1514378 (Refugee)

1514378 (Refugee) [2017] AATA 2149 (17 August 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1514378
COUNTRY OF REFERENCE:                  Jordan
MEMBER:Rodger Shanahan
DATE:17 August 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 17 August 2017 at 7:25am

CATCHWORDS
Refugee – Protection Visa – Jordan – Fear of violence – Intertribal violence – Divorce – Lack of state protection – Financial dispute – Domestic violence – Islamic cultural mores
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 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

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] September 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Jordan, applied for the visa [in] May 2015.
CRITERIA FOR A PROTECTION VISA
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, he or she 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.
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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments 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
Protection Visa Application
The applicant arrived in Australia in December 2011 to learn English, completed [courses] and started a [diploma] but only completed the first semester. He returned to Jordan in 2012 to see his sick brother. At this time his family began to look for a wife for him and they found a [Occupation 1] for him in April 2013. She was from a very influential family in Irbid and most of her family are in high government positions. She had relatives in Australia.
He returned to Jordan in May 2013 for his engagement after which he returned to Australia. His father died before their wedding so they were married without a large celebration, which upset his wife’s family. They were married in October 2013 and he came to Australia with his wife. He began a job as [occupation] in December 2013, but his wife was unhappy as she wanted more than he could offer her financially.
This caused fights with her as she claimed she was led to believe that he was rich, while he tried to explain that he was a student. She tried [find work as Occupation 1] in Australia [but was unable to]. This caused further friction in their marriage
His wife became pregnant in [2014]. His insurance wouldn’t pay for the birth so he took her to Jordan to have the baby [later in 2014]. She stayed at his family’s house but after the baby was born on [date] she moved to her family’s house. She then switched off her phone and wouldn’t answer his calls on the home number for 10 days.
After this, she then went to his home and removed all her belongings, asked his family to return the money he’d given them to cover medical expenses and took her jewellery. She didn’t allow his family to see the child or to take photos to send to him. He sent relatives to speak to her but she only wanted him to send money.
She then decided to come to Australia to fight with him and take revenge against him, received a visa [in] January 2015 and arrived with the child [in] February 2015. He believed that the jewellery she had taken from his home she was not entitled to as she never signed the contract, so he called her family and told them to return it. They refused and he sent some relatives to their place to collect the items but they still refused and then said he had besmirched their honour.
Her family told his wife to return to Jordan with him and accused him of not being able to look after their [child]. His wife became very angry with him and threatened to [injure] him if he didn’t return to Jordan with her. She was aware that his visa would expire [in] March 2015.
[In] February 2015 she called him at work and told him that her family wanted some money and told him to make arrangements to send it. If he didn’t send it she threatened to make a false complaint against him to the immigration department and get his visa cancelled. She then went to the police and made a false complaint against him; he then received threatening calls from her relatives saying that he abused his wife; they said he should give money to his wife and return to Jordan.
His wife refused to stay with him or to cooperate with him to apply for a student visa, he applied for it without including his wife and child. [In] March 2015 she left the country with their child because she feared her fabricated claim may be revealed in the court hearing. His family had subsequently advised him that he should not return to Jordan because her family would target him for revenge for destroying his wife’s life. They had threatened his family but wanted to teach him a lesson by killing him.
His wife refused to come back to Australia and wanted him to pay her the money for the jewellery as per the marriage agreement, as she had not signed the marriage agreement that she had received it (and hence believed her husband had not legally fulfilled his side of the agreement). His wife is now running a [business] in Jordan and could ask for a divorce at any time but wants the money ($[amount]) she demanded. He can’t divorce her because he would have to give her the $[amount] that he can’t afford.
He cannot relocate because her family are all over Jordan and well networked and he would be unable to seek the protection of the authorities because it would be considered a family matter.
AAT Hearing
The applicant was asked to provide a copy of the divorce registration document rather than the court document that he had provided as proof that he was divorced. He claimed that the court document was the only proof and it was put to him that the Tribunal understood that the divorces were registered with the Jordanian government. He initiated the divorce in February 2016.
