1702548 (Refugee)

1702548 (Refugee) [2019] AATA 6800 (9 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1702548
COUNTRY OF REFERENCE:                   Jordan
MEMBER:Meena Sripathy
DATE:9 December 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 December 2019 at 12:04pm
CATCHWORDS
REFUGEE – protection visa – Jordan – social group – sexually abused as child – persecution based on religious convention – strict societal laws – psychologically afraid of being exposed – has not sought help for mental health – previous visa application – been supported by brother – fabricated letter of support – false information to obtain visa outcome – credibility issues – minimal evidence of male honour killing – family has no history of honour crimes – not satisfied of serious harm – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 36, 65, 417, 424AA
Migration Regulations 1994 (Cth), Schedule 2, Schedule 3
CASES

Chan v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZLVZ v MIAC [2008] FCA 1816
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 and Border Protection on 18 January 2017 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 on 29 September 2015. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as a refugee or under complementary protection grounds. In reaching these conclusions, the delegate had concerns relating to the credibility of his claims.
The issues in this case are whether there is a real chance, if the applicant returns to Jordon, that he would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Jordon, there is a real risk that he will suffer significant harm.
The applicant appeared before the Tribunal on 29 October 2019 to give evidence and present arguments. The applicant’s representative attended the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence before the Department
The applicant provided the following information in his application form. He is a [age] year old national of Jordan. He married in 2014, in Australia. He has parents and [number] sisters and brothers, all but one of whom reside in Jordan. He arrived in Australia in December 2000 on a student visa and was granted several subsequent student visas after that, the last one in May 2007. His last Jordanian passport was issued in [2014] and was valid to [2019]. On 2 June 2014 he applied for a Partner visa which was refused on Schedule 3 criteria and affirmed by the AAT (differently constituted) in September 2015. Since his arrival in Australia in 2000 he has travelled to Jordan on one occasion from November to December 2004. He is self employed in a [business] since 2011. He completed [Course 1] in Jordan in 1999, and completed two [Course 2] in Australia in 2002 and 2004.
The applicant submitted his claims for protection in a Statutory Declaration dated 29 September 2015. In summary he provided the following information:
·He fears return to his country of nationality, Jordan, because of sexual abuse suffered over many years by a person named [Mr A].
·He fears harm from his family, society and people in his village. He fears this because of Jordanian society’s strict social laws based on religious convention. He fears persecution on the basis he engaged in sexual acts with another male, despite it being against his will. He fears that Jordanian society will take action on the basis of honour regardless of the rule of law which may protect victims.
·He left Jordan to remove himself from his past life and start anew.
·He was sexually abused from childhood and adolescence by a person called [Mr A] who was his neighbour’s son and [age] years older than him. [Mr A] was his brother, [Mr B’s] friend.
·He was approximately [age] or [age] years old the first time the abuse happened. It took place in an old uninhabited house opposite the family home. [Mr A] told him not to tell anyone about it. Because he was so small and ashamed he never told anyone.
·[Mr A] continued to abuse him while he was growing up. Because he was afraid of being exposed he continued to comply with his advances.
·The abuse took place once every two months or so, then after [Mr A] went to do his compulsory military training, he would force him to the house whenever he was home on break.
·The abuse finally stopped when [Mr A] married. The applicant was [age] years old then. Despite it stopping, the shadow lingered in his life. He remained psychologically afraid of being exposed and harmed by [Mr A], and this fear led him to want to leave Jordan and not return.
·The applicant feared [Mr A] would expose him because he had previously bragged about abusing him in front of other people who were close friends.
·He fears harm despite being a victim because in Jordan people who have engaged in same sex sexual activities face retribution for the family to restore their honour.
·He claims in Jordan victims of crimes such as this are regarded as instigators of the crime and accused of luring the perpetrators to engage in the act rather than being considered as victims of a crime. He had seen and experienced other honour crimes dealt with like this in his village, such as the victim of rape being punished for losing the family’s honour.
·After coming to Australia on a student visa, he returned once to meet and marry a person. But when his fiancé came to Australia she left him for another person.
·In 2006 his support from his family suddenly stopped. His father refused to speak with him. Eventually through his sister, [Ms C], he learned that his father and family had learned about his sexual abuse. He was accused of being a filthy person and they did not want to associate with him any longer. He was threatened to be killed because he brought shame to the family by engaging in filthy acts.
·The applicant asked his brother [Mr B] in [Country 1] to support him financially and he agreed to do so but it was insufficient for him to continue his studies. His brother continued to support him financially until he was able to work and support himself.
·He was afraid to return to Jordan even though his visa expired, but he was ashamed of discussing his claims with anyone. He did not know about applying for protection at that time, but even if he did he would not have because he was fearful of exposing his life and the details of what had happened to him.
