such a lengthy period, would again be persecuted and would come to the attention of the GID, particularly as he had been out of his country for such a lengthy period now.
The applicant provided expert medical evidence about how his experiences in Jordan involving torture, among other things, had meant the applicant had developed reactive psychological responses which manifested in serious mental health issues.
The applicant also submitted evidence that [Agency 1] had visited him during his detention.
Evidence at the time of review
The Tribunal has set out the applicant’s written claims in some detail because his evidence at hearing mirrored his initial statements in very much every aspect and therefore the Tribunal has no need to reproduce his oral evidence at hearing with the Tribunal. The Tribunal notes, however, that at hearing the applicant gave a very credible account of his father’s own views politically regarding the King’s fallibility and the monarchy’s associations with countries he did not consider genuinely upheld an Arab/Muslim point of view. The applicant grew up with similar political opinions except that unlike his father, the applicant chose to be vocal and express his views.
FINDINGS AND REASONS
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70).
In determining whether an applicant is entitled to protection in Australia the Tribunal must at first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need for and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all their claims.
On the other hand, the Tribunal is not required to accept uncritically any, or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
The applicant’s claims of past harm
The Tribunal found the applicant’s account coherent, and the Tribunal accepts that the persecution he suffered in Jordan prior to his departure to Australia occurred. His answers were spontaneous, and the Tribunal did not gain any impression that the applicant was prevaricating in his responses. While the Tribunal absolutely accepts the medical expert advice about the seriousness of the applicant’s mental health issues, at hearing he was able to refer to the events that had affected him in Jordan in a convincing manner, this is bearing in mind that the applicant is on strong medication to relieve his symptoms. The Tribunal is satisfied that the applicant’s claims about past torture are the applicant’s lived experience given the verisimilitude with the humiliation and degradation he had suffered in detention as set out in his application and other documents. His account of how the intelligence security agents had attempted to break him down to him recruit him to work for them as a spy was also credible. Furthermore, the applicant’s recall did not appear to suffer significantly, even though the Tribunal would have expected he might have faltered in some respects regarding the chronology of events in his testimony, for example.
The applicant also gave convincing evidence about how on release from detention he was alienated in his community as he was considered suspicious, and nobody wanted to be associated with him because they considered that interacting with him could lead to their own family members’ incarceration or torture in Jordan or their own if they visited. As he stated, the way he was viewed in Jordan meant that he could not marry.
The applicant at hearing gave evidence about how he had protested and that photographs of the protests had been taken by unknown persons at the rallies. He also expressed a strong suspicion that it was [Friend A] who had reported him to the intelligence services. When the Tribunal challenged the applicant about this matter, stating that he could not be sure that it was [Friend A] who had reported him given he had attended rallies at which persons were photographing participants and given the applicant had stated he was vocal about his views at university, the applicant realistically conceded that he could not be certain that [Friend A] was responsible and that it could have been anyone.
When the Tribunal queried the applicant as to why he had travelled outside Jordan on several occasions, the applicant stated that he was young and went with friends from university and the countries he visited were accessible to him. The Tribunal finds the applicant’s explanation entirely plausible as being a university student it is not fanciful that he would have wanted to see other parts of the Middle East. In terms of [Country 2], he stated realistically that he had gone there for tourism purposes and had attempted to purchase goods for sale in Jordan, but that the venture did not eventuate due to the funds required.
While the Tribunal notes that the applicant did, sparingly, have trouble recalling specific dates, he was able to place key events in a realistic context providing credible detail about his surroundings and how he responded to torture and the general humiliation he was subjected to in detention, for example. The Tribunal was also convinced of the applicant’s strongly held views about the regime in Jordan and his opposition to it, and importantly, of his desire to express these views when he wished to.
