1919661 (Refugee)

1919661 (Refugee) [2019] AATA 6677 (8 November 2019)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 1919661

COUNTRY OF REFERENCE: Jordan

MEMBER: Rodger Shanahan

DATE: 8 November 2019

PLACE OF DECISION: Sydney

DECISION: The Tribunal affirms the decision not to grant the

applicant a protection visa.

Statement made on 08 November 2019 at 10:25am

CATCHWORDS
REFUGEE – protection visa – Jordan – religion – Christian – pressured to convert to Islam – insulted Islam and the Prophet Muhammad – blood feud – legal dispute with ex-fiancé’s family – access to health care – credibility concerns – country information – no evidence of past harm suffered – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), 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.

In accordance with s.431 of the Migration Act 1958, the Tribunal will not publish any statement which may identify the applicant or any relative or dependant of the applicant.

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 Home Affairs on 18 July 2019 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 7 July 2019.
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 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.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

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protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
PV Application

The applicant made only brief claims in his application. These were that he feared being killed if he returned to Jordan because of a blood feud and because of his religion. He claimed that his enemies were in possession of an audio recording in which he swore at Muslims and they threatened to hand this over to authorities.
AAT Hearing
The applicant was advised that he had sent the Tribunal an enormous amount of documents prior to the hearing and some additional ones were handed to the member as he was entering the hearing room. He was asked if there were any in particular that he wanted brought to the member’s attention and he said there was a new court case in Jordan brought against him by his former fiance’s family.
He was asked what the court case was about and he was vague. He was asked if it was a criminal or civil matter and he said it was criminal. He pointed out what he claimed were the court documents and it was put to him that there was no translation. He claimed the copies were certified and it was put to him that JP hadn’t certified that it was an actual court document, just that it was a true copy of a document.
He claimed that it could be googled and provided what he claimed was a copy of the case number. He claimed that he had translated some of the document himself using Google translate. It was put to him that it didn’t say what the court case was about. He was asked repeatedly what he had been charged with and he was told that if he wished the documents to be taken into account they had to be properly translated.
He claimed that if he returned to Jordan he would be crucified and killed by most Jordanian Muslims because he was Christian and couldn’t practise his faith. He also claimed that there was a blood feud between his family and the [Name 1] family and he would be killed. Thirdly there was a dispute between him and his ex-fiance and her family because he had sworn at Islam and Muhammad and they had recorded his voice and would give it to the authorities. Lastly he had poor health and would be homeless and depressed and would be unable to access medication or a pension - he had been in Australia for over 20 years and only returned to Jordan once.
Regarding his Christian faith he claimed he had been pressured to convert to Islam many times in Jordan. He said that his town was only two per cent Christian. People were expected to follow Islamic rules such as not eating during Ramadan. It was put to him that the member had been to Jordan during Ramadan and lived in Middle Eastern countries and people (both westerners and locals) were still able to eat there during the day. He said that shops were closed and when it was put to him that shops didn’t close down, particularly given tourism was a major part of the economy, he accepted that people could eat but not on the street.
He said that it was illegal to preach Christianity in Jordan. Asked if he was preaching in Australia he said that he was and had been doing churches in jail and with the priest in [Australian City 1]. He said that when he was young he was studying the bible to become a priest. Asked if he was in a seminary he didn’t know what a seminary was but when it was

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explained to him he said that he had been studying the bible in class with the priest every day.