·He met and married a woman in early 2011 but the relationship did not continue and they separated in 2012. He met his second wife at the end of 2012 and they marries after one and a half years. They are still together and plan to start a family. He applied for a Partner visa on the basis of this relationship but it was refused for failing to meet the Schedule 3 criteria. He did not wish to apply for Protection because he did not want to disclose any information about his past to anyone.
·It is very difficult for him to speak about his past, and because of these difficulties he does not even want to request an interpreter.
·He fears harm from his family and tribe if he returns to Jordan. He is so fearful that he has not engaged with other members of his community here and has chosen not to marry a person from his own background for fear they would not be understanding of his situation.
·He fears becoming a victim of an honour crime in Jordan. He does not know how the information about him was leaked and he suspects it was through [Mr A] or one of his associates.
·Even if his life is spared, he will be unable to live a normal life because of the stigma associated with having engaged in a homosexual act which carries a heavy burden. He fears he will suffer degrading and humiliating treatment if he returns.
·He did not seek help from the Jordanian authorities when he was abused because he was ashamed of what he was going through. He fears the authorities would not do anything about it. He knows they would not protect him because they never punish those who commit honour crimes. In general they leave issues relating to honour to be dealt with by the clan. In Jordan, the legal system imposes heavily reduced sentences on the perpetrators of honour crimes if they take any action at all. Also, the authorities generally avoid clan or family based disputes and these are left for the clan to resolve.
·He did not try to move anywhere else in Jordan because it is a tribal society and people know each other and no where would be safe for him.
The applicant was invited to, and attended, an interview with an officer of the Department on 8 June 2016. An audio recording of the interview is included in the Departmental file and the Tribunal has listened to it. A summary of information that was provided at the interview is included in the delegate’s decision record, a copy of which was provided to the Tribunal with the review application.
On 18 July 2016 the applicant’s representative provided submissions and country information addressing the incidence of honour killings in Jordan, and in particular where men are victims.
On 18 January 2017 the delegate refused the application, citing credibility concerns over the applicant’s claims arising from, among other matters, his migration history, long term unlawful status, delay in applying for Protection and failed Partner visa application. Ultimately the delegate accepted as plausible that he may have been the victim of sexual abuse by an older boy in Jordan but was not satisfied that his abuser had exposed him or that his family would perceive him as homosexual or threaten to harm him on this basis to restore their honour. The delegate was not satisfied he faced a real chance of persecution or significant harm.
Evidence before the Tribunal
On 21 October 2019 the Tribunal received a submission from the applicant’s representative and a Statutory Declaration dated 21 October 2019 by the applicant, in response to the delegate’s decision.
In his Statutory Declaration the applicant reiterates his claim of fear of return to Jordan due to the past history of sexual abuse by [Mr A]. He continues to fear harm despite being in Australia for almost 19 years. He suffered significant mental and physical abuse but has never sought mental health treatment due to the deep shame he felt and a reluctance to disclose his history even to a psychologist or mental health practitioner. He firmly believes [Mr A] exposed his sexual history and him as a homosexual, because he recalls when sitting in classrooms that classmates would whisper about him. He believes [Mr A] was able to expose their history because as a perpetrator he would not face the same consequences. The applicant stated he found out his family learned about it when his sister told him not to return but he has never talked to his parents about his past. His contact with his parents and sister ceased in 2012, but he was in contact with his brother [Mr B] once in 2013 when [Mr B] sent him some money. He reiterated his fear of persecution because he will be perceived as homosexual and because he was sexually abused by a man. He is unable to relocate to any other part of Jordan to be safe. The authorities will not protect him from becoming a victim of an honour crime wherever he goes in Jordan. He is unaware of any law by which he can take [Mr A] to court in Jordan and even if there was it would result in further exposure of his past. He cannot establish himself outside his home area of [Village 1] because he has no friends or family support. He separated from his wife in Australia a year ago, and in 2017 suffered a car accident which left him with lower back and neck injuries, and constant pain. As a result of being unable to do housework or help his wife, she left him.
The representative’s submissions address the applicant’s claims for protection, the legal issues that arise for consideration and the delegate’s reasons for decision. The Tribunal has carefully read these submissions and the arguments and country information cited.
Tribunal hearing
At the hearing the applicant confirmed his address, where he has been living for the past 4-5 years. He is living here with a flatmate, who he knows from university days in Jordan. Previously he lived with his wife, but that relationship ceased about a year ago. It ceased because, following a car accident he had, he was unable to afford to help her any longer.
The applicant said he was not working because he has no permission to work. He shares the rent with his flatmate, and earns money by gambling from time to time. He has no other source of income.
Regarding his relationship history, he was engaged in [Country 2] to a woman called [Ms D] in 2004. She came to Australia after that, as a dependent on his student visa. They lived together for almost a year, before she left him for his boss at that time. He has had no contact with her since then. The applicant said this relationship was arranged by her uncle who the applicant met in Australia. His parents were supportive of the relationship and travelled to [Country 2] for the engagement.
