1417644 (Refugee)

[2016] AATA 3389

1417644 (Refugee) [2016] AATA 3389 (29 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1417644

COUNTRY OF REFERENCE:                  Jordan

MEMBER:Shahyar Roushan

DATE:29 February 2016

PLACE OF DECISION:  Sydney

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 29 February 2016 at 5:07pm

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, a citizen of Jordan and a Christian, arrived in Australia [in] December 2012 on a [temporary] visa. He applied to the Department of Immigration (the Department) for a Protection visa [in] March 2014.

3. The applicant essentially claims that he is gay and fears serious harm if he were to return to Jordan.

4. The issues in this case are whether the applicant has a well-founded fear of persecution for one or more of the five reasons set out in the Refugees Convention in Jordan, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Jordan, there is a real risk that he will suffer significant harm.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Protection Visa Application

5. In his application form, the applicant claimed that he is gay. He claimed that before he came to Australia members of his community had become suspicious of his activities He was involved in a brief relationship with a neighbour, [Mr A], who was perceived to be gay and with a married man, [Mr B], who resided in Amman. In Australia he has been living his life openly as a gay man and has informed his sister that he is gay.  He fears being harmed if he were to return to Jordan for the reason of his sexual orientation.

6. The applicant was interviewed by a delegate of the Minister [in] September 2014. The delegate refused to grant the visa [in] October 2014, on the basis that he did not find the applicant’s evidence to be credible.

   Application for Review

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

8. In support of his application for review, the applicant’s representative provided a submission in relation to the facts and the applicable law. The submission also referred to news articles and reports relating to the situation of homosexuals in Jordan, honour killing in Jordan, the growing threat of Islamist groups in Jordan. The following documents were also submitted in support of the application:

   ·A number of statutory declarations from the applicant’s friends and acquaintances, attesting to the applicant’s sexual orientation;

   ·Numerous photographs of the applicant at gay venues posing with or embracing other males;

   ·Copies of pages from the applicant’s [social media] profile and chat history;

   ·Evidence of the applicant's subscribing to receive electronic mail from [gay publications];

   ·An Initial Psychological Assessment Report, authored by [a] registered psychologist. According to the report, the applicant was referred to [the psychologist] by [a doctor] and was assessed during ‘several’ psychotherapy sessions. Referring to appropriate psychometric assessment tools, [the psychologist] was of the clinical opinion that the applicant’s reported symptoms were suggestive of the presence of high levels of Clinical Depressive symptoms, high levels of Anxiety symptoms that are commonly associated with a diagnosis of Adjustment Disorder with Mixed Emotions (Anxiety and Depression). [The psychologist] stated that the applicant continues to experience these depressive and anxiety symptoms, which have affected his mental health.

9. In a statutory declaration, dated 16 February 2016, the applicant provided a more detailed account of his claims. The applicant provided the following information in his statutory declaration.

10. He was born [in] Jordan. He is Christian. He has [siblings]. He was very close to his sister when he was growing up. He came to Australia when he was [age] years old. He did not know what to do and at that time, as his English language skills were not good, it took some time for him to adjust to a totally new country.

11. From childhood he felt attracted towards males but he did not realise or know why he had such feelings. He did not feel the same way towards females. He was confused and questioned his feelings. 

12. Since he was close to his sister, he told her that he used to feel unconformable when his fellow class mates talked about girls and that he preferred to speak to good looking males. His sister became angry and said she was shocked to hear what he had said. He felt dejected and depressed because he did not know whom to speak about his issues. He was forced to hide within himself. As a result of that, he faced stress. He felt confused and decided that he should get close to women to rid himself of his feelings. At that time, it was the only thing in his mind because he could not digest the shock and anger of his sister.

13. At the age of [age] he decided to have sex with a girl. He felt weird and did not enjoy the experience. His subsequent experience with a ‘call girl’ made him realise that he had no interest in females. [A year later] he met [Mr A], who was his neighbour. He felt very happy when he was with [Mr A]. They gradually became closer and started touching each other and finally ended up in having sex. He really enjoyed the experience and felt that it was the enjoyment he was longing for. He used to go to [Mr A’s] home when his parents were out and they used to engage in sexual activities.

14. One day he was advised that [Mr A] had been arrested at a night party by the Police for engaging in immoral activities. However, he was later released because the police did not have sufficient evidence to charge him. But the news spread in the locality that [Mr A] had been arrested due to his homosexual activities. After that incident, [Mr A’s] family disowned him and his family also later left the village due to social pressure.

15. Due to his association with [Mr A], people started spreading stories that he was sexually involved with [Mr A]. When his family members, including his uncles heard the story that he is gay, they became furious and shouted at him and warned him that he would face serious consequences if he is gay. He begged them and told them he had never had sex with [Mr A] and that they were just friends. The local priest also once confronted him and asked him about his relationship with [Mr A]. The applicant denied being gay.

16. After that incident, he became very depressed and tense and he decided to move to Amman because people in his locality used to tease him because of his association with [Mr A]. He was happy to go to Amman because he thought he would be away from family and could meet males and formed relationship. In Amman, he met [Mr B] in a bar and they started talking to each other. After few drinks, he offered him a lift. After that they decided to meet again at the same bar. They gradually became closer after knowing about each other and started engaging in casual sex. [Mr B] was at that time in his mid-[age]. He was married but told him that he was dissatisfied with his life as he was interested in having sex with males. Whenever [Mr B’s] wife was at work, they used to go to [Mr B’s] house to engage in sexual activity. [Mr B] told him that his wife was suspicious about his sexual preferences. As a result of that, he became very nervous because if anyone got know about their relationship, he feared that the society and his family would harm him. But [Mr B] urged him not to worry. He used to take him to bars and restaurants and once he took him to a Shopping Mall and bought him gifts such as clothes and trainers.

17. In August 2012, when he was walking in the street with [Mr B] they saw a brawl and the police arrived at the scene and asked them whether they had seen anything. The police became suspicious and asked him many questions. Eventually they told him to go and said that they did not want to see him in that area or with [Mr B]. At that time he realised that the police officers might have suspected [Mr B] but he was not sure. When he asked [Mr B], he gave him some money and told him that it was nothing serious. He then went home and did not see [Mr B] thereafter. After his experiences with [Mr A] and [Mr B], he felt that he could not continue to practise his sexuality and felt that it was too dangerous. He decided to go [abroad].

18. He arrived in Australia in December 2012. After he arrived he suffered from depression and consulted a doctor, who prescribed anti-depressants. It took nearly one year for him to find and then engage with Sydney's gay community. He started going to gay clubs such as the [specific club names]. He also found out about [a] gay application and subscribed to it and started chatting with gay males through [that application]. Through [that application], he met gay men for casual sex.

19. The reason for the delay in lodging his application for protection is that when he came to Australia he was only [age] years old and did not know people and places to go to. He did not know that he could apply for protection on the basis of his sexual orientation. In addition, he suffered from depression and stress during that period.

20. He fears that if he returns to Jordan he will face serious harm because he is a gay male from Jordan, an Islamic state. As a gay Christian man, he will be easily identified and harmed because Islamic extremists would perceive him to be promoting Western culture or values. He is fearful of his family and relatives, who will kill him to protect their honour. He will be forced into marriage and this will seriously affect his mental health. In addition, due to his sexual orientation he will be denied access to medical services and employment. He fears that the authorities will not protect him because the authorities continue to give prominence to Islam and homosexuality is a sin under Islam.

21. The society in Jordan is very conservative Muslim society and his relatives are very conservative Christians who do not tolerate gay males. From their perspective, he is a sinner and homosexuality is a serious crime against religion and the society.

    The Hearing

22. The applicant appeared before the Tribunal on 24 February 2014 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr C]. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

    The Relevant Law

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

24. 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).

25. 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.

26. 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’).

27. 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Analysis, Reasons and Findings

28. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

29. The applicant has provided his evidence in a consistent and straightforward manner throughout the process. Overall, the Tribunal found him to be a credible witness.

30. On the basis of the applicant’s evidence throughout the process, the statutory declarations submitted by his friends, the additional supporting material provided in connection with the review, the applicant’s oral evidence to the Tribunal and [Mr C’s] evidence at the hearing, the Tribunal is satisfied that the applicant is gay.

31. The Tribunal accepts that the applicant has been a practising homosexual since the age of [age]. The Tribunal accepts that he was involved in two brief and discreet homosexual relationships in Jordan. The Tribunal also accepts that he lived a clandestine life as a homosexual in Jordan and was not able to openly practise or express his sexuality due to his fear of his family and the wider community. The Tribunal accepts that after the applicant came to Australia, he disclosed his sexual orientation to his sister. The Tribunal accepts that now the remainder of his family are aware of his sexual orientation.

32. In 2008 the Australian Department of Foreign Affairs and Trade (DFAT) advised:

    Homosexuality and homosexual acts are not illegal under the Jordanian penal code. While homosexual relations are forbidden under Islamic shariah law, under the Jordanian system there is no fine or other penalty for “crimes” under shariah law unless these are covered separately by Jordan’s penal code. The social environment for homosexuals in Jordan is considered to be more tolerant than in many other parts of the Middle East. That said, it would be difficult to be openly homosexual in Jordan as social views on sexuality remain conservative even in cities such as Amman…

    The social environment for homosexuals in Jordan is considered to be more tolerant than in many other parts of the Middle East. That said, it would be difficult to be openly homosexual in Jordan as social views on sexuality remain conservative even in the larger cities such as Amman. Anecdotally, Jordanian homosexuals have spoken to staff at post about the difficulty of informing their families of their homosexuality. The general social attitude could be characterised as "don't ask, don't tell".[1]

    [1] DFAT Country Information Report No. 08/52, dated 27 May 2008, CX201019.

