1415042 (Refugee)

[2015] AATA 3399

1415042 (Refugee) [2015] AATA 3399 (14 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1415042

COUNTRY OF REFERENCE:                  Indonesia

MEMBER:Tony Caravella

DATE:14 September 2015

PLACE OF DECISION:  Perth

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

Statement made on 14 September 2015 at 10:00am

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 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 Indonesia, applied for the visa [in] February 2013 and the delegate refused to grant the visa [in] August 2014.

   Background and protection claims

3. In his written application for a protection visa which was lodged with the Department of Immigration and Border Protection, the applicant declares that he was born in Indonesia in [year]. 

4. In response to the question which asks the applicant why he left Indonesia, he writes that he left because of his political involvement against the Indonesian government. He declares that he was a political activist supporting the West Papuan Independence Movement based in [a] province. He claims his name “was listed on the Indonesian document to kill and jail” and that he had no choice but to survive around the country. He claims that he became a targeted political figure as an enemy of the Indonesian militia organs such as the military, police, special force and intelligence. He claims he joined the Free West Papua Movement from [year]. He claims, amongst other things, to have been involved in a peaceful demonstration [in] [2011]. He claims he was beaten on this occasion, and on another occasion [in] 2008.

5. The applicant declares that he fears if he returns to Indonesia he will be jailed and killed because he is one of the targeted West Papuan Independence activists.  The applicant also declares that he played a key [role] at [an organisation] based in Australia.  He claims the Indonesian government have watched him.  He claims his friends in [Indonesia] advise him the Indonesian police are looking for him.  The applicant claims his [temporary] visa process took a long time.

6. In reply to the question which asks who the applicant thinks may harm him, he declares he will be harmed “by all Indonesian organs.  They are TNI, Police, Special force, mobile police, Intelligent (sic.) workers, every Indonesian civilian who are working to government.”  He claims that the government of Indonesia will pay money to kill him.

7. The applicant declares, he has also been politically involved in [Australia].  He declares, amongst other things, that he is worried about his family in Indonesia due to their involvement and support for the applicant seeking protection in Australia.  He declares he will not be protected by the authorities in Indonesia.       

   The delegate’s decision

8. The delegate’s decision record issued to the applicant [in] August 2014 sets out the delegate’s findings and reasons for refusing to grant the protection visa.  In summary, the delegate found:

   ·    The applicant was evasive at the protection visa interview and his answers contained significant inconsistencies, notable contradictions, general statements, speculations, and lack of detail;

   ·    The delegate found the applicant was able to obtain government Medicare cards and to access government health systems, and he had no issues obtaining his driver’s licence by going to the military department with his friend.  The delegate also found the applicant travelled freely within Indonesia;

   ·    He openly dated an Australian woman whom he married in Indonesia in 2012 and the marriage certificate was issued by the Indonesian authorities;

   ·    In 2012, the applicant legally obtained his Indonesian passport and departed Indonesia lawfully to travel to Australia;

   ·    After his high school graduation in [year], he continued his studies at [a college] in [a city] until [year];

   ·    The applicant had provided contradictory information about his work in [Indonesia];

   ·    At the protection interview, when asked why he did not apply for a Spouse visa the applicant avoided answering the question, then said he did not know he could apply for a Spouse visa.  However, the delegate states that it was put to the applicant that before his arrival in Australia in his communication with the Department ([in] 2012) he stated he and his Australian spouse were planning to apply for a spouse visa in Australia;

   ·    The delegate found the applicant presented fraudulent claims regarding his leadership and political activities in relation to [an organisation] in Indonesia, and was not satisfied that the applicant’s claims of persecution on the grounds of his political opinion are credible.  The delegate also was not satisfied the applicant faces a real risk of significant harm if he was returned to Indonesia and therefore the applicant failed to meet the criteria for the grant of complementary protection in Australia.   

   Application for review

9. On 18 February 2013, the applied to the Migration Review Tribunal for a review of the delegate’s decision.  The Tribunals Amalgamation Act (Cth) 2015 took effect on 1 July 2015. Transitional provisions of that Act had the effect that an application for review to the Migration Review Tribunal (now abolished) is taken to be an application to the Administrative Appeals Tribunal.

