1614430 (Refugee) [2019] AATA 3575 (4 March 2019)

Last Updated: 17 September 2019

1614430 (Refugee) [2019] AATA 3575 (4 March 2019)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 1614430

COUNTRY OF REFERENCE: Yemen

MEMBER: Rodger Shanahan

DATE: 4 March 2019

PLACE OF DECISION: Sydney

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

Statement made on 04 March 2019 at 4:08pm

CATCHWORDS
REFUGEE – protection visa – Yemen – honour killing – sex outside marriage – inheritance dispute – race – al-Akhdam tribe – humanitarian crisis – ability to enter and reside in another country – credibility issues – 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.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 August 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
2. The applicant who claims to be a citizen of Yemen, applied for the visa on 30 December 2014.

CRITERIA FOR A PROTECTION VISA

3. 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.
4. 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.
5. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
6. 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.
7. 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

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CLAIMS AND EVIDENCE

Protection Visa Application

9. The applicant claimed that he was born in [Country 1] after his father had moved there for work. His family were conservative although he was liberal in outlook. He encouraged his sisters to study and not to wear the burqa. He met his girlfriend [Ms A] in 2010 [when] he was working for [Company 1]. They began talking via [messenger] and phone and chatted for two years as they were initially scared to meet. They met in 2013 and became committed and lovers. His father saw his messages from [Ms A] one day and beat him, and warned him that he should marry a girl from their tribe. His father claimed that if he married anyone outside their tribe he or his relatives would kill him to protect the family’s honour. He was fearful and promised his father.
10. However, he secretly maintained his relationship with [Ms A]. He told his parents that he wished to study overseas and his father agreed as he thought it would be a good way to break the relationship. After he received his visa he told [Ms A] that he wanted to meet her before they left, that he would apply for permanent residency and sponsor her to come to Australia once he finished his study. He said that he would return to [Country 1] after six months to renew his residency visa and he would see her then.
11. He invited [Ms A] to his house when his father and brother were out but his mother and sisters were in the house but in their rooms. He picked up [Ms A] and brought her home where they were sexually intimate and they took photos as memories. When he arrived in Australia he called her but someone else answered her phone, he hung up and called again but there was no answer. He found out from a mutual friend who knew of their relationship that [Ms A]’s sister answered the phone, heard his voice, checked the phone and found the intimate pictures and told her parents.
12. [Ms A] was beaten and her family told the applicant’s father who said that he had disowned the applicant as a result. [Ms A]’s father went to his company and found out that he was going to return in six months’ time. The applicant rang home but his father told him that he would kill him if he saw him and stopped sending money to him.
13. His father also took all of his grandfather’s property in Yemen and his uncles were angry as a result and said they would take revenge on the applicant’s father’s family as a result. The applicant’s brother said that in order to pacify them he had promised that the applicant would marry one of their daughters.
14. He claimed that he would be killed by his family because he had violated tribal and Islamic norms; by [Ms A]’s family for violating their honour (their family also had tribal roots in Yemen); by the conservative and tribal Yemeni and [Country 1] societies for engaging in pre-marital sex.