He claimed that if he returned to Jordan he would be imprisoned under false charges or killed by his ex-wife’s tribe. Anyone in the tribe could do this to him because they believed that he had besmirched their honour. His wife had made a complaint to the police that he had threatened to kill her or put her on the street. She wanted money and to make him pay so she made false accusations against him. She would also lie to Jordanian courts and to her family – she lied about the complaint that he had tried to kill her and had withheld money and jewellery from her.
In Jordan she went to the court saying he had kicked her and their [child] out and she wanted her money as he didn’t want them to come back. He had provided furnishings for a rented house in Australia – she didn’t have any family in Australia. They had a small house in Jordan ([details of house]). It was put to him that in his statutory declaration he had claimed that she had relatives in Australia who checked him out when they wanted to marry.
He claimed that he meant friends – it was reiterated to him how important a statutory declaration was and how important the issue of credibility was to his claim. He said originally he didn’t know whether they were relatives or not, and only found out later they were friends. He was again asked why he said they were relatives and he thought they may have been the same.
They were engaged [in] May 2013 and were married [in] October 2013. They were divorced [in] October 2016. Asked why he thought he would be killed, given Jordan had a very high divorce rate and there was no country information available to the Tribunal that indicated that former husbands were killed by the bride’s family just because of a divorce. He claimed that he had been accused of abusing his wife and this meant the tribe needed to show their power. Asked what indications were that he would be killed by her tribe, he claimed that she had the court summons from [Australia] as proof.
Asked if she had withdrawn the complaint, he stated she hadn’t but there was no evidence. It was put to him that the document said ‘Dismissed – Withdrawn’ so someone must have withdrawn it. He claimed that the police withdrew it because they didn’t believe her and she wanted to return to Jordan as soon as possible. He was asked whether he had any other documents relating to the charge and said he didn’t. He claimed he had shown that the charge was withdrawn to the tribe but it made no difference as they believed her story.
Asked if he or his family had been threatened, he claimed there was some messaging between him and his wife and he had requests from the tribe to return but he knew what that meant. He claimed that in Jordan even if you said one word to a girl on the street in Jordan the tribe would kill you. It was put to the applicant that the member had been to Jordan several times, and he claimed that it was different in the villages – he was from Irbid. Asked if he had any evidence that he would be killed as, at the moment he was divorced and had been charged with common assault but it had been withdrawn.
He claimed that friends he had asked in Australia had been scared to provide evidence but he would provide letters from his family in Jordan. It was put to him that it was unlikely that a letter from a person the Tribunal didn’t know and couldn’t verify meant it would be unlikely to be able to give much weight to such letters. He claimed there was no reason why he would stay here if it were not true it was put to him that it may be for economic advancement. He claimed that his ex-wife was a [Occupation 1] and he was a [Occupation 2]. Asked if he was [Occupation 2], he claimed he was a qualified but not registered [for Occupation 1] – he wasn’t registered because of these problems.
He had been denied a student visa previously – she knew this which was why she went to the police. His visa finished [in] March 2015 and applied on-line but was shaken by what happened and had answered that he had not been found guilty of any crime and was not awaiting legal action. The police had told him that nothing would occur and everything would be alright which was why he answered the question this way. He agreed he had been charged at this point, but there was no outcome from the court.
It was put to him that there was a difference between being charged and being found guilty and he claimed he only knew this after. He claimed that charged and convicted were the same to him. The interpreter was asked and said that the two words were different in Arabic, not the same. The applicant was asked why, if he thought the terms were the same, he would think the form would ask him the same question twice. He claimed he didn’t know. He was asked what he did to clarify the question if he thought it was the same. He claimed it was the first time he filled it out himself and he ran out of time – he later saw a lawyer who wrote a letter.
The application was still refused. He was asked why he didn’t ask friends in Australia who may have known English better than him. He claimed he tried to translate it by Google. The same question was put to him as to why he didn’t query why the same question would be asked twice. He claimed the words were different in English but the same in Arabic – it was put to him that when the words came out the same he could have asked someone such as an agent. He claimed he was confused at the time.