It is well-documented that persons who have experienced severe trauma may suffer in their ability to recall events precisely:
Although less systematically studied, clinical research data suggests that the occurrence of partial or complete loss of memory is not limited to sexual abuse but exists across a wide variety of traumas. Such memory difficulties have been observed in children who experienced natural disasters (e.g., Miller, Kraus, Tatevosyan & Kamenchenko, 1993), individuals who were children in the Holocaust (e.g., Mazor, Gampel, Enrigth, & Orenstein, 1990)…adult torture victims (e.g., Goldfield, Mollica, Pesavento, & Faraone, 1988), refugees (e.g. Kinzie, 1993), war veterans (e.g., Bremner et al., 1992) and concentration camp survivors (Auerhahn, Laub, & Peskin, 1993).[1]
[1] ‘Traumatic Events: Prevalence and Delayed Recall in the General Population’, Diana M. Elliot, Harbor-UCLA, Medical Center, University of California, Los Angeles, School of Medicine, Journal of Consulting and Clinical Psychology, 1997, Vol 65, No.5, 811-820, ccp65050811.tif (jimhopper.com)
It would indeed be unreasonable, if not oppressive, to have expected the applicant to give a perfect account of everything that had occurred to him in Jordan. Notwithstanding the applicant’s documented mental health, there appeared to be little inconsistency in his account at the time of application and that at the time of hearing. The only inconsistency the Tribunal did identify is that the applicant towards the end of the hearing when he appeared tired and clearly drained from having gone through his account of torture, stated he had been detained for a week after returning from [Country 2], when in effect he had initially told the Department that he had been detained for a week when he returned from [Country 3]. The Tribunal makes no adverse inference from this inconsistency. To make an adverse finding on this minor point would be to visit on the applicant significant unfairness, particularly in light of the expert information regarding the inability of torture survivors to recall events perfectly.

The Tribunal notes that the Department considered the applicant’s credibility was flawed because it was not plausible that the applicant would have been able to work for [Public Agency 1] for over eight years between January 2009 and September 2017, including after having come to the attention of the intelligence services. The Department referred to country information which points to [Public Agency 1] forming part of the overall structure of government in Jordan.[2]
[2] [Source deleted.]
The Tribunal notes, however, that the country information referred to is general in nature and specifically refers to [this agency].[3] The applicant has explained that an influential uncle was able to procure the applicant employment in [this agency] but there is nothing before the Tribunal to suggest that the applicant was [seeking appointment]. From the evidence submitted it would appear that the applicant did not have a significant role to play in [this agency], in fact it appeared to be a non-descript role and there is no evidence he was [influential]. The Tribunal does not accept that the applicant would have necessarily with his profile been denied even a low-level administrative position in [this agency], even if he had been blacklisted from joining the army, for example. The Tribunal has not been able to find country information that would support the contention that someone on a blacklist might not have a low-key position in a [public agency] in Jordan.
[3] ibid.
The Tribunal also notes that the delegate relied on making a finding that [Agency 1] was fraudulent letter of 2018 submitted to the Department was fraudulent because it did not appear to accurately reflect the dates the applicant had been detained. The Tribunal notes that no independent verification via a forensic process was undertaken to reach this finding. Only the assumption that the way it set out the information contradicted the applicant’s claimed days in detention.
The Tribunal has referred to that initial statement by [Agency 1] dated 14 January 2018, Amman, which states that the applicant was arrested by the Jordanian authorities [in] 2005 which is consistent with the applicant’s own claims. It then states, “He was registered and visited by [Agency 1] during his detention at General Intelligence Directorate from [between dates in] August 2005 and was released on [a day in] September 2005. The delegate read this to indicate that the applicant was detained [between the dates in] August 2005, and deducted that the period to [the day in] September 2005 was unaccounted for. A fair reading, however, is that [Agency 1] did indeed visit the applicant as he claimed consistently between [the dates in] August 2005 on two occasions. The applicant was clear that the authorities had not arranged for [Agency 1] representatives to visit him until he had been detained for several days and that it was within a confined period – on two occasions. The Tribunal finds that the document is not reflecting that the applicant was not in detention after [the later day in] August 2005 – on the contrary it is stating that [Agency 1] did not visit the applicant again prior to his release from detention [in] September 2005.
The applicant has again approached [Agency 1] to provide a document making it clearer as to the dates the applicant was visited in detention. This additional letter clearly states that the applicant was detained in General Intelligence Directorate and visited by [Agency 1] delegates [between the dates in] August 2005. The Tribunal places significant weight on these two documents on letterhead from [Agency 1] in Jordan indicating the period the applicant was visited by [Agency 1], and his release [in] September 2005 which is entirely consistent with the applicant’s narrative.
