1711125 (Refugee) [2020] AATA 4527 (9 October 2020)

Last Updated: 11 November 2020

1711125 (Refugee) [2020] AATA 4527 (9 October 2020)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 1711125

COUNTRY OF REFERENCE: Jordan

MEMBER: Rodger Shanahan

DATE: 9 October 2020

PLACE OF DECISION: Sydney

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

Statement made on 09 October 2020 at 3:35pm

CATCHWORDS
REFUGEE – protection visa – Jordan – member of the Jordanian Armed Forces (JAF) – charged and sentenced in absentia for desertion – credibility concerns – inconsistent evidence – little documentary evidence of military service – non-genuine marriage with an Australian woman – unsuccessful spouse visa application – delay in seeking protection – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 424AA
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 dependants.

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 and Border Protection on 22 May 2017 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 Jordan, applied for the visa on 19 February 2016.

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 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).
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.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CLAIMS AND EVIDENCE

Protection Visa Application

9. As part of his protection visa application, the applicant provided the following statement:
10. I was bom on [date] at a small village called [Village 1] at Ajloun Province in Jordan. I am currently [age] years old. I come from a Jordanian family. I have [number] siblings ([number] sisters [number] brothers). I am number four on that family list. I received my education up until year [level] in Jordan and then left school. I started working with my father in his farm which is planted with [produce] at our village. That continued [until] March 2003.
11. [In] March 2003 1 joined the Jordanian army. After initial training I was posted at the borders of Jordan with [Country] for five years. Then I was transferred to [Location 1] with the [specified] imit. 1 stayed in that unit up until I sent my resignation [in] April 2014.
12. I got married in Jordan and I have 2 children who currently live with their mother at a separate house in my father’s complex. I got divorced from my wife. I arrived in Australia on a tourist visa to visit my brother [Mr A] who is an Australian citizen. While in Sydney I met an Australian girl and we got married. Then she sponsored me for a partner visa. That application was refused and I appealed to AAT.
13. On [date] my daughter [Ms B] was bom in Sydney. When we went to the hearing at the AAT my ex -wife refused to go to the hearing and the Member requested a DNA. I agreed but she refused. At that point in time I realised that that my daughter could be not my biological daughter even though I am the father on her birth certificate.
14. [In] April 2014 1 sent my resignation from the Jordanian army through the Jordanian Embassy in Canberra. Evidence with the stamp of the embassy is attached. I have never thought of applying for a protection visa in Australia or in any country. I had a good salary and many other benefits such as medical insurance, education of children and retirement.
15. In or about June 2014 I received a telephone call from the Jordanian Embassy informing me that a sentence has been issued against me. I told them but I have resigned lawfully through you and I have done nothing wrong. They answered that they know that but they are unable to help. Then in early 2015 I received a telephone call from one of the soldiers who was in my unit who informed me that a sentence has been issued from the Military Court against me. So I asked him to try and get me a copy and he did.
16. I was shocked to read that I was sentenced to three years of imprisonment in absentia. They considered me that I have fled my service. On receiving that copy I tried to solve the problem so that I can return to Jordan if my application for a partner visa was unsuccessful. In that respect I contacted a solicitor in Jordan and explained to him what had happened. He informed me that he cannot help me because a sentence by the Military Court is final. I explained that I was treated unfairly but he insisted that he cannot do anything.
17. I then contacted my brother [Mr C] who is a surgeon in Jordan and asked him to try to find a solution. He then informed me that he got in contact with a military judge who informed him that he cannot help and once a judgement is issued by the Military Court nothing can be done. The Court Order states clearly that the security forces must try to locate me arrest me and take me to the Military Prison to serve my sentence. I was also discharged from the army without any rights whatsoever.
18. I am unable to return to my country because if I do I would be arrested at the airport and taken to prison. I also cannot relocate in any other location in Jordan because no matter where I go I would still be arrested even before I can relocate.
19. I have done nothing wrong and I did not commit any crime to be sentenced. I submitted my resignation through the representative of the Jordanian government in Australia. Even the employees of the embassy were shocked from that sentence. Accordingly I am seeking the protection of the Australian government.