AAT Hearing

15. The range of documents that had been provided by the applicant were gone through. He was asked about the invoices from migration agents that had been asked for and he said that he only had receipts. It was put to him that the receipts could have been bought from Woolworths. The adviser claimed that invoices were only generated for works done, not normally for initial consultations.
16. He was asked about communications between his girlfriend and himself that had been presented and he said they came from a [specified phone] but he no longer had the device. It was put to him that the tribunal would need to see the device before it could give much weight to the photocopies as it didn’t know their provenance and he said that he understood.
17. He had no foreign bank accounts. He had one in [Country 1] but didn’t use it and they just closed it down. It was put to him that banks didn’t just shut down accounts and that they would have sent him a letter or he would have had to request this to occur, but he then said that he spent all the money in the account before he left [Country 1]; he never closed it but they shut it down. He was asked why he didn’t keep some in the account to draw from when he was in Australia and he said he brought money with him. He had no evidence that it was shut down. His father was the one who was the guarantor for his student visa application.
18. In Australia he had an account at [Bank 1] but the account was zero. He had one [Bank 2] account. He worked in [Company 2] and drove [taxis]. He began this job about a month ago and began driving around two months ago. He worked in a [store] before that and had a group certificate from this place. He had been there for a year. Prior to that he was at another [store] and had a group certificate from there. He worked here in 2017 and hadn’t worked before 2017.
19. He received help from his friend to survive and currently lived in [Suburb 1] for the last two years. It was put to him that this was an expensive part of [City 1], and he said he had lived in [other suburbs] and the city before [Suburb 1] as he wanted to practice his English and be closer to his friends. His rent was $325 a week and he lived with his friend [Mr B] – he had lived there for two and a half to three years and it was a tiny place. He was asked for a copy of the lease.
20. Asked about the cash deposits made into his bank account, he claimed that he was being helped by a friend called [Mr C] who he met in Australia. He was a senior financial adviser who gave him money but he was going to pay him back now he felt better. He didn’t come as a witness as he didn’t want to ask him. Asked why he was paid in cash deposits from [Mr C] ([Mr C] who worked for [company name deleted]), he claimed that [Mr C] had also transferred money to him.
21. He was also received money from Centrelink but this was when he wasn’t working. It was put to him that there was another bank account from which money was transferred. It was put to him that the cash deposits were done at different places around [City 1] and he claimed that [Mr C] worked at [specified location] and so money was deposited at [Branch 1] and if he went out then [Mr C] gave him cash and he deposited it at [Branch 2].
22. Asked why [Mr C] went to [Branch 1] to deposit cash, the applicant claimed that [Mr C] gave him the cash and he deposited it at the ATM and other times [Mr C] transferred the money. It was put to him that it was very strange that a person called [Mr C] who was not called as a witness mysteriously gave him bundles of cash for him to deposit rather than transferring the money from his account to the applicant’s so the Tribunal could check that this actually occurred.
23. He said that he didn’t ask him to come as a witness because he didn’t think he would be needed and there was a place on the form for witnesses. He said that he could ask him as a witness. The Tribunal decided against scheduling a time to speak to the witness as the person provided a written statement post-hearing which was taken into account. He claimed that the deposits in [a named suburb] were because [Mr C] lived there and when he visited [Mr C] he got cash from him and deposited it. In [Suburb 2] the applicant said that he had the cash from [Mr C] and may have been walking at [Suburb 2] when he deposited the cash.
24. He confirmed that he was the father of a child to a Colombian woman. He met her when she was a tourist. She was at [a tourist attraction] next to the water and taking a picture and he asked her if she wanted him to take a photo of her. He met her in 2015 but couldn’t remember when. He then said it was in November and the weather was cold. She spoke very good English.
25. They began talking about [City 1] and his story and that she was here for a visit and liked it here. They exchanged numbers and they talked but she came back later and stayed with him but the relationship didn’t go well. She left a week after they met. They talked via [social media] and had pictures of them together. He didn’t have his phone with him but would send the Tribunal copies. The Tribunal asked for the applicant’s [social media] account name but was unable to log in due to technical issues – copies of the chats were sent post hearing.
26. They had a child but they don’t talk much now because of his mental health issue. It was put to him that his name didn’t appear on the birth certificate. He said that he was not married to her and that he had to be in Colombia to sign the papers. He was asked how the Tribunal could be confident that this child was his given his name appeared nowhere, and he claimed that he was willing to do a paternity test and he could send a picture of the baby. It was put to him that there didn’t appear to be any evidence that he was in a relationship with this person. He was asked how he got the birth certificate if they didn’t speak, and he claimed that he said they didn’t speak too much.
27. He was asked about a payment to a Colombian dating service on his bank records and he stated that there was no connection between the website and his relationship with the girl. It was put to him that it was an extraordinary coincidence that he was only looking at a Colombian dating site and he then coincidentally met a Colombian girl at [a tourist attraction]. He claimed that he loved Latino girls, and it was put to him that he had only looked at a Colombian site, not other Latino countries.
28. He claimed he used many dating sites and when asked what ones, he said he also used [Dating Site 1]. Asked about [Dating Site 2], he said that he had. It was put to him that he claimed he loved Colombian women because they were outgoing and vivacious, but yet he also used a Muslim dating site. He claimed that it included people from all over the world, and not only Muslims.
29. He was asked whether he was well enough physically and mentally to attend the hearing. He claimed he was physically well but not mentally. Asked if he was fit to attend the hearing he claimed that he was. Some of the documents relating to his mental health treatment were then gone through. It was put to the adviser that the original letter from the psychologist [Ms D] was undated and simply referred to three sessions that she had with the applicant at her office but that there were no dates attached to them. A later letter said that she had had sessions on 31 July, 7 and 14 August 2017. The letter from the GP referred Yet the report from [Mr E] (a psychologist from the same centre as [Ms D]) stated that the applicant ‘had not seen a psychologist before October 2018’ (folio 18).
30. The applicant claimed that [Ms D] was a contractor to the clinic but she was no longer with them – he had seen her at [a particular] office. When he saw [Mr E] he claimed that he didn’t remember he had seen [Ms D] because of his mental health condition.
31. He was advised about the existence of a s438 certificate and that there were routine documents referred to but there was one piece of information that was relevant to his claim and this would be advised to him.
32. The applicant then claimed that if he returned to Yemen his paternal uncles were demanding their share of their inheritance and would kill him to get revenge on his father; his ex-girlfriend with whom he had a relationship had a tribe whose origins were traced back to Yemen and he could be killed in an honour killing because of the relationship. There was a civil war in Yemen and he would be targeted by the Houthis because he had been living in [Country 1]. In addition he belonged to the al-Akhdam tribe which was a minority and he would be targeted by the Houthi government.
33. If he returned to [Country 1] he would be killed by his father because he had a relationship with his ex-girlfriend. Her extended family would also try to kill him.
34. Regarding his girlfriend he had met her while worked at [Company 1] and he was playing an [online game]. He was sponsored by his father. Asked if family sponsorship ceased when he was 21, he claimed that he thought it was when a person was 22 or 23. It was put to him that it was reasonable to believe that he would know the age at which his sponsorship ceased given his circumstances in [Country 1]. He claimed that he didn’t remember the rules. He claimed that in some cases in [Country 1] it was possible to extend the sponsorship of one’s residency under their family.
35. He began talking with the girl when they played and began to talk on [mobile] as they both had these phones. The more they spoke the more they liked each other and they began to trust each other. He began talking to her in 2010 at the end of the year, around August. He claimed he didn’t remember dates because it was long ago. It was put to him that he was given notice of the hearing and he had time to recall dates and the like. He claimed he couldn’t because of his mental health.
36. The girl’s name was [Ms A] and they spoke every day and they decided to start meeting. They first met in person one year after meeting online. She was studying [specified discipline] at [a school] and they agreed he would go to her house and drive her to the school in the morning. She told her family she would travel by taxi or go with her friend and their driver. He would stop his car a distance from the house and she would come to his car. Her parents are divorced and she lived with her grandmother and the house was close to the college – her grandmother didn’t have a driver and they went by taxi or a neighbour would drive them.
37. He took her to the [school] normally when she had tests as she would finish early. He picked her up from her house three times over a three to five month period. They met after this two times. Once they had lunch together and then the day before before he came to Australia in September 2014. They met in person five times over the four year period since they first met online started to talk.
38. His [sister] was told by him and his mother found out when he told his mother that he loved [Ms A] and wanted to marry her – this was at the end of 2013. His mother wanted him to finish his study but she didn’t have an opinion as his father was against it. She just said yes to him but didn’t want to do anything. She took his sister to the salon where [Ms A]’s mother worked. It was put to him that on the one hand he said that his mother had no opinion on it but on the other he said that his mother went to the salon to meet [Ms A]’s mother which was inconsistent. His mother couldn’t help him, neither could his sister.
39. His father found out about the relationship because he saw how the applicant’s attitude changed. He was dressing nicely, staying up late and feeling good. Asked why he began wearing nice clothes if he wasn’t going out with her, he claimed that he felt better and so dressed up nicely. Asked how old she was, he claimed she was [age] – her birthday was [date]. He then said she was [age] now. It was put to him that she would be [older] if she was born in [that year] and then he said it was [a different year] – it was put to him that this made her [age].
40. The applicant then said that he was being asked very small details and he couldn’t remember all the details. It was put to him that he was claiming to fear serious harm and requesting protection so the Tribunal needed to check his credibility and so asked questions that could be checked against known information. The applicant then said he had suffered trauma from his father and became distressed. An adjournment was then called by the member.
41. On resumption after the adjournment, the recording was not available. What follows comes from contemporaneous or near contemporaneous notes taken by the member. The father was also aware of the conversations because all the applicant’s salary went on phone credit. His father told the applicant to promise Allah not to speak to the girl again but then beat him.
42. The day before he came to Australia [Ms A] told her grandmother that she had to go to university but she came to the applicant’s house and they had sex there and took photos. The photos were of him in his boxers and t-shirt and she was fully clothed. They always took photos and sent them to each other. They had 500 pictures of each other.
43. When he came to Australia he tried to call [Ms A] but a male answered the phone and he hung up. He knows that [Ms A]’s family saw the photos and she was confronted about them and dealt with harshly at home. Her father then sought out the applicant’s father and told him about what had occurred, so his father knew that the applicant had disobeyed him. He remained terrified of his father who had been cruel to him, beat him and even forced him to have an operation to drain fat from his chest because he thought the applicant looked like a homosexual.
44. His father worked for [a named] family, one of the richest in [Country 1], and [held a role in] one of the [companies] the [family] owned.
45. He was asked a range of questions on several of the issues he had raised. He said that [Ms A]’s birthdate was [date]. He was also asked to provide evidence of [Ms A]’s tribal affiliations and the linkage between her tribe and the Yemeni tribe, and also evidence of his membership of the al-Akhdam tribe in Yemen.
46. He had always lived with his parents in [Country 1] and stayed under their sponsorship until he worked for the second company in [Country 1] who sponsored him for the seven to 12 months he worked for them. It was put to him that, although he claimed that his father was a monster tom him, he had still paid for him to travel and live in [Country 2] to learn English and was keen for him to go to Australia and study and was willing to finance him while in Australia.
47. It was also put to him that he had the ability to move out of home when he was working for a [Country 1] company that sponsored him. The fact that he was financially independent because of the job and not reliant on the family for sponsorship and yet he remained living at home may call into question whether he was in fear of his father. He claimed that he stayed because he was too afraid of his father to leave.
48. Regarding his claim that only married people’s names were put on a child’s birth certificate in Colombia, he was advised of general country information that indicated a father’s name could be included on a birth certificate if they so wished and that people did not need to be married. This was inconsistent with what he had told the Tribunal. He claimed that he would refuse to acknowledge the child and claimed that the woman could pursue him through the embassies for paternity/child support.
49. It was put to him that there was no record that he was the father or how anyone would know in [Country 1] or Yemen that he had father a child. He claimed that people he had told could tell people in [Country 1], and it was again put to him that he could simply deny it given there was nothing on any document to indicate that he was the father of the child.
50. He was advised about the contents of the s 438 certificate that applied to him and that an unnamed source had stated that the person had met the applicant at a social event and that the applicant was trying to claim refugee status in Australia when he was not a genuine refugee. The person claimed the applicant came from a wealthy family who are safe and well back home, that he was nowhere near a war area or in a dangerous situation that required him being accorded refugee status. The person also claimed that the applicant was claiming Newstart allowance and also working in a [store] in [at a suburb] for cash-in-hand money.
51. The applicant claimed that he disagreed with the contents of the letter and that while his family may have been wealthy it was because his father had stolen his own brothers’ inheritance.
52. General country information was put to him that under Colombian law, even if a child is born out of wedlock the father can acknowledge his paternity on the child’s birth certificate.^[1] It was put to him that this was contrary to what he had claimed to the Tribunal - that only parents who are married can be acknowledged on a birth certificate. He claimed that he would refuse to acknowledge the child and that she would pursue him to blackmail him or demand money. He was asked how anyone would know if he refused to acknowledge the paternity and there was no record on the birth certificate that he was involved with her at all.
53. Under s 424AA and it was put to him that there were several inconsistencies in his evidence regarding his relationship with [Ms A] that may call into question his credibility as a witness and whether there was any relationship with [Ms A] as he had described. In his DIBP interview he had claimed that he first met [Ms A] in person 18 months to two years after they met online, that he drove her from college to her mother’s house and that he took her home five or six times, and dropped her off at the front of her building about 2 or 2.30 pm. He also said that he had taken her to buy things for college. [Ms A] was [age] years old and born on [date].
54. At hearing he had claimed that [Ms A] was [a younger age] and born on [date], that he had driven her from her house to college on three occasions and he parked away from the grandmother’s house and [Ms A] would walk to his car having made an excuse about how she would travel to college. He claimed that his memory was bad and said that his mental health condition was to blame for the inconsistencies.
55. It was put to him that the psychologist had claimed that the applicant would not be able to access psychological support in [Country 1] and his adviser was asked to provide the basis of this finding post-hearing. The applicant agreed that there were psychologists and psychiatrists in [Country 1] but that he would not visit them because of the stigma associated with going to them. It was put to him that this would be an individual decision and the Australian government could not be expected to give him protection simply because he chose not to see mental health specialists in [Country 1].
56. He was asked how he had been able to obtain a copy of his father’s passport and identity card if their relationship was so fractious and he claimed that his sister had been able to obtain them secretly. She had sent them to him via WhatsApp but his phone was not available to show this.
57. He reiterated his fear of his father and claimed that he had scars on his face and body from the beatings from his father and scars inside of him as well.

CONSIDERATION OF CLAIMS AND EVIDENCE

58. The applicant arrived in Australia on a student’s visa [in] September 2014. He applied for a protection visa on 30 December 2014.
59. The Tribunal has sighted his Yemeni passport as proof of his identity. Although he claimed to have been born and lived in [Country 1] most of his life, he is a Yemeni citizen and holds a Yemeni passport and his claim will be assessed using Yemen as his country of reference. Given his personal circumstances and his family’s residential status, reference will also be made to his ability to enter and reside in [Country 1].
60. The applicant is a [age] year old Sunni Yemeni who was born and lived in [Country 1]. He claimed that if he returned to Yemen he would be killed in revenge by his paternal uncles who were demanding their share of the inheritance that their father had appropriated; killed in an honour killing by the Yemeni tribes who were connected to the tribe of a former girlfriend with whom he had a sexual relationship in [Country 1]; killed because he was from the al-Akhdam tribe that was targeted by the Houthi government; and killed by the Houthis because there was a civil war and he was a Yemeni returning from [Country 1] who were fighting the Houthis.
61. 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.
62. The applicant made much of his mental health situation and he appeared sufficiently distressed at one point for the Tribunal to call an adjournment. Regarding the applicant’s mental health history, it was noted that the applicant’s attendance at psychologists post-dated his visa refusal. I have taken into account the lengthy report provided pre-hearing but lend it little weight. Given his attendance at psychologists post-dated his visa refusal I am not satisfied that he has a long-term or ongoing mental health issue. Regardless, I had regard as to whether his mental health may have impacted his capability to attend the hearing. I am however satisfied that the applicant was medically able to attend the hearing and that the range of inconsistencies in his claims were the result of the claims having been fabricated, rather than due to any mental health issue.
63. The report is largely based on self-reporting from the applicant, whose credibility is lacking (see below). The psychologist who wrote the report also states that the applicant had not seen a psychologist prior to October 2018 whereas the applicant had been seen by a psychologist employed by the same clinic in August/September 2017. This psychologist simply provided a letter stating the applicant had seen her on three occasions and made no observations regarding his condition.
64. The second psychologist also noted the applicant had a valid fear of returning to [Country 1], which as I note below was a claim fabricated by the applicant. And the psychologist noted the applicant may not have access to psychological intervention in [Country 1] without referencing the basis for this assessment. When he was asked on what basis he made this claim he referred to Yemen and said that because [Country 1] and Yemen were at war, the applicant may not have treatment because he was Yemeni (folio 154). Given [Country 1 is] supporting one Yemeni faction against another, and the applicant’s father is by his own admission a successful and highly connected Yemeni in [Country 1], the psychologist’s understanding of the situation in Yemen and of the applicant’s personal circumstance is not sufficiently developed to be able to make such judgments regarding sychological services offered in [Country 1]..
65. There is nothing from either psychologist that would indicate that the applicant suffers memory loss as a result of any condition. The applicant also claimed that he had previously seen a doctor before his negative decision from the DIBP. I have seen the report he has given from the doctor, dated January 2015 (folio 128). I note that the doctor was not a mental health specialist, he noted a small patch of alopecia (hair loss) and discussed stress as a potential trigger while the applicant told the doctor that his brother had had similar symptoms. I note that the triggers for alopecia are not known, but that a family history makes it more likely to occur. I don’t place weight on this visit as indication of a mental health condition, and note that no mental health plan or follow-up with a mental health specialist was prescribed.
66. Having taken the psychologists’ reports into account I still found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and that he fabricated his claim in order to be granted a protection visa.