The future test
Having accepted that the applicant was detained in Jordan for his political views and participation in anti-monarchy and general political malaise in Jordan, the Tribunal is required to apply the future test which means the applicant has to have a well-founded fear of persecution now and in the reasonably foreseeable future, despite the Tribunal having accepted that the applicant was indeed detained, tortured and harassed by the Intelligence Services of Jordan in Amman. While past experiences may be indicative of future persecution, it is not always the case, for example, where circumstances in the applicant’s country have ameliorated and where particular events had occurred so long ago that they are remote, and it would be fanciful to find that the applicant would be persecuted on return to his/her home country.
Current country information reflects the level of repression experienced by activists who counter the King and system of government in Jordan. Dr Moore, a US political scientist reports:
Embedding themselves in the country’s education, medical, and other public sectors GID (Jordanian Intelligence) agents hunted down tens of thousands of rebel sympathizers and arrested, tortured and/or executed many of them. The GID was growing in power, and the CIA was taking notice. Dr.Moore explained that its functions became very alike what’s seen in other authoritarian regimes, with the agency become “a coercive force that keeps the [monarch] in power.” Syria and Iraq have had similar agencies in place to varying degrees for decades.
“You create a secret police as your guard dog to watch the [armed forces] like the army,” continued Dr.Moore. “You want to have your own praetorian guard that you can trust to take care of bad guys who might be coming out of your military.”
…
The GID then ended up with so much control in the ‘90s that college students couldn’t even get poems published before first having them approved by a GID agent. Dr Moore referred to this as “horizontal oppression”, noting that open rebellion against or even verbal discontent with the agency or the monarchy it protects became virtually impossible. If citizens want to be employable, if they want their children to attend a university, they have little choice but to keep quiet. For this reason, Jordan wasn’t in the news much during 2010’s Arab Spring.
By the 2000s, evidence of GID corruption was plain to see, according to Dr. Moore, but few Jordanians have dared to talk about it. The government also holds what the professor referred to as “sham trials”, putting a few GID officials on hourly arrest in nice areas of the country to create a thin veneer of justice without actually doing anything to end the corruption.
…
“In Washington, the belief is the GID inoculates against the threats to the monarch”, he said. “That’s confusing cause and effect. They’re creating the very effects that they’re built to thwart.”
The picture Dr.Moore paints doesn’t make it look like change will come any time soon. Despite a lack of oil, the resource that has filled the coffers of so many of its surrounding countries, Jordan is able to secure favourable loans thanks to the massive aid the U.S sends it. The GID has used that money to build deep levels of control that Jordanians would imperil their ability even to get medical care were they to speak out or rise up. By destroying Jordanian society in this manner, the agency has made itself, in Dr Moore’s view, the world’s most effective “coercive force” protecting an authoritative regime”.[4]
[4] ‘The Spies Who Built Jordan’, Nick Santangelo, 16 April 2018, referring to Pete Moore’s research, “What the Best Costs: Jordan’s Secret Police, America, and the Long War”, Peter Moore, Political Science, Case Western Reserve University, Cleveland, OH,
The applicant’s narrative of how the intelligence organisation in Jordan operates reflected much of Dr Moore’s findings. Other Human Rights information points to the historical struggle of human rights agencies to hold GID to account:
Since 2000, Jordan’s main intelligence service, the General Intelligence Department (GID), has carried out waves of arrests of political dissidents – mostly Islamists – in response to alleged plots, demonstrations, and protest activities linked to the Israeli-Palestinian conflict and United States policies in Iraq. The GID does not make available information about the numbers or identities of the people it detains. Over this period, according to defense lawyers, the number of arrests has been steadily increasing.
In the aftermath of the November 9, 2005 suicide bombings of three upscale hotels in Amman, which killed sixty people, the government of Jordan said it intended to expand laws defining terrorism as well as the powers of intelligence and law enforcement officials, including the GID. At the time of writing, the government is drafting a counterterrorism law that would expand the powers of the public prosecutor and extend the time suspects can be held without charge from one to two weeks.
