1515605 (Refugee)

1515605 (Refugee) [2017] AATA 1495 (7 August 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1515605
COUNTRY OF REFERENCE:                  Jordan
MEMBER:Rodger Shanahan
DATE:7 August 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 07 August 2017 at 7:09am

CATCHWORDS
Refugee – Protection Visa – Jordan – Illicit relationship – Loan default – Credibility issues
LEGISLATION
Migration Act 1958, ss 5(H), 5(J), 5K-LA, 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]October 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] March 2015. The delegate refused to grant the visa.
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 entered Australia on a [temporary] visa that expired in August 2014 and applied for a protection visa in March 2015. He claimed that he feared being killed by a tribe in Jordan because he had slept with a girl named [Ms A]. Because of this he would be tried by traditional tribal juries.
He and his family tried to fix up the issue by approaching [Ms A’s] family and asking to marry her but the family refused because he was a Palestinian Jordanian while [Ms A] was a pure Jordanian. He began receiving threats from [Ms A’s] parents and decided to flee to [Country 1] where he lodged a protection visa application but was refused and returned to Jordan.
On return to Jordan the problem still existed and he was forced to flee to [Country 2] but returned after an agreement was brokered with [Ms A’s] family by the head of another tribe. He was required to beg for mercy from [Ms A’s] parents.
He thought it all over and opened a [business] in August 2013 but some of [Ms A’s] relatives (who had not been part of the settlement) burnt down the [business] and he was forced to flee to [overseas]. He returned to Jordan after two months as he thought he had been punished and sought mercy enough to resolve the situation.
He re-launched the business but one day he was called out of the business by a person who shot him [and] hit him [that] required [stitches] to fix. He will be killed if he returned to Jordan and had been unable to pay the loan for the [business] he had taken from some people. These people went to court to claim their money and he would face imprisonment if he returned to Jordan.
AAT Hearing
The applicant was asked how he attempted to get a copy of the visa refusal from [Country 1] that he was asked to provided and he claimed he got his wife to speak try to speak to the [Country 1 people]. He was reminded that he was asked to provide evidence (email or the like) as to the steps he took to get a copy of the decision and he said he spoke to the lawyer to send him the decision. Asked what the name of the lawyer was, he claimed that he had forgotten. He came from Legal Aid from [Country 1].
Asked if he had email correspondence he said he had spoken to him. He was asked when he spoke to the lawyer and what the lawyer’s number was, and he said it was a week after he had his immigration interview in Australia. Asked if he had been in contact with the immigration department in [Country 1] who held the decision, he claimed he got his wife to speak to them but it turned out there was no application, it had been cancelled.
It was put to him that he was asked to provide either a copy of the decision or a copy of the correspondence he had with the [Country 1] authorities showing his attempt to access it. He repeated that he didn’t know about it and his wife had spoken to them. He was reminded that the Tribunal was interested in what the applicant had done, not what his wife had done. He was asked if he had any evidence from either the [Country 1] lawyer or [Country 1] immigration authorities that he had tried to access the decision, he claimed that he had none.
He was asked about the verdict from an Amman magistrate’s court that he had provided and he claimed that it related to a loan he received from a private company to open his [business]. He was asked about the court case and he said he borrowed money from a privately-owned company to open his [business]. He needed [it for certain reasons]. When the [business] burnt down the company took him to court because he wasn’t paying back the loan.
It was put to him that this wasn’t what the document said. The verdict said that the applicant wrote a cheque that was dishonoured. He claimed that when he signed the cheque over to the person it was dishonoured because the [business] had burnt down. It was put to him that the document said nothing about a loan. He had been asked to provide copies of his Jordanian bank statements. He claimed he spoke to the bank but his account had been closed down.
It was put to him that they could still issue him statements even though his account had been closed, and he may also have them himself. He was asked whether he had evidence that he had sought his statements or that his account had been closed. He claimed he was in Australia, and it was put to him that the bank would have sent the statements to his address in Jordan or his family could have requested such statements from the bank. The Tribunal sought these documents so it would have some objective information.
He claimed that his brother went to the bank and they informed him that the account was closed – he stated that the banking system there was completely different to the system here in Australia. It was put to the applicant that the member had lived in several Middle Eastern countries and had travelled to Jordan quite often and understood the systems quite well and if he was writing cheques then he must have had an account, and the banking systems gave computer-generated bank statements to their customers.
He said he could not provide any evidence that he had tried to access his statements from Jordan, as he got his brother to request them. The Tribunal stated that it wasn’t really interested in what his brother did, but what the applicant had personally done in order to get bank statements as he had been requested. He said that once the account was closed they would not send you anything; it was put to him that the member had closed bank accounts in Middle Eastern countries and had received statements showing this, and Jordan would not be much different. He claimed that he did not know.
He claimed that if he returned to Jordan he would be killed by the parents of a girl with whom he had sexual relations. He also claimed that he owed people money and he would be jailed on return. He agreed that he owed money and was asked what the harm is in being jailed for a crime he committed; he then said that the only fear he had was from the girl’s parents and that was his only claim.
He met the girl in 2007 when she was studying at her school; he wasn’t studying himself. Her house and school were [in a certain location]; he and his friends would go to the girl’s school around 2 pm. He got her telephone number and then stopped visiting her school and when the girl visited her friends and [relative] she would see her then. This occurred around the end of 2007; he didn’t remember exactly when but it was very hot. It was put to him that it would be cold in Amman at the end of the year – he claimed that there was no problem if the sun was shining. It was put to him that he may not have the timing correct and he claimed that he didn’t know the days, he only knew that the sun was shining.
They maintained their relationship and he slept with her. She was younger than him by about [number] months. When they met he was roughly [age] and she was roughly [age]. They went out for around a year and a half to two years. When they went out they met at coffee shops where they would sit or drive around in a car in Amman. They would see each other for half an hour. She came from a family where she [had] [siblings].
Asked if they took photos or had any evidence that they were a couple, he claimed that he didn’t have any because she didn’t want any taken and society didn’t encourage people to take photos. She didn’t want anyone to know they had a relationship so she wouldn’t take photos. Asked if he could provide any evidence that there was a girl with whom he had a relationship (such as photos, Facebook, email, text or other social media evidence). He said they had no Facebook but he sent her texts. He had no copy of the text messages because it had been eight or nine years.
Her birthday was [date]; they met in 2007. It was put to him that she would have been [age] when they met, not [age]. He claimed she was [age] and a half and it was put to him that if he met her at the end of 2007 she must have been [age]. He said that he remembered she was [age] or [age] and it was put to him that she was [age] if her birthday was correct. He said her birthday was correct.
Neither family knew they were going out, nor did they find out. There was a security guard for some apartments he knew and in 2009 they had sex there. He couldn’t remember when but it may have been April. She told her mother as he had asked to marry her several times. It was put to him that he had said neither family knew they were going out and he said in his culture they wouldn’t assume they had been seeing each other if he asked her to marry him.
Asked why she told her mother about the sex given it wasn’t the thing one would reveal in Arab culture. He claimed that because they wouldn’t let them marry, they concluded that if they slept together the families would have to let them marry. The girl was okay with this approach. He was asked why she didn’t want photos of them taken together because this wasn’t in line with their culture, yet she was happy to have sex with him in an apartment and then tell her mother. It seemed strange that she would be afraid to have photos with him given cultural norms but not afraid to have sex with him given the enormous cultural norms that this violated.
He claimed that he wanted neither set of parents to know he was seeing [Ms A], but that he wanted to marry her. He had no Facebook so couldn’t add her to it. He was asked why, if he didn’t want photos taken with her he would still want sex with her. He had spoken of the pervasive cultural norms that existed in Jordan that stopped him from doing things, yet they weren’t sufficient to stop him having sex outside marriage. He repeated his claim that he had asked to marry her twice and there was no other solution. They loved each other.
After [Ms A] told her mother, she told her husband. The father and his son then went to the applicant’s place and stabbed the applicant’s [brother]. They had asked about the applicant and his family told them the applicant was away and hadn’t been back since yesterday. They thought the applicant’s brother was lying and stabbed him. He didn’t know what happened to [Ms A] and had never tried to find out. Asked why, given he loved her and he said he didn’t know how to contact her. Asked whether he could have asked his friends to find out given people talk in Arab culture, and he claimed it was a sensitive subject and no one would want to interfere.
The stabbing was reported to the police but they didn’t make a report. Asked why not given the seriousness, he claimed that he didn’t know. They came to his house and stabbed his brother (inaudible) after he slept with [Ms A]. The applicant then went to [another city] so he didn’t have to face her family. He was there for six weeks. Asked again when his brother was stabbed he said it was the second day after he slept with [Ms A]. Asked when these events occurred, he claimed it was around April 2009 but then he said he knew it was April.