Relationship with girl

67. I do not accept that the applicant ever had a sexual relationship with a woman named [Ms A] while he was in [Country 1]. To begin with, the account of the relationship leading to intercourse appears implausible. Over a four year period they spoke over the phone daily, he drove her to [college] on three occasions and they went to lunch once. This evidences a high degree of caution. Then, on the fifth occasion they apparently threw caution to the wind and had sex in the applicant’s family house just before he left the country.
68. There are too many inconsistencies in his evidence however, for me to believe that he knew anyone by the name of [Ms A] in any close way. He gave inconsistent evidence regarding her age, her date of birth, how long before they met in person, how many times he drove her, where he drove her from and to, and where they met in order to drive. Given he claimed to have been in a close relationship with her for four years, any one of these inconsistencies could call into question the veracity of his claim; their combination is sufficient to discredit it entirely. I do not accept that the inconsistency was due to mental health issues, for reasons previously addressed
69. I have taken into account copies of photos he claims are of [Ms A] (folios 44, 60, 61 and post-hearing unfolioed) however I lend them little weight. They are undated and there is no way of knowing who the other person is in the photo. It could be a cousin or a friend asked to pose for such photos. They also appear to have been taken in several different locations given the different clothes they are wearing, which is inconsistent with the pattern of behaviour he claimed they had (three secret car drop offs, one lunch and one sexual encounter at home). They are fully clothed in all shots, although in one a woman has pulled her top up halfway up her torso.
70. I also lend little weight to the copies of conversations from a device that is claimed to be between the applicant and [Ms A] (folios 62-65). They are photocopies and the device from which they have been taken was never presented to the Tribunal so there is no way of checking their provenance. I lend more weight to the inconsistencies exhibited by the applicant regarding [Ms A]’s personal characteristics and the way in which they interacted in finding that there was no relationship between the applicant and [Ms A].
71. Because I do not accept that there was a relationship between the applicant and [Ms A] let alone a sexual one, it follows that neither the applicant’s father, his extended family, [Ms A]’s family or associated Yemeni tribe, nor broader Yemeni or [Country 1] society will seek to kill him because he had traduced [Ms A]’s honour or gone against Yemeni, [Country 1] or Islamic norms. Nor do I accept that the applicant’s father beat him, has disowned him or stopped financial assistance to him because of the relationship.

Relationship with Colombian girl

72. I do not accept that the applicant has had a relationship with a Colombian girl who he met at [a tourist attraction] and then on a later visit by the girl to Australia they had sex and she gave birth to his child in Colombia. He was asked for a copy of the birth certificate prior to the hearing and produced one although there is no name of the father on it. He claimed that this was because in Colombia only married people had both their names on the certificate. This was not correct as country information indicates otherwise.^[2]
73. The applicant has provided country information post-hearing (unfolioed) that unmarried parents must be present at the time of registration. The country information he provided did not cover the applicant’s alleged circumstances (father overseas, mother in Colombia) and why he could not have provided the necessary supporting documentation at the Colombian Embassy in Canberra or the consulate in [City 1]. At a minimum, there is no evidence that he has approached the consulate to ascertain the procedures for registering him as the father.
74. I note that the applicant according to his bank records had also paid for access to a Colombian dating site which may explain how he came to claim that he fathered a child to a Colombian woman. I do not accept that this was because he was attracted to Latino women because of their friendliness and outgoing nature, given he had also joined a Muslim dating site. I do not accept that the site contained non-Muslims as well, given that he provided no evidence to support this.
75. He has provided photocopies of screenshots that he claims are message chats with the Colombian woman ([Ms F]) but I lend them little weight. They do not indicate a relationship between someone who has fathered the woman’s child as there doesn’t appear to be any chat history that would indicate the closeness he claimed to have had with her, or indeed any period in the chat proffered to the Tribunal in which they actually talk about what their son is doing. The absence of this is noteworthy. One entry says ‘cats are beautiful’ and another (with a picture of what I take is their shared child – no explanation is given), the entry says ‘so beautiful this kid’ which appears to be quite unparent-like and the same degree of affection afforded a cat.
76. He has also provided photos post-hearing of a woman he claims to be [Ms F] and her child. It is entirely plausible that there is someone called [Ms F] from Colombia but the Tribunal does not accept that she and the applicant were boyfriend and girlfriend and that he has fathered a child with her.
77. I do not accept that he has tried to consult a Colombian lawyer to register his son, or that the Colombian embassy rejected his application when he tried to travel to register his baby. He has provided no evidence of a rejection of any application from the Colombian Embassy (nor did he mention this at hearing). I lend no weight to the email he allegedly submitted post-hearing (no folio number) that he claimed was correspondence with a Colombian lawyer. The lawyer appears to write in perfect English from a Hotmail address, and the applicant never mentioned this at hearing, despite the email being dated in September 2018. It is also entirely inconsistent with his claim during the hearing that he would refuse to acknowledge the child.
78. Regardless of why he was joining Colombian and Muslim dating sites, given I do not accept that he has fathered a child to a Colombian woman it follows that there is no chance of him having told anyone that he had fathered a child to a Colombian woman or being perceived to have fathered a child out of wedlock in either Yemen or [Country 1].

