1512692 (Refugee)

[2017] AATA 1444

1512692 (Refugee) [2017] AATA 1444 (14 August 2017)

.

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1512692

COUNTRY OF REFERENCE:                  Jordan

MEMBER:Rodger Shanahan

DATE:14 August 2017

PLACE OF DECISION:  Sydney

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

Statement made on 14 August 2017 at 8:18am

CATCHWORDS

Refugee – Protection visa – Jordan – Supporter of Hizb ut-Tahrir – Fears persecution for publicly criticising King Abdullah – Credibility issues

LEGISLATION

Migration Act 1958, ss 36, 65, 424AA, 499
Migration Regulations 1994, Schedule 2

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] July 2014 and the delegate refused to grant the visa [in] August 2015.

3. The applicant appeared before the Tribunal on 31 July 2017 to give evidence and present arguments. The Tribunal also received oral evidence via telephone from [a witness]. 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.

5. 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.

6. 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).

7. 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.

8. 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’).

9. 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.

   CLAIMS AND EVIDENCE

   PV Application

10. The applicant claimed that he had become involved during the last [number of] months with a Sunni religious group that he had been having many religious and political discussions with.  The group had drawn his attention to many of the ideas and principles of Hizb ut-Tahrir and he had attended some of their meetings.  He became convinced the political system of Jordan is incorrect and corrupt and has been spreading the ideas of Hizb ut-Tahrir to other Jordanians and Arabs in general.  He had been attending meetings and visiting individuals in their homes.

11. His medical condition means that he can’t control himself verbally when convinced of something and is unable to judge when expressing his opinions is likely to get him in trouble.  He has been passionately opposing the Jordanian government and the way they rule the country.  He believed that he couldn’t be free to say what he wanted in Jordan because it was anti-government and his views are in line with Hizb ut-Tahrir – he promoted Hizb ut-Tahrir ideals. 

    AAT Hearing

12. The applicant was asked about two letters in his file and he claimed they were witnesses.  He also stated that he would talk about more witnesses at the end of the hearing.  There were also a range of other medical documents offered.  He claimed that he suffered a chronic mental illness and he couldn’t control what he said. 

13. Asked what harm he feared in Jordan, he claimed he would have to say what he thought and he hated King Abdullah and would openly criticise him.  He couldn’t control what he said and he feared that the intelligence service would arrest him and bash him and probably kill him. He also said that he belonged to Hizb ut-Tahrir (HuT - the Liberation Party) but then he said he was influenced by its political opinion, not its religious opinion in Australia.

14. The party called for the toppling of heads of states which he agreed with, but he didn’t agree that it should be replaced by an Islamic State.  He confirmed he wasn’t a member of HuT but had met them at the mosque and visited their headquarters about three times listening to their speeches criticising King Abdullah.  He stopped dealing with them since April 2014 and wanted nothing to do with them.  Asked if they formed part of his claim, he claimed that they didn’t.

15. He had been publicly critical of the king since 2013 and swore at, and insulted him publicly because he was stealing the country’s wealth and there was no freedom.  Asked if he had any evidence that he did this, he claimed he always did this in the mosque and during any Jordanian community gathering, even funerals and weddings. Sometimes he swore at King Abdullah in public at these gatherings and he sometimes got into a fight because of this.  Asked if he had any physical evidence such as social media that would indicate that he did this, he claimed he only spoke verbally.

16. Asked why he thought people in Jordan would know of his actions, he claimed that he didn’t say they would know, but he would do this if he went to Jordan and would be arrested then.  Asked why he was only critical from 2013 given the king had been such for nearly 20 years.  He claimed that he had always been against the king but didn’t talk until he met HuT and was influenced by them.  He was asked about his mental health issues and he said he didn’t work but survived through the support from his friend and parents – he last worked around 2012.  He had no family members in Australia – in Jordan his parents and [siblings] lived.

17. Asked if he returned to Jordan and was critical of King Abdullah the intelligence agencies wouldn’t realise he was a person with mental health issues and not a threat to the regime, he claimed that Jordan was not a state where the rule of law had primacy.  Also the respect for the king was much more important than the interests of any citizen.  Anyone who spoke ill of the king would be punished within minutes.  No consideration would be given to mental health conditions – he had heard of many people who had been bashed and arrested.