He then applied and got a visa for [Country 1]. Asked why he did this, he claimed he needed to leave because he was afraid [Ms A’s] family would kill him. The visa took about six weeks to get – he already had a passport. He flew to [Country 1] via a few hours’ transit in Turkey. He was asked why he didn’t go to a country where he didn’t need a visa so he didn’t have to wait six weeks for a visa while [Ms A’s] family (with all their relatives in the government). Country information indicated Jordanian passport holders could enter countries such as Turkey, Egypt or Armenia without getting a visa beforehand. He claimed his parents would want him to come back and there was nothing to do there. It was far away from them.
It was put to him that he could apply for protection there and spoke Arabic (as they did in Egypt) while he spoke no English and went to [Country 1]. Asked why he didn’t try to get to a safe place as quickly as possible – go to Egypt where they spoke Arabic and was cheap. He could even have applied for a [Country 1] visa from here but at least he would be safe. He claimed there was no protection in Egypt and it was put to him that he would be safe – he was a single, adult male who spoke the language. He was asked why he stayed in Jordan when he could have left the country the next day to be safe.
He claimed that he would be asked to leave within a week or two. He was asked how long the visa lasted for and he said no more than two or three months. It was put to him that he could then apply for a renewal or apply for a [Country 1] visa while there. The Tribunal was wondering why he didn’t explore opportunities to get out of harm’s way quickly. He agreed Egypt was quicker to get to (and Turkey) but he didn’t know how long he could stay. It was put to him that he could have applied for a [Country 1] visa, then gone to Egypt/Turkey to get out of harm’s way while his [Country 1] visa was being processed. He claimed he had to apply for a [Country 1] visa from outside – he was told again that he could apply for a visa then go out of the country and either return just to get the visa or ask to pick it up from Cairo, Istanbul or Ankara. He claimed he was in the middle of a problem and couldn’t process what to do in an hour or two.
In [Country 1] he applied for protection but was unsuccessful. He was told that his story about sleeping with [Ms A] was not believed. He was asked why Australia should accept the same claim that [Country 1] had rejected and he claimed this was what had happened. He had previously applied for a [Country 3] visa in what he thought was 2006 or 2007 but was told by DIBP it was 2008. He had [relatives] there. His visa was refused but he never read the letter because it was in English and he threw it away. It was put to him that correspondence would be in both English and Arabic as this was standard procedure based on the member’s service in two Middle Eastern embassies. He claimed the person gave it to him on the spot at the interview and told him at the interview he was not entitled to a visa but gave him no reason. He was asked if he asked why, and he claimed he never did nor did he ask if he could apply in the future or if he needed any other information. He just received the refusal and left.
He returned from [Country 1] in 2013 having left in 2009. He was met by his dad who told him he should go to [another city] which he did, and from there went to [Country 2]. He was worried about the applicant’s safety and wanted him to stay there until they spoke to [Ms A’s] family. He was there for five days until his father spoke to the mayor and asked him to broker an agreement with [Ms A’s] parents. The parents asked for an apology from the applicant that he gave and they accepted. His father then helped him when the applicant opened a [business] but it was burnt down three days after it was opened.
He leased the [business] and took a loan from a private company but he couldn’t recall the name (his father told him about it). He didn’t know anything when he returned to the country. It was put to him that it wasn’t a random piece of information and if he’d only borrowed money from one company, it may be reasonable to believe that he would know its name. He claimed that his father took him to the company. He borrowed [amount] JD. Asked what the interest rate being charged was, he claimed he didn’t know.

The whole amount was deposited in the Bank of Jordan in 2013 in August. Asked how long the loan was for and what the monthly repayments were, he claimed that he didn’t know how long the loan was for as his father organised it. It was put to him that he was an adult male who had to sign for a loan (the only one he had taken out) yet couldn’t tell him the length of the loan, the interest rate or the monthly repayments. He had been asked to provide bank statements to prove that he received a loan but had failed to do so. This may call into question as to whether there was any loan. He claimed there was but his father looked after everything. It was again put to him that he was an adult male and it was reasonable to believe that he would know details of the loan that he signed for. He claimed his father was with him when he signed and he (the applicant) had no experience.