Relationship with father

79. I do not accept that the applicant has suffered years of domestic violence at the hands of his father. This relies largely on his oral testimony which, as I have noted above, lacks credibility. I also note that the father has paid for his son to travel and live in [Country 2] for six months to learn English and then paid for his son to travel to Australia for study purposes. These do not appear to be the actions of a violent, controlling father who beats his children.
80. I do not accept that the applicant has scars on his body as a result of being injured by his father. I have taken into account the photo he has produced that he claims is a burn from an iron that was inflicted on him (folio 44), as well as others as part of a response to a second 424A letter, but lend them little weight. There is no indication of when or where they were taken, they are difficult to make out, nor is there any indication as to who the limb belongs to or how the injury was sustained.
81. I have also taken into account what he claims are scars from wounds inflicted by his father but note that there are many ways young men can get scars from the normal process of growing up. I have also taken into account the psychologist’s report regarding PTSD but as I have noted above the diagnosis is based in part or in whole on accepting the applicant’s account regarding his father which I have found to have been fabricated. Given the lack of reliable information contained in the photos, the applicant’s oral evidence becomes the most important aspect of the claim, and I have found that he is not a witness of truth.
82. I also note that his willingness to stay at home until he came to Australia, despite being sponsored by a company he was working for (and hence both financially and administratively independent from his father) is not indicative of someone living in fear of physical harm from him. In his post-hearing submission he claimed that his father was well-connected and could find him wherever he went and as a young person he never had the option to run away from him. This is inconsistent with the fact that as a [age] year-old he travelled to [Country 2] to study English for several months and voluntarily returned home from this trip paid for by his father. Even given the fact that he was not yet an adult, it is reasonable to believe that if his life had been so horrendous at home that he would have explored options for staying in [Country 2] such as applying for protection.
83. His father’s generosity in paying for an overseas language course in [Country 2] then an overseas financial course in Australia is not indicative of someone who was ‘a sick evil man he kept inflict torture on me until the last day of my departure’ (no folio). Rather it appears to be the action of a father who is seeking to develop his son’s language and business skills through the expenditure of significant funds.
84. I am also not satisfied that the applicant has been cut off from financial assistance from his father. He was asked to provide all Australian and overseas bank accounts but claimed he had no [Country 1] bank account as he had emptied it before he left and the bank had closed it. He could provide no evidence of this. It also raises suspicions that someone who claims to have no access to his family’s money and worked at a [store] had moved house to [Suburb 1], one of the most expensive suburbs in [City 1].
85. Further, I note from his bank statements regular cash deposit into his bank account. For example, in May 2018 there were deposits on 3 May ($60), 4 May ($745), 5 May ($140), 7 May ($170), 11 May ($445), 14 May ($462), 16 May ($415), 18 May ($295), 20 May ($145), 25 May ($343.70), 28 May ($600). This pattern is replicated in other months, although the location of the ATM at which the cash deposits are does vary at times.
86. I do not accept that he was being supported by a person called [Mr C] who worked at a financial services firm and who would give him cash so he could support himself. I accept that he has a friend called [Mr C] and I have taken into account the letter provided that is allegedly from [Mr C] (folio 157) but lend it little weight. While it mentions the fact he has been ‘periodically providing financial assistance...to pay for his needs such as food, rent and transportation’, there is no indication of how much, how often or by what method he provides money.
87. Not only did the applicant not explain why [Mr C] gave him different (and very specific) amounts so regularly (particularly $343.70 in cash) it makes no sense that [Mr C] would provide cash amounts so regularly when he could have electronically transferred the money.
88. Indeed I note that in January 2018 there is one entry (folio 74) when [Mr C] transferred $2000 to the applicant’s account from his account on 12 January and 18 January (folios 71 and 74) but there are also cash deposits at [Bank 2] [Branch 1] ($410 on 12 January, $1155 on 14 January, $620 on 24 January, $250 each on 26, 30 and 31 January) and [location] ($925 on 8 January).
89. It makes no sense why someone in the financial services industry would transfer $2000 electronically to the applicant and then give him $410 in cash the same day to deposit into his account. This further raises questions about the veracity of the source of this money, given [Mr C] has shown himself capable of electronically transferring money it makes little sense that he would otherwise use variable amounts of cash and physically hand it to the applicant so he could then deposit it into his account via ATM.
90. The applicant was asked to provide a copy of his group certificate for his work at the [stores], but only provided a PAYG form for the FY 17/18 (folio 184). It notes that he received AUD 5174 in gross payments. This cannot account for the cash payments into his bank account, which in January-March 2018 alone totalled AUD 10,510.

Other issues.

91. When it was put to him that [Suburb 1] was an expensive place to live in [City 1], the applicant claimed that he lived with his friend [Mr B] and that the rent there was $325/week. He was asked to provide a copy of his lease – the post hearing submission contained only a copy of a residential tenancy agreement condition report (folio 179-182). It did not include the address of the property, the name of the tenants, nor did it include a signature from any tenant. This is further cause for concern regarding the applicant’s truthfulness.
92. Post-hearing he also provided a copy of a letter from lawyers regarding a financial dispute he appears to have had with a former employee (folio 183). It is not known what the relevance of this letter is to his claim as no explanatory note was provided, nor had it been raised previously with the Tribunal. Whilst it appears the firm is seeking back pay for the applicant for being paid a below-award wage, it does nothing to address my concerns about the random cash payments made into the applicant’s account at various times. If the intent was to use this letter to explain the anomaly then I lend it little weight, given the legal firm seeks a single payment amount of $14,000. There is also no indication as to what the outcome was. Regardless, I am unable to see how it relevantly affects any of my concerns with his claims.
93. I have also taken into account a series of emails that he claims represents email correspondence between him and a [Country 3] migration lawyer from June 2014 (folios 187-190) but lend them little weight as evidence that he was being abused at home by his father. Again, there is no indication of the context in which the correspondence is supposed to fit, such as an explanatory note given it wasn’t raised as an issue during the hearing.
94. I do not accept that it is evidence that the applicant sought to escape from an abusive father. Whilst he claims in one email that his father is beating him all the time, in the same email he also says that he can get $10,000 from his father to travel to [Country 3] (via [another country]) in order to apply for asylum. His ability to get this sum of money from his allegedly abusive father is inconsistent with the abuse he claimed his father put upon him.
95. I also note that in one email the [Country 3] migration lawyer allegedly advises the applicant to contact a [Country 4] asylum seeker assistance group (and gives him their website address) because [Country 4] is believed to offer protection against countries other than a country of citizenship. There is no indication that any contact was made by the applicant with this [Country 4] group, which further calls into question the degree to which the applicant was keen to apply for asylum.
96. Because I do not accept that the applicant is a witness of truth, and that he has fabricated his account of his father being violent towards him, I also find that the applicant’s father has not taken all the family property in Yemen and that the family is now in danger from the uncles who wish to take revenge. I have taken into account the Yemeni documents that he has provided regarding the dispute but lend them little weight. They are all photocopies of documents and could easily have been produced on any home compute, and it was alo not clear how he was able to obtain the documents if he had such a bad relationship with his father. I lend more weight to his lack of credibility in finding that his claim regarding the inheritance dispute in Yemen to have been fabricated.
97. I also do not accept that the applicant would be targeted by the Houthis simply because he had been living in [Country 1] or because he belonged to the al-Akhdam tribe. Although he has produced general country information about the humanitarian crisis in Yemen (which the Tribunal accepts to be the case), he has not provided any country information that indicates the Houthis target returnees from [Country 1], that he is a member of al-Akhdam tribe or that this tribe is targeted by the Houthis.
98. Media reports indicate that, while tens of thousands of Yemenis have been sent back to Yemen in order to nationalise the [Country 1] job market, around one million remain.^[3] The applicant has indicated that his father has worked for one of the wealthiest [Country 1 nationals] in [Country 1], and it is reasonable to believe that with his connection it would not be difficult for him to get the applicant a [Country 1] sponsor and allow him to work for the [Country 1] or for himself and to give the sponsor a percentage of the profits. Given this long-standing practice, there is even talk of [Country 1] allowing some expatriates to self-sponsor in the future.^[4] For this reason I find that the applicant will be able to re-enter and live in [Country 1] for the reasonably foreseeable future.
99. I do not accept that there is a real chance the applicant will suffer serious harm because of having a political opinion against [Country 1] activities in Yemen. He provided no indication that he has expressed such an opinion privately, let alone publicly and it relies entirely on his oral evidence which I have found lacks credibility. He has provided no independent country information that Yemenis are coming to the attention of the [Country 1] authorities for being anti-[Country 1] military operations in Yemen, nor is any such information available to the Tribunal.
100. I also do not accept that the applicant was a liberal thinker in a conservative household and that he encouraged his sisters to study and not to wear the burqa. The member’s experience of living in [Country 1] more than a decade ago was that the burqa is virtually non-existent. Other, near-full face coverings such as the niqab are more common, but are more often seen in rural or conservative areas. Women wearing a long black cloak and al-Amira veil (showing the full face) is much more common in the larger cities.
101. I am not therefore satisfied that the sisters would be forced to wear the burqa or even be encouraged to do so, hence there would be no need for the applicant to encourage them not to wear it. For the same reason, I am satisfied that simply encouraging his sisters to study would bring him to the attention of authorities or of his family. While below the OECD average, [a substantial portion] of students entering tertiary education in [Country 1] are women as at 2015^[5], indicating that it is a widely accepted practice.
102. Because I have found that the applicant is not in conflict with his family and that he has been gainfully employed before coming to Australia and without coming to the attention of authorities, or that encouraging his sisters to study and not wear the burqa is unremarkable, I am satisfied that whatever his outlook, it has not caused him any difficulties or will it in the future.
103. Having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.

