1421199 (Refugee)

[2016] AATA 4520

1421199 (Refugee) [2016] AATA 4520 (26 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1421199

COUNTRY OF REFERENCE:                  Jordan

MEMBER:Shahyar Roushan

DATE:26 September 2016

PLACE OF DECISION:  Sydney

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

Statement made on 26 September 2016 at 6:57pm

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

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).

   BACKGROUND, CLAIMS AND EVIDENCE

2. The applicant is [number] years old and a citizen of Jordan. He arrived in Australia in March 2008 on a [temporary] visa. [In] December 2010 the applicant applied to Department of Immigration (the Department) for a further [temporary] visa. That application was refused by the Department and [in] August 2011, the then Migration Review Tribunal (MRT) affirmed the Department’s decision. The applicant’s subsequent application for a judicial review of the MRT’s decision was dismissed by the then Federal Magistrates Court.

3. [In] Jan 2012, the applicant applied for a Spouse visa, based on his spousal relationship with [Ms A]. [In] March 2012, [Ms A] withdrew her sponsorship and [in] April 2012 the applicant submitted domestic violence claims. [In] June 2012, the Department refused to grant the applicant a spouse visa and [in] November 2013 the MRT affirmed the Department’s decision. [In] December 2013, the applicant applied for Ministerial Intervention. The Minister decided not to consider the request.

   Protection visa Application

4. [In] July 2014, the applicant applied to the Department for a Protection (protection) visa.

5. The applicant essentially claims that he is bisexual and that his sexual orientation would not be acceptable to the government or the people of Jordan.

6. In a brief statement attached to his application for a protection visa, the applicant made the following claims.

7. His first homosexual experience was at the age of [age] with a classmate at school. At the age of [age] he had a ‘soft core sex’ with one of his classmates in [another country]. In 1997, when he resided in [Country A], he had sex with another male for the first time, but he could not accept that he was gay. He returned to Jordan in 1999 and had ‘some relations with girls but not men’. After he arrived in Australia, he had a ‘few relationships with girls’ and eventually he got married in 2010. He was caught by his ex-wife watching ‘gay and tyranny (sic) porno movies’, which he had done for many years. This was one of the reasons they got divorced, as his ex-wife ‘didn’t want to have a baby from a bisexual husband’. He has never had a ‘regular boyfriend’ and he has always tried to hide his gay relationships when he has been in heterosexual relationships. He fears going back to Jordan where his ‘sex life choices’ would not be accepted. 

8. The applicant was interviewed by a delegate of the Minister [in] December 2014. Where relevant the applicant’s evidence to the delegate is discussed below.

9. The delegate refused to grant the visa [in] December 2014. The delegate did not find the applicant to be a credible witness and did not accept that he is bisexual. She did not accept that the applicant has a real chance of being persecuted in Jordan on account of his sexual orientation. Nor did she accept that the applicant faces a real risk of significant harm should he be removed from Australia.

10. A copy of the decision was provided by the applicant to the Tribunal for the purposes of the review and the applicant is taken to be on notice of the delegate’s findings and reasons.

    Application for Review

11. The applicant applied for a review of the delegate’s decision. He was represented in relation to the review by his registered migration agent.

12. On 15 March 2016, the Tribunal wrote to the applicant inviting him to give oral evidence and present arguments at a hearing on 12 May 2016.

13. On 11 May 2016, the applicant’s representative wrote to the Tribunal requesting an adjournment on the basis of ‘mental illness’. It was stated that he was concerned that the applicant’s ‘mental capacity will have an adverse effect on his ability to provide coherent oral evidence’. The applicant’s representative submitted a copy of a psychological report by [Mr B], dated [in] May 2016. He stated that he has advised the applicant to provide a further report to indicate when his condition will improve ‘so as to enable him to participate in an oral hearing’.

14. In his report, [Mr B] stated that the applicant was referred to him by his migration agent. He stated that the applicant reported that he is suffering from some physical symptoms including severe [aches and pains]. The applicant has been told he could be suffering from [medical condition]. He stated that the applicant is ‘very stressed at the moment due to his fear of being made to return to Jordan’. He stated that he was informed by the applicant that he is stressed at home and he does not want to go far from the house. He avoids crowds and he does not like enclosed places. The applicant had also reported to [Mr B] that he needs treatment for stress ‘before he can be under sufficient emotional control to face the Tribunal again’. He had reported that he fears being in enclosed spaces and prefers to be near a window or open door if he has to be in a building.