He also said that he was preaching and if he sat with anyone he would have to tell them about Jesus and the word of God. Asked if he had mentioned this preaching previously as the member hadn’t heard of this preaching before in his claim. He said that he had mentioned this before. Asked what he meant by studying to be a priest, he said that he hadn’t done any formal priestly study. He left Jordan when he was [age] and hadn’t yet done any formal training, taken any vows or gone to a seminary. He was told that he had to be very specific and if he claimed to have studied to be a priest but hadn’t, it didn’t do much for his credibility.
Asked if there were any churches in his town Irbid, he said there was. Asked if there were any churches burnt, he said that there had been incidents, such as cutting down some trees during Christmas. It was put to him that this was a long way from being crucified or killed. He claimed that people may get into arguments and he got into arguments with Muslims and if they crossed him or criticised Christianity he would have to get into a fight.
He was asked why if there was such a conflict with Muslims that priests and nuns hadn’t been killed or churches burnt down. He said that churches had been burnt down and was asked for evidence of this. He was asked if there were any other church facilities in Irbid and he said there were only churches. Asked if there were any Christian hospitals he said that he didn’t know as he hadn’t been there for a long time. It was put to him that these would have suffered if there was such an anti-Christian culture and that country information said that were two Christian hospitals in Irbid but the Tribunal couldn’t find any indication they had been targeted. He claimed there had been incidents in the past.
He was also told about a UN report¹ that praised Jordan for its inter-faith relations which was counter to what he had claimed and the reality was that Muslims hated Christians in Jordan. He said that the government would write things they wanted but the reality was different. It was put to him that two hospitals run by Catholic religious orders operated in Irbid, one of which had been there since 1952. He claimed that perhaps this was because they were private and maybe Muslims didn’t go there. He was asked how he knew this given he didn’t even know the two hospitals existed.
Regarding the blood feud he claimed that his father and grandfather got into an argument with a member of the [Name 1] family and shot and killed him. This was about 28 or 29 years ago (he agreed it was around 1990). The problem had festered and could go on forever. Asked if he had siblings in Jordan he claimed he had two brothers and a sister but she was married to [a Country 1 citizen] and lived between [Country 1] and Jordan. The [Name 1 family] wouldn’t target women.
He hadn’t spoken to his brothers for more than 15 years so didn’t know what if anything had happened to them. His father was elderly and went to [Country 2] in 1991 or 1992 but he comes and goes from Jordan. He has not been targeted. The applicant went to Jordan in 2001 to see his sick father but nothing happened to him because he was there only for a short time. It was put to him that this alleged blood feud had been going on for 30 years and yet nobody had been hurt.
He claimed that he had a letter from the Jordanian authorities confirming there was a blood feud. It was put to him that the Tribunal didn’t know what they would base this claim on given nobody had been hurt for 30 years. It was also put to him that the veracity of the
1 Report of the Special rapporteur on freedom of religion or belief, Mission to Jordan, 27 January 2014.
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photocopied letter couldn’t be confirmed and he could have written that and photocopied it. He claimed that he couldn’t fake the document as it had been stamped. It was put to him that stamps could easily be faked. He reiterated his claim that blood feuds could go on for 40 years or more.