Complementary Protection

104. Because I do not accept that the applicant ever had a sexual relationship with a woman in [Country 1] or with a Colombian woman in Australia (who subsequently bore his child and that the [Country 1] woman’s tribe or broader [Country 1] society was looking to harm him because of this, that his father was violent to him or stole land from his extended family and who were seeking revenge, 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.
105. I have taken into account the ongoing conflict in Yemen in determining Australia’s complementary protection obligations towards the applicant. The applicant was born in, and has spent most of his life in [Country 1] where the rest of his family still live. Because I do not accept that the applicant is in conflict with his father, and he claims that his father is a highly connected senior employee of one of [Country 1]’s richest men, for the reason mentioned in paragraph 97 it is reasonable to believe that the applicant will easily be able to find a sponsor to allow him to continue to live in [Country 1].
106. And, even if the applicant had to return to Yemen at some point in the longer-term future, because the applicant is not, and has not been a member of any combatant group or any group that will be targeted specifically, there is not a real risk that the applicant will face any significant harm because it does not fall within s 36(2B)(c) of the Act where ‘the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.’
107. 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 [Country 1] or Yemen, 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

108. 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).
109. 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).
110. 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

111. The Tribunal affirms the decision not to grant the applicant a protection visa.

Rodger Shanahan
Member

ATTACHMENT - Extract from Migration Act 1958

5 (1) Interpretation

...

cruel or inhuman treatment or punishment means an act or omission by which:

(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c) that is not inconsistent with Article 7 of the Covenant; or

(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
...
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a) that is not inconsistent with Article 7 of the Covenant; or

(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
...
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a) for the purpose of obtaining from the person or from a third person information or a confession; or

(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c) for the purpose of intimidating or coercing the person or a third person; or

(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
...
receiving country, in relation to a non-citizen, means:

(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
...

5J Meaning of well-founded fear of persecution

(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c) the real chance of persecution relates to all areas of a receiving country.

Note: For membership of a particular social group, see sections 5K and 5L.

(2) A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note: For effective protection measures, see section 5LA.

(3) A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b) conceal an innate or immutable characteristic of the person; or

(c) without limiting paragraph (a) or (b), require the person to do any of the following:

(i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

(ii) conceal his or her true race, ethnicity, nationality or country of origin;

(iii) alter his or her political beliefs or conceal his or her true political beliefs;

(iv) conceal a physical, psychological or intellectual disability;

(v) enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4) If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b) the persecution must involve serious harm to the person; and

(c) the persecution must involve systematic and discriminatory conduct.

(5) Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a) a threat to the person’s life or liberty;

(b) significant physical harassment of the person;

(c) significant physical ill‑treatment of the person;

(d) significant economic hardship that threatens the person’s capacity to subsist;

(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6) In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b) disregard any fear of persecution, or any persecution, that:

(i) the first person has ever experienced; or

(ii) any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a) a characteristic is shared by each member of the group; and

(b) the person shares, or is perceived as sharing, the characteristic; and

(c) any of the following apply:

(i) the characteristic is an innate or immutable characteristic;

(ii) the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii) the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures

(1) For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a) protection against persecution could be provided to the person by:

(i) the relevant State; or

(ii) a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2) A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a) the person can access the protection; and

(b) the protection is durable; and

(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

..

36 Protection visas – criteria provided for by this Act

...

(2A) A non‑citizen will suffer significant harm if:

(a) the non‑citizen will be arbitrarily deprived of his or her life; or

(b) the death penalty will be carried out on the non‑citizen; or

(c) the non‑citizen will be subjected to torture; or

(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e) the non‑citizen will be subjected to degrading treatment or punishment.

(2B) However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

...

---

^[1] https://www.international-divorce.com/Colombia_Family_Law.htm, accessed 21 December 2018
^[2] https://www.ncbi.nlm.nih.gov/pubmed/12344087, accessed 19 February 2019
^[3] [Source deleted]
^[4] [Source deleted]
^[5] [Source deleted]