15. [Mr B] stated that he had been told by the applicant that he fears being returned to Jordan ‘due to his bisexuality and the way bisexuals are treated in Jordan which means he could be seriously injured or killed because of his sexual orientation’. He had reported that ‘he is bisexual and he can get evidence of his sexuality as a partner of his can verify his sexuality. However, getting a statement from the partner will take time. He said he was requesting that the Tribunal grant him a stay of five or six months so that he can get suitable objective evidence for the Tribunal, and so he can get treatment for his [medical condition].

16. [Mr B] further stated:

    Throughout the interview assessment [the applicant] appeared to be genuine in his claims that he is bisexual and that he is fearful of returning to Jordan… In my opinion [the applicant’s] claim is likely to be genuine and he is in an awkward situation of trying to get a statement from a partner which is turning out to be difficult. From what I can tell from the interview assessment he is fearful and concerned about the potential outcomes and he is genuine in his belief about what could occur to him. By the end of the consultation I felt that his claims were more likely than not to be true.

    Throughout the interview assessment I formed the opinion that [the applicant] is extremely anxious about the hearing and the possibility of being sent back to Jordan and he is having difficulty coping with his current situation. In my opinion he requires psychological treatment and it would be useful to for him to attend my office once per fortnight for the next few months while he gets his evidence together.

17. [Mr B’s] report was devoid of any clear diagnosis as to what psychological ailments, if any, the applicant, is in fact, suffering from. The report contained no references to any psychometric assessment tools, such as the Depression Anxiety Stress Scale, the Harvard Trauma Questionnaire or the Hopkins Symptom checklist, to diagnose the applicant with any psychological condition or ailment. No other medical or psychological evidence was submitted by the applicant or his representative in relation to his state of mental health, his ability to provide oral evidence to the Tribunal and why exactly a postponement of ‘five or six months’ would be necessary.

18. On 11 May 2016, the Tribunal contacted the representative by telephone and advised him that it has carefully considered the hearing postponement request but it has decided not to postpone the hearing. The applicant’s representative was advised that a request for a further postponement could be discussed, and would be considered, at the hearing.

19. The applicant appeared before the Tribunal on 12 May 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The representative attended the Tribunal hearing.

20. At the outset, the Tribunal noted that the psychologist report had stated that he had some anxiety relating to appearing before the Tribunal and being removed from Australia. The Tribunal explained to the applicant that it was not unusual for applicants appearing before the Tribunal to experience a degree of stress and anxiety. The Tribunal noted that in the absence of any other evidence, the Tribunal would be disinclined to postpone the hearing indefinitely. The Tribunal also explained to the applicant that it did not consider it reasonable to delay the hearing for five or six months in order for the applicant to procure supporting evidence.

21. The applicant stated that he is taking [medication]. He also takes herbal medication to help him sleep. He stated that he started taking the [medication] a week ago, because he was initially disinclined to take the medication. He stated that he started feeling symptoms of anxiety after his protection interview with the Department. However, he was assessed by [Mr B] only two weeks ago. When asked why he had waited so long to seek medical or professional assistance, he stated that he approached a GP about two or three months ago. When asked what medication specifically he was taking, he said he did not know. The Tribunal assured the applicant that it would make a conscious effort to make him comfortable through regular breaks and provide him a meaningful opportunity to give his oral evidence.

22. The applicant stated that he was not ‘afraid’ of the hearing and that the problem was his inability to concentrate. He stated that he is on [medication] and he feels claustrophobic in enclosed spaces. The Tribunal asked him what would assist him in being able to focus for the purposes of the hearing. He stated that the windowless hearing room would cause him problems. He confirmed that a hearing room with a window would assist him in giving his evidence to the Tribunal. The Tribunal offered to adjourn the hearing and resume on a different day and in a different hearing room with windows. The applicant, however, agreed to provide some preliminary information to the Tribunal in relation to his travels, education, employment, migration history and marriage to his former spouse, before the substance of his claims for protection could be discussed at a resumed hearing. The applicant also agreed to forward to the Tribunal a copy of his prescription, so that the Tribunal could determine the exact nature of the medication he was on. This information, however, was not provided to the Tribunal.