Asked about his health claim, he claimed that he had [a medical condition] and was on medication. In Jordan it would be very expensive but he wasn’t sure if it was even available. Asked if he had checked the availability he said he hadn’t. He claimed that he couldn’t get any free medical assistance given he hadn’t been there for 23 years.
Asked what the policy was for people without access to health insurance he claimed that people had to pay for it. He was asked what the percentage contribution was and he said it was expensive. He was asked if he had done anything about researching the availability of, and conditions around access to health care in Jordan for someone of his alleged circumstances. He claimed he had to pay for everything. It was put to him that his fear had to be well-founded yet he didn’t appear to have any factual basis for this alleged fear.
He claimed he spoke to his sister and her husband had [medical condition] and because he was [from Country 1] they had to pay for everything. It was put to him that he had previously said his sister went between Jordan and [Country 1] and was asked why weren’t they able to access [Country 1] health care given the husband would be entitled and he had [medical condition]. The applicant claimed that he didn’t know the situation exactly.
It was put to him that country information² said that the government paid 80 per cent for people in his situation but individuals could then petition the royal court to waive the 20 per cent co-contribution. It was put to him that if the Tribunal could find that in a brief online search it was interesting that he was unaware of it and it didn’t say much about his efforts to understand the health system.
He then said that he also had a problem with his [Body Part 1] after he had been assaulted in detention. Asked about the impact in Jordan he claimed that he would lose the sight of it in the future. A report from [Hospital 1] said this. This would make it hard for him to find a job in Jordan. It was put to him that this would be the same problem if he was in Australia and he said that it would be easier to get a job here.
He also said it would impact on his mental health. It was put to him that Jordan had mental
health services and he said they weren’t the same as in Australia. It was put to him that the test wasn’t whether they were the same standard, just that it was adequate. He said it could be but if you put the whole thing together it was bad.
He had a brother and sister in Jordan. In Jordan he had extended family but no first or second cousins. In Jordan he had been a [Occupation 1] and did this in Australia. He had worked as a [Occupation 2] in Jordan. Asked if he could do this he said it would be difficult as he was an assistant. He had brothers in [Country 2] but hadn’t spoken to them for nearly five years. Asked if his family could support him he said they were poor and he used to support his sister. He spoke Arabic.
A long time ago he had sent money to his sister but nothing since then. Someone else had used his account previously when he was in detention which he thought was his ex-fiance sending to her cousin. The person in question was [Mr A] and it was put to him that given she was Christian he was unlikely to be her cousin. He claimed that his ex-fiance had taken up with a number of Muslim men when she came to the country.
2 IBRD Project Appraisal Document on Proposed Financing of US$50 million to the Hashemite Kingdom of Jordan for a Jordan Emergency Health Project 30 May 2017
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Country information (see f/n 7 and 8) was put to him that access to mental health support (psychiatrists) was about the same as it was in rural Australia. He was asked why this was a problem. He said that he didn’t think the government gave correct information and it was put to him the report was from WHO. He quoted a range of costs to the member saying that he couldn’t afford it – it was again put to him that the payment scheme had been advised to him from available country information. He didn’t appear to have done much research into the Jordanian medical system and he said that he went by what his sister told him. Asked if the country information would change the view of his claim and he said that he would examine it first.
It was put to him that the Jordanian government was trying to improve the health care system and this co-payment was part of it. On available country information it would appear that he would be able to access appropriate health care in Jordan. He also didn’t appear to have much knowledge of the health system he claimed to fear. He said he would look into it.
Returning to the blood feud, he didn’t appear to have mentioned this but he claimed that he had. Regarding the fourth claim regarding his insulting Islam. He stated that he had been talking to a girl in 2012 the year after he had divorced after 15 years. His sister in Jordan knew the girl as they were next door neighbours. He couldn’t bring her out as he was in jail but she came out on a student visa in 2016.
She stayed with his [friend] (her husband was in jail with the applicant) but he found out she was two-timing on him. He became engaged with her on the phone with her family. He didn’t bring her on a prospective spouse visa and his agent said that one couldn’t marry over the phone and bring her out so he brought her out on a student visa. In July 2016 he found out she was cheating on him. She knew when she came out that he was in jail.
She visited him in jail and she was a serious cheater. He told her family about this. She came out when she was about [age]. Asked why a [age] year old Jordanian woman would marry him who was [age] and in jail. She studied for a month or less and then started fooling around and didn’t go to school. He told her family they had to take her back but she didn’t want to go. He reported her for not studying and she was detained but had been released on a bridging visa.
When he was released from jail in 2017 he spoke to her family as he had spent money or her for the ring and the school fees. He told them what she was doing and they told him to bring her back but he couldn’t as so he dobbed her in to the police. She was detained and then the family fell out with him and they began arguing. He began swearing at Muslims because she was sleeping with some of them and they recorded him.
He was asked if the court case was about the money he said it was and it was put to him that it was therefore a civil case. He said that it was also criminal because of the blaspheming component. He was asked if he had two cases and he said he had one. He then said there was one case but the second one hadn’t been started as he couldn’t be charged until he arrived in Jordan. He was asked if he could provide evidence of this.
He was asked what the charge from the police was, he said the document was the letter and a warrant but they were all in the computer shown by the reference number. He was again told that he had to provide translated documents for the Tribunal to consider. The court case was instituted in 2018. His ex-fiance had begun calling him out of the blue to check he was going and he recorded her voice when she called and had submitted it. It hadn’t been translated.
He was asked why she would call him, and he said it would have been to tell her family when he was leaving. Asked whether they could not get the authorities put an alert for when

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he arrived back he said they could do this but she was probably doing this just to be able to tell her family. Asked if her family were in positions of authority, he claimed that her uncle was a senior [Occupation 3]. It was put to him that he had claimed Christians were persecuted and he would be crucified for being a Christian yet her uncle was a high ranking [Occupation 3].