AAT Hearing

20. The applicant was asked whether he understood the interpreter and he said he knew everything in his protection visa application and he knew it to be true and correct. He claimed that if he returned to Jordan he would be detained at the airport and be taken away by military security. He claimed that his name was already at the airport and he would be questioned and tortured (even psychological torture) and they would want to know why he hadn’t returned for his sentence after he had resigned from the army.
21. He had resigned lawfully via the Jordanian embassy in Australia. Asked what the problem was with him resigning, he claimed that his resignation wasn’t replied to/accepted and he didn’t return to work and he had been sentenced to three years in jail and they would want to know why he remained in Australia. He agreed that his claim that he feared being detained and tortured by Military Intelligence because he hadn’t returned to Jordan when his resignation wasn’t accepted.
22. He claimed that it was his lawful right to tender his resignation but they didn’t reply to him and the Embassy advised him that he had been sentenced to three years in jail. Asked why he had been sentenced, he claimed that he didn’t know why he had been sentenced. He knew how the system worked as he had worked in the military for 11 years.
23. Asked what the system was he claimed that he was sentenced because his actions were as if he had fled, but he had resigned properly. Asked what the name of the offence was for which he had been sentenced, he claimed that it was like an escape or evasion from the army. Asked what the name of the law in the military penal code was, he said it was escaping from the army.
24. He was asked about his military career, and he claimed that he enlisted in the army [in] March 2003 and went to the training academy for seven months. This was in [Location 1] at [an] Academy. Asked what type of weapons they used, he claimed that they taught about military rules, lining up, queueing, how to conduct their job. The member advised the applicant that he had spent 26 years in the Australian Army and had been accredited as the assistant defence attache to Jordan so was interested in details.
25. He said they taught him about everything; how to wake up, march, use weapons, line up, how to be a guard and receive guests. Asked what type of soldier he was at the end of his training period. He claimed that he was a private but no particular insignia. He was asked what his specialisation was; infantry, engineer, artillery, armoured corps and he said he was part of the infantry when he joined. He said he was in training and he was asked what unit he got sent to as an infantry soldier, and he claimed that he joined the [numberth] battalion of the border guards [in] the [Country 1]-Jordan border. It was an infantry unit. Asked where the School of Infantry was in Jordan, he said it was in Zarqa. Asked why he didn’t train at Zarqa, he claimed that the numbers were full in Zarqa.
26. Asked what his role in his unit was, he said that he wouldn’t provide the Tribunal with complete information about the army of his country. He was told the Tribunal simply wanted to know his role. He said he was a private in the border guards battalion. Asked what type of equipment he used in his battalion, he claimed that he was supposed to supervise the border to look out for infiltration. Asked again about the equipment, he claimed that they had Land Cruisers, Hummers and Defenders. They had no armoured vehicles. He was asked if they had armoured mobility given they were on the border, and he repeated the same names of the vehicles.
27. He mentioned machine guns, mortars and rifles of certain calibres. He was asked if he had any photos of him during his training, graduation or in his battalion to prove his Service history. He claimed it was strictly forbidden in the battalion to have any recording device. He was asked about training and graduation, at home on leave or any instance when he was in uniform. He claimed there were only documents and said that there were no phones in the border.
28. It was put to him that the member’s experience with the Jordanian army was that there were plenty of photos taken so his dearth of photos of him in uniform was strange. He claimed he only had the military photo in his passport. Asked to clarify that he had no photographic evidence that he was in the military, he claimed he didn’t bring any photos because of the punishment for photos. He was asked about photos with his parents after he graduated from training given the high regard the Jordanian military is held in.