23. The Tribunal hearing resumed on 6 June 2016 and was conducted with the assistance of an interpreter in the Arabic and English languages. The representative attended the hearing. The applicant provided his evidence at the hearing in a coherent manner and without difficulty. Where relevant, the applicant’s evidence to the Tribunal is discussed below.

    CONSIDERATION OF CLAIMS AND EVIDENCE

24. 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.

25. 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).

26. 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.

27. 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’).

28. 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, Findings and Reasons

29. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

30. The applicant claims to be bisexual and fears facing serious harm if he were to return to Jordan. The Tribunal did not consider the applicant’s evidence in this regard to be credible.  

31. At the hearing, the applicant gave evidence to the effect that he has had three same sex relationships in Australia. The applicant, however, was only able to name one of his homosexual partners {Mr C] and stated that the other two were transient relationships as he had seen each of them on one occasion only. In relation to the latter two, the applicant stated that he had met both men after his marriage had ended and that his last sexual encounter had occurred in 2013. However, upon probing him, the Tribunal found the applicant’s evidence regarding these two encounters vague, evasive and unconvincing. For example, when asked how he had met these men, he stated that he created online accounts, which he deleted after meeting the men. When asked where online he had created these accounts or profiles, he stated that he could not remember because he had used them once only. When pressed, he stated that he had searched for gay dating sites on Google to set up accounts, which he then deleted. When asked about the names of the websites on which the accounts were created, he said he could not remember. When asked where he had physically met these sexual partners, he referred to a convenience store in the Rocks area of Sydney or a hardware store near the Coca Cola sign in Williams Street, Sydney. When asked where he had spent the night with his sexual partners, he referred to the [detail], but he was unable to recall the name of the hotel in the Rocks area he claimed to have spent the night at with his partner. Nor did he make any meaningful attempt to provide other details regarding the hotel, such as any distinct or disguising features, or its location relative to other landmarks in the area.

32. In relation to [Mr C], the applicant stated that he had met him in 2010, whilst working in a shop. He explained that [Mr C] was a salesman and supplied the shop with merchandise, including cigarettes and accessories. He stated that [Mr C] had told him that he was gay and although the applicant initially resisted his advances, they eventually had sex on a night out. They had sex on two further occasions over a period of three years. After getting married, the applicant ceased all contact with [Mr C]. According to his own evidence, the relationship had spanned over a period of three years, constituting the applicant’s longest same sex relationship after many years of not being involved, physically or romantically, with any other males. The applicant, however, did not offer any other meaningful details or information regarding his relationship with [Mr C], including the nature of the relationship, apart from its physical aspects, and how the relationship might have steered his thoughts or feelings in relation to his sexuality. The applicant stated at the hearing that he wanted to contact [Mr C] in order to ask him to provide evidence in support of his claims. He stated that he had searched for [Mr C] and had eventually found him on Facebook. When he made contact via Facebook, [Mr C] told him that he needed time in order to come to Sydney and give evidence. When the Tribunal noted that he could have spoken to [Mr C] by telephone to ask him to provide a written statement, he stated that he could not discuss the issue over the phone and he wanted to sit down with him to explain his situation. The Tribunal finds the applicant’s evidence in this regard highly unpersuasive.

33. The Tribunal also found other aspects of the applicant’s evidence unimpressive. When asked if he has established any links with the LGBT community in Sydney, he said he had not. When it was put to him that it was not unreasonable to expect him to have made at least some effort to establish contact with likeminded people who might have been able to provide him with support and assistance, he stated that he is not gay. He is bisexual and he wants to establish a family. He does not want to assume a gay identity and prefers to have short term temporary relationships with men. When asked if he has visited any clubs or LGBT venues in Sydney, he stated that he does not like clubs. He wants to have meaningful relationships with people in the course of his life. When it was put to him that it was difficult to reconcile his desire to establish a family or to have meaningful relationships with his preference for short term temporary relationships with men, he said what he meant was something like ‘friends with benefits’. Despite these claims, the applicant stated at the hearing that he has not had a same sex relationship since 2013 and he has not told anyone else about his sexual orientation. When asked why he has not pursued any other same sex relationships since 2013, he said because he had a very bad experience in his marriage. The Tribunal found these aspects of the applicant’s evidence unconvincing and self-serving. Whilst the applicant stated that he did not wish to assume a gay identity, he has claimed to be bisexual. His oral evidence, however, did not convey the impression that he had engaged in any form of meaningful, subjective reflection upon what it meant to him to self-identify as bisexual.

34. Apart from the unconvincing nature of the applicant’s oral evidence regarding his sexual experiences in Australia, the applicant’s written statement in support of his application for a protection visa was devoid of any references to his claimed Australian relationships. In that statement, the applicant wrote that, after he arrived in Australia, he had a ‘few relationships with girls’ and eventually he got married. He was caught by his ex-wife watching ‘gay and tyranny (sic) porno movies’, which he had done for many years. He stated that he has never had a ‘regular boyfriend’ and he has always tried to hide his gay relationships when he has been in heterosexual relationships. When asked at the hearing why he had not mentioned his same sex encounters and relationships in Australia in his statement, he stated that culturally it is not easy for him to elaborate on these things. The Tribunal does not find this explanation satisfactory. In his statement the applicant had referred to his ‘first sex experience’, ‘soft core sex’ experiences with classmates, ‘having sex with a male’ in [Country A] and watching gay porn. It is difficult for the Tribunal to understand why the applicant did not find it difficult to outline these experiences in his statement, but he did not find it easy to refer to his sexual experiences in Australia. The applicant was assisted by a migration agent when preparing his application for a protection visa and the Tribunal considers it reasonable to expect the applicant to have disclosed these significant claims in his statement.

1. As noted above, the applicant has given evidence that he had engaged in homosexual activity when he was still at school in Jordan and in [another country]. At the hearing, he explained that these activities were ‘soft core’, consisting of touching and kissing. When it was put to him that it is a notorious fact that these experiences are common amongst school boys where he grew up, the applicant acknowledged that this was the case. When asked when he realised that he had bisexual tendencies, he replied that he came to this realisation in 1995. In that year, he had a relationship with a man in [Country A]. The Tribunal, however, found the applicant’s’ evidence regarding this claimed relation vague and unpersuasive. For example, the applicant could not remember the name of the man he claimed to have had a sexual relationship with in [Country A]. He stated that the man was a cleaner and used to clean his house. When asked how he knew this person was interested in him, he said it seemed to him that he was homosexual. When asked how he determined that this person was homosexual, he said it was the way this person talked and acted, but he was not sure. When asked how the relationship had developed, he said one day this person came to clean the house and the applicant, who was lying down on the bed, started touching him. When asked about the duration of the relationship, he stated that they had sex on that occasion only and after that he paid the man his salary and asked him not to return because he felt uncomfortable. When asked if he had any other homosexual experiences in the subsequent four years that he remained in [Country A], he said he knew another homosexual man but nothing happened between them. The applicant further stated that after returning to Jordan in 1999, he did not engage in any form of same sex relationship until he came to Australia.

2. As already noted, the type of homosexual experiences the applicant referred to are common amongst young boys in the countries where the applicant was attending school and the Tribunal is prepared to accept that he might have engaged in ‘soft core sex’ experiences with classmates on two or three occasions. The Tribunal, however, found the applicant’s evidence in relation to his claimed sexual experience in [Country A] and the flowing claim that this experience was what made him realise that he is bisexual vague and unconvincing. Whilst the Tribunal appreciates the very personal nature of matters of sexual orientation and how one’s confrontation with these issues may be influenced by or vary according to a range of factors, including culture, the applicant’s evidence did not contain any credible or meaningful references to any thought processes, which may have occupied his mind while coming to terms with significant issues of identity and difference over a relatively significant period of time.