During times of heightened reliance on security services, it is especially important to ensure that their agents and officers operate within the framework of international human rights standards. The cases documented by Human Rights Watch in this report point to a broader practice whereby the GID regularly carries out arrests on grounds which appear to have little or no objective evidential support, and holds individuals in its detention facilities for days or weeks, and sometimes months, often in solitary confinement, without charge or on dubious charges. Further, the GID’s authority to conduct law enforcement functions is unclear, as it is nowhere specified in law.
During at least the initial days of detention – one week or more – the GID does not permit detainees to have access to legal counsel or to have visits, such as family visits. Human Rights Watch heard consistent and credible reports that during interrogation officers frequently beat detainees to extract confessions. It would appear that many of those detained by the GID are never brought to trial. Of the cases that do go to trial, they are tried before the State Security Court, a tribunal which does not meet international standards of independence and impartiality.
In routinely carrying out these practices, the GID violates Jordanian law and international human rights law. It does so with effective impunity. No GID officers – all of whom use aliases in their dealings with detainees – have faced criminal investigations or charges in connection with these practices.
This report includes the cases of sixteen individuals who were victims of arbitrary arrest by the GID between 2002 and 2005, were held in solitary confinement and incommunicado detention, and were almost all subjected to cruel, inhuman or degrading treatment, and in some cases torture (additionally, the report highlights illustrative aspects of two other cases – those of Yasir al-Hilala and `Ali Abu Sukkar). In all sixteen cases, the individuals concerned or their families requested help from local human rights organizations or the International Committee of the Red Cross. They told Human Rights Watch that what happened to them is an all-too-frequent occurrence in Jordan and that many others wrongfully arrested do not file complaints with the authorities or seek outside help, for fear of further harassment by the GID. The absence of a publicly accessible record of who is detained in GID facilities and on what grounds they are held prevents Human Rights Watch or any independent organization from being able to reach a definitive conclusion of how many people the GID has detained or interrogated at any given time.
Of the sixteen individuals whose cases Human Rights Watch investigated, the authorities had released eight without charge and five who were charged with offenses but were never brought to trial. Only one of the sixteen received a trial, at which he was acquitted. The remaining two individuals were in detention at the time of Human Rights Watch’s research in Jordan and remain so at this writing. Only one former detainee said he had had access to legal counsel at some stage during his detention. The GID kept all sixteen detainees in incommunicado detention in the initial days of detention and, in some cases, for periods of up to several months.
Fourteen of the sixteen detainees, or their family members, alleged that the GID had tortured or ill-treated them. Two detainees did not allege that they had been subject to abusive treatment, although one said officers threatened him with torture. One detainee said that he tried to complain about his treatment to GID commanding officers, but that the officers denied his request. To Human Rights Watch’s knowledge, the prosecutor general has initiated no criminal investigations, and no individuals have filed civil actions for redress against arbitrary arrest, violation of due process rights, or torture.
Jordan’s obligations under the International Covenant on Civil and Political Rights (ICCPR) include: respect for the right to security and liberty of the person (Article 9); respect for procedural rights when detained including the right to have a court review of the legal grounds for one’s detention and the right to be treated humanely when detained (Articles 9 and 10); and due process if a person is charged with an offense (Article 14). Jordan is a state party to the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, which guarantees the right to be free from torture and ill-treatment, obliges the state to investigate credible allegations of abuse, and requires the state to provide victims of torture with effective redress. Jordan’s practices, and some of its laws, do not fulfill these obligations.
To ensure that law enforcement officials, and intelligence officials in particular, respect human rights, Jordan must undertake institutional reforms. At the executive level, the government must ensure that any power of arrest and detention exercised by the intelligence forces has a legal basis and that intelligence officials and agents fully comply with international human rights standards relating to arrest, detention and due process. Jordan’s parliament should institute legal reforms to guarantee a detainee’s right of access to a lawyer without undue delay, and not only after a person is charged. It should also insist on and exercise public oversight functions with regard to the intelligence and other security forces. The Jordanian lawyers’ and medical associations should work to ensure that medical officials have access to detainees and that they can submit their testimony in court without fear of reprisal. At the judicial level, the High Judicial Council should work to enhance the independence of judges and ensure that only civilian prosecutors try civilians. If officials and agents of the state commit human rights offences, Jordanian prosecutors should hold them accountable.
This report is based on research conducted by Human Rights Watch in Jordan in September 2005 and January 2006. Human Rights Watch visited Amman, Irbid, Zarqa and Rusaifa, interviewing more than twenty persons who had been detained by the GID and their families, in addition to members of parliament, defense lawyers, journalists, human rights activists, and a public prosecutor.
Human Rights Watch has on three occasions written to the GID asking for information and seeking to arrange a meeting, but did not receive a reply. Most recently, Human Rights Watch requested a meeting with GID officials in late June and early July through private channels and through the government’s spokesperson but received no response.[5]
[5] ‘Human Rights Watch’, September 2006, Suspicious Sweeps: The General Intelligence Department and Jordan's Rule of Law Problem: I. Summary (hrw.org).
In an article written on 19 July 2023, it appears that the need to control nationals of Jordan has been extended to targeting dissidents abroad:
It was supposed to be a long overdue vacation, away from the dead of Stockholm's freezing winter. Abdullah (not his real name) had travelled to see friends and family in Amman, where he had lived before moving to Sweden and becoming a Swedish citizen. It turned into a nightmare instead. Jordanian security officials detained, tortured and disappeared him for 10 days, holding him in a cold, windowless basement without informing anyone, in apparent punishment for his ties to Jordanian democracy activists abroad. They deported Abdullah only after the Swedish government intervened. Jordanian authorities never charged him.
Jordan's intelligence services have long had a notorious reputation for surveilling, monitoring and punishing Jordanians advocating for any kind of reform in the country, but Abdullah's abuse in February of this year was one of the first signs that they dared to take such harsh measures against activists living abroad. And he was not alone. DAWN has uncovered at least 10 other cases just this year of transnational repression by Jordan's General Intelligence Directorate (GID), which directly reports to King Abdullah II, one of America's closest allies in the Middle East. The GID, which has a dedicated division to spy on Jordanians, has been harassing, intimidating and punishing activists abroad, whose numbers in exile have increased in the face of the country's spiralling domestic repression. Hundreds of teachers, journalists, academics, lawyers and even truck drivers who protested against corruption and government mismanagement have been arrested in recent years. Jordanians abroad thought they had found freedom and space to advocate for change in the kingdom and establish democracy and human rights organizations like the Gathering of Jordan's Sons in Exile and the Democratic Platform.[6]
[6] ‘Jordan’s King Abdullah Joins Other Arab Autocrats in Targeting Dissidents Abroad, Democracy in Exile Jordan, Sarah Leah Whitston, 19 July 2023, Jordan’s King Abdullah Joins Other Arab Autocrats in Targeting Dissidents Abroad - DAWN (dawnmena.org).
The author also states that “King Abdullah is terrified of activists abroad because they can say out loud what millions of Jordanians cannot: that they deserve respect for their basic human rights and to be government by a democracy”.[7]
[7] ibid.
Further:
One would have imagined that after the international uproar over Saudi Arabia's murder of Jamal Khashoggi in Istanbul, autocratic governments in the Middle East would have realized that the costs of such transnational repression outweighed the gains. But Jordan's government has apparently learned the opposite lesson.
DAWN recently documented the cases of several Jordanian activists targeted abroad by the GID. They are citizens or residents of the United States, Canada, Turkey and Sweden, and we interviewed the activists and their family members and reviewed evidence supporting their claims. DAWN identified two officials at the GID, Raed Samama'ah (known as Abu Walid) and Assem al-Dhmour (known as Abu Hashem), who together with the GID's director, Maj. Gen. Ahmad Husni, supervised the officials involved in these abuses.
These activists described how they have been contacted by GID security agents incessantly pressuring them to quit their pro-democracy efforts in Jordan. The agents have alternately tried to bribe them with money or jobs, or threaten them with prosecution on bogus terrorist-financing charges. The security officials even threatened to retaliate against their family members still in Jordan if they did not stop their activism abroad. According to one Jordanian activist in Canada, one of his own employees based in Toronto, who had no ties to political activism in the kingdom, was arrested in Jordan when visiting for vacation. Since DAWN released its report in late June on Jordan's transnational repression, at least a half dozen other Jordanians have come forward to share their own terrifying experiences dealing with Jordanian intelligence agents, and their fear that their family members at home will suffer as a result.