Asked when his wife first asked for a divorce, he claimed that she told the court in Jordan that her husband didn’t want her even though this wasn’t true. His wife didn’t try to initiate divorce but she was getting alimony AUD [amount] per month. His wife had the primary dowry (mehr) but she denied she had it. He didn’t pay the alimony but there was no court order. Asked to provide the legal sequence of events regarding his divorce, he claimed that his wife went to Jordan [in] March 2015 with about $[amount] but she called [in] April saying that she wanted more money. He said he ahd given her enough and she went to the courts saying he would not pay her.
[In] May the court decision found in her favour and ordered him to pay money. She then opened a [business] [in] April using the money he had previously given her. He was ordered to pay maintenance, but only did it for the [child]. Asked what legal action occurred, he claimed it was still ongoing until the divorce. One of the notices he had given was a notice for imprisonment from [2015] and was asked what this was about. He claimed that this was because the court said he hadn’t paid her dowry and they didn’t recognise anything (such as documents or assets) from Australia.
The court had ordered him to pay maintenance for both but he only paid for the [child]. They had then issued an imprisonment order. He disagreed with the court decision because his wife had lied. This occurred in [2015]. He had a lawyer at this stage. On [date] there was an order to pay JD [amount] to his wife and JD [a lesser amount] to his child. He was asked about the arrest warrant dated [in] 2015 and what it was issued for. He claimed this was for the furnishings and the jewellery that he had already paid.
Asked why he went through with the divorce, he claimed she wasn’t a good wife and just wanted money. Over the 18 months she cost him around $[amount] but he didn’t pay. After the divorce he was aksed whether he still owed money or there was an arrest warrant. He claimed that she took the dowry twice but the arrest warrant was still there. Asked why he would divorce her, he claimed that he tried many times to solve this problem. They didn’t want a divorce or for her to go back. It was put to him that his wife wanted him to divorce her, he claimed she did. It was put to him that she couldn’t be re-married until they were divorced.
It was put to him that it was obvious that he didn’t like his wife so why wouldn’t he punish her by refusing to divorce her. He claimed that he didn’t like to punish people just because they were bad to him. He was told about s 424AA and it was put to him that during his DIBP interview he was asked whether he was going to divorce his wife and he said that he wouldn’t because she made too many problems and he couldn’t afford to give her JD [amount]. He was asked what changed his mind since he told DIBP this.
He claimed that getting married is expensive and he didn’t like the idea of divorce and he didn’t believe he would be divorced at this stage. He thought it could be resolved. Also under s 424AA he said that his wife would initiate divorce but after some period of time. If women initiated divorce in Jordanian law they had no right to their dowry. He agreed. It was put to him that if he didn’t like his wife and divorce was expensive, he could have waited for his wife to divorce and not have to pay the money. This inconsistency could go to the issue of his credibility.
He claimed she would get $[amount] if he divorced her. He claimed that if he went to court against her she wouldn’t get anything but because she had lied she got more than the dowry. It was put to her that he owed her JD [amount] as per the dowry. He stated that if she mistreated the man she didn’t get her dowry. He said he didn’t want to stand in people’s way, yet he lost less money by letting her divorce him (which he claimed she would do) and by not divorcing her, he punished her. Yet he divorced her.
He claimed that she got everything regardless of who divorced who because the court gave her the dowry, even though she had already received the dowry. If he went to court there was not that much of an increase so she didn’t do this. Asked if he paid her the dowry due on marriage. He claimed he paid her the jewellery and furniture (the dowry was gold, jewellery, JD [amount] and furnishings). It was put to him that he could easily have proven the dowry was paid. He claimed the courts didn’t recognise things purchased in Western countries. He was asked where he bought the JD [amont] of jewellery and he claimed it was in Jordan.
It was put to him that he could prove to the courts via his receipt, and he could provide receipts for the furnishings in Australia. He claimed he never had a receipt for the jewellery in Jordan. He was asked if he or is family or lawyer went to the jeweller to get the receipt to give to the court. He claimed things weren’t the same as in Australia. It was put to him that it was reasonable that if he produced a male jeweller to a court in Jordan to say the dowry had been paid it would be accepted as valid evidence. He claimed the problem wasn’t with receipts or anything like that, the problem was with the people who lied in their accusations.

He was asked why he couldn’t prove that he had paid the jewellery and there was JD [amount] in a delayed dowry that he could avoid paying by making her initiate divorce. He claimed that she was the only one who could accept or refuse things – if she received it she could refuse it if she didn’t like it. He was asked to produce evidence that indicated she could receive multiple dowries simply because she didn’t like the one(s) she received. He claimed people tried to intervene and offered to pay all the money and come back with a dowry of JD [a larger amount].
Asked if he had mentioned this before, he claimed it was only three or four months before. He was asked if it was in his statutory declaration he had provided. He claimed it was coming in a statement from witnesses. He was asked why it wasn’t included in his statutory declaration he signed five days before the hearing. He claimed he got it ‘by dates’ from people. It was put to him that he was being very vague and it was reasonable to believe that this would be mentioned in his statutory declaration and it would have been put into a contract. He claimed this was not something he would have accepted even if they agreed on this.
It was put to himt hat this sounded like a messy divorce and thousands of divorces occurred in Jordan every year and some of these would likely to be messy but there was no indication that ex-husbands were harmed or killed just for being in a messy divorce. He claimed that things would not happen to him publicly for reasons of the divorce.
He stated that the delayed dowry was raised in the courts by saying his ex-wife was a liar and she was only given JD [small amount] rather than the JD [larger amount] so he saved money. Asked how he paid the money, he claimed he was still trying to sort it out through tribal negotiation. Asked how he paid maintenance, he claimed that he paid to his family then to his lawyer. He mainly did this through [a bank]. Asked if he had any records that would support this specific amounts of maintenance through his lawyer. He claimed he had receipts from his lawyer – asked why he didn’t send it direct to his lawyer, or his child’s/wife’s account.
He claimed he had tried but they wouldn’t allow it. The Tribunal said it was trying to get evidence that he paid this maintenance that didn’t rely on a written receipt. He claimed he didn’t send things month by month but would send [amount] every now and then. He said he had receipts from his lawyer, and it was put to him that when the member travelled in the Middle East people just gave blank receipts for anything. He was asked if he could prove that money went to his [child] rather than just a normal remittance from Australia to his family in the Middle East. He claimed that it was his [child] and only had receipts from his lawyer. It was put to him that the member had bank accounts in the Middle East so it should be easy to show regular electronic transfers.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on a student visa [in] November 2011 and remained on student visas until his last application (submitted [in] March 2015) was refused [in] June 2015. He applied for a protection visa [in] May 2015. The Tribunal sighted his Jordanian passport; I accept that he is a national of Jordan and his application will be assessed as such.
The applicant is a [age] year old divorced Jordanian. He claimed that he would be killed by members of his ex-wife’s tribe if he returned to Jordan as a result of a messy divorce and an allegation that he had mistreated her.
In assessing the applicant’s credibility I have taken into account the various medical documents that he has provided (folios 112, 37, 41. I lend them little weight given I note that the documents are based in whole or in part on an uncritical acceptance of the applicant’s claims to fear for his life in Jordan. Indeed, in one of them (folio 39) the psychologist stated that in her opinion his ‘fear for his safety if he were returned to Jordan is genuine’ yet she does not say on what basis she makes this assertion. As will be seen from the finding hereafter, the Tribunal has found the applicant to lack credibility and that his claim to fear harm has been fabricated. Given that they variously state he suffers from [various mental illnesses] it is reasonable to believe these may be a consequence of visa uncertainties and/or a divorce.
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.
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 that he fabricated his entire claim in order to be granted a protection visa.
Issues of credibility and Inconsistencies
There are two issues that, while appearing minor in their own right, point to broader issues surrounding the applicant’s lack of credibility that are referred to below. The first relates to a claim made in his statutory declaration of August 2015 in which he claimed that ‘Through their relatives in Australia, [his wife’s] family investigated me and they were okay for the marriage.’ During the hearing he was asked if his wife had any family in Australia and he claimed that she didn’t; I do not accept the inconsistency was because he meant friends, or that he didn’t know if they were friends or family. I am not satisfied that if he was so uncertain of their status that he would specifically declare them to be family in his statutory declaration.
I also note that the applicant had his student visa refused for containing false and misleading information related to his being charged with common assault (a charge later withdrawn) (folio 99). I am not satisfied that he answered ‘no’ as to whether he had ever been charged because he misunderstood the question (folio 87), he thought the police had told him it would be fine, because he was shaken by what had happened at the time, or that he thought being charged and guilty were the same thing. Not only are the words in Arabic different, but he was unable to say why he thought he would be asked the same question twice on the form, nor did he seek to clarify what the question asked to clear up any misconceptions.