Asked what the cheque that was drawn, and he claimed that he wrote a cheque to the company to withdraw the money on that date. Asked who [a named person] was, he said he was from the company. It was put to him that it didn’t make sense. He claimed he took the loan out in August. It was put to him that the company deposited [amount] JD in his bank account in August, yet the complaint said that the applicant had written a cheque for [amount] JD [in] August 2013 to the company but that it had bounced. This didn’t make sense if he received a loan to stock and run his [business]; the document he had presented that he said was from a court in Jordan basically said that he presented a cheque that bounced.
He claimed that he took [amount] JD from the company in August 2013. He claimed that he knew he had to pay a cheque for [amount] JD every month, not [amount] JD in one cheque. It was put to him that this wasn’t what the alleged court document alleged. It was also put to him that he had said he had to pay [amount] JD a month yet previously said he didn’t know. He claimed he had only been asked the interest rate but it was put to him that he had been asked about the repayments and their frequency.
Regardless this was not what the problem with the alleged court document he had given was about. He had presented the document to the Tribunal so the Tribunal assumed the applicant knew all about the case to which the document referred – he was asked why he gave the document to the Tribunal. He repeated that he took a loan for [amount] JD which was to be repaid at [amount] JD/month but his cheque bounced. It was again put to him that the document referred to the fact he wrote a cheque for [amount] JD and either the document or his claim was wrong, but either way the claim was inconsistent. He claimed the court letter was sent to his parents’ house. Asked when he had been charged, he claimed that it was possibly in 2014. He didn’t know when. Asked when his account was closed, he claimed he didn’t know what date it was.
After his [business] was burnt the fire brigade came and began an investigation. The [business] was fixed and he went back to work there. He left to go [overseas] in November 2013 as he was worried about [Ms A’s] parents after the [business] was burnt. He got the money from his father. He slept in the mosque. He stayed for two months but didn’t apply for protection. Asked why he didn’t, given he had previously applied for protection in [Country 1]. He claimed he had no money to apply and it was put to him that one didn’t need money to do this, but even if he did he could have got it from his father who sent him there for his protection in the first place. His father told him that it wasn’t [Ms A’s] parents who burnt the [business]. He didn’t have money and his father wanted him back.
Asked to confirm that the reason he left was because he was afraid of [Ms A’s] parents he agreed. It was then put to him that he originally said he didn’t apply for protection because he didn’t have enough money but when it was put to him that it didn’t cost much he said it was because his father wanted him back. The Tribunal was concerned that he was changing his story. He then said that he didn’t apply for protection because he had no money, couldn’t speak to people and nobody helped him. It was put to him that he applied for protection in [Country 1] without knowing English, so was asked what as an adult male he personally did to find out how to apply for protection in [Country 4].
It was put to him that if stayed in a mosque in [Country 4] there would have been an imam who knew Arabic and that in accordance with Islamic principles then other worshippers would help a fellow Muslim navigate his way through the asylum system. He claimed that nobody helped him – he was in a Turkish mosque but there were a few Arabs. He asked them but they all refused him. They told him he had to go to a lawyer and pay money – it was put to him that this was very hard to believe. He didn’t go to the [Country 4] immigration authorities and ask for an Arabic interpreter – given he had a fear of serious harm it was unusual that he made no effort to secure protection. He claimed he was really scared when he went to [Country 4] but he was not subject to any direct harm before he left.
When his cheque bounced in August 2013, the company spoke to his father. Asked what they did to him given he signed the loan. It was put to him that he signed the cheque [in] August but the account was closed, and he was asked if they came to him. He claimed they did and they went to court. He was here when that occurred. It was put to him that not only did his cheque bounce but his account was closed and the finance company had just lost [amount] JD so the company would have moved quickly and may even have tried to put a stop on him leaving the country.
He claimed he didn’t close the account, the bank did. He was asked about the actions of the finance company who would have been after the applicant. They knew where he lived, and where his [business] was. He claimed they gave him a monthly account to repay ([amount] JD/month) – it was put to him that the account had been closed. He claimed he had to pay the money in cash and would be given a receipt, but he never paid any money. The money came to around AUD [amount].