King Abdullah is terrified of these activists abroad because they can say out loud what millions of Jordanians cannot: that Jordanians deserve respect for their basic human rights and to be governed by a democracy, not an unelected monarch who has broken every single promise he's made to democratize the country. King Abdullah gave eloquent speeches about the new guarantees for free speech and assembly in the Jordanian constitution that he was forced to revise in 2011 in the wake of the Arab uprisings, but then he promptly ignored them. He later amended the constitution again to further concentrate power in his own hands.

No doubt, the Jordanian government will try to spin its abuses using the tired, old claims of unspecified ties to "terrorism," in hopes of deflecting criticism from its chief benefactor in Washington. Jordan is now the second-largest recipient of U.S. military and economic aid, to the annual tune of $1.45 billion. This aid owes overwhelmingly to Jordan's friendly relations with Israel, as well as Jordan's security cooperation with Washington. Jordan's GID works closely with the CIA, sharing intelligence. (The GID also infamously operated as a proxy jailer for the CIA's secret "rendition" program after 9/11, interrogating and likely torturing suspects at its own detention centers.)
Unlike other abusive but oil-rich monarchies in the region like Saudi Arabia and the United Arab Emirates that rebuff any criticisms from Washington, tiny and aid-dependent Jordan really isn't in a position to push back if the State Department were to insist on meaningful reforms, like ending the use of counterterrorism funding to persecute peaceful activists. The only question is whether the White House is actually committed to such reforms, beyond its superficial USAID funding of various Jordanian organizations—typically backed by the royal court—that pretend to promote independent civil society, democracy and human rights.

For too long, the U.S. government has treated King Abdullah with kid gloves, going along with his public relations mirage as an enlightened reformer. While his agents have been rounding up, detaining and abusing Jordanians in the kingdom, and harassing activists abroad, including in the U.S., the king organized a lavish wedding for his son, the crown prince, in Amman, attended by Jill Biden and other global dignitaries. Congress should recognize that U.S. military and economic support for this absolute monarch represents a far more important gift: political support for his increasingly repressive regime.

If we don't want King Abdullah to subject people here in the U.S. to his brand of Jordanian rule, Congress must act—at the very least, ending its silence, which is perceived as a blessing for his abuses. Congress should also support Jordan's vibrant if long-suffering democracy activists, who alone will be able to pave the path for reforms in a country that could become a model for democracy in the Arab world.[8]
[8] Ibid.

Other country information confirms that there have been no positive changes in the human rights situation in the Hashemite Kingdom of Jordan during the year 2023, and:
Significant human rights issues included credible reports of: torture or cruel, inhuman, and degrading treatment or punishment by government authorities; arbitrary arrest and detention; political prisoners or detainees; arbitrary or unlawful interference with privacy; serious restrictions on freedom of expression and media freedom, including harassment and intimidation of journalists, unjustified arrests or prosecutions of journalists, censorship,, and enforcement of and threat to enforce criminal libel laws; serious restrictions on internet freedom; substantial interference with the
freedom of peaceful assembly and freedom of association, including overly restrictive laws on the organization, funding, or operation of nongovernmental organizations and civil society organizations; inability of citizens to change their government peacefully through free and fair elections; extensive gender-based violence, including but not limited to domestic or intimate partner violence, sexual violence, and other harmful practices; crimes involving violence or threats of violence targeting lesbian, gay, bisexual, transgender, queer, or intersex persons; and significant restrictions on workers’ freedom of association, including threats against labor activists.[9]
[9] Country Reports on Human Rights Practices for 2023, United States Department of State, Bureau of Democracy, Human Rights, and Labor, Jordan.
Other country information reflects current developments in the political sphere in Jordan which are of concern:
(Washington D.C., June 6, 2024): The Jordanian government should end its campaign to quash political opposition in the country by banning political parties and detaining, harassing and intimidating members of opposition parties, said DAWN today.