After this he met a woman called [name deleted] and married her, but the relationship did not work out. They remain friends and he sees her from time to time. He then met [Ms E] and married her and lodged a Partner visa with her.
The applicant’s family in Jordan comprises his parents, [number] brothers and [number] sisters. All live in Jordan except one brother, [Mr B] who lives in [Country 1]. As far as he is aware they are all married and he assumes they have children. He believes they all live around [location] and [Village 1] which is the village. He said he is not in contact with his family for many years. The last contact he had was around 2011 with his sister [Ms C].
The applicant came to Australia in 2000 for the purpose of study. He completed an English course and then two Diplomas relating to [Course 2]. He commenced a Masters course but did not complete it because he was unable to pay the fees. After that he started to work [in an occupation]. For a period after [Ms D] left him he was lost, travelling around the country with no aim. In this period he asked his brother [Mr B] to help him financially. He may have sent him money once but after that he refused and the applicant ceased contact with him.
Between 2000 and 2004 the applicant supported himself and his studies by part time work. His father only sent him money once around 2003. The Tribunal asked who provided evidence of financial support for the purposes of the student visas he applied for in this period. He said his father provided the documents, although he cannot recall if it was necessary for the subsequent applications made in Australia. He recalls that he showed evidence of his funds in accounts held here and borrowed money from friends for this purpose. In Jordan the applicant studied [Course 1] but he never practiced. He was never interested in [Course 1] and wanted to study [another topic]. He worked in Jordan [in another occupation] before he came to Australia.
The Tribunal asked the applicant about what happened to him in Jordan and why he is afraid to return. He said he lived in a village, there was an old empty house across the road from his house. A boy named [Mr A] who was around [age] years older than him told him to come over there to play and started to do naughty things with him. He was very young at that time and he did not understand what he was doing and that it was wrong. After the first time, he called him again a few weeks later. He threatened the applicant not to tell anyone including his family or brothers. The applicant was afraid of him because of these threats. The Tribunal asked where were the other children in the neighbourhood at this time. He said [Mr A] would always wait until everybody went home before he took him to the house. He only took the applicant, never other children.
The applicant never told anyone about it. Over the years he felt ashamed and scared.
[Mr A] was not at school with him. He was older and not really interested in school. Initially the applicant was at primary school but later he went to high school. [Mr A] by this time had joined the army and only came home every 2-3 weeks for a few days. The applicant tried to avoid him by hiding or staying inside. Occasionally he would catch him and take him to the house. The applicant complied because he was afraid of the threats [Mr A] made to expose him. It stopped before the applicant started going to university. [Mr A] remained in the village and as far as the applicant knows he is still there. There were no further incidents from 1995 to 2000 when he came to Australia.
The Tribunal asked if anyone knew or suspected what was going on. He said he heard some children at school saying that something was going on in the old house but no one ever directly confronted him about it. His family had no knowledge.
The applicant confirmed he has had no contact with [Mr A] since coming to Australia in 2000. He did not see him when he returned to Jordan in 2004.
The Tribunal asked if his family had any contact or relationship with [Mr A’s] family. He said they were known in the area as being a bad family. When asked to explain this, he said there were rumours in the village that [Mr A’s] father also went after children. But these were just rumours. He said [Mr A’s] brother also knew what he was doing, because once or twice he tried to approach the applicant and entice him to the house. The applicant refused and denied he was doing anything with [Mr A] and the brother left him alone.
The Tribunal asked the applicant why he is afraid now to return to Jordan, so many years later. He said his family found out about what happened. His sister told him during the last phone conversation they had. She said you should not return to Jordan because your father and brothers know what you did. When asked to elaborate on what exactly she told him that they knew about and how, he said she did not tell him anything else. She was unable to discuss it with him because of the shameful nature of it. He assumed that she was referring to the incidents with [Mr A] because that is the only thing he has done in his past that was wrong. He was otherwise a very good boy in Jordan and even here in Australia. After this conversation he had no further contact with his family.
The Tribunal asked the applicant what level of contact he had with his parents before this. He said he would speak with his parents once every 6 months or so for about 2 minutes at the most. It was very superficial contact. After the phone call with his sister, he ceased contact completely. He did not even try to call his father or brothers. The Tribunal asked him why he did not try to explain. He said because of the gravity of what had been exposed. He could not say anything to change it. They would seek to restore the honour of the family by harming him.

The Tribunal asked if there is any history of honour crimes in his family. He said he had heard about a cousin in the 1960’s who killed their son and the other man while he was in hospital. They lived in another village. The applicant heard this story when he was at school. There is no history of honour crimes being committed in his immediate family.
The Tribunal asked if he has had any contact with any other family members. He said he has not. He last contacted his brother in [Country 1] when he asked him for money but he refused. This was during the period 2007 to 2014 when he was lost and travelling around Australia without a purpose. Then in 2014 he met [Ms E] and lodged the Partner visa application.
The Tribunal put to the applicant under s424AA information before it that he provided the AAT (differently constituted) a letter of support from his brother [Mr B] dated [July] 2015. The contents of this letter contradict his evidence that he had no contact with his family or this brother at that time. It also does not mention any fears or issues the applicant has about returning to Jordan. The Tribunal explained that, subject to his comments or response, if the Tribunal relies on this it may contribute to concerns it has about his credibility and the veracity of his claims. The Tribunal informed the applicant he could respond now or request additional time.
In response the applicant stated that he fabricated this letter of support from his brother. It is not genuine. He had a friend in [Country 1] who helped him and the contents of the letter are not correct. When asked why he did that he said he thought it would help his Partner application. The Tribunal put to him that if he is willing to provide false information in his Partner application the Tribunal may have concerns about his honesty in this application. He accepted this but reiterated that the claims he is making now are truthful. He never wanted to bring all this up but he felt he had no choice but to do so. He wishes that he was never born in Jordan.
The Tribunal asked the applicant if he ever spoke to [Mr B] about the incidents with [Mr A]. He said he did not. His last argument with him was about sending him money and [Mr B] refused. They have not spoken since then.
The Tribunal put to the applicant under s424AA evidence he gave at the AAT hearing in his Partner review, that he was in contact with his family and they were in good health and his response to the specific question asked of him about whether there was any reason he could not go back to Jordan. He responded with an explanation of difficulties he had experienced in Australia in recent years and the shame of returning after that. He made no mention of any fear of honour crime against him. It explained that this may contribute to doubts the Tribunal has about the veracity of his current claims.
In response the applicant said he tried to hide this history for many years. It is not easy to talk about it, even now. It is a shame for him to mention it. The only reason he has raised it now is because he cannot return to Jordan due to fear for his life and he was finally left with no choice but to mention it. He said his lawyers have asked him to get a psychologist report but he has refused because he cannot and does not want to talk about it. He added that if they do not kill him he will anyway die of shame.
The Tribunal asked the applicant on what basis does he believe anyone in Jordan knows about what happened. He said the only basis he has is what his sister told him. It is a matter of honour for the family and he believes they will carry it out against him. Even if they kill him they will only face a mere 6 months in jail for it. First they will deal with him and then they will go after [Mr A].
The Tribunal asked why he cannot go to another part of Jordan, like Amman and be safe there. He said one of his brothers is [an official] and it is very easy for him to look up in the computer if he has returned to Jordan and they will find him. Also he has relatives all over, in Amman and in Aqaba. People know what family he is from and it will not be long for the word to spread about what happened and that his family are seeking him to restore their honour.
The Tribunal asked why he cannot seek protection from the authorities if he faces a threat from a family member. He said they will see it as an honour issue and send it back to the family to deal with. This is how it works in Jordan. It is not relevant whether the incidents happened or not, as long as the family believes it may have occurred it is enough for them to need to restore the honour of the family. The law does not protect against honour crimes in Jordan.
The Tribunal confirmed with the applicant that his claims were based on being a person who has caused his family shame and/or perceived homosexuality. He agreed this is the basis for his fear of harm from his family. It asked him if, separately from the incidents with [Mr A], he had engaged in same sex activity in Jordan or Australia. He said he has not. He is not homosexual and does not identify as such. He does not intend to engage in homosexual activity in future.
The Tribunal asked whether, apart from this, there is any other reason he cannot return to Jordan. He said he has no place to live, and nowhere to go. He cannot start afresh at this stage in his life. No relative would be in a position to offer to help him while he tries to establish his life there. He would have difficulty getting a job in Jordan despite having skills and experience from his years in Australia.
The applicant added that even if his family does not kill him, he fears that he will be known on return as a maniac or homosexual because of this history and this will cause him psychological harm and distress, and be as good as physical harm to him. People will ask questions about who he is and eventually they will come to know what family he comes from and that his family is looking for him to restore their honour.
The Tribunal discussed with the applicant the issues arising in his case, including the credibility of his claim about the past history of abuse, and the claim it has been exposed to his family. It also raised the issue of whether, if it accepts these claims, he faces a real chance of serious harm in the future. In this context it put to him that country information before the Tribunal indicates the majority of victims of honour crimes are women, and while there are male victims it is usually in the context of homosexuals but he is not claiming that he is homosexual, only that he will be perceived as having engaged in homosexual acts in the past. In response he said that despite the lack of reports of male victims there are men who are victims of honour crimes. These are often underreported. Especially if it is a small family no one cares and it passes unnoticed. But if it is a big family it may make the news. The Tribunal put to him, why would his family draw attention to this matter by committing an honour crime after all these years. In response he said in the Middle East a family feels shame until their honour is restored no matter how long has passed. The matter must be buried to finalise it and therefore it is not relevant that it occurred long ago. As soon as he returns they will want to deal with it and restore the family honour.
The Tribunal invited the representative to make any final submissions. She addressed the issue of the letter of support from the brother in his Partner review. She said his admission that he provided a bogus document is consistent with his claims of his fear of, and lack of, contact with his family members and to this extent supports his claims. He has also consistently stated his reluctance to reveal or discuss the topic of what happened to him in Jordan and the shame it caused him. He has been truthful about his reasons for not wanting to return to Jordan throughout this application. This explains the delay in making his Protection visa application. Finally, the representative submitted that honour killings occur in Jordan even in the absence of evidence, rumours are enough to trigger an honour crime. Men are even more reluctant that women to reveal past abuse and this may also explain why there are few reports but it does not mean that these crimes do not occur. The representative reiterated the applicant is not identifying as homosexual, his claims are based on him being perceived as homosexual due to the past incidents.
The Tribunal discussed with the applicant independent information before it relating to the two types of honour in Arab society, sharaf and ‘ird, the latter of which relates only to women. It put to him that this may be relevant in explaining why the majority of victims are women. In response the applicant agreed there are these two types of honour, but submitted that sharaf relates to men also and is very important and his family’s sharaf must be restored because of what happened to him.
CONSIDERATION
A summary of the relevant law is set out in the Attachment to this decision.
Nationality
The Tribunal is satisfied, on the basis of his passport and personal particulars provided that the applicant is a citizen of Jordan, and that Jordan is the country of nationality and the receiving country for the purposes of the refugee and complementary protection provisions.
Findings of fact
When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; and Prasad v MIEA (1985) 6 FCR 155 at 169-70.
In the present application the applicant claims he was subject to sexual abuse during his childhood over many years, at the hands of an older boy in his neighbourhood. He claims that in or around 2011, he learned that this history was exposed to his family. He claims his sister informed him not to return because his life would be in danger for bringing shame to the family as a result of these incidents. He fears harm in the form of an honour crime being committed against him by his family members. He fears that his family would locate him wherever he went in Jordan and that the authorities would not protect him because they would consider it a family and tribal issue.
Claims relating to past sexual abuse
The Tribunal has carefully considered the evidence before it relating to the applicant’s claims of sexual abuse during his childhood and continuing until early adulthood including his oral and written evidence to the Department and Tribunal. It is not without any doubt about the veracity of the claim, given the substantial delay in making a protection claim on this basis and the absence of any corroborating or supporting evidence of this history from a health professional, counsellor or anyone in all the years he had been in Australia and his continued reluctance to seek any such professional assistance even though he maintains the significance of the impact on him. The Tribunal does find somewhat perplexing that he would not have sought professional help here in Australia by this time, or at the very least to support the present application and his failure to do so raises some doubts about the veracity of the claims for the Tribunal. However, it also acknowledges that delayed disclosure of sexual abuse is not uncommon, particularly when experienced as a child, and acknowledges the deep trauma and shame such abuse can cause. Taking this and the applicant’s substantially consistent recounting of past events since disclosing the matter in this application into account, the Tribunal is prepared to accept the claim is not entirely implausible or lacking in credibility.
In SZLVZ v MIAC, the Federal Court commented that ‘in assessing credibility, the Tribunal must be sensitive to the difficulties often faced by applicants and should give the benefit of the doubt to those who are generally credible, but are unable to substantiate all of their claims’.[1]
[1] SZLVZ v MIAC [2008] FCA 1816 (Middleton J, 18 November 2008) at [25]. See also Rhandawa v MILGEA (1994) 52 FCR 437.
Therefore, taking into account the particular sensitivities of the claim raised and difficulty for the applicant to substantiate his claim, the Tribunal will give the applicant the benefit of any doubt it has about it, and accepts that the applicant was subjected to sexual abuse by a man named [Mr A] from the time of his childhood through to late adolescence.
Claims that his family became aware of the past sexual abuse and will seek to harm him because of this
The applicant claimed that, in or around 2011, his sister [Ms C] told him during a phone call that his father and brothers know what happened to him and warned him not to return to Jordan because they would kill him because of the shame caused by it. While also not without some doubts about this claim, the Tribunal has decided to give the applicant the benefit of its doubts and proceed on the basis that it cannot be certain that the family does not know of what happened or may have happened to him in the past.
The Tribunal’s doubts arise because the applicant’s oral evidence on which he relies for this claim, being the only evidence he has in support of it, is brief and lacks any detail. His evidence is that his sister told him that his family know ‘what happened’ in Jordan. She disclosed nothing further to him, nor did he ask, about what they know and how and when they came to find out. His evidence to the Tribunal is that he did not ask her any follow up questions and has never sought to communicate directly with his father or brothers since.
