1416085 (Refugee)

[2016] AATA 3106

1416085 (Refugee) [2016] AATA 3106 (18 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1416085

COUNTRY OF REFERENCE:                  Jordan

MEMBER:Rodger Shanahan

DATE:18 January 2016

PLACE OF DECISION:  Sydney

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

Statement made on 18 January 2016 at 6:38am

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 citizen of Jordan, applied for the visa [in] October 2013 and the delegate refused to grant the visa [in] September 2014.

3. The applicant appeared before the Tribunal on 2 December 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

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

   CLAIMS AND EVIDENCE

   PV Application

5. The applicant claimed that he came from a conservative tribe that forbids extra-marital relationships.  He met and wished to marry a girl but her father refused because she had already been promised to [a relative].  They continued to see each other and planned to elope.

6. The girl’s family learnt they were seeing each other and accused them of having a sexual relationship, forcing her to have a virginity test.  Her brothers threatened to kill him to restore the family honour.  He escaped and hid with friends while his father tried to reason with the girl’s father and offered again to marry the daughter but the family refused and claimed that only the spilling of blood would satisfy them.  The mayor also tried to intervene but with no success.

7. The applicant escaped to Australia [number] days after being granted a visa.  He then learnt that the girl’s family had initiated criminal proceedings against him for defilement and committing indecent acts.  His father has engaged a defence lawyer.

8. He still fears that his safety will be threatened in Jordan and the legal proceedings used to validate any impending acts of aggression.  He may also be subject to imprisonment for three years if the proceedings are successful.  The girl’s family would still seek to harm him.  He would also be subject to cruel and degrading punishment in jail.

   RRT Hearing

9. The applicant feared he would be killed by the family of a girl with whom he had sexual relationship and this had dishonoured the family.  In these circumstances the boy and girl; would be killed.  He agreed with everything that he had included in his claim.  He had no other claims.

10. The girl was named [Ms A].  He asked her family to marry him but they refused and said she was engaged to a relative.  [Ms A] told him this was an excuse as her family didn’t want her to marry him.  They began meeting in secret and started a sexual relationship.  Her family took her to a doctor for a medical check and they found she wasn’t a virgin.  They did this because they monitored her and knew they were still meeting – this prompted them to take her to the doctor.  They checked her phone and recognised his number, sent someone to follow her and saw they were meeting.

11. She sent him a message after the incident in January 2013 saying her family had found out and that he had to leave or else they would kill him or harm him.  He went to stay in a relative’s house in Irbid.  After a while he went home to [his home town] to collect some clothes, but he learnt they were monitoring his house and chased him but he was able to get away.

12. They had been to his family in his absence and threatened them.  He was asked and said that he wasn’t stopped from going to [his home town].  He went there in a secret manner and was asked what he meant.  He claimed that he went there with a lot of caution, but they saw him and followed him.  They didn’t come to the house when he was there nor did they stop him when he was leaving.

13. He claimed that they waited for him to leave so no one would know who killed him.  His father had told him that his family continuously received threats even up to now.  The applicant left his house in [his home town] by walking to a bus stop and then took a bus to Irbid.  People followed him in a car but he didn’t notice them.  When he got out of the bus, they had pulled up next to the bus, called out at him and he saw them and ran away.  One got out of the car and called to him but he ran away.

14. He was asked why one of them would yell out at him to alert him as to their presence.  He claimed they did this so he knew he had to be submissive and pay a price for his actions.  He confirmed that there was still someone inside the car but he didn’t follow him because he ran away between the buildings and it was too difficult to follow him by car.

15. He was asked why people would not follow him on foot to find out where he lived and perhaps waited for a quiet time to capture him later.  The method he described appeared to be quite ham-fisted.  He claimed he didn’t know but they may have been too angry and wanted to do it quickly.  He was asked why they didn’t kill him at his house to send a message and he claimed that he didn’t know.