A few months ahead of the 2024 parliamentary election, Jordanian courts have upheld the government's dissolution of 19 political parties, under the 2022 Political Parties Law, almost half of the country's political parties, under the guise of failed compliance with continuously changing administrative rules, while the government has shut down one party's media production studio, prosecuted party leaders for criticizing the government, and imprisoned some even after the completion of their sentences.
"Jordanian authorities should end their efforts to hollow out the country's civic space by creating ever-shifting goalposts for compliance under the country's onerous, new political parties law," said DAWN's Executive Director, Sarah Leah Whitson. "Allowing bureaucrats to arbitrarily shut down political parties is a deliberate strategy to preclude democratization in the country, depriving Jordanians of their political rights and heightening political polarization."
Jordan is an absolute monarchy and all of the cabinet and the upper house of parliament are appointed by the King. However, the House of Representatives, the Jordanian parliament's lower body, has certain, limited legislative powers, subject to the King's approval. Prior to the current wave of party dissolutions, there were 45 political parties in the country competing for seats in the house of representatives representing a diverse range of political orientations; as of today, only 26 parties remain. No party, and no coalition of parties, has a majority in parliament. Some parties describe themselves as "opposition parties," meaning they are critical of the King's policies.
The government passed the 2022 Political Parties Law, the fifth such law in 30 years. It gives the government unilateral power to dissolve parties under the guise of failed compliance with the law's continuously changing administrative rules. It creates onerous, arbitrary requirements on parties, demanding, for example, that any party have a minimum of one thousand founders, distributed over six counties, with at least 30 people from every county, 20% between 18-35 years old, 20% women, and one person with special needs. Paragraph B of Article 11 says that any dissolved party can continue operating as a party in preparation for registration and reapply for a license after six months of its dissolution.[10]
[10] ‘Jordan: End Closure, Harassment of Opposition Police Parties, 6 June 2024, Dawn, Jordan: End Closure, Harassment of Opposition Political Parties - DAWN (dawnmena.org).
The applicant spoke unprompted about how he had not actively searched for a group of Jordanian exiles in Australia due to his lack of trust of people and because he considered that his family in Jordan would be punished if he joined groups against the monarchy in Australia. In any event, the applicant recounted that his fellow Jordanians in the Australian community do not want to associate with him when he does express his views due to their fear of being imputed with the same political beliefs. The Tribunal is satisfied that on return to Jordan, he will be required to live under the same oppressive regime, and that the applicant will continue to express his views which are an innate part of him and there is a real chance that he will be persecuted again on account of such views.
It was also argued at hearing that the applicant now has a profile as someone with severe mental health illnesses and that he would find it difficult to find assistance for his condition in Jordan and therefore belongs to a particular social group, being “people with significant mental health issues”. The Tribunal is not convinced that were the applicant to have a profile as someone who was mentally unwell but did not face a real chance of persecution under s.5J that the applicant would not be able to find some medical assistance of some kind in Jordan. A 2020 World Health Organization report on Jordan acknowledges that the health system in Jordan is vulnerable and continues to face increasing demand associated with demographic and epidemiological issues, nevertheless it is one of the top five medical tourism providers in the world.[11] And, according to WHO there is a strong psychiatry program in the country, with resources focussing on the tertiary services operating through bio-medical approaches.[12]
[11] ‘Jordan, WHO Special Initiative for Mental Health, Situational Assessment’, World Health Organization, who-special-initiative-country-report---jordan---2020_414542ae-ce5d-4f1d-bf40-fe1b1cbf8003.pdf.
[12] Ibid.
The applicant is not someone, however, who happens to have debilitating mental health struggles. He has developed those issues due to torture, surveillance, monitoring of his movements in and out of Jordan and being held in suspicion of being a threat to the Jordanian state. As such, the essential and significant reason for the applicant’s claimed fear is his political opinion.
The Tribunal therefore accepts that the applicant’s profile as a political dissident who is against the monarch continues to be active and would continue to prevail in Jordan attracting adverse attention from the authorities were he to return to Jordan now or in the reasonably foreseeable future. The Tribunal finds that he faces a real chance of being interrogated, imprisoned, tortured, and would face serious harm.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Rosa Gagliardi
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.
…

[2024] AATA 4195

23 August 2024

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