29. He claimed that he was in a very sensitive battalion and they forbade anyone from taking photos at graduation, and nobody could take photos at the border. He was asked what the sensitive element was in his initial infantry training that precluded photos being taken. He confirmed it was allowed to take photos at the academy but there were a lot of people there. But the [Training] Academy was sensitive because it was in the Gulf War and the situation was unstable so they didn’t allow photos.
30. He spent five years in the [numberth] Battalion and he then moved to [a specialised] battalion for the central zone. Asked if he had to do additional training for this role, he claimed that he transferred there. Asked what his role in the [specialised] battalion was, he said it to provide [specialised service]. It was put to him that he surely had to qualify on a course to do this. He claimed that after he transferred, he did six months training in [Location 2]. Asked if he had any photos of himself during this time, he claimed that it was strictly forbidden to have phones in the unit. It was put to him that when he was at home he would surely have had the opportunity to have a photo in uniform, and he claimed that he had these photos and was asked to provide some.
31. He remained in the [specialised] unit until he came to Australia in 2014. He was a [rank]. It was put to him that the photo in his passport looked like a police blue uniform. He said that he was in the army. Asked about his military ID card, he said it was in Jordan but he had sent a photocopy. It was put to him that it looked about 20 years old, and was asked what his most recent one was. He was also asked when he was issued his most recent ID card. He claimed that it was in 2003 and they only issued a new one if it was lost and then they were fined and jailed as well.
32. It was put to him that his ID card didn’t have a date of issue on it according to the translation provided. It was also put to him that it lacked credibility that the Jordanian Armed Forces (JAF) particularly in the sensitive areas he claimed to work would not update the security features of their ID cards. It was put to him that there were virtually no security features on the ID card he provided and could be easily forged. It made no sense that they wouldn’t update the security features of his ID card for the 11 years he had it.
33. He claimed it was impossible to forge ID cards in Jordan otherwise it would be like Syria. He was advised about s 424AA and it was put to him that the member looked at a 2014 JAF ID card and bore no resemblance to what he had provided and it had significant security features and provided much more information than the card he presented. The member’s concern was that he was either not in the military, or had been but was no longer at the time he came to Australia and this could go to issues of his credibility.
34. He answered by claiming that he had a military photo in his passport which showed he wasn’t a civilian, and that his military ID card contained his Service number on it. He was asked and confirmed that he was unable to provide a military ID card issued to him later than 2003. He claimed that he couldn’t.
35. He confirmed that he came to Australia on leave. He travelled with his mother. She returned to Jordan after she got an extension on her visa. They both stayed with his brother. When he sought leave, he was asked if he gave his brother’s address and contact details on his leave application. He claimed that he didn’t. Asked why he didn’t, he claimed that he told them his brother was in Australia but they didn’t ask for details. Asked what details he gave them, he claimed that there is a common letter written by hand. He was again asked what address he gave them for his location in Australia. He said just Australia, Sydney. He It was put to him that he claimed that he worked in a sensitive military area so it was very strange that the JAF didn’t want his contact details in Australia so they could contact him if necessary during his 21 days’ leave given the alleged sensitivity of his military unit.
36. He claimed they thought he was coming to visit his brother in Sydney, with his mother. They told him that if he had a problem he should contact the embassy. It was put to him that the leave application asked for an address and he knew his brother’s yet he didn’t write it down. He claimed that he didn’t know his brother’s contact details until after he received the approval for leave, a day before he left. It was put to him that the form asked for his leave address so he could have called or emailed his brother to get his address and out it on the form.