The first repayment should have been due in September and he was asked what happened when he didn’t pay this, or the next one in October. Did the finance company take legal action or try to reclaim the [business] and sell it as an asset. He claimed the [business] had closed (at the beginning of 2016) but it was put to him that the company had been issued a dud cheque in 2013 and would have taken immediate steps to recoup this money. He claimed nothing happened, only a letter was sent. It was put to him that this appeared extraordinary and he claimed this was what occurred. There was no documentation about forfeiture of assets or a default notice from the company. If he had re-negotiated the loan there would have been some pretty strong documentation. He said the letter was all that he received.
He returned from [overseas] because it was not [Ms A’s] family who had burnt his [business]. He returned to his [business] and worked there and a person came asking for the owner. When he said it was him he asked to speak to the applicant outside and there was someone else who was hiding. He was shot [and] [hit] – he went to hospital. He showed the Tribunal a mark [that] was quite indistinct and did not appear to have any stitch marks. He claimed that it was from a rifle. He had no other marks on the [body] – this occurred in March 2014. He left hospital and went to his grandfather’s [place] and stayed there for around two months and applied to come to Australia in April.
He came to Australia because he wished to escape serious harm in Australia and applied for protection after a while. This was clarified as 10 months and he claimed this was because he was scared of being deported. Asked why he formed this opinion, he claimed that he thought it was the same as [Country 1]. He thought if he applied he would be told no and sent back.
Asked if, as part of his application for a visa in Jordan he had informed the Australian authorities that he had previously been refused a visa to [Country 3] and had unsuccessfully applied for protection in [Country 1]. He claimed he didn’t know anything as he just gave his fingerprints and nothing else. It was put to him that an application had to be filled out, and he claimed he didn’t write anything – somebody else called [Mr A] filled out the form. Asked if he signed the form he said he couldn’t remember. Asked again he again said he couldn’t remember.
Asked if he told [Mr A] about his [Country 3] and [Country 1] visa issues, he said he just wanted to come to Australia and he had no idea what was in the form. It was put to him that [Mr A] had to answer questions so would likely have asked the applicant the answers. One question was about being excluded from any country or refused a visa. This came under the ‘Character’ section. He said he knew nothing about the visa application in Jordan. He was asked whether he told the person who filled out his PV application if he had been excluded from [Country 3] and he claimed that he did. Asked if he checked this before he signed it, he claimed he only gave the answers to questions and it was never read back to him. It was put to him that there was no mention of his [Country 3] exclusion and he claimed that he had never lied.
He was told about s 424AA and it was put to him that the Amman embassy stated that neither the applicant nor [Mr A] had stated any adverse answers to the character questions and they had both provided evidence of sufficient funds. It was put to him that by this stage he had been excluded from [Country 3] and deported from [Country 1] which meant there would have been adverse answers if the form was filled out correctly. He had also stated that the bank had closed down his account in 2013 so he should have had no funds. The Tribunal was concerned that the applicant had deliberately withheld information and presented evidence of funds that may not have existed in order to gain a visa to Australia. This would go to issues of his credibility.
He claimed that he didn’t lie and just told [Mr A] he wanted to leave Amman, so he could not be blamed for anything that was or wasn’t in the application. He also hadn’t lied when filling out his protection visa application and had told his lawyer that he had been excluded from [Country 3]. Asked if he didn’t think the embassy in Amman would need to know he had been excluded from [Country 3], deported from [Country 1] and had his bank account closed. He repeated that [Mr A] was responsible.
It was put to him that this was not [Mr A]’s fault and the Tribunal needed to form an opinion of his credibility. The Tribunal was concerned that the applicant lacked credibility – there was concern that there was nobody called [Ms A], there was no sex and her family was not looking for him. He had been disbelieved in [Country 1], provided false information in order to gain an Australian visa and was now fabricating a claim. He claimed this was what happened and it wasn’t his fault the [Country 1] didn’t believe him.
He had travelled [overseas] for two months and not sought protection, come to Australia and not sought protection for 10 months. The Tribunal was concerned that he had gone out of Jordan for economic purposes. He claimed that he didn’t know how protection laws worked and he was confused after being deported. It was put to him that he was an adult male and could work out how systems worked.
Also under s 424AA it was put to him that when his brother was stabbed it was the day after he slept with [Ms A]. In his DIBP interview he had claimed that this occurred eight days after he slept with [Ms A]. This inconsistency was potentially further evidence regarding his lack of credibility. He claimed that this occurred nine years ago and he found it hard to recall.