18. Country information was put to him that efforts had been made to put money into mental health facilities and training in Jordan, and that Queen Rania had been at the forefront of this.  Given this high profile of mental health issues it appeared strange that someone with mental health issues would be punished by the police for criticising the king.  He claimed that his father had told him about people criticising the king being punished straight away even if they had mental health issues.  This had happened as recently as six months ago – he would meet the same fate.

19. It was put to him that in his protection visa application there was no mention of abusing the king.  He claimed that he told the interviewer that this was what he did.  In Jordan sometimes if you criticise the government they mean the government – he meant the king and the government.  Asked why he didn’t simply say the king during the interview if that’s what he meant, he claimed that this was not his mistake.  His agent misunderstood what he meant when he filled out the application.  He was talking, she was writing and then she completed the form.  He claimed that she never read back to him what she wrote. 

20. He had previously had a [temporary] visa refused in 2013 [reasons deleted].  The decision went to the MRT and the decision to refuse was affirmed.  Asked why he lodged a protection visa at the time that he did, he said he didn’t think the minister would refuse his application.  He had been told that the minister would be more flexible than the MRT and he feared being deported to Jordan.

21. He was advised about s 424AA and it was put to him that during his DIBP interview he told the person that his application was written down and read back to him, which was different to what he had said today. He claimed he had only had the draft read back to him, and only his personal details were confirmed with him. He was also advised that during an interview about his ministerial refusal in June, he had said that he already had a ticket to Jordan and asked if he could leave Australia earlier than scheduled. This was inconsistent with his claim that he didn’t expect to be refused by the minister.

22. Asking if he could leave to go to Jordan was inconsistent with his claim that he feared returning to Jordan.  He claimed he had been asked in that interview if he would have problems if he returned and he said that he had mental health issues.  She told him that many people had such issues, and she told him to buy a ticket.  He had never said that he had a ticket.  He claimed he had never asked to go earlier – either the interpreter made a mistake or it was something that the DIBP interviewer said.

23. He was asked about his claim that he agreed with HuT political views but not their religious views, and it was put to him that one couldn’t separate their religious and political views.  He said that was why he left.  It was put to him that there is no difference between the two – one ois either attracted to the argument or not.  He claimed he was introduced via friends in the coffee shop but drifted away from them.  Asked if he could prove he was involved with them, he claimed he used to sit with them and had witnesses who knew he attended HuT meetings.  He met them at the mosque.  Asked if he intended to call them as witnesses by phone, he claimed he was ready to do anything.

24. It was put to him that he hadn’t listed any witnesses in his response to hearing, and he claimed he told his agent but she said it wasn’t required but he should give them to the Tribunal when he went.  It was put to him that an agent wouldn’t say this given there was room for witnesses and contact details on the hearing response form.  He repeated that he told the agent.

25. One of the witnesses was called and he said he knew him from 2010 or 2011 and had met him in the convenience store.  He was a nice guy and was sick and had problems with the government in Jordan.  He had fights in the mosque in 2012 in [suburb] mosque about King Abdullah.  He didn’t know the exact story about the problems with the government.  He knew this from the applicant and from other people, a friend of the witness’ that he had problems with the government and criticising King Abdullah.  This was from his time in Jordan and there was a fight in the [suburb] mosque in 2012 because he was critical of the Jordanian government.  The other people had told him this occurred. He had coffee with the applicant every Sunday.

26. Under s 4242AA it was put to him that the witness said the applicant was in a fight in [suburb] mosque in 2012 for criticising King Abdullah, yet the applicant had said he was first critical of King Abdullah in 2013.  This raised questions about the credibility of his claim.  He claimed that the witness made a mistake and it was actually 2013 – it was put to him that the person was the applicant’s witness and he repeated that he was correct and the witness was wrong.

    CONSIDERATION OF CLAIMS AND EVIDENCE

27. The applicant arrived in Australia on a [temporary] visa [in] October 2005 and was subsequently granted four other [temporary] visas.  An application for a further [temporary] visa lodged [in] February 2013 was refused [in] March 2013.  A review by the MRT confirmed the refusal and he sought ministerial intervention and a decision not to consider it was made on 6 June 2014.  An invalid protection visa application was lodged [in] April 2013, and a valid one lodged [in] July 2014.  The Tribunal sighted his Jordanian passport; I accept that he is a national of Jordan and his application will be assessed as such.

28. The applicant is a [age] year old [Jordanian]. He claimed that he would be arrested, bashed and possibly killed for publicly criticising King Abdullah.       

29. 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.