16. After this he heard there was [an international event] in Australia and saw this was his opportunity to leave.  He had no intention to [attend the event] but intended to protect himself because he knew Australia believed in human rights and he just needed to explain his situation to the authorities and he would be protected.  He intended to seek protection but he didn’t have an idea as to what type of protection he would apply for.

17. He was asked, once he heard about the [international event] and decided he would come to Australia, what research he did in Jordan as to apply for protection in Australia given there are Arabic-language websites outlining this.  He claimed he didn’t do specific research and he was also in a stressed state.  He was asked why as a university-educated adult who had chosen to come to Australia he had done no research into his protection options in Australia, and he claimed that he chose Australia because of the [international event] and had a chance to come here.

18. He worked in Amman from Irbid until he came to Australia.  He did this in a difficult way by taking several buses.  He was always fearful.  Asked how long he did this he claimed he did this until he was granted a visa – it was only a short time.  Asked if it was six months he agreed it was six months.

19. He used to see the girls’ relatives in Amman but would avoid them.  They also came to his parents’ house.  He was asked why they didn’t wait for him at the bus stop in Irbid given they knew this was where he lived.  He claimed there were several bus stops in Irbid and he would use different bus stops.  They never found him there.

20. He came to Australia and was advised that a court case had been commenced against him. and the sentence could be between three to seven years.  The family would kill him once he had been released.  The case had been heard and he was sentenced to three years.  He was asked to provide any documentary evidence relating to the claim.  He claimed he had provided a document showing he was wanted.

21. It was put to him that the document didn’t mention the charge, what he had been sentenced to, and didn’t include the address.  It appeared to be a strange court document.  He claimed the document was like a summons.  He was advised that the document he gave was a sentencing document, not a summons.  He then claimed that he didn’t know about the laws.  It was put to the Tribunal member wasn’t a lawyer either but it was obvious the document he referred to wasn’t a summons, it was a judgment.  He then claimed that he didn’t say he had been sentenced, his lawyer told him what the sentencing was.

22. He then claimed that he didn’t know what the sentence he had been given was.  He had received the document from the court.  He had a lawyer in Amman and he had received all of his documents via the lawyer, who had also represented him in court.  He was asked if the embassy in Amman visited the lawyer, he would hold all the original court documents relating to his case.  The applicant was willing to allow the embassy to contact his lawyer in Amman.

23. He then claimed he was afraid that information may be conveyed to the court or the government and this may impact on his chances for asylum.  It was put to him that it should not be conveyed to anyone outside the lawyer.  The Tribunal was concerned at the veracity of the documents: they could have been produced on any computer, the letter from the lawyer was undated, the court document had no court address and didn’t refer to the crime or his sentence and the Tribunal was concerned that the documents may be fraudulent.  He had also signed a statutory declaration that he had been the target of legal proceedings.   

24. He claimed that his family could send the original legal documents to be examined and it was put to him that the embassy could check the documents’ veracity.  He claimed he would not give the embassy permission to look at his documents, but his lawyer could be contacted by phone.  It was put to him that there was no way of confirming who would be at the other end of the phone. He did not know the address of the lawyer but he could send it in the future.  He didn’t know why things were missing on the letter as this was the way he had been given it.

25. He applied for protection in October 2013 having arrived [in] June.  Asked why it took him four months to apply for protection, he claimed he didn’t know anyone and had language problems.  He met some people who told him to see a lawyer and he went there.  It was put to him that four months was a long time and given he came here specifically to apply for protection as he feared being killed it was strange that he took four months to do so.

26. He claimed he was confused, he was new and was afraid because he had exceeded his visa and may be deported.  He asked people about who he should see.  He had a visa for one month and he was asked what he did in this period given he was a university-educated adult who knew how to use a computer and yet he did nothing.  His actions in Australia did not appear to be in line with someone who came to Australia specifically to seek protection, but they could be in line with someone seeking better economic opportunities.

27. He claimed that he wasn’t trying to leave Jordan for economic opportunities; it was a problem with his language difficulties.  He had been employed in Jordan and didn’t need to improve his economic self.  [Ms A] studied [subject] at university but knew nothing about her currently.  Because of tradition and what he had heard from his father she had definitely been killed.  The mayor (who had written a letter submitted by the applicant) had passed away five or six months previously.