He claimed that her uncle was not really a practising Christian and didn’t argue with Muslims. He was asked why his ex-fiance’s uncle didn’t put an alert for his entry given his senior position rather than have his ex-fiance ring his private number out of the blue. He said that she was perhaps making sure but he didn’t know what she was doing.
He claimed that her family had recorded him swearing at Muslims as his ex-fiance was going out with Muslims and he disliked Muslims. He claimed they began recording him since he had taken them to court for the civil matter. This was late 2017/early 2018 from the time she was brought into detention and he was blamed by her family because of this. She had been cheating on him since early 2016. Because he had taken them to court and told them their daughter/niece wasn’t a virgin their relations soured and they recorded him after April 2018.
He was asked why he was talking to them at all he claimed that he was trying to sort out the court case with them. They refused to pay him his money and they got into stronger arguments from April 2018 until recently. They were going backward and forward. He was asked why he was doing this given he had hired a lawyer and any negotiations would have been done through the lawyer and not directly from him to someone he had taken to court. He claimed that the role of the lawyer was different in Jordan and he was still involved. It was put to him that if this was true, then the lawyer(s) would surely have been the conduit for any legal discussions. He claimed that because they were the neighbours of his sister they were close and he could discuss things directly with them.
He was told about s 424AA and it was put to him that in reference to his ex-fiance’s uncle he had said that they were Christian in name only but at the DIBP interview he had simply said they were Christian and hadn’t said that they were in name only. He claimed that he had simply said they were Christian which was true.
He claimed that he had no ability to work in Jordan and he had no assets in Australia. His sister’s husband had [medical condition] and she was being financially supported. Asked who was paying his lawyer in Jordan, he claimed that the lawyer was taking money only if he was successful (30 per cent). He said that his ex-fiance had called him as recently as a month ago and there was a missed call with her photo so he knew it was from her – he didn’t know what was in her mind but he didn’t know why she was calling him out of the blue. The member gave the applicant additional time post-hearing to address the concerns that had been raised during the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on a temporary partner’s visa [in] July 1997 and was married. His application for citizenship in 2008 was refused due to ongoing court proceedings for criminal matters. His resident return visa was cancelled in December 2014 due to new criminal convictions, later revoked but then cancelled again in January 2017 due to new criminal convictions. He lodged a protection visa application in June 2019. The Tribunal has sighted his Jordanian passport as proof of his identity and his claim will be assessed accordingly.
The applicant is a [age] year-old divorcee from Jordan. He claimed that if he returned to Jordan he would be killed by Jordanian Muslims because he was Christian. He also claimed that he would be killed because of a blood feud with the [Name 1] family, a recording of him

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swearing at Muslims would be given to the Jordanian authorities, and that he would be homeless, destitute without a pension and unable to access medical services to address his poor health.

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 have taken into account the medical reports he provided from his psychiatrist and IHMS and accept that he has a history of depression and drug-induced psychosis. Although he claimed to have [a medical condition] and this has been self-reported to IHMS staff, there is no reference to such a condition from the doctor’s letters he has provided – nevertheless I have taken this into account when discussing the general access to mental health support in Jordan. I do not however accept that any mental health condition he suffers from accounts for any credibility issues that may have arisen during the hearing.
I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable or credible witness, and that he fabricated his claim in order to be granted a protection visa.
Persecution as a Christian
I accept that the applicant is Christian but I do not accept that he had studied to be a priest in Jordan or that he would be likely to proselytise if he were to return there. The prison chaplain wrote that he attended chapel twice weekly for the time that he knew him, and a priest from [a] church in [Australian City 1] also wrote in support of him (folio 108). He has also provided a certificate attesting to the fact that he has completed [a bible course] (folio 159) which required 12 lessons to complete. It strikes one as strange that the applicant had to do an introductory bible course after allegedly having spent so much time studying it in his youth and early adulthood (see below).
The applicant claimed that he studied to be a priest but was unaware of what a seminary was when asked whether he attended one, and said that he studied the bible with the priest every day. I do not accept that he was this heavily involved with the Christian faith given he was unaware that there were two Christian hospitals that operated in Irbid.
I also do not accept that the applicant has or would seek to proselytise in Jordan, or that he has been preaching in Australia. There is no evidence from the chaplain or the [priest] in their letters that would support such a claim, and while he claimed to have told anybody he sat with in Jordan about Jesus, he had not previously made this claim.
Further, I do not accept that he would be killed (crucified) by Muslims for being Christian in Jordan and wouldn’t be able to practice his faith. He was prone to making unsubstantiated claims regarding the influence of Islam within Jordan, saying that people (non-Muslims included) were not allowed to eat during Ramadan and that shops were closed. When it was put to him that the member had been to Jordan many times and this was not the case he then said that people were not allowed to eat on the street.
I have taken into account a raft of country information provided by the applicant (much of it irrelevant or from non-objective sources) regarding the treatment of Christians in Jordan and I have also taken into account the comment that the [priest] made that the applicant would find it difficult to practice his faith because Christians were a minority and the political situation was very unstable. I note that there was a report of a Molotov Cocktail attack on a

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church in Irbid in 2010 but that it was by suspected al-Qa’ida members, indicating that it was not representative of normal Jordanian Muslims or systematic.