30. I have taken into account the letters attesting to his medical condition, which can generally be summarised as suffering from anxiety and obsessive compulsive [disorder].  I have taken this into account when determining his credibility but have simply addressed the claim on the facts presented.  While I am unable to answer whether he has knowingly fabricated his claim or the fabrication is tied in some way to his medical condition, I am satisfied that the claim is false regardless of the cause. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and that he fabricated his claim in order to be granted a protection visa.

    Criticism of King Abdullah/Association with HuT

31. I do not accept that the applicant has been publicly critical of King Abdullah or that he has or had an association with HuT.  Regarding the latter, I note that during his hearing he stated that they didn’t form part of his claim as he no longer associated with them.  Regardless, he provided no evidence of any association with HuT.  In addition, he claimed during his application that his views were in line with HuT and he promoted their ideals yet during the hearing he claimed he was influenced by its political, not religious opinion.  Given HuT looks to the radical and comprehensive implementation of Islam after seizing authority[1] it is implausible that the applicant could select only the political not religious aspects of HuT given the two are inseparable.

    [1] accessed 8 August 2017

32. His claims regarding his public criticism of King Abdullah were not raised during his DIBP interview.  I do not accept that this was because he meant the king when he referred to the government, and that his agent had misunderstood what he said and had never read back to him what she wrote.  He was specifically asked during the DIBP interview whether his agent had read his application back to him and he said that they had.  He has no evidence, such as social media entries, letters, texts or emails that may indicate he has publicly criticised King Abdullah and it relies entirely on his oral evidence which I have found to lack credibility.

33. Because I do not accept that he is publicly opposed to the king or makes anti-royal comments in Australia, it follows that he has never been involved in incidents with members of the Jordanian community in Australia.  For the same reasons outlined that I do not accept that the applicant has made anti-royal comments in Australia, I do not accept that he would suddenly do so on return to Jordan.  I cannot lend much weight to the letters he provided as evidence (folio 113) given that neither make reference to his criticising the king, simply that he publicly criticises the Jordanian government. 

34. I also place little weight on the oral evidence provided by telephone by [a witness].  Although he claimed that the applicant was involved in a fight at [suburb] mosque because of criticism of King Abdullah, he heard this second-hand from others including the applicant himself.  The witness also stated that this occurred in 2012 which was inconsistent with the applicant’s claim that he had started to publicly criticise the king in 2013.

35. Whilst it is plausible that he has criticised the government of Jordan whilst in Australia, I note that his claim for protection based on criticising the Jordanian government followed the month after he was advised that his failed [temporary] visa application would not be considered.  I do not accept that he had been advised that the minister would be more lenient than the MRT and hence would approve the appeal.

36. I have taken into account the latters referred to above, however I am not satisfied that criticising the Jordanian government would lead to disputes within the community in Australia. I am satisfied that dissatisfaction with government is a normal part of intra-community dialogue and would be so in Jordan.  During a recent meeting with Jordanian media, King Abdullah was quoted as saying that he ‘..asserted the state’s will to combat corruption at all levels, adding that it is not possible to criticise favouritism in theory and practice it in real life, and that he has directed the government to take the necessary measures towards that end.’[2]  This would indicate that the issue of state corruption is able to be discussed publicly.

    [2] Jordan Times, 6 February 2017, accessed 8 August 2017

37. As noted previously, the applicant has no social media presence nor profile and if he were to criticise the government on return to Jordan it would be done in private and hence he would have no public profile. In addition, he has a mental health condition which the authorities would also take into account if his criticisms were ever to make it into the public sphere.  Given this, I am not satisfied that there is a real chance that he would suffer serious harm if he were to return to Jordan.   

    Mental health Issues

38. While I accept that the applicant has some mental health issues, I am satisfied that the medical and social system in Jordan would be able to help him deal with his situation.  Both his parents and all his siblings live there (and his parents send him money in Australia, indicating a continuing attachment), and country information[3] indicates that significant improvements have been made in the mental health space in Jordan in recent years and the World Health Organisation representative had noted that the country had been at the forefront of mental health reforms.[4]

    [3] 8 August 2017

    [4] accessed 8 August 2017

1. Having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason.

   Complementary Protection

2. Because I do not accept that the applicant has been or will be publicly critical of King Abdullah or would be in the future, that the authorities would be interested in him if he were to criticise the Jordanian government, that he has been associating with Hizb ut-Tahrir or that the Jordanian medical system would be incapable of providing him with appropriate treatment, 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).

3. 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

4. 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).

5. 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).

6. 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

7. 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.