28. The applicant was offered an opportunity to submit court summonses and court findings post-hearing.  GID also offered a certificate that showed whether the applicant had been charged and the punishment and this was normally given on request.  He claimed this was correct and he had submitted this with the visa application but [Ms A’s] family had only sought charges after he had submitted his visa application.  The Tribunal was concerned that the story he gave was fabricated and the documents didn’t appear genuine.  A GID clearance that showed his charges would carry some weight in supporting his claim.  The applicant claimed that he understood the concerns.

29. He was also advised that the Tribunal was unaware of any independent country information that indicated the male member involved in an honour issue were killed or prosecuted.  He was asked to provide any such information that may support such a claim. 

    CONSIDERATION OF CLAIMS AND EVIDENCE

30. The applicant arrived in Australia on a visitor’s visa [in] June 2013 (valid until [July] 2013).  He applied for protection [in] October 2013.  The applicant is a [age] year-old single Jordanian national and his application will be assessed as such.  He claimed that he would be imprisoned and suffer cruel and degrading punishment and also killed by the family of a girl with whom he had sexual relations if he were to return to Jordan. He had no other claims.    

31. In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth.  Nor can significant inconsistencies or embellishments be lightly dismissed.  The Tribunal is not required to accept uncritically any and all claims made by an applicant.

32. I found the applicant’s evidence regarding his claims to lack credibility.  For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and find that he fabricated his entire claim and lied under oath in order to be granted a protection visa.

    Relationship with Girl

33. I do not accept that the applicant ever had a sexual relationship with a girl while he was in Jordan.  Despite having a sexual relationship with a girl in Jordan whom he hoped to marry he presented no evidence of the existence of such a person – no correspondence between the two, nor any photos of them together. 

34. His actions following the warning from the girl that her family had found out about the alleged relationship are also not those of someone who has been warned that a group of people are seeking to harm or kill him.  Despite claiming that his family had been visited by them and threats issued to them (Including since the time he had left the country), and that he had been followed by the family to Irbid and in Amman, he made no attempt to leave the country.

35. Country information indicates that Jordanian passport holders are able to enter over 40 countries without a visa or being issued a visa on arrival.  Amongst these are UN refugees Convention signatory countries in which he could have claimed asylum such as Armenia or Turkey.[1]   The fact that he did not do this is not indicative of someone fearing death at the hands of a vengeful family.

    [1] >

    Not only did he make no attempt to leave the country, he continued to commute between the same residence in Irbid and his work in Amman using public transport from the time the threat was allegedly issued in January 2013 until he came to Australia in June 2013.  At no time did he move residence or change his workplace or routine.  These are not the actions of someone fearing retribution from a family actively searching for him to kill him.   

36. I do not accept that he had evaded his pursuers previously or that he was able to avoid them by changing bus stops; I find both claims to lack credibility.  Despite allegedly waiting for him at his house at [his home town], they let him enter the house, pack his bags, walk to the bus stop and catch a bus to Irbid without once attempting to detain him.  I do not accept that they did this because they didn’t want people to know who killed the applicant.  This is inconsistent with his claim that they had visited his family and threatened them, and that his father and the mayor tried to reason with them.  None of this would indicate that there was any secret regarding who sought to kill the applicant.

37. Having been secretly trailing the bus in a vehicle and with the advantage of complete surprise, the attackers then allegedly alerted the applicant once he got off the bus by calling out to him, thereby allowing him to escape on foot.  The attackers could have followed him to his residence so they knew where he lived and chosen a time and place of their choosing to attack but yet did not.  I find his description of the alleged attack to be so fortuitous as to lack credibility.  I do not accept that they were too angry and wanted to do it quickly given they had done nothing at his house in [his home town] and instead patiently followed him all the way to Irbid, which would indicate a degree of deliberateness inconsistent with their subsequent actions.     