37. He claimed he wasn’t asked for this. It was put to him the form asked for his address. He agreed but said for overseas leave they asked for his destination but not the proper details. It was put to him that the member found this hard to believe. He also wrote the address as Jordanian Embassy in Sydney but there wasn’t one here. He said they told him to contact the Jordanian Embassy if he had any problems. It was put to him that the leave form was unlikely to be given much weight given the lack of detail he provided – it was hard to believe it was have been allowed to leave his unit, let alone be passed at Joint Chiefs of Staff level.
38. He agreed that his visa was granted March 2014 but didn’t know the [date] – he agreed he was married at the time he applied for the visa but he wasn’t living with her at the time. He told the embassy that he was married when he applied for the visa. He claimed it was an upset, not a divorce. After his visa was granted, he was unable to reconcile and divorced his wife three days before he came to Australia.
39. [In] March 2014 he had a hearing with the civil judge and was divorced. He then came to Australia [later in] March. It was put to him that he married quite quickly when he came to Australia. He claimed that it was a mistake and he proposed too quickly. Asked if she spoke Arabic he said she didn’t, and he didn’t speak much English. Asked how people who couldn’t communicate could get engaged so quickly, he claimed he met her in a coffee shop through his brother and he liked her and took her phone number and exchanged text messages and they liked each other. Aske how they could exchange text messages when neither knew the others’ language, he said through the automatic translator.
40. Asked if he applied for a spouse visa, he claimed that he didn’t. Asked again, he claimed that he had based it on the marriage to the woman. Asked if it was approved, he said it wasn’t. Asked why not, he claimed that they didn’t believe the marriage was genuine and the age gap and he agreed he was too quick. He appealed the decision but was unsuccessful. He was now divorced.
41. Asked if he was ordered to pay maintenance for his children in Jordan, he said he covered their expenses. Asked if the divorce settlement ordered him to do this, he claimed that he didn’t give them a chance to make a complaint but there was no legal complaint. Asked if his divorce had been registered with the Department of Civil Status and Passports he claimed he hadn’t but had provided a copy of the divorce in 2014. It was put to him that the divorce certificate could have been done on any home computer so the Tribunal didn’t have much confidence in its veracity as proof that he was actually divorced in Jordan. Under s 424AA it was put to him that Department centralised all such relevant records, including marriage and divorce for which it had 100 per cent coverage. The member was concerned that it had asked for official documentation and there were concerns that he may still be officially married in Jordan.
42. He claimed that he had provided documents. It was put to him that there were concerns that he arrived in Australia, got married and then tried to seek a visa based on this. The marriage was not found to be genuine. There were concerns about the timings of his divorce in Jordan and marriage in Australia – it all seemed rather staged. He claimed his wife was at her family’s place in 2013 and he tried to reconcile but wouldn’t.They went to the judge and she asked for the divorce in front of the judge. Asked if this was in the letter he had submitted, he claimed that the judge asked if she wished to return to the applicant and she said she did. He then divorced her. Asked if she moved out in 2013 and had been in her parent’s place since then, he claimed she was.
43. Asked why he resigned from the military, he claimed that he wanted to spend more time with his brother and mother, and had intended to return to Jordan. Asked if he contacted his military unit back in Jordan when he was thinking of resigning so he could talk to them (and his immediate superior) about it and/or to seek an extension to his leave while he sorted out his resignation, he claimed that he just sent a letter of resignation but heard nothing back other than a three year sentence from the court.
44. He was asked again whether he contacted his unit in Jordan and had a normal discussion with his immediate superior about his plans to resign, given he had spent 11 years in the army. This would have been the normal army process to keep his superiors informed. He claimed he couldn’t contact them as they told him to speak only to the Jordanian Embassy. It was put to him that the member found it incredibly hard to believe that his own military unit would tell him not to contact them but to speak to the Embassy instead. The Embassy had no idea of military administrative issues and there wasn’t a resident Defence Attache there.^[1]