However, this evidence is contradicted by other evidence before the Tribunal arising in his earlier Partner visa application and review. In 2014 and 2015 he pursued a Partner visa application where the issue was whether there were compelling reasons for not applying the Schedule 3 criteria to allow him to make the application onshore. He gave evidence at the hearing in the review of that matter on 6 August 2015 about his family in Jordan and stated they were in good health and referred to not having any security concerns about returning to Jordan at that time.
The issue of whether there was any compelling reason he could not return to Jordan and apply for the visa from there squarely arose in that matter. In that context, at the hearing in the review the Partner refusal he referred to a great sense of shame if he had to return but he made no mention, nor gave any indication, of any fear that his family will kill him or the reason for that. He also provided a support letter dated 25 July 2015 from his brother [Mr B] in that review which stated that his brother had been financially supporting the applicant over many years in Australia, was aware of his various relationships here and was happy to support him in any way he can. The Tribunal put this information to the applicant under s424AA at the hearing. In response the applicant said he fabricated this letter to support his Partner visa application and it was not genuinely provided by his brother. The Tribunal has considered this response and finds it reflects poorly on the applicant’s credibility either way. If the Tribunal accepts that he fabricated the letter from his brother, it indicates he was prepared to provide false information to obtain a visa outcome and may do so again in this application. If it does not accept this explanation, the letter from the brother contradicts the applicant’s evidence about his contact with his brother and family in the present application and this also reflects poorly on his credibility.
These concerns, together with the timing of the present application being lodged only when he reached the end of his visa options, cause the Tribunal to have concerns about the credibility of his claims regarding his family’s knowledge of and reaction to the matter.
However, having accepted, above, the applicant’s claim that he suffered sexual abuse in the past at the hands of [Mr A], and recognising that he did refer to ‘shame’ about returning to Jordan in his Partner application, the Tribunal considers that it cannot with confidence reject his claim that his family in Jordan knows what happened to him, and therefore, in accordance with the ‘what if I’m wrong’ approach articulated in the authorities,[2] the Tribunal will proceed to consider the applicant’s claims of whether he faces a well founded fear of future persecution on the basis of the possibility that his family did come to know about it.
Real chance of serious harm in the future
[2] MIEA v Guo (1997) 191 CLR 559; MIMA v Rajalingam (1999) 93 FCR 220.
Having given the applicant the benefit of its doubts and accepting his claims of past sexual abuse in Jordan and proceeding on the basis that his family may have come to know about this history, the Tribunal has considered whether he faces a real chance of serious harm if he returned to Jordan in the reasonably foreseeable future. After careful consideration of the applicant’s evidence and independent country information before it, the Tribunal is not satisfied the applicant faces a real chance of serious harm because of what happened to him in the past in Jordan. The Tribunal’s reasons for this conclusion follow.
A ‘real chance’ is a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance.[3] The applicant fears that his family will commit an honour crime against him because of the shame caused to the family due to him being sexually abused by [Mr A].
[3] Mason CJ in Chan v MIEA (1989) 169 CLR 379 at 389
On his own evidence however, there is no history of honour crimes or violent behaviour by anyone in his immediate family against himself or anyone else. When asked about this at the hearing the applicant referred to a story he had heard in the 1960’s of a cousin who killed his son and another man in another village. He offered no other details of the incident and conceded that there was no history of honour crimes in his immediate family.
The independent information before the Tribunal relating to the incidence of honour crimes against men in Jordan also does not support the applicant’s claims. In considering this, the Tribunal has considered independent information before it including the country information referred to in submissions made by the applicant’s representatives to the Department and Tribunal.

The Tribunal accepts that honour based violence occurs in Jordon, but the majority of reported victims are female. In April 2017, Human Rights Watch reported that 15 to 20 women are killed in honour-based violence each year.[4] There were eight reported honour killings in 2018, although it is recognised in the country information that honour crimes in Jordan more generally are underreported and some are misreported as suicides or accidents. [5]
[4] How to End 'Honor' Killings in Jordan’, Human Rights Watch, 3 April 2017, 20190701092554
[5] Country Reports on Human Rights Practices for 2018 – Jordan’, US Department of State, 13 March 2019, p. 33, 20190314110548
The Tribunal finds there is minimal evidence of reports of honour crimes against men in Jordan. It considered the source referred to in the representative’s submission of a 2004 IRBC research response which asserted that while honour crimes in Jordan are more often directed toward women, “men can also be the object of such crimes”. However, later in that same advice, a professor of anthropology at Linkoping University in Sweden, who specializes in gender development in Jordan, stated that while men who are accused of having illicit affairs can be subject to threats, she had never come across a case where a man had been killed in an honour crime, as woman are generally blamed in this context.[6]
[6] Immigration and Refugee Board of Canada 2004, JOR42883.E – Jordan: Risk to men who have been accused by relatives of a girl, off engaging in an illicit, and threatened with death; protection available to such men; examples of cases in which men have been honoured killed, 2 September <>
The Tribunal notes a December 2000 article in Middle East Quarterly describing two types of honour in Arab society, one of which is specific to females, which may go some way towards explaining the prevalence of females as victims of this type of crime:
Understanding the nature of these crimes requires a short review of the notion of honor in traditional Arab society, where a distinction is made between two kinds of honor: sharaf and 'ird. Sharaf relates to the honor of a social unit, such as the Arab tribe or family, as well as individuals, and it can fluctuate up or down. A failure by an individual to follow what is defined as adequate moral conduct weakens the social status of the family or tribal unit. On the other hand, the family's sharaf may be increased by model behavior such as hospitality, generosity, courage in battle, etc. In sum, sharaf translates roughly as the Western concept of "dignity."