3. Finally, the applicant’s immigration history casts serious doubt on the credibility and reliability of his claims. As it was put to the applicant at the hearing, he arrived in Australia in 2008 on a [temporary] visa. However, he did not apply for a protection visa until July 2014. The applicant explained that he was already in Australia legally and he did not feel threatened. He felt threatened and at risk when he found out that he had to leave Australia. However, as it was noted in the delegate’s decision, the applicant applied for a second temporary visa in December 2010, which was refused by the Department in Jan 2011. [In] August 2011, the MRT affirmed the Department’s decision and the applicant’s subsequent application for a judicial review of the MRT’s decision was dismissed by the then Federal Magistrates Court. [In] Jan 2012, the applicant applied for a Spouse visa. After his former spouse withdrew her sponsorship, the applicant submitted domestic violence claims. [In] June 2012, the Department refused to grant the applicant a spouse visa and [in] November 2013 the MRT affirmed the Department’s decision. [In] December 2013, the applicant applied for Ministerial Intervention in relation to domestic violence claims and the Minister decided not to consider the request. It was only then that he applied for a protection visa. As it was put to him at the hearing, his immigration history suggests that he is prepared to make any application or take any action that would enable him to remain in Australia. The applicant stated that he got married before his [temporary] visa was refused and this shows that he did not apply for a spouse visa in order to stay. He lived his life normally. He met his wife and got married but they did not apply for a spouse visa because of her circumstances. She could not sponsor him because she was sponsoring her brother in Lebanon. This response, however, does not adequately explain why the applicant did not apply for a protection visa at least at the time when his former spouse withdrew her sponsorship. It is reasonable to assume that the applicant must have become aware at that point that the prospect of remaining in Australia legally on the basis of his spousal relationship was far less certain.

4. Moreover, as the delegate noted in her decision, the applicant had ample time and numerous opportunities to raise claims relating to his sexual orientation or his fears in that regard. However, he did not do so. The delegate noted that the applicant appeared before the MRT to give evidence in relation to his claims of domestic violence and applied for Ministerial Intervention in December 2013. However, he did not disclose claims relating to his sexual orientation on either occasion. The delegate further noted that the applicant had also submitted a psychologist report, dated [in] May 2012, but, again, in this assessment the applicant had failed to declare his claimed bisexuality. When this issue was discussed with him at the Tribunal hearing, the applicant stated that he did not want anyone to know about these things, so he did not mention them to the psychologist. It was not relevant to the matter at hand. The main cause of his marriage breakdown was that his former spouse conceived three times and she terminated the pregnancies without his knowledge. In relation to the Ministerial Intervention, the applicant stated that he did not mention his claims of bisexuality in his request because when he submitted his domestic violence claims, he was on a bridging visa. He applied for Ministerial Intervention and he was hoping that he did not have to mention any other reasons. When his request was not considered and he was told that he had 21 days to leave the country, he decided to apply for a protection visa. The Tribunal put to the applicant that the same migration agent who had represented him in connection with his domestic violence claims has continued to represent him in connection with his protection visa application and that it was odd that claims relating to his sexual orientation were not raised, even tentatively, at any other point. The applicant responded that according to his culture and the way he has been brought up, it is shameful to speak of these issues and he spoke of them when he realised it was his last chance. He only disclosed his claims for protection to his agent after the latter persisted in questioning him as to why he did not want to go back to Jordan. The Tribunal does not find the applicant's' explanations satisfactory. In the Tribunal's view, he has provided no persuasive explanation as to why, if he is bisexual and fearful of returning to Jordan, he did not mention his claimed circumstances at any point prior to July 2014. The applicant’s significant delay in lodging his application for a protection visa casts serious doubt on the genuineness of his fear of persecution and the credibility of his evidence.

5. In his email of 11 May 2016 to the Tribunal, the applicant’s representative stated that he was concerned that the applicant’s ‘mental capacity will have an adverse effect on his ability to provide coherent oral evidence’. In his report, [Mr B] also referred to the applicant being stressed and anxious. The report, however, did not refer to any psychometric assessment tools, such as the Depression Anxiety Stress Scale, the Harvard Trauma Questionnaire or the Hopkins Symptom checklist and it did not include a clear diagnosis as to what psychological ailment, if any, the applicant, is in fact, suffering from. No other medical or psychological evidence was submitted by the applicant or his representative in relation to his state of mental health or his ability to provide oral evidence to the Tribunal.

6. As noted above, at the first hearing the Tribunal sought to obtain further information in relation to the nature of the applicant’s ‘mental illness’ or any capacity issues that might impact his ability to give oral evidence. At that hearing, the applicant stated that he takes [medication] to help him sleep and he had started taking [medication] a week prior to the hearing. He further stated that a hearing room with a window would assist him in giving his evidence to the Tribunal. As it was put to him at the hearing, [claiming to have medical condition], without more evidence, did not necessarily suggest that he would not have a meaningful opportunity to participate in the hearing or that he would be unable to present oral evidence. Nevertheless, the applicant was provided with an opportunity to submit further information and details in relation to his medication in order for the Tribunal to determine what impact, if any, this medication might have on the applicant’s ability to give evidence. This information was not provided to the Tribunal.