45. He claimed that when he submitted his resignation at the embassy in Canberra they said nothing to him and one or two months later they told him he had been sentenced to three years in jail. He felt like he was in prison because he hadn’t seen his children in six years. It was put to him that his resignation letter contained no date, and no contact details for him such as a telephone number, email address or anything. He was asked how he thought the authorities were supposed to contact him. It was handwritten, he had not given them a date on which he wanted his resignation to take effect – the member found it hard to believe that it was a note designed to actually be seen by anyone.
46. The applicant claimed that it was intended to be given to the unit commander and the chief of the army. He was asked how they would have to contact him, and how it would get to the unit given he handed it to the embassy. He was asked why he didn’t send it to his unit. He claimed that the letter he wrote he took to the Jordanian embassy in Canberra. There is no law that allows or dictates that they shouldn’t take it.
47. It was put to him that none of his story made sense. He was a [rank] in the military and yet he had not put a date on the resignation letter or any contact details on it. He claimed his intermediary group was the embassy and he gave them his number and they sent the letter and sent him the response. He was asked to provide a statutory declaration from the embassy staff member who handled his resignation so the Tribunal could be satisfied that it occurred as he said. He claimed the stamp was confirmation. It was put to him that there were many ways a stamp could appear on a photocopied document so the Tribunal needed a statutory declaration.
48. He claimed there was nobody at the embassy who could tell the sequence of events and a year ago he tried to renew his passport but they wouldn’t as he was told there was a sentence against him. He would be detained if he returned. He was advised that he would need to provide a statutory declaration form the embassy staff who told him this was the reason his passport wouldn’t be issued.
49. Asked when he was told about the three-year sentence, he claimed that two or three months after he submitted his resignation. This was around April 2014. He was asked if he knew of the sentence around June 2014 and he agreed this was correct. He didn’t apply for protection at this stage as he was married. It was put to him that he didn’t have a visa though, and he claimed he did because he applied at the Tribunal. He was asked why he didn’t apply for protection at that time.
50. He claimed that he didn’t need to as he had exhausted all avenues by the time he applied for protection. He was asked why his resignation wasn’t accepted given he had been in for 11 years. He claimed that he didn’t know. He was asked why he had been sentenced to three years prison given he had no previous offence history. This appeared strange. He claimed he didn’t know why he got such a sentence.
51. He engaged a lawyer but the lawyer said he couldn’t do anything as he had already been sentenced and it was military law. It was put to him that in his February 2016 statement he claimed his wife and children were in a separate house in his father’s complex yet he had claimed here today that his wife moved out to her parents’ in 2013. He claimed this was before he left and when she was upset she stayed at her parents’ house. His father said she should stay with them.
52. Asked if he wished to raise anything additionally, the applicant claimed that he wasn’t a liar and he had provided truthful documents. The adviser claimed that the applicant’s passport showed he was still in the army as at February 2014 given he was in a military uniform in the photo and it annotated that he was in the military. The stamp showed he went to the Jordanian embassy in person. The Australian embassy could verify the court case in Jordan. He was advised that the embassy wouldn’t approach the Jordanian military court. The adviser would undertake to find the official documentation regarding his divorce.
53. He claimed that there was no leave application form in the Jordanian army to put the contact details on. There was only a letter to be written. He said that the applicant had given the address of the Jordanian embassy (albeit in Sydney) on his leave application – it was again put to him that the unit would not have approved his leave if he hadn’t provided his brother’s contact details in Australia, in case they needed to contact him and given the fact he knew those details. The Jordanian military wouldn’t have approved this – he then claimed he didn’t really know about the Jordanian military system. It was also put to him that his client had claimed that he was in a sensitive [specified] unit so there would have been even more need to know his destination.