10. After considering the material before it, the Tribunal found it was unable to make a favourable decision on that information alone, and so on 2 July 2015 the Tribunal invited the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues in his case.  The hearing was listed to take place on 20 August 2015.  The hearing invitation included the details of the time and place of the hearing, and stated that if the applicant did not attend the scheduled hearing the Tribunal may make a decision on the review without taking further action to allow or enable the applicant to appear before the Tribunal. 

11. On 15 July 2015, the Tribunal received a completed Response to hearing invitation form signed by the applicant’s migration agent.  That form shows that neither the applicant nor his migration agent would be attending the Tribunal hearing.  On the same day that the hearing response was received by the Tribunal, an officer of the Tribunal telephoned the applicant’s migration agent about the hearing response and during that telephone conversation, the migration agent confirmed that the review applicant would not be attending the hearing and that the hearing offer has been declined by the applicant.    

12. Neither the applicant, nor his migration agent, attended the hearing before the Tribunal listed for the 20 August 2015.

13. Section 426A of the Act provides that if an applicant has been invited under s.425 to attend a hearing and does not appear on the day on which, or at the time and place at which, she or he is scheduled to appear, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it or alternatively may dismiss the application without any further consideration of the application of information before the Tribunal.  The power to make a decision on the review or to dismiss proceedings for non-appearance only arises if the hearing invitation complied with the relevant statutory requirements. In this case, the Tribunal finds the hearing invitation was issued to the relevant person by one of the methods in s.441A of the Act and that the prescribed period of notice of the relevant day, time and place of the scheduled hearing has been given.  The Tribunal also finds that a warning as to the effect of s.426A(1A) also appears the invitation to hearing. 

14. The applicant was represented in relation to the review by his registered migration agent.

15. The Tribunal carefully considered the applicant’s response to the hearing invitation as contained in the written response to the hearing invitation as confirmed by the applicant’s migration agent.  On the basis of this evidence, the Tribunal is satisfied that the applicant has indicated a clear intention to decline the offer to appear before it to give evidence and present argument in his case.  The Tribunal is also satisfied that the applicant has demonstrated a clear intention that the Tribunal make a decision on the application without the applicant attending a hearing.  The Tribunal therefore has decided to make a decision on this review without taking any further action to allow or enable the applicant to appear before it.

    RELEVANT LAW

16. 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, the applicant 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.

    Refugee criterion

17. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

18. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

19. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

20. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

21. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

22. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

23. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

24. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

25. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

26. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

27. 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 a protection 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 the applicant 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’).

28. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

29. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

30. 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 of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

31. The issue in this case is whether the applicant meets the criteria for a protection visa under the refugee protection provision in s.36(2)(a) of the Act, or under the complementary protection provision in s.36(2)(aa) of the Act.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of reference

32. Based on a copy of the applicant’s passport held on the Department’s file and apparently validly issued to the applicant by the Republic of Indonesia, the Tribunal finds that the applicant is a national of Indonesia.  The Tribunal has therefore assessed the claims against that country in relation to ss.36(2)(a), 36(2)(aa) and 36(3).

    Credibility issues

33. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rongand Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

34. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

35. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

36. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA vRajalingam (1999) 93 FCR 220).

37. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)

38. As indicated above, the applicant failed to appear before the Tribunal at a hearing listed to give him the opportunity to provide evidence and argument regarding the matters arising in his application.  In reviewing this matter, the Tribunal is therefore denied the benefit of the applicant’s direct sworn oral evidence and is therefore compelled to rely on his written application for protection, and any material he has provided to the Department, including the evidence he gave to the delegate at the Protection visa interview (“the PV interview”) conducted [in] December 2013.

1. The Tribunal notes with concern, in respect of the credibility of the applicant’s evidence the delegate made a number of adverse findings about the credibility of that evidence.  Those adverse findings include finding the applicant was evasive and that his evidence contained significant inconsistencies, notable contradictions, general statements, speculation and lack of detail.    The Tribunal also found the applicant’s evidence as to the claimed threats appeared to be vague and general and overall not convincing.  While the Tribunal’s role is to review the applicant’s claim de novo and is not bound by the delegate’s findings, part of that process in a case such as this necessarily involves making an assessment of the credibility of the evidence, and in that respect it is not prevented from having regard to evidence such as the delegate’s decision record, in performing that function. 