Divorce
Although he has been inconsistent in his evidence I am satisfied that the applicant is divorced, evidenced by his Jordanian government divorce certificate (folio 66). I am not however, satisfied that he is or will be at risk of serious harm for having divorced his wife or because of perceptions from her tribe that he mistreated her.
To begin with, the outcome of the divorce was inconsistent with what he had told DIBP during his interview in late 2015. Then, he said that he would not divorce her because she made too many problems and he couldn’t afford to give her JD [amount]. He also said that she would divorce him after some time. Yet he initiated divorce in July 2016.
I do not accept that he stated this because he didn’t believe that he would be divorced at the time of the DIBP interview and thought it could be resolved. In his statutory declaration of August 2015 however, he variously said of her that ‘She has not only cheated me but also deceives the Jordanian law’, ‘She only wanted money without caring about me or family life’ and ‘I fear she would not even allow me to have access to my [child].’ These are not the statements of someone who believes that his marriage difficulties can be resolved.
I do not accept that the applicant’s wife is seeking to gain additional financial benefits from the applicant in excess of what the marriage contract sets out. The contract (folio 62) stipulated that she receive JD [an amount] of gold, JD [amount] of jewellery and JD [amount] of home furnishings as her immediate dowry and JD [amount] in deferred dowry in the event of her husband’s death or divorce initiated by him.
He claimed that he had provided the jewellery to her in Jordan and the furnishings to her in Australia but that she denied receiving them. He also said that she was able to refuse the dowry given to her and demand one that she liked. The Tribunal is unaware of any element in any Islamic legal code that allows for a bride to retain multiple dowries until she accepts one that satisfies her, nor was he able to produce evidence when asked whether this was allowed.
I also do not accept that she had lied about receiving her dowry or, as he claimed in his statutory declaration that she refused to acknowledge it because she did not sign the marriage agreement. To begin with, the applicant could have produced receipts from the jeweller (or the jeweller himself) in Jordan from whom he bought the JD [amount] and submitted them to the court via his lawyer.
I do not accept that he failed to do so because the problem was with the false testimony of his accusers. It is reasonable to believe that the best way to refute false claims is to provide evidence against it. His inability to do so is not indicative of someone who is facing false allegations in court. His claim that she denied receiving her dowry is also inconsistent with the alleged court notice that states the debt is ‘the remnant of gold (taken to be the jewellery) worth JD [amount]’, which would indicate an acknowledgement that at least part of the dowry has been paid.
I also note that he has made no attempt to provide evidence through his lawyer that he has provided JD [amount] worth of furnishings in Australia, and while he claimed that Jordanian courts do not accept things purchased in Western countries he did not provide any evidence to support this nor is any such information available to the Tribunal.
While I am satisfied that the applicant has divorced, I am unable to lend much weight to his supporting documentation that indicates he has ongoing legal problems in this regard or that he will be jailed for non-payment of alimony. The correspondence between himself and his lawyer consists of a poorly translated and undated statement from the applicant (folio 63), two poorly translated social media ‘chats’ with his lawyer (folio 60, 61)
He has included a letter from his ex-wife’s lawyer regarding alimony dated [in] May 2015, a summons (folio 63) issued [in] 2015 to attend court on [a date in 2015] regarding alimony, and court-ordered alimony and maintenance dated [in] 2016 (folios 118, 119). There is also an order to pay JD [amount] ordered by the same court [in] 2015 and an imprisonment decree for failing to pay the same dated [in] 2015.
He submitted a signed a power of attorney for his lawyer dated [in] June 2016 (folio 117). He has also submitted a copy of a bank statement (bank not identified) valid to [January] 2015 showing he had a balance of JD [amount] as at [November] 2014. He was also asked to provide copies of the last two bank statements prior to closure if the account had been closed prior to being granted his visa, as well as a copy of the closure letter. Given that he has not provided these, the Tribunal is satisfied that the account remains open with JD [amount] still in it.