I give greater weight to country information available to me and my own personal experience of the country. A January 2014 report from the UN Special Rapporteur on freedom of religion and belief commended the Jordanian government for ‘its commitment to religious diversity’ and that there was a ‘positive atmosphere of tolerance’.³ The member’s last visit to Jordan was in September 2019 and churches that I drove past were open and had no security around them.
Blood Feud
I do not accept that there is or was any blood feud between the applicant’s family and the [Name 1] family. It follows therefore that the applicant is of no interest to the [Name 1] family. To begin with this relies on the applicant’s oral testimony which I have found lacks credibility. He has provided a handwritten letter that he claims is from the mayor that says he will be killed because of the long-standing feud between the two families.
He claimed that the dispute arose from an argument between his father and grandfather and a member of the [Name 1] family nearly 30 years ago in which the [Name 1] family member was shot and killed. Yet in that time, despite the alleged existence of a blood feud nobody appears to have been approached, let alone attacked or killed. The father (who allegedly killed a [Name 1] family member) has never had anything done to him despite living in Jordan and [Country 2].
The applicant lived in Jordan for seven years after the start of the alleged feud and returned to see his ill father in 2001 without incident. His brothers have lived in Jordan for years after the feud began and nothing has happened to them. Given the lack of any incident in 30 years I am satisfied that no such blood feud exists.
Swearing at the Prophet Muhammad
While I accept that there may be some disagreement between the applicant and the family of his ex-fiance, I do not accept that there is a court case involved and that her family seek to harm him or that he has been recorded insulting Muslims and the Prophet Muhammad and that this will be used against him.
To begin with the applicant was vague about what the court case was actually about – initially he claimed that it was a criminal case and then later that it was a civil matter where he was trying to recoup money spent on bringing his ex-fiance out to Australia.
Post hearing he provided evidence of his court case (folios 677-681). I am willing to accept that this is genuine, but it does nothing to support his case regarding the enmity with the family over the failed engagement to their daughter. The case appears to be one based on s 422 of the Jordanian Penal Code (Breach of Trust)⁴ and the defendant claims that it relates to money sent by the applicant to ‘invest in a water station that suffered a loss’. No mention of this being the basis of the case was mentioned by the applicant. Regardless, given the case has been brought by the applicant against the family to recoup money he would suffer no legal consequences regardless of the result.
3 Report of the Special rapporteur on freedom of religion or belief, Mission to Jordan, 27 January 2014.
4 accessed 1 November 2019
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The applicant was represented in the case by [named person] according to the documents he submitted. Having allegedly hired a lawyer to represent him, I find that it lacks credibility that the applicant would then conduct one-on-one telephone conversations with those he is taking to court rather than speaking through lawyers.
I don’t accept that lawyers are used differently in Jordan than here in Australia or that they were close so he thought he could sort it out by talking to them. Anything he wanted to say to them could have been done through the lawyer regardless of the judicial system in place. Given the issue was now in court allegedly at his insistence it would appear that the applicant’s ability to sort things out through discussion had long since failed so it makes no sense that he would still be attempting to do it.
Because I do not accept that the applicant was regularly talking to the ex-fiance’s family it follows that he didn’t swear at Muslims and the prophet Muhammad and had this recorded by the family. Nor do I accept that the applicant was threatened by his ex-fiance and he could be targeted by her family on return. I have taken into account what he claimed were threats made by her over the phone to him but lend it little weight. It lacks credibility that, if she had a high-ranking uncle in the [government] who would know when the applicant arrived back in the country, that the ex-fiance would call his private number to enquire as to when he was returning to Jordan.
Health Concerns and Re-Integration
While I accept that the applicant has some health issues in Australia (both mental and physical) I am not satisfied that they are sufficiently serious or that he would be unable to be treated for them in Jordan and hence do not accept that there is a real chance he would face serious harm on return to Jordan because of them.
I do not accept that he would be unable to access health care in Jordan because he didn’t have a job. To begin with he appeared to have done no research into what would be available to him given his circumstances, other than that his sister allegedly told him that he would have to pay for everything. The World Bank estimates that 30 per cent of Jordanians lack health insurance and a co-payment system exists for them where the patient pays 20 per cent of the cost.⁵ For those who are unable to pay this their bills are covered by the royal court and those over 60 years of age are also covered through insurance.⁶
As a consequence he would be able to receive health care. I acknowledge that in the case of mental health there are fewer services available than he would be able to access in Sydney. The availability of psychiatrists in Jordan is 1.09 per 100,000⁷ whereas it is 13 per 100,000 in Australia as a whole. The Jordanian situation is analogous to very remote Australia where there are about 1.6 per 100,000.⁸ I am satisfied that while the availability is less than he would have been used to in Australia, it is still sufficient to meet his needs.
I acknowledge that he has been in Australia for half of his life but given my concerns regarding his credibility I do not accept that his relations with his family are as parlous as he describes. He speaks the language fluently, has some family support and would also be able to access support through the Christian community of which he is part and claims to
⁵ IBRD Project Appraisal Document on Proposed Financing of US$50 million to the Hashemite Kingdom of Jordan for a Jordan Emergency Health Project 30 May 2017
⁶ accessed 1 November 2019
7 The Hashemite Kingdom of Jordan National Mental health Policy January 2011, p 41
8
0667F/$File/AFHW%20Psychiatry%20Report.pdf, accessed 1 November 2019
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have been close to while he was in Jordan. This forms a readily available support network he could use to help find his feet on return to Jordan. He is a [Occupation 1] and has [worked in Occupation 2], albeit a long time ago. These are skills that he could use to begin to re-engage with the workforce. In essence I do not accept that his return to Jordan after a long absence would mean that there was a real chance that he would suffer serious harm as a result of it.

Having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any s. 5J reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant would be killed for being a Christian, has or would be targeted because of a blood feud, was ever recorded swearing at Muslims and the Prophet Muhammad, would be unable to access health care or find employment or support to re-integrate, or suffer any adverse legal consequences from the court case, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Jordan, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rodger Shanahan
Member
Case Number 1919661 Page 11 of 14

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.

...

5H Meaning of refugee

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

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:

Case Number 1919661 Page 12 of 14

(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.

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.
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.
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.
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.
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:

Case Number 1919661 Page 13 of 14

(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

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.
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.

...

Protection visas – criteria provided for by this Act
...
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.

...

Case Number 1919661 Page 14 of 14

[2019] AATA 6677

8 November 2019

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction