1413727 (Refugee)

[2015] AATA 3329

1413727 (Refugee) [2015] AATA 3329 (25 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1413727

COUNTRY OF REFERENCE:                  Jordan

MEMBER:Robert Titterton

DATE:25 August 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 25 August 2015 at 4:18pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a Jordanian, applied for the visa [in] January 2014. [In] August 2014 the delegate refused to grant the visa.

3. The applicant appeared before the Tribunal on 11 May 2015 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The criteria for a protection visa are set out in s.36 of the Act and Sch 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

2. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

3. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

4. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).

5. In accordance with Ministerial Direction No.56, made under s 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

ISSUE

1. In his written submissions, in a statutory declaration of 20 January 2013 and in oral evidence at the hearing, the applicant indicated that he brings his application for protection only on the complementary protection criterion. Accordingly, the principal issue in this application is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Jordan, there is a real risk he will suffer significant harm.

EVIDENCE

1. The documents relied on by the applicant included the following documents.

2. First, the application for a protection visa received by the Department [in] January 2014. That applicant relevantly states:

   I left Jordan to escape threats that were made against me by the family of a female with whom I had an extra marital affair. I will be providing a statement in due course. . .

   In our culture such relationships are not acceptable and the tribal culture which most Jordanians subscribe to dictate that those who have offended conservative traditions must be severely punished. . . .

   I fear that if I return to Jordan the family will carry out their threats to physically harm me.

3. Secondly, a statutory declaration of the applicant dated 20 January 2013. That statement says that the applicant is reliant on the complementary protection criteria, “as I fear suffering significant harm, namely, [to] be subjected to torture, or to cruel or inhuman treatment or punishment, or degrading treatment or punishment”.

4. In summary, the applicant states that he was born on [date], is Jordanian, and has [number of] dependent children. He is a Sunni Muslim and a [specified] occupation. he arrived in Australia [in] December 2013. He had previously travelled to Australia on a [temporary] visa in June 2013. Soon after his return to Jordan from that trip he began an extramarital relationship with [his partner]. In early October 2013, her brother overheard her talking to the applicant on the phone. She was beaten. As a result of that beating, her brothers obtained the applicant’s telephone number and identity. The applicant then received a telephone call from a brother who warned him that he could expect payback for his action of dishonouring the family. After the initial call, he continued to receive calls from private numbers, threatening that he would be killed. He also received numerous text messages containing the same threats.

5. The following day, the applicant received a telephone call from the police who informed him that [his partner] was with them and that he should come to the police station. Fearing that he would be detained he did not attend as ordered. He was granted a [temporary] visa [in] November 2013 and hoped to depart immediately but his trip was delayed due to a serious illness with his young child. [In] November 2013 he received a telephone call from a friend saying that a court order had been issued against him. He says that the implications of this are that he will be arrested on his return. He says that [his partner] has been placed in women’s detention for her own protection. He says that although the police are prepared to protect him, such protection is only available if he too is placed in detention, but he is not prepared to do that. He says that in protective detention he would be subjected to significant harm including cruel or inhuman punishment or degrading treatment or punishment and have to suffer under safe and unsanitary prison conditions.

6. Thirdly, a translation of a document dated [in] November 2013 issued by the Jordanian Ministry of Justice stating that:

   [Details deleted.]

7. Fourthly, a bundle of newspaper and Internet articles relating to “Honor Killings”.

8. Fifthly, a travel history of the applicant for the period 1988 to 2013. This schedule, prepared by the applicant’s migration agent, indicates that the applicant made [multiple] trips outside of Jordan in that period including trips to [several countries and regions].

9. Sixthly, a copy of the decision of the delegate [in] August 2014, provided to the Tribunal by the applicant. In summary, the delegate found that the applicant was not a credible witness of truth, and that his claim of having an affair with a married woman to be a fabrication for the purposes of applying for a protection visa. Nor was the delegate satisfied when the applicant’s claims constituted a ground under the Convention.

10. Seventhly, further country information and submissions provided to the Tribunal by the applicant through his agent on 19 May 2015 (that is, after the hearing). The agent submits that independent evidence confirms that not related crimes remains an ubiquitous and pressing problem in Jordanian society while it is considered that most violence is perpetrated against women, violent retribution against males who are perceived to have brought dishonour to the females relatives is not uncommon, in some cases necessitating Jordanian law to take extraordinary protective measures such as confinement of the male.

11. It is submitted that the applicant fears he will be detained not merely for the provision of protection but also for having breached article 282 of the Jordanian Penal Code. In that respect a letter is provided by [an] advocate [named] dated [in] May 2015. That letter, in summary, states that any illegitimate relations between a man and a woman is a criminal act pursuant to Article 282 of the Jordanian Penal Code with a punishment of one to three years in gaol. The letter states that punishment is mandatory. The letter also states that according to “Jordan Law”, the action of any husband:

    who surprisingly finds his wife of his descendants, a sentence, siblings, brothers and sisters in action on the list of reprisal in an illegitimate bed, then kills her immediately for her partner in that action for both of them, or assaults any or both of them in a way leads to injury, wound, permanent disability or death – is considered as an excuse mitigating the punishment; however, the wife shall benefit from the excuse mitigating the punishment should she surprisingly finds her husband’s in action of adultery crime or in an illegitimate bed at the matrimony house, so she kills him immediately for his partner or both of them or assaults any for both of them in a way leads to any injury wound, permanent disability or death.

Evidence at the hearing

1. The applicant gave oral evidence at the hearing. Broadly, he gave evidence consistent with the evidence set out in his statement. In summary, he told me that he was married in 2002 and has [number of] children, all of whom are still at school. He was separated from his wife for about [number of] months but reconciled with her when he made a trip to [Country 1] in 2014. They are now “back together”, and he hopes to bring his wife and children to Australia. He said that he separated from his wife in [month] 2012, as she was not clean enough (“stinky”), talked too much, and wanted too much money. But when he re-met her in [Country 1] she was different.

2. The applicant has travelled widely. A note filed by his agent shows that he has travelled abroad on [multiple] occasions in the period 1988 to 2013. After his last trip to Australia, in August/September 2013, he returned to Jordan via [Country 1]. Shortly after he arrived back in Jordan, he received a telephone call from an unknown number. He rang the number back a couple of hours later, it turned out to be [his partner]. They started talking on the phone every day, in every night, and they met for the first time about a week later. [His partner] was [age] years old, and had been divorced for [number of] years. She started sending the applicant photographs of her naked, after which they started a sexual relationship.

3. They met for a total of four times in a one to two week period, with the whole relationship lasting about 40 to 50 days.

4. At the end of September or early October 2013 they were talking on the phone as usual late at night. After about an hour of chatting he heard someone go into [his partner’s] room and she started “screaming her head off”. He heard [his partner] being beaten following her screaming. He heard his name mentioned and then the phone call was terminated.

5. The following morning, he received telephone call from the police. They asked him to attend the police station in [a nearby town]. The applicant was frightened and refused to go. Instead he ran away to stay at a friend’s farm. He started getting telephone calls from unknown numbers with the caller saying words to the effect “[Applicant name], we know you, we will get you”.

6. The police kept calling him too, but he never answered their calls. He was afraid of being placed in protection by the police. In this respect he says he spoke to a Jordanian lawyer two weeks ago, who told him that both parties in an illicit relationship, will go to gaol for between one to three years.

7. He has never been able to speak to [his partner] again. He tried to send a friend to visit but was not able to do so.

8. He says that [in] November 2014 received a call from a friend who worked at the court. The friend told him an order had been issued for his arrest and for the applicant to be put in jail. He says that he departed the country that night.

9. He later obtained a copy of the order. The order is set out at par [16] above.

10. The applicant told me that he is concerned that if he returns he will be forced to marry [his partner], and that maybe she is pregnant. He is worried that he will be prosecuted under the Penal Code for having illicit relations with [her]. He says that having brought shame on her family, the family will want revenge.

11. He fears that, if he returns to Jordan, he will be attacked or killed by her family, and would also be at risk of threat from the police. I discussed this with him at the hearing, but it was far from clear what he was worried about. I say this because I asked him why he would be at threat from the police. He said that he was guessing, and that he was not sure. He said that if [his partner] was pregnant, they would put him in gaol. But he also said that he used protection and that she was not pregnant.

CONSIDERATION AND FINDINGS

Is the applicant a citizen of Jordan?

1. The applicant has consistently claimed to be a citizen of Jordan. Having sighted his original passport issued by the Hashemite Kingdom of Jordan I find that Jordan is his country of reference for the assessment of his refugee claims, and the receiving country for the purpose of his complementary protection claims.

Does the applicant have a right to enter and reside in any other country?

1. There is nothing in the evidence to suggest that the applicant has a right to enter and reside in any country other than Jordan. Therefore, I find that he is not excluded from Australia’s protection by s 38(3) of the Act.

Factual Findings

1. Various decisions of the Federal Court of Australia[1] have held that when determining whether a particular applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims made. This may involve an assessment of the credibility of the applicant. When assessing credibility, the Tribunal should recognise the difficulties often faced by asylum seekers in providing supporting evidence and should give the benefit of the doubt to an applicant who is generally credible but unable to substantiate all of his claims. However, the Tribunal is not required to accept uncritically each and every assertion made by an applicant. Further, the Tribunal need not have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. Nor is it obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality.

   [1] See for instance Randhawa v MILGEA (1994) 52 FCR 437; Selvadurai v MIEA & Anor (1994) 34 ALD 347 and Kopalapillai v MIMA (1998) 86 FCR 547.

2. Bearing those observations in mind, I do not find the applicant to be a credible witness. This is for a number of reasons which, cumulatively, cause me to doubt his believability.

3. First, during the hearing, I found him frequently to be non-responsive in relation to some aspects of his claims, and some of his evidence to be unconvincing. For instance, the applicant told me that he was separated for [number of] months. This cannot be correct, as he told me that he separated in [month] 2012, and remained so until reconciled in September 2014. In other words, he was separated for over 2 years.

4. Secondly, on two important issues he gave contradictory evidence.  The first example relates to the initial phone conversation. In his statement, the applicant says that [his partner’s] brother became extremely violent to her. But the applicant told me (and the delegate) that there were two men involved. I asked him to explain this discrepancy. His response was that he had told the agent that there were two people present and that the agent had made a mistake, or maybe he (that is the applicant) did not notice because of his glasses. He also said that he did not read the statement that much as he was the owner of the story. In short, the applicant had no convincing explanation for this discrepancy.

5. The second example is that during his oral evidence the applicant told me that the night after [his partner] was attacked, the following morning the police rang him, and that he then immediately went to live on a farm, where he remained in hiding. If he went out at night he would disguise himself so he would not be recognized. But in his statement he did not refer to the farm at all, and said that he had relocated several times.  When I put this difference to him he said that “that is what I meant”. Again, I do not find this to be a convincing explanation.

6. Thirdly, I find that some of the applicant’s evidence was entirely speculative, for instance that [his partner] may be pregnant, notwithstanding that he used protection during the relationship.

7. Fourthly, I find that some of the applicant’s evidence was exaggerated; for instance he told me that an order had been made for his arrest. However, the document he claimed to be an arrest order, the order dated [in] November 2013 issued by the Jordanian Ministry of Justice appeared to be a transfer order to place the applicant on protection to secure him against attacks from [his partner’s] family. I do not find or accept that this document is supportive of a claim of significant harm if he returns to Jordan.

8. In those circumstances, I am not prepared to give the applicant the benefit of the doubt and I make the following findings.

9. The applicant was born in [date of birth]. He is Jordanian, married and has [number of] children.

10. He is a Sunni Muslim.

11. I do not accept, or find, that in September 2013, he began an extramarital relationship with [his partner], in the circumstances he describes. I find his account that he returned a call to an unknown telephone number and then commenced a relationship within to be implausible.

12. I do not accept, or find, that in early October 2013, her brothers overheard her talking to the applicant on the phone, and that she was subsequently attacked by her brothers.

13. I do not accept, or find, that as a result of that beating her brothers obtained the applicant’s telephone number and he received telephone call from a brother warning him that he could expect payback for his action of dishonour in the family.

14. I do not accept, or find, that after the initial call, he continued to receive calls from private numbers, threatening that he would be killed. I do not accept that he received numerous text messages containing the same threats. This was not claimed in his statement

15. I do not accept, or find, that the applicant received a telephone call from the police who informed him that [his partner] was with them and that he should come to the police station.

16. I do not accept, or find, that [in] November 2013 he received a telephone call from a friend saying that a court order had been issued against him.

1. In the circumstances, I do not find or accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant  being removed from Australia to Jordan, there is a real risk he will suffer significant harm.

Convention

1. Accordingly, I do not accept, or find, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Jordan, there is a real risk he will suffer significant harm.

2. I note that the applicant did not claim protection pursuant to s 36(2)(a) of the Act, that is owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

3. In my view, given the above findings, there is no basis for finding that the applicant faces persecution he returns to Jordan on the grounds of his race, religion, nationality, political opinion or membership of a particular social group. I do not find that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention.

4. In the circumstances I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

CONCLUSION

1. For the reasons set out above I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

2. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

1. The Tribunal affirms the decision not to grant the applicant a Protection visa.

R. C. Titterton
Member