Asked about [Mr A], he claimed he was a friend of his father’s but their relationship was superficial. He was an [occupation] and the applicant was [an occupation] there for four hours a day. The applicant officially worked for his father but from 2007-08 they worked together, albeit in different offices – they didn’t see each other. Also under s 424AA he was told that his visa included a support letter from [Mr A] who described him as a work colleague and that the applicant had portrayed himself (or allowed himself to be portrayed) as a co-worker with [Mr A] in [an official]’s office.
It was put to him that the letter was in 2014 and he hadn’t worked there for more than five years by this time and he was trying to present himself as something that he wasn’t. He claimed that his father told [Mr A] that the applicant was in danger and needed to leave Jordan – the applicant knew that a letter would be sent but maintained he had no idea what went in the visa application. He claimed that he didn’t lie.
The applicant had been working [but] had hurt [himself]. The insurance company paid him. He had a bank account with the Commonwealth Bank and a joint account in Westpac with his wife, opened more than a year ago. He opened his Commonwealth account about two years ago and he was asked to provide copies of the Commonwealth account statements. He claimed that he hurt himself three days after starting work so the insurance company paid his boss and his boss paid the applicant His wife had [children]; [a few] were with them, [and a few with other people].
He was asked about his Jordanian business registration and it said that it had capital of [amount] JD whereas he had a loan for [amount]. He claimed he didn’t know what it said and it was put to him that he had given the Tribunal the document and it was his business and it was reasonable to believe that he knew what was in it. It was put to him that he had operating capital that was 1 per cent of the loan that he took out and this raised questions about the validity of his documents.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on a [temporary] visa [in] May 2014 (valid until August 2014). He applied for protection [in] March 2015. The applicant is a [age] Jordanian national and his application will be assessed as such. He claimed that if he returned to Jordan he would be killed by the parents of a girl with whom he had sexual relations. He also claimed that he owed people money and would be jailed but subsequently said that only the former claim stood. He had no other claims.
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 wholly lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible, or truthful witness, and find that he fabricated his entire claim, provided false information to the Australian government and lied under oath in order to be granted a protection visa.
Provision of False Information to the Australian Government
I am satisfied that the applicant has provided false information to the Australian government as part of his visa application in Jordan. The applicant had an application for a visa to [Country 3] refused in 2008, then was granted a visa to [Country 1] where he was refused protection and deported in 2013. Despite this he was granted a [temporary] visa to Australia, which is unlikely to have occurred if he had revealed this information to the Australian embassy. The notes from his visa case (folio 60) state that he ‘made no adverse answers to Character questions on the application form’ which would have included a question as to whether he had ever been removed, deported or excluded from any country.
I also note that he was granted the visa in March 2014 and then received a new Jordanian passport in [2014] and entered Australia on this clean passport. Further, I note that the visa case notes also state that he had ‘submitted acceptable evidence of funds’ even though the applicant claimed during his hearing that his bank account had been closed in August 2013. I do not accept that he didn’t write any of his visa application, had no idea what was in the form and couldn’t remember if he had signed it. This relies on the applicant’s credibility, which I have found to be entirely lacking.
Relationship with [Ms A]
I do not accept that the applicant had a relationship, sexual or otherwise, with a girl named [Ms A]. To begin with there is absolutely no evidence other than his oral claim regarding this relationship. He claimed this was because she didn’t want anyone to take photos because she didn’t want anyone to know they were in a relationship; he sent her texts but hadn’t kept them. I find it lacks credibility that they would be constrained by cultural norms to such an extent that they wouldn’t allow themselves to be photographed together, yet they would be so unconstrained by cultural norms that they would be happy to have sex to force her family to let them marry.
There were also other issues that support the finding that their relationship was fabricated. Despite the consequences to him of the relationship, he didn’t know what had happened to [Ms A] subsequently and had never tried to find out. He was vague as to when they had sex (he thought it was April) which is strange given it was the first time he had sex and because of the consequences he claimed that this act had. He was also inconsistent about her age. Initially he claimed that he was roughly [age] and she roughly [age] when they met, yet given he claimed they met at the end of 2007 and her birthday was [date] she would have been [age]. It is reasonable to believe that, given the intensity of their relationship he would have known how old she was when they met.