38. Once he arrived in Australia, he also displayed a degree of nonchalance inconsistent with the threat he claimed to face and the stated reason for coming to Australia (which he claimed was to seek protection, not attend the [international event]).  He didn’t apply for protection until more than four months after his arrival in Australia.  I do not accept that the delay was because he didn’t know anyone here and had language difficulties.  He is a university-educated adult who has computer skills that make him capable of searching the internet for information in his own language about seeking protection in countries.

39. Given he claimed to have had a fear of being killed since January 2013 and had the wherewithal to use [an international event] in Australia as a way of gaining a visa to enter the country allegedly so he could claim protection, it is reasonable to believe that he would have done some research into the process before he left Jordan, let alone once he arrived in Australia.    

40. I also do not accept that the applicant has been charged with a crime in Jordan.  There is no independent country information available to the Tribunal, nor was any provided by the applicant even though he was asked, that would indicate males involved in so-called ‘honour crimes’ are either killed by the girl’s family or prosecuted.

41. I have taken into account the documents provided in support of the claim, however lend them little weight.  The letter purportedly from his father is typed and could have been produced on any home computer.  His father is also a subjective source.  The letter allegedly from the mayor is also typed and the same concerns exist; the font also appears to be identical to that of the father’s letter.

42. The letter allegedly from the applicant’s lawyer (folio 47) was undated and had no address for the lawyer’s office on it.  It mentions charges having been laid, but doesn’t refer to what articles of the penal code they refer to, only that they are for ‘defilement’ and ‘committing indecent acts’ for which the punishment is between three to seven years.

43. I also do not place any weight on the legal documents that he subsequently provided that he claimed were summonses, a ruling sentencing him to three years imprisonment and a letter allegedly from the [court] in [his home town] advising that the applicant had been sentenced to three years imprisonment.

44. The documents are all photocopies of the original and could have been produced on any home computer.  Nowhere does it mention what the Articles under which he has been charged are, although it does refer to other general Articles in the text.  The alleged decision is very brief and refers to him having been found guilty of making [Ms A] lose her virginity and sexually assaulting her after convincing her that he would marry her.  This is different to what the solicitor’s letter said, however there is an offence in the Jordanian Criminal Code (Article 304) that says ‘Whoever seduces a virgin over 15 years of age with the promise of marriage and made her lose her virginity shall be punished’[2].  The punishment for such a crime (unless a harsher sentence is warranted) is between three months and one year. 

    [2] Article 304 of The Jordanian Penal Code for the Year 1960 type="1">

45. The sentence is different to the punishment of between three and seven years that the solicitor’s letter and the applicant claimed to be the case, while the alleged decision makes no mention of the Criminal Code Article (304) under which he has charged, nor under what circumstances the judge has tripled the maximum sentence the law stipulates for the crime. The fact that [Ms A’s] family has also had the applicant charged at the same time as it seeks to kill him is inconsistent. If the family sought to avenge the girl’s honour, it makes little sense that they would publicise her case by taking it to trial.

46. Because I have not accepted that such a relationship ever took place or that there was a court case relating to it, it follows that I do not accept that the applicant faces imprisonment on return to Jordan.

47. Having considered the applicant’s evidence both individually and cumulatively, for the reasons set out above the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.

    Complementary Protection

48. Because I do not accept that the applicant ever was in a sexual relationship with a girl called [Ms A], that he has been threatened to be killed or hurt by anyone, or that he has been charged and sentenced to prison because of the relationship I am not satisfied that there are any substantial grounds for believing that there is a real risk of significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).

49. Therefore, I do not 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 that he will suffer significant harm.

    CONCLUDING PARAGRAPHS

50. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

51. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

52. 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

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

    Rodger Shanahan
    Member

    
    

    ATTACHMENT A – RELEVANT LAW

    1. The criteria for a protection visa are set out in s.36 of the Act and Part 866 of Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa.

    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.        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’).

    4.        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 – to the extent that they are relevant to the decision under consideration.