CONSIDERATION OF CLAIMS AND EVIDENCE

54. The applicant arrived in Australia on a tourist visa [in] March 2014. He applied for a spouse visa on 29 May 2014, which was refused and subsequently affirmed by the AAT on 28 January 2016. He then applied for a protection visa on 19 February 2016. I have sighted a copy of his passport and accept that Jordan is the applicant’s country of nationality.
55. The Tribunal exercised its discretion to hold the hearing via Microsoft Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by this means, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.
56. The applicant is a [age] year-old, divorced Jordanian male. He claimed that he feared being detained, arrested, imprisoned and tortured by the Jordanian authorities because he had failed to return to Jordan to face his prison sentence for fleeing from his military service.
57. 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.
58. I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and that he fabricated his claims in order to be granted a protection visa.

Army Service, Resignation and Sentencing

59. Whilst I accept that the applicant served in the Jordanian Armed Forces (JAF), I do not accept that he subsequently resigned from the JAF while in Australia, was subsequently charged with desertion and tried in absentia and given a three-year sentence. Exactly when he began and ended his service in the JAF is not clear because of the inconsistency in the information provided. He has provided a photo of one military ID card that looks very basic, has no date of issue but is signed from 2003.
60. He has no current military ID card which it is reasonable to believe that someone who was still in the JAF would have had with him in Australia, or could have sourced from Jordan. A photo of a JAF ID issued in July 2014^[2] bears no resemblance to his, and I do not accept that a person who claims to have been in such a sensitive position on the border with [Country 1] would have been allowed to serve and identify himself with an ID card with no security features, issued to him in 2003.
61. I have noted that he has provided two health care cards for his children from the Royal Medical Services issued in 2013 and that his passport issued [in] 2014 has a photo of him in uniform and that it notes him as being a non-commissioned officer in the JAF. It is possible that he was in the regular military at this stage, transitioning out, or part of the JAF reserve. Regardless, I am satisfied based on his inability to provide a recent JAF ID card alone that he was not a member of the regular JAF at the time he came to Australia.
62. His actions and the evidence he has provided do not give me confidence that he is being truthful with respect to his claim. To begin with I give his evidence regarding his application for leave from his unit little weight. The address during leave is given as the Jordanian embassy in Sydney. It makes little sense that he would not have provided his brother’s address and contact details to his unit as part of his leave application process.
63. It also makes no sense that the unit would not have insisted that he provide these in case they needed to contact him. I do not accept that he didn’t know his brother’s contact details until after his leave was approved. He could easily have obtained these details by phoning, texting or emailing his brother.
64. His claim about having resigned from the JAF also lacks credibility. Although he claimed that he did so because he wanted to spend more time with his family, it is reasonable to believe that he would have involved his immediate superiors in his chain of command with his unit in Jordan at some point. Not only out of courtesy and military protocol, he could have sought additional leave without needing to resign but also because he would have needed the unit to staff the request through the chain of command. The complete absence of communications between the applicant and his alleged unit raises concerns that this was because he was no longer in the military at this stage.
65. I also lend little weight to his alleged resignation letter. Again, he has not submitted it through his JAF unit and had it acknowledged which is the obvious thing to do. Nor is there any evidence that he tracked its progress through his unit so he would know whether to ask for additional leave while it was being processed, or for the discharge procedures he would need to undertake (equipment handback, pay finalisation, medical checks, ID card cancellation) first, particularly given he was overseas at the time. Indeed, given the practicalities of him attempting to resign while overseas, the lack of any correspondence between him and his unit as to whether or how this could be done is puzzling in the extreme.
66. The letter itself contains no date on which it was written, no requested discharge date, no name of the unit to which he is posted, no request to discharge while overseas, nor any contact details of the applicant himself. The absence of any one of these is strange, the absence of all of them implausible. Indeed, the whole idea that the applicant’s military unit would simply tell him to contact ‘the embassy’ if he was in trouble lacks credibility. I have taken into account the fact that there is a stamp from the embassy on the alleged resignation letter but lend it little weight. The member has only been given a copy of the letter and stamp, and I place more weight on the range of implausibilities in his claim. The applicant advised post-hearing that he had spoken to the embassy and they destroyed their records after five years but they had requested a copy of the resignation from archives. Nothing was received prior to the decision being finalised.
67. Even though I have found that he hasn’t resigned from the JAF while in Australia and therefore hasn’t been tried in absentia, it also makes no sense as to why his resignation wasn’t accepted (or rejected) or at least why the JAF hierarchy didn’t seek clarification of the numerous questions such a letter would have raised. I have taken into account the letter he claims to be from the Jordanian Military Court but I lend it little weight.
68. To begin with the absence of any contact between him and his unit, even if only to ascertain his whereabouts and inform him of an impending trial (and a subsequent appeal) not only lacks credibility but also raises further questions as to why he did not have to provide any contact details in Australia as part of his leave application. Also the fact that the unit chain of command never informed him, or sought to inform of his punishment is also strange (he claimed that a friend phoned him with the result), as is the fact that the Military Court imposed a three-year prison sentence (the maximum) for an alleged first time offender.
69. I have taken into account the document he has provided that he claims is a copy of the sentence he received, however I lend it little weight. It could have been produced on any home computer, and I place more weight on the implausibility of his claim. I also do not accept that the applicant tried to renew his passport but was told by the Jordanian Embassy that there was an outstanding sentence for him and they couldn’t issue him a passport because of this. He was asked to provide evidence from the embassy that this was the case post-hearing but he simply provided a statutory declaration from himself and said the embassy would not provide such a letter.

Other Issues

70. Concerns regarding the applicant’s motives for coming to Australia and actions prior to coming and once here also raise serious questions about the applicant’s integrity and credibility. When he applied for his tourist visa to Australia he was married. He was granted a visa on 16 March 2014, divorced his wife in Jordan [in] March 2014 and arrived in Australia [later in] March 2014.
71. Once in Australia he claimed that he met and married an Australian woman [in] May 2014 and then unsuccessfully applied for a spouse visa on 29 May 2014 which was refused on 1 August 2014 and then affirmed by the AAT on 28 January 2016. He could not speak English nor could she speak Arabic and the visa refused because it was not considered a genuine marriage.
72. The official divorce from his wife just after he received a visa to Australia then his swift marriage in Australia and application for a visa leads the tribunal to conclude that the applicant has been calculating in trying to game the system in order to enter Australia and then to remain here. I am satisfied that his attempt to portray himself as having been sentenced in a Jordanian military court has been fabricated and is another attempt to game the system, rather than any genuine claim to fear serious harm.
73. Although he claimed that he heard about his three-year sentence in June 2014, he didn’t apply for protection until February 2016. Although he claimed that he didn’t apply for protection because he was still in the process of allying for a spouse visa, by 1 August he knew the spouse claim had been rejected once and the marriage wasn’t considered genuine by the Australian authorities. He could have then applied for protection, yet he continued down the spouse visa path until that avenue was exhausted. This is not the action of someone who fears serious harm on return to Jordan.
74. As the applicant hasn’t raised any other claims to fear persecution, and 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

75. Because I do not accept that the applicant has been tried by a Jordanian Military Court or sentenced to a three-year prison term, or that he is or would be of interest to the JAF security/intelligence branch, detained on arrival, arrested, interrogated or tortured, 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.
76. 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

77. 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).
78. 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).
79. 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

80. 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.

...

5H Meaning of refugee

(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note: For the meaning of well-founded fear of persecution, see section 5J.

...

5J Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b) significant physical harassment of the person;

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

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

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

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

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

5K Membership of a particular social group consisting of family

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

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

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

(i) the first person has ever experienced; or

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

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

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

5L Membership of a particular social group other than family

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

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

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

(c) any of the following apply:

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

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

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

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

5LA Effective protection measures

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

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

(i) the relevant State; or

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

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

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

(a) the person can access the protection; and

(b) the protection is durable; and

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

...

36 Protection visas – criteria provided for by this Act

...

(2) A criterion for a protection visa is that the applicant for the visa is:

(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i) is mentioned in paragraph (a); and

(ii) holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i) is mentioned in paragraph (aa); and

(ii) holds a protection visa of the same class as that applied for by the applicant.

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

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

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

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

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

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

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

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

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

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

...

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^[1] Checked with an Australian military representative.
^[2] https://static.ffx.io/images/$zoom_1%2C$multiply_0.7874%2C$ratio_1.777778%2C$width_1016%2C$x_4%2C$y_524/t_crop_custom/q_86%2Cf_auto/0d58f094f61bece56e153de3f430ffe648af29a1, accessed 6 October 2020.