1412108 (Refugee) - [2015] AATA 3157

1412108 (Refugee) [2015] AATA 3157 (17 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1412108
COUNTRY OF REFERENCE:                  Indonesia
TRIBUNAL MEMBER:  Katie Malyon
DATE:17 July 2015
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 17 July 2015 at 4:37pm

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

[The applicant] is a [age] year old citizen of Indonesia who arrived in Australia in February 2002 as the holder of a Tourist visa. This application to the Tribunal is for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant him and members of his family unit a Protection visa. It is [the applicant]’s third such application.
Since arriving in Australia, [the applicant] says he has ‘married’ [Ms A], an Indonesian student who is studying in Australia. Together with [Ms A], he has two young children, both of whom have been born in Australia. [Child 1] is three years old and [Child 2] is two years old: both [children] and their mother are included in [the applicant]’s current application as members of his family unit. The family’s representative advised the Tribunal by letter on 3 May 2015 that [Ms A] recently gave birth to the couple’s third (as yet unnamed) child who is not included in this application for protection.
In his current Protection visa application [the applicant] claims he fears returning to Indonesia because he is a Muslim who has converted to Christianity and, as a result, he and his family will suffer significant harm and discrimination. His family unit members have not previously made application for protection in Australia and have not made any claims of their own in this application: rather, they rely on [the applicant]’s claims. They each completed a Form 866D Application for a member of the family unit.
On 3 March 2015, the Tribunal wrote to [the applicant] at the last address for service provided in connection with the review and invited him to give oral evidence and to present arguments at a hearing to be held on 19 May 2015. [The applicant]’s representative confirmed in writing on 5 May 2015 that his client would attend the hearing. However, the day before the scheduled hearing, [the applicant] contacted the Tribunal by telephone and requested an adjournment as his only witness ([Pastor B] of [Church 3].) was currently in [another city] and would not be returning [for] two weeks. The Tribunal advised that evidence could be taken from [Pastor B] over the phone: this is a very common practice for the Tribunal. His representative should have been aware of this. [The applicant] stated that he would inform…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] AATA 3157
Decision Date: 17 July 2015

CaseChat Overview and Summary

The case involves an application for a Protection visa by an Indonesian national, referred to as the applicant, and his family. The dispute was adjudicated by the Refugee Review Tribunal, an Australian administrative body responsible for reviewing decisions related to refugee status and protection visas. The primary legal issues before the Tribunal were whether the applicant and his family met the criteria for complementary protection under Australian law, given their previous unsuccessful applications for Protection visas and the submission of false identities. The Tribunal had to determine the credibility of the applicant's claims and whether they were supported by sufficient evidence, considering both the applicant's submissions and independent evidence.

The Tribunal found that it lacked the authority to consider the applicant's claims under the primary protection obligations set out in section 36(2)(a) of the Migration Act 1958 (Cth), as his previous applications had been refused on this basis. Instead, the Tribunal examined the claims under the complementary protection provisions in section 36(2)(aa). The Tribunal emphasised that it was not obligated to accept all claims uncritically, nor to establish the applicant's case. It also noted that claims inconsistent with independent evidence about the situation in the applicant's country of nationality should not be accepted. The Tribunal considered the evidence submitted, including statutory declarations, certificates, and other documents, but ultimately found that the applicant's claims were not sufficiently substantiated. The Tribunal concluded that the applicant had not satisfied the statutory requirements for a Protection visa.