7. The applicant’s claims for protection were discussed at a further hearing resumed in a room with a window. At no point did the Tribunal form the impression that the applicant’s ability to respond to questions or provide oral evidence was hindered. The applicant was able to give oral evidence to the the Tribunal in a clear and coherent manner. Neither the applicant nor his representative raised any concerns at the hearing.

8. The Tribunal has also considered [Mr B’s] assertions in relation to the applicant’s claims of bisexuality. [Mr B] states in his report that ‘in my opinion [the applicant’s] claim is likely to be genuine’ and ‘by the end of the consultation I felt that his claims were more likely than not to be true’. It appears from [Mr B’s] report that his ‘assessment’ was conducted over the course of one interview. Whilst it appears that [Mr B]has inappropriately engaged in an assessment of the merits of the applicant’s case for protection, it is not clear on what basis, other than the applicant's own narrative, he has been able to comment on the genuineness of the applicant’s claims. [Mr B] appears simply to have taken at face value the applicant’s claims as they were recounted to him. It does not seem that [Mr B] had queried or challenged any aspect of the applicant’s narrative or responses. However, as the Tribunal has had the opportunity to take detailed oral evidence from the applicant it has reached a different conclusion as to the credibility of his claims.

9. For all the above reasons, the Tribunal finds the applicant not to be a credible, truthful and reliable witness. His evidence shows a propensity to manufacture and tailor evidence in a manner which achieves his own purpose. The Tribunal does not accept that the applicant is bisexual or that he has been involved in homosexual relationships and/or activity in Australia. The Tribunal does not accept that he engaged in same sex sexual acts with anyone in Australia. The Tribunal does not accept that he was or is involved in a sexual relationship with a person called [Mr C] or any other male. The Tribunal does not accept that the applicant had set up fake accounts on gay dating sites in order to find sexual partners or for any other reason. The Tribunal does not accept that the applicant views gay and transvestite pornography in Australia or that he would do so if he were to return to Jordan. The Tribunal does not accept that the applicant had a same sex relationship with any man in [Country A]. Whilst the Tribunal is prepared to accept that, as a young boy, he might have engaged in some touching and kissing with his male classmates on two or three occasions, the Tribunal finds that these experiences do not establish that he is bisexual. Other than these experiences, having found that the applicant was not involved in homosexual relationships or activity in the past, there is no basis on which the Tribunal can be satisfied that the applicant is bisexual. Tribunal finds that the applicant is not bisexual and will not engage in bisexual/homosexual activities in Jordan. The Tribunal finds that the applicant is not and will not be perceived to be bisexual or homosexual, and will not engage in related activities in Jordan.

10. The applicant has made no specific claims for protection in relation to his psychological state. The Tribunal appreciates that the applicant may be suffering from [medical condition]. However, the Tribunal is not satisfied that there is a real chance that he will face serious harm in Jordan for a Convention reason as a result of his state of mental health or current personal circumstances.

11. The Tribunal finds that there is no real chance that he will be harmed for the reason of his sexual orientation or any other Convention reason if he were to return to Jordan. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason, or otherwise.

12. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm on grounds of his sexual orientation, including bisexuality.

13. The Tribunal is not satisfied that if the applicant, upon being removed to Jordan, were to continue to suffer from [medical conditions], there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal, there is a real risk that he will be subjected to any form of harm, including disability related discrimination, that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)-(e) of the definition of torture in s.5(1) of the Act. The Tribunal is not satisfied that that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm from the authorities that would involve the infliction of severe pain or suffering, either physical or mental, such as to meet the definition of cruel or inhuman treatment or punishment in s.5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that he will suffer such harm as to meet the definition of degrading treatment or punishment in s.5(1) which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of his life or the death penalty. The Tribunal is not satisfied 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 be subjected to significant harm arising from his mental health.

14. 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 does not satisfy the criterion set out in s.36(2)(a).

15. 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).

16. 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

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

    Shahyar Roushan
    Senior Member