He has not indicated why he employed a lawyer only after he was ordered to pay alimony and JD [amount] in dowry payment, nor does there appear to be any formal/email correspondence between the applicant and the lawyer about the case. This is particularly strange given that he claimed the debt was reduced Nor is there any evidence that would indicate that the applicant is paying alimony, or any attempt to pay the court-ordered debt. He claimed that he paid maintenance for his child but not his wife and did this through sending a remittance from Australia every now and then and this would be given to his lawyer or family to pay to his [child]. It makes no sense why he would use this convoluted method when he could simply have transferred money from his Jordanian bank account in which he had JD [amount].
It also makes little sense why, if he had this amount of money in his bank account that the court would not have ordered the payment from this account, nor why his lawyer (who had been given power of attorney) could not have paid this to the court. There is also no indication as to why an amount of JD [amount] was fixed as part of the divorce (folio 31) and what relationship it has to the JD [amount] debt as the document says the ex-wife has the right ‘..to follow up the case..’ It is reasonable to believe that there would be significant correspondence between the lawyer and her client in respect to instructions leading up to the divorce case, yet they appear absent.
I am unable to lend much weight to the court documents given they are of unknown providence, and the photocopies of the documents are such that the originals appear to be easily reproducible on any computer. The only legal document that I can give weight to is the Jordanian government, computer-generated divorce registration. Hence I am satisfied only that the applicant and his ex-wife are divorced. There has been no movement of funds from his substantial Jordanian bank account that he has provided that would support his claim that some maintenance payments have been or are being made, nor that any court-ordered alimony or dowry has been paid.
Harm from Relatives
I have outlined my concerns regarding the credibility of the applicant and, while I have accepted that he is divorced from his ex-wife, such is his lack of credibility that I do not accept that he will be harmed by her family as a consequence of that or because of perceptions that she was physically harmed by him. The charge relating to an alleged assault on his wife was withdrawn (for reasons unknown) and there is no indication that this charge is known in Jordan. No reference is made to it in any of the legal documents from Jordan that the applicant has provided.
The Tribunal is unaware of independent country information that indicates ex-husbands are targeted by the wife’s family following a divorce in Jordan. Divorce is a common occurrence in Jordan, with around 25 per cent of marriages ending this way[1] and there is media information that points to some instances of Jordanian men killing their ex-wives however the Tribunal is unaware of any instances in which tribal retribution is carried out on an ex-husband over a sense of honour.
[1] accessed 15 August 2017
The applicant has provided a range of information in support of this claim however I lend it little weight. There is no indication of any of the sourcing of the documents; some refer to arguments between a husband and wife, general articles on crime in Jordan, tribal disputes, a youth suicide and there is one story about a fruit trader killing the ex-son in law because of a divorce. Without sourcing details it is impossible to check their accuracy or validity. As a consequence I place more weight on the inconsistencies in the applicant’s evidence.
I also do not accept that there was a mediation attempted to resolve the tribal dispute that would have meant the ex-wife would be satisfied with a dowry on JD [amount]. This was never mentioned previously, including in his statutory declaration signed five days prior to the hearing, even though he claimed that it occurred three or four months previously. I do not accept that it was because the information was coming from witnesses. The reasoning as to why he had to wait for the information was unclear and there was nothing to prevent him from informing the Tribunal of this in his statutory declaration.
Letters of support were received post-hearing (folios 57-9) attesting to the mediation and the tribal dispute however I lend them little weight as there is no way of checking the validity of what they claimed. I also lend little weight to the claim made in the statutory declaration (folio 45) that his ex-wife’s [relative] killed someone for no reason the previous [year]. No evidence to support this claim was made and the applicant lacks credibility.
Having had regard to all the evidence, and the applicants’ claims both singularly and cumulatively, I do not accept that there is a real chance that the claimant would suffer persecution for any Convention reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant is in dispute with his wife over their divorce, or that her family wants to harm him because of a belief that their honour was besmirched by either the divorce or an accusation of assault in Australia, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
As a consequence I also 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 the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
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 s.36(2)(a).
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).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rodger Shanahan
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)   the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)   without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)   the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)   a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)   significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)   a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)   any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)   protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2017] AATA 2149

17 August 2017

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