As a result, the Tribunal affirmed the decision of the delegate to refuse the current Protection visa application. The Tribunal determined that the applicant and his family did not meet the criteria for complementary protection, and therefore were not eligible for a Protection visa. The Tribunal's decision was based on the lack of credible evidence to support the applicant's claims and the inconsistencies between his statements and the independent evidence available.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In this regard, the Tribunal is not required to accept uncritically any or all of the claims made by an applicant.[15] Nor is the Tribunal required to establish the applicant's case for him or her.[16] In addition, the Tribunal is not obliged to accept claims that are inconsistent with the independent evidence regarding the situation in an applicant’s country of nationality.[17] It is legitimate for the Tribunal to take into account any delay in the lodgement of a Protection visa application by an applicant in assessing the genuineness, or at least the depth, of an applicant’s claim to fear persecution.[18] CONSIDERATION OF CLAIMS AND EVIDENCE[15] Randhawa v MILGEA (1994) 52 FCR 437 at 451[16] s.5AAA(4) of the Act. See also Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45[17] Kopalapillai v MIMA (1998) 86 FCR 547[18] Selvadurai v MIEA & Anor (1994) 34 ALD 347Material before the Tribunal The Tribunal has had regard to the following material:· The current Protection visa application lodged with the Department [in] October 2013. · The application for review submitted by hand to the Tribunal on 10 July 2014 together with a copy of the delegate’s letter dated [June] 2014 refusing the current application for protection. A hard copy of the delegate’s letter was delivered to the Tribunal on 15 May 2015. It sets out, in considerable detail, the issues discussed with the applicant at his interview with the delegate [in] May 2014 and also includes:(a)a summary of the claims in his original Protection visa application lodged [March] 2002 based on his being a Christian Javanese who was a Catholic and had been denied access to university and was part of a controversial anti-corruption political group whilst at high school; (b)the Department’s decision in relation to that application;(c)the decision of a differently constituted Tribunal dated 20 November 2002 affirming the Department’s decision to refuse the original Protection visa application;(d)a subsequent unsuccessful application for Ministerial Intervention;(e)the claims in his second Protection visa application lodged [April] 2006 using the acknowledged false name of [Mr C] and based on his being a follower of the Ahmadiyah branch of Islam; (f)the Department’s decision in relation to that application; (g)the decision of a differently constituted Tribunal dated 20 February 2007 affirming the Department’s decision to refuse the second Protection visa application and finding that the applicant was not a Ahmadiyah Muslim as claimed because he had lodged multiple false documents in support of his application (as confirmed by the Ahmadiyah Association of Australia and sourced from the Ameer of Jemaat Ahmadiyah Indonesia in Indonesia) and had only a superficial and confused knowledge of the practices and beliefs of the Ahmadiyah. In addition, he had given contradictory evidence to the Tribunal in relation to his family; and,(h)a subsequent unsuccessful application for Ministerial Intervention. · Documentation submitted to the Department or the Tribunal in support of the current application including: §a copy of Akta Nikah (Marriage Certificate) in Bahasa Indonesia dated [October] 2010 issued by [Church 4] confirming the marriage of [Mr C] ([the applicant]’s false name) and[Ms A]; §certified copies of NSW Birth Certificates for each of [Child 1] and[Child 2]; §a Statement from [Pastor B] dated [September] 2012 confirming [Mr C] ([the applicant]’s acknowledged false name) and his family are active members of [Church 4] ([Church 3]–[Australia]) congregation;§an unsigned, unsworn and undated Statutory Declaration from [Ms A] stating that, inter alia, in recent years Islamic fundamentalism has become worse throughout Indonesia particularly where her husband’s family live in Central Java, that she is aware of recent attacks on Christian villages there, despite her father’s support it would be difficult for the family to live in Sulawesi as Christians are worried by Muslims, her ‘husband’ could be discriminated against in terms of getting a job and an education, and she does not want her [child] affected by these types of religious differences; §an unsigned, unsworn and undated Statutory Declaration from [the applicant] (a.k.a.[Mr C]) stating that, inter alia, his family are strong Muslims and live in an area that is fundamentalist, it would be impossible and dangerous for his family to return to Java Tengah (that is, Central Java), it would be hard to live in Sulawesi as there is resentment and suspicion of Muslims, he is concerned for his child for the same reasons, since he left Indonesia things have got worse between religious groups, events are currently very bad with attacks on Christian villages, he believes his wife would be subject to humiliation and degradation as a result of these circumstances; §copy of Akta Penyerahan Anak (Child Delivery Certificate ) in Bahasa Indonesia dated [April] 2013 issued by[Church 4] confirming [Child 1] was dedicated to the Lord by [his/her] [father] and [his/her] mother[Ms A]; §copy of Baby Dedication Certificate dated [August] 2013 issued by [a church] confirming [Child 2] was dedicated to the Lord by [his/her] parents [the applicant] and[Ms A]; §copies of two unsigned Kartu Pribadi (Personal Cards) in Bahasa Indonesia issued in July [year] and July [year] in respect of ‘[applicant’s name]’(sic), then aged 6 and 12 respectively confirming, inter alia, his attendance at [a] school, his religion as Islam and that of his parents’ religion is also Islam; §certified copy of Surat Keterangan Catatan Kepolisian (Police Certificate) in Bahasa Indonesia dated [August] 2005 in respect of [the applicant] undertaken for work purposes; §copy of Akta Cerai (Divorce Certificate) stamped ‘Untuk Ex Suami’ (For Ex Husband) in Bahasa Indonesia issued in Bogor dated [April] 2009 in relation to ending the marriage between [name deleted] and[the applicant]; §copy of Kartu Keluarga (Family Card) in Bahasa Indonesia dated [December] 2007 with details of the primary applicant’s parents and his [siblings] noting that all live in Bogor and are Muslim; §copy of Akta Baptism (Baptism Certificate) in Bahasa Indonesia issued by [Church 4] in [Australia] in relation to [Mr C] ([the applicant]’s acknowledged false name) dated [April] 2009;§original statement by [Pastor B] dated [May] 2014 on [Church 4] ([Church 3] –[Australia]) letterhead confirming that: [the applicant] and family are active members of the congregation; [The applicant] is one of the Elders and is in charge of co-ordination of the Sunday service: he and his [wife] are both devout Christians especially [the applicant] who was a convert from Moslem; and, the family attends Sunday services at church and Friday evening prayer meetings at the Pastor’s residence; and, §signed Statutory Declaration from [The applicant] dated 4 May 2015 confirming that: he became a follower of the Ahmadiyah branch of Islam; he comes from a Muslim family; he converted to Christianity during 2008; his wife is Christian; he believes that, since his arrival in Australia, there has been a growing intolerance towards persons who have converted in any circumstances: and, his claims are genuine and he has maintained his Christianity at his church. · The Department’s PAM3 Protection visas - Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Guidelines.· Relevant country information including DFAT country information reports. Nationality of the applicants