In contrast, 'ird relates only to the honor of women and its value can only decrease. It translates roughly as the Western concept of "chastity" or "purity." And as with chastity or purity, exemplary moral behavior cannot increase a woman's 'ird but misconduct reduces it. In addition, 'ird trumps sharaf: the honor of the Arab family or tribe, the respect accorded it, can be gravely damaged when one of its women's chastity is violated or when her reputation is tainted. Consequently, a violation of a woman's honor requires severe action, as Tarrad Fayiz, a Jordanian tribal leader, explains: "A woman is like an olive tree. When its branch catches woodworm, it has to be chopped off so that society stays clean and pure."[7]
[7] ‘"Honor" Murders – Why the Perps Get off Easy’, Middle East Quarterly, December 2000, 20190701103336
When this was discussed with the applicant at the hearing he agreed there were these two kinds of honour but considered his family’s sharaf would need to be restored because of what happened to him. He offered no further explanation or comment on whether or how this may explain the greater incidents of honour crimes directed at women.
The Tribunal has considered the submissions and supporting information provided by the applicant’s representative, including that many honour killings go unreported making it extremely difficult to acquire accurate statistics and that this underreporting is especially so where the victims are male. While the Tribunal accepts there is likely a degree of underreporting of such crimes, it does not necessarily follow that a substantial number of male victims of such crimes are not reported. The Tribunal accepts, on the evidence, that there may be some male victims of honour crimes, but the weight of evidence makes clear that the vast majority of victims are women and the context of most of these incidents is heterosexual sex outside marriage.
The Tribunal has considered the applicant’s claim of fear his family will harm him on the basis that he engaged in homosexual acts in the past, despite the context that it was sexual abuse, and the shame this brings to his family’s honour. In this context the Tribunal has considered information regarding the treatment of homosexuality and/or same sex relations in Jordan. It accepts that homosexuality, while not strictly speaking illegal in Jordan, is subject to stigma and societal discrimination. For example, the latest US Department State (USDOS) Country Report on Human Rights Practices in Jordan states that while consensual same sex sexual conduct among adults is not illegal, societal discrimination against LGBTI persons was prevalent, and LGBTI persons were targets of violence and abuse, including rape, with little or no legal recourse against perpetrators.[8]
[8] Country Reports on Human Rights Practices for 2018 – Jordan’, US Department of State, 13 March 2019, p. 40, 20190314110548 , >
The International Refugee Rights Initiative, published in 2016, stated
Although homosexuality is not illegal under the Penal Code, societal discrimination is widespread. The prohibition of same-sex sexual conduct and relationships under Sharia law can have consequences of stigmatisation and harassment towards this group. LGBTI persons are forced to leave Jordan as a consequence of negative public attitudes, police mistreatment and fear of their family harming them due to their sexual orientation or gender identity. A document from Citizens for Justice in the Middle East evinces 'numerous reports of extrajudicial killings and torturing of LGBT people’. As this New York Times article emphasises, members of the LGBTI community fear becoming victims of violence and honour killings, demonstrating the incapacity and unwillingness of the state to protect its LGBTI citizens.[9]
[9] 'Jordan LGBTI Resources', International Refugee Rights Initiative (IRRI), 23 February 2016, CX6A26A6E1448, >
A 2014 Inter Press Service article states,
… The basic form of social organisation in Jordan is heavily influenced by tribalism, which weighs on social norms and relations between people. “Members of the LGBT community fall prey to discrimination or violence not necessarily at the hand of the state but of society or their families,” says Azzi.
He recalls two members of the gay community who had to be smuggled out of Jordan to escape the wrath of their families who discovered their sexual preferences, and possible death.
“I know of four people at least who were killed in last few years for this reason,” says Madian.
He also says that while some victims have been the target of honour killings, others have been killed by gangs because they had to seek impoverished and dangerous areas for sexual favours to avoid the scrutiny of friends and families.
Nevertheless, despite such individual cases, the topic of homosexuality seems to be increasingly tolerated in Jordan. In 2012, a book called “Arous Amman” (Amman’s fiancée) by Fadi Zaghmout was published, featuring a homosexual character who was driven to marry a woman despite being gay.
Increasingly, Facebook pages and Twitter accounts are advocating gay rights and the LGBT community in the country.
“The LGBT community has been able to carve a space for itself in society, while staying away from anything that could raise its profile,” says Adam Coogle, a researcher at Human Rights Watch.
But, with social and cultural mores considering homosexuality a sin and unnatural, advocating rights remains a taboo in the Hashemite Kingdom, and LGBT activism a somewhat difficult task…[10]
[10] ‘Jordan’s LGBT Community Fears Greater Intolerance’, Inter Press Service (IPS), 31 August 2014, CX1B9ECAB5886, <>
The Tribunal notes a response from post obtained by DFAT in 2008, which indicated that a far harsher social attitude was taken in Jordan towards heterosexual sex outside marriage, or adultery, as evidence by the regular occurrence of ‘honour killings’ which are generally motivated by women’s perceived sexual behaviour with men. Post had not heard of any “honour” killing involving homosexuality and ‘honour’ crimes are almost uniformly committed against women who are believed to have stained the “honour” of their families, very rarely against men.[11] Contrary to this, there are some reports of incidents of possible honour crimes involving gay victims.[12]
[11] Department of Foreign Affairs and Trade, 2008, DFAT Report 824 – RRT Information Request JOR33101, 29 May (\\NTSSYD\REFER\Research\DFAT\JOR33101.dfr.doc)
[12] For example, references to incidents in Macfarquhar, N. 2007, ‘Gay Muslims find freedom, of a sort, in the U.S’, The New York Times, 7 November 2007 and Jimenez, M. 2004, ‘Gay Jordanian now “gloriously free” in Canada’, The Globe and Mail (Canada), 20 May
While the above information suggests members of the LGBTI community may be vulnerable to discrimination or violence including at the hands of family, given the applicant’s clear statement that he does not and has never identified as homosexual and his history of multiple heterosexual relationships in Australia, the Tribunal is not satisfied on the evidence before it that the applicant faces a real chance of being targeted by his family or society more generally for this reason upon return to Jordan in the reasonably foreseeable future.
In summary, having considered independent information regarding the incidence of honour crimes in Jordan and the treatment and attitudes towards homosexuality, the Tribunal is not satisfied the applicant faces a real chance of serious harm in the form of a honour crime being committed against him by his family, or anyone else, on the basis of what happened to him with [Mr A] over two decades ago. He was not harmed on this basis by his family or anyone in the community for over 5 years between the cessation of the abuse and leaving the country in the period 1995-2000. He returned to Jordan from [Country 2] in 2004 in the context of his engagement to his fiancé and his parents participated in this event with him at that time. There is no evidence before the Tribunal that his family has a history of committing such crimes in the past and the Tribunal finds the country information also does not support that there is a real chance such harm would be committed against him for these reasons.
The applicant has not had any contact with [Mr A] since the abuse ceased in or around 1995 and he has not claimed a fear of harm from [Mr A] or others in the community. On the evidence, the Tribunal is also not satisfied that he will face a real chance of serious harm at the hands of [Mr A] on this or any other basis.
For all of these reasons the Tribunal is not satisfied the applicant faces a well founded fear of persecution upon return to Jordan in the reasonably foreseeable future.
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).
Complementary Protection
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). Having accepted that the applicant was the victim of sexual abuse as a child and until late adolescence, and that his family may have subsequently come to know about this history, the Tribunal has considered whether there is a real risk he will face significant harm, within the meaning of that term, upon return to Jordan.
For the same reasons given above, the Tribunal is not satisfied, given his family has no history of committing honour crimes and the minimal country information of men as victims of honour crimes, that there is a real risk the applicant will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or that he will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment if he is returned to Jordan.
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).
In reaching these conclusions, the Tribunal acknowledges the applicant has resided in Australia now for a substantially long period of time, almost 20 years and that he may feel genuinely trepidation and concern about returning to his home country after this long and particularly if he has experienced past trauma of sexual abuse as a child. Unfortunately, in circumstances where the applicant does not meet the criteria for the visa, the Tribunal has no discretion to take into consideration compassionate, compelling or humanitarian circumstances in making a decision on his application in the review before it.
Under s.417 of the Act, however, the Minister has a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so, although the Minister’s power to intervene is personal and non-compellable and it is only for the Minister to determine what is or is not in the public interest. Following this decision, It is open to the applicant to make a request for intervention under s417 directly to the Minister should he wish to do so.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Meena Sripathy
Member

Attachment
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 themselves 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 below.
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 below.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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.
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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
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 the 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.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
…

[2019] AATA 6800

9 December 2019

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Immigration

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