   Assessment of claims

2. In essence, and based on his written application for protection, the applicant’s protection claim is that he fears he will be harmed if he returns to Indonesia because of his political involvement against the Indonesian government.  He has claimed that he was a political activist supporting the West Papuan Independence Movement based in [a] province, and that he was “listed on the Indonesian document to kill and jail”.  He has claimed that he became a targeted political figure as an enemy of the Indonesian militia organs such as the military, police, special force and intelligence.  He claims these entities will target him form harm because, amongst other things, he joined the Free West Papua Movement from [year], was involved in a peaceful demonstration [in] [2011] and was beaten on this occasion, and was also beaten on another occasion [in] 2008.  He has also claimed to be a West Papuan Independence activist and that he played a key [role] at [an organisation] based in Australia.  He claims the Indonesian government have watched him.  He claims his friends in [Indonesia] advise him the Indonesian police are looking for him.  The applicant claims his [temporary] visa process took a long time.  He claims, amongst other things, that he will be harmed by all Indonesian organs, including TNI, Police, Special forces and others working to government, and that the government of Indonesia will pay money to kill him.  The applicant has also declared in his written statement that he has been politically involved in Australia [to] free [West Papua].  He declares he will not be protected by the authorities in Indonesia.      

3. The Tribunal considered the applicant’s written claims, and the claims as he explained them to the delegate at the PV interview.  The Tribunal has considered relevant country information, including the DFAT country reports, and is aware of the existence of country information from sources which indicate, for example, Papuan and West Papuan (Papuan) separatists who engage in separatist activities face severe repercussions from Indonesian authorities. The country information also indicates that Papuan separatists have waged low-grade insurgency in the provinces of Papua and West Papua since the 1950s[1] notwithstanding Indonesian laws that specifically prohibit against advocacy of separatism.[2]  Reports indicate that Papuans feel oppressed and exploited by Indonesian authorities which agitates separatists.  According to the United States Department of State Country Report on Human Rights Practices for 2013 on Indonesia, because of separatists’ expression and actions numerous Papuans have been detained as political prisoners on treason and conspiracy charges. [3]

   [1]  Freedom House 2014, Freedom in the World 2014 – Indonesia, 26 June, Section F <CX322955>

   [2] US Department of State 2013, Country Reports on Human Rights Practices for 2013 – Indonesia, 27 February, Section 2 <OG1F18C9078>

   [3]   US Department of State 2013, Country Reports on Human Rights Practices for 2013 – Indonesia, 27 February, Section 1 <OG1F18C9078>

4. However, the Tribunal finds the applicant’s written claims to be vague, general, and lacking sufficient detail to satisfy it that he was in fact a political activist, or a member of the political groups he claims to have been a member of.  Nor can the Tribunal be satisfied, based merely on his written application coupled with the additional evidence given at the PV interview, that the applicant’s has been harmed as a result of attending the peaceful [demonstration], or on the other occasion in [2008] to which he refers.  The Tribunal simply has not been able to test these claims with the applicant, and is not satisfied the claims are credible based on the scant evidence before it. 

5. For these reasons, in the absence of further evidence that might, but not necessarily, have been provided had the applicant appeared at the hearing, the Tribunal is not satisfied that the claims he has made are based in fact or sufficiently credible as to make a positive finding.  Further, the Tribunal is not satisfied on the evidence before it that the internal relocation option might not be open to the applicant in the event that it was persuaded as to the credibility of his claims.  For these reasons, the Tribunal is not satisfied that there is a real chance that the applicant faces serious harm for one or more Convention grounds if he returns to Indonesia now or in the reasonably foreseeable future.  

6. Having regard to the vague and general claims before it, and in the absence of being able to test these claims with the applicant, and in the absence of clearer details being provided by the applicant, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia, there is a real risk that he will suffer ‘significant harm’ as that term is defined in the Act.

7. 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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

8. 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).

9. 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

10. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Tony Caravella
    Member