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Applying the reasoning in SZGIZ, the Tribunal finds that, in relation to [the applicant], it does not have power to consider the criterion in s.36(2)(a) of the Act that sets out Australia’s protection obligations under the Convention because his first Protection visa application was refused on the basis of this criterion [in] April 2002 and a second application by him was again refused [in] July 2006 when he applied using the now acknowledged false Indonesian identity of[Mr C]. Instead, the Tribunal has proceeded on the basis that it can only consider [the applicant]’s claims under the complementary protection provisions in s.36(2)(aa) of the Act. As the members of [the applicant]’s family unit have not previously applied for protection their claims have been considered under both the Convention and complementary protection grounds. Mandatory considerations In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department’s PAM3 Protection visas - Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Guidelines as well as any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal is not precluded from considering other relevant information about Indonesia.Credibility The Tribunal accepts the difficulties of proof faced by applicants claiming protection. In particular, there may be claims that are not susceptible of proof. However, the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’, or that it is for the reason claimed. It remains for an applicant to satisfy the Tribunal that all of the statutory elements are made out.[13] The responsibility lies with an applicant to specify all particulars of their claims and to provide the Tribunal with sufficient evidence to establish those claims.[14][13] MIEA v Guo & Anor (1997) 191 CLR 559 at 596[14] s.5AAA(1) of the Act In this regard, the Tribunal is not required to accept uncritically any or all of the claims made by an applicant.[15] Nor is the Tribunal required to establish the applicant's case for him or her.[16] In addition, the Tribunal is not obliged to accept claims that are inconsistent with the independent evidence regarding the situation in an applicant’s country of nationality.[17] It is legitimate for the Tribunal to take into account any delay in the lodgement of a Protection visa application by an applicant in assessing the genuineness, or at least the depth, of an applicant’s claim to fear persecution.[18] CONSIDERATION OF CLAIMS AND EVIDENCE[15] Randhawa v MILGEA (1994) 52 FCR 437 at 451[16] s.5AAA(4) of the Act. See also Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45[17] Kopalapillai v MIMA (1998) 86 FCR 547[18] Selvadurai v MIEA & Anor (1994) 34 ALD 347Material before the Tribunal