Targeted by [Ms A’s] family
Because I do not accept that the applicant had a relationship with [Ms A], it follows that her family were not targeting the applicant and he had no fear of them doing so. A range of evidence supports this finding. To begin with, the applicant claimed during the hearing that his brother was stabbed by [Ms A’s] family the second day after he slept with [Ms A], yet in his DIBP interview he claimed it was eight days after he slept with [Ms A]. I do not accept that, given the seriousness of the crime, the time since the incident meant that he couldn’t recall the exact time the stabbing occurred. I also do not accept that the applicant was shot [and] [bashed]. The Tribunal saw a mark on his [body] that was relatively indistinct and it places little weight on it as proof that he was shot by a [rifle]. I also place little weight on the medical certificates/invoice (folios 101, 103) – they could have been written on any home computer and I note that the English name on the letterhead is [misspelt], whereas the centre’s website[1] is correctly spelt.
[1] [Information deleted].
Then, despite claiming to fear serious harm from her family, he simply moved to [another city] and waited for six weeks while his application for a [Country 1] visa was processed. Given he had a passport he could have moved immediately to a country where he didn’t need a pre-approved visa (such as Egypt where he spoke the language, or Turkey) and applied for protection there, or applied for a visa to [Country 1] and then left the country and picked up the visa there, or returned to Jordan simply to collect the visa. His actions are not those of someone fearing serious harm in Jordan from a vengeful family.
Then, having returned to Jordan four years later his father allegedly sent him to [Country 2] while he brokered an agreement with [Ms A’s] family using the mayor as an intermediary. If this was a possible solution, it lacks credibility that the father would wait for four years after the incident to try to broker a solution. It also lacks credibility that the applicant would go [overseas] for two months because he was afraid of [Ms A’s] parents after his [business] was burnt and yet not apply for asylum. He had unsuccessfully applied for asylum in a country whose language he didn’t speak previously ([Country 1]) so it is reasonable to assume that he had the wherewithal to do the same in [Country 4].

I do not accept that nobody helped him other than to tell him he had to get a lawyer and pay money. I have highlighted the applicant’s lack of credibility and his inability to engage [Country 4] immigration authorities and ask for an interpreter, or ask a [Country 4 language]-speaker at the mosque to do the same is indicative that he had no fear of serious harm whilst in [Country 4]. Similarly, after coming to Australia he overstayed his visa and waited for 10 months before applying for a protection visa. I do not accept the delay was because he feared being deported, or that he didn’t know how protection laws worked. He could easily have sought this information if he had any interest, and his failure to make any effort to inform himself further indicates that he did not come to Australia with the intent to seek protection.
I also do not accept that he took out a loan to open a [business] and has defaulted on it, or that the [business] was burnt down. To begin with, he provided no evidence of any loan documentation, could not name the company from whom he borrowed the money, nor what interest rate he was charged. He also claimed that he could not repay the loan and was taken to court as a result. Yet this is inconsistent with the evidence he provided. He claimed variously that he took a loan for [amount] JD and had to repay the loan at a rate of [amount] JD per month.
He provided no bank statements from Jordan despite being asked to do so. I do not accept that he had spoken to the bank and his brother had asked but had been told the account had been closed. He also said that the banking system in Jordan was not the same as here. The member has lived and operated bank accounts in both Saudi Arabia and the UAE and bank statements are routinely sent and can be accessed if requested.
The Tribunal places little weight on the alleged court documents that he submitted. One verdict (folio 104) states that the applicant wrote a cheque to a person (the applicant claimed he was from the company that gave him the loan) for [amount] JD [in] August 2013. Yet the applicant claimed that he took the loan out from the company in August 2013 and had to repay it at the rate of [amount] JD/month. It is implausible that the company would loan the applicant [amount] JD in August and that the applicant would then write a cheque back to someone from that company for the same amount as the loan.
Given his lack of credibility and the absence of any supporting documentation such as fire brigade reports, or photographs I am also not satisfied that his [business] was burnt down. I have taken into account the document he provided that shows he had a café registered in his name and, while I accept that this may have been the case for the reasons listed above I am not satisfied that it was ever damaged by fire.
Having considered the applicant’s evidence both individually and cumulatively, for the reasons set out above the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant was ever in a relationship with a girl called [Ms A], that he had sex with her, that her family sought to harm or kill him, that his brother was stabbed or that he was shot, or that he has taken out or defaulted on a loan 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).
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
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 1495

7 August 2017

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Statutory Construction

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Natural Justice

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