33. In its Country Reports on Human Rights Practices for 2014 in relation to Jordan the US State Department stated:

    Consensual same-sex sexual conduct is not illegal; however, societal discrimination against LGBT persons was prevalent and LGBT persons were targets of abuse. Activists reported discrimination in housing, employment, education, and access to public services. Some LGBT individuals reported reluctance to engage the legal system due to fear their sexual orientation or gender identity would either provoke hostile reactions from police or disadvantage them in court. Activists report that most LGBT individuals were closeted and fearful of their sexual identity being disclosed.

    On February 26, news sources reported that police arrested 14 persons at a wedding hall in Marka after complaints of “suspicious activity.” News accounts varied on whether the persons arrested were gay men, men dressed in women’s clothing, or lesbians. Police said that they arrested the 14 persons for probation violations, but many saw the arrests as repression of the gay community. During the year there were reports of individuals who left the country due to fear that their families would punish them because of their sexual orientation.[2]

    [2] US State Department, Country Reports on Human Rights Practices for 2014 in relation to Jordan, Section 6, Discrimination, Societal Abuses, and Trafficking in Persons.

34. The section on Jordan on the GlobalGayz website, “a gay-owned travel and culture website focused on les-bi-gay-trans life in countries around the world”, refers to the status of homosexuality in Jordan as legal. It is stated on the website that:

    Jordan is generally seen as a moderate Muslim nation and although the criminal code makes no explicit distinction between private, adult and consensual heterosexual and homosexual relationships, Jordanians are Muslim and look critically upon homosexuality. Private, adult and consensual sodomy was decriminalized by the Penal Code of 1951. The age of consent is 16. Article 306 punishes people who offer or solicit sex from anyone under sixteen with up to six months in prison. Today, homosexuality is not a crime provided that it is noncommercial and occurs between consenting adults in private. However, vigilante honor killings of gay family members are not uncommon.[3]

    [3] (‘Jordan’ (undated), GlobalGayz website

35. The evidence before the Tribunal indicates that the homosexuals in Jordan possess characteristics and attributes that make them distinguishable from the rest of the society and based on the prevailing social and cultural norms in Jordan they constitute a particular social group within the Convention meaning. The Tribunal accepts, therefore, that homosexuals form a particular social group in Jordan for the purposes of the Convention.

36. The Tribunal accepts that the applicant’s family are not pleased about the fact that the applicant is gay. The Tribunal accepts that his mother is still ‘upset’ with him and his [siblings] do not speak to him. With regard to his uncles, the applicant did not present any persuasive evidence to suggest that his uncles have made any threats against him or that they have displayed any behaviour that could reasonably suggest that, should the applicant return to Jordan, they would kill him to defend their honour, as claimed by the applicant. The applicant has given evidence that he frequently speaks to his mother over the phone. At the departmental interview he stated that his mother repeatedly asks him to return to Jordan. As the delegate noted in his decision, if his uncles wanted to kill him, it would not make any sense for his mother to ask him to return to Jordan. While the Tribunal accepts that the applicant is genuinely concerned about being seriously harmed by his uncles should he return to Jordan, on the basis of the evidence before it, the Tribunal is not satisfied that they, in fact, are intent on harming him. The Tribunal has been unable to substantiate the information in GlobalGayz website that ‘vigilante honor killings of gay family members are not uncommon’ in other sources and is not prepared accept that there is a real chance that the applicant will be seriously harmed at the hands of his uncles.

1. However, on the basis of the independent evidence before it, the Tribunal accepts that homosexuality is viewed very negatively in Jordanian society. Homosexuality is not tolerated and it is possible that homosexual practices and homosexuals in general might be totally rejected. It is clear that being openly homosexual in Jordan is difficult and an individual homosexual might be subject to ongoing harassment by his own family or society in general even in larger cities, such as Amman. It is therefore not surprising that there have been reports of individuals leaving the country for fear of being punished for their sexual orientation. The Tribunal has also taken into account reports of sporadic police mistreatment of suspected homosexuals, referred to above.

2. Based on the evidence before it, the Tribunal is satisfied that it would not be possible for the applicant to live openly as a homosexual in Jordan. While it is possible to practise homosexuality by being discreet, the Tribunal cannot require a protection visa applicant to take steps to avoid persecution (Appellant S395/2002 v MIMA (2003) 216 CLR 473).

3. The Tribunal is satisfied that there is a real chance that the applicant would experience mistreatment at the hands of the society in general or the police if he were to practise his homosexuality openly.  The Tribunal finds that if the applicant were to return to Jordan there is a real chance that he would face serious physical and psychological harm. The Tribunal is satisfied that such treatment would amount to persecution within section 91R(1)(b) of the Act. The Tribunal is satisfied that the essential and significant reason for the persecution feared is his membership of a particular social group, namely homosexuals in Jordan.

4. Having regard to harsh and negative societal views towards homosexuality and the evidence of sporadic police mistreatment of suspected homosexuals, the Tribunal is satisfied that State protection is not available to the applicant in Jordan. The Tribunal is not satisfied that the applicant could avoid the persecution he fears by internally relocating within Jordan. The Tribunal, therefore, is satisfied that the applicant has a well-founded fear of persecution for a Convention reason.

5. For the reasons given above, the Tribunal is 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).

   DECISION

6. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

   Shahyar Roushan
   Senior Member