1416913 (Refugee)

[2015] AATA 3871

1416913 (Refugee) [2015] AATA 3871 (7 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1416913

COUNTRY OF REFERENCE:                  Indonesia

MEMBER:Susan Pinto

DATE:7 December 2015

PLACE OF DECISION:  Sydney

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

Statement made on 07 December 2015 at 2:09pm

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

BACKGROUND AND APPLICATION FOR REVIEW

1. The applicant is a citizen of Indonesia who is aged in his early [age group]. He arrived in Australia [in] May 2011 on a Subclass 676 (Visitor) visa. The applicant made his first application to the Department of Immigration for a Protection visa [in] May 2011. The application was refused by a delegate of the Minister for Immigration [in] August 2011. The Refugee Review Tribunal (RRT) affirmed the delegate’s decision on 21 March 2012. Applications made by the applicant to the Minister for Immigration requesting intervention were unsuccessful. 

2. Following the decision in SZGIZ v Minister v Minister for Immigration and Citizenship (2013) 212 FCR 235 (see below), the applicant made a further application to the Department of Immigration for a Protection visa [in] October 2012. The applicant has essentially claimed that due to his involvement in pro-independence movements in Aceh in Indonesia and Australia that there is a real chance he will suffer serious harm and real risk he will suffer significant harm if he returns to Indonesia.

3. The delegate of the Minister for Immigration refused to grant the visa [in] September 2014. The delegate did not accept any of the applicant’s claims regarding his involvement in independence movements in Indonesia and found his involvement in such groups in Australia was limited and insufficient to attract the adverse attention of the Indonesian authorities upon his return to Indonesia. 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). The delegate assessed the applicant against both the Refugees Convention and the Complementary Protection provisions.

   RELEVANT LAW

4. Section 48A imposes a bar on a non citizen making a further application for a Protection visa while in the Migration zone in circumstances where the non-citizen has made an application for a Protection visa which has been refused. In SZGIZ v MIAC [2013] FCAFC71, 3 July 2013, the Full Federal Court found that s.48A did not prevent a non-citizen who had made a valid application on the basis of the Refugee criterion in s.36(2)(a) from making a further application on the basis of the Complementary Protection provisions in s.36(2)(aa) whilst he or she remained in the migration zone. According to SZGIZ, a person who had previously applied for and been refused a Protection visa on the basis of one of the criterion in s.36(2) is eligible to lodge a further valid application on the basis of one of the other criterion.

5. As indicated above, the applicant has previously been refused a Protection visa in Australia. However, the visa application under review is a valid application because the applicant is considered ‘SZGIZ-affected’ as he has not left Australia since the final determination of his previous Protection visa application which preceded the Complementary Protection provisions.

6. The Tribunal has previously considered that the effect of SZGIZ was that the applicant was “s.48 barred” from having his case re-considered again under the Refugees Convention, and its consideration must be limited to the Complementary Protection provisions. However, in SZVCH V Minister for Immigration and Anor [2015] FCCA 2950, 18 November 2015, Driver J found that the Refugee Review Tribunal (RRT) had committed a jurisdictional error by not considering both the Refugees Convention and the Complementary Protection criterion. The Tribunal considers itself bound by this judgment and has assessed the applicant against both the Refugees Convention and the Complementary Protection criterion.

   CLAIMS AND EVIDENCE

   First application

7. When lodging the first application to the Department, the applicant provided a statutory declaration, dated [in] May 2011. The applicant stated that he is married and his father has been missing for ten years. He states that he became involved with Gerakan Aceh Merdeka (GAM, otherwise known as the Free Aceh Movement) in 2003 when he worked at his parent’s [shop] and he made donations and give them cigarettes and food. The applicant states that he was beaten by soldiers in 2002 for supporting GAM and hospitalised. His father was taken away by soldiers and never seen again. The applicant states that in 2003 he asked a man named [name deleted] to accept him as a GAM member. The applicant was taken to the mountainous area of the jungle and received physical training but did not receive any firearm or military training. He spent about three months in the jungle before returning home. After that time he collected donations on a regular basis until the tsunami which devastated Aceh in “December 2006”. 

8. In a subsequent statutory declaration, the applicant states that he left his home because one of his GAM activist friends, [Mr A], was captured by the Indonesian police. The applicant states that in November 2009 he was threatened and told not to encourage others to oppose the Memorandum of Understanding (MoU). The applicant left Aceh in February 2011 for his brother’s [home] and stayed indoors. The police subsequently visited the applicant’s home and handed his wife a summons requiring him to attend at the police station [in] February 2011. The applicant was able to obtain a passport for Australia and arrived as a member of the Indonesian [sport] Team, even though he was not actually involved with the [sport] team. He left Indonesia [in] May 2011.

9. The applicant provided three photographs of himself at events in Australia and newspaper reports, dated 2011, relating to the murder of an Acehnese man in Norway; an article on the GAM flag being flown in the fields of Aceh; one article from Pase headed ‘Aceh Will Revolt Again if Jakarta continues to be unjust’ and an article titled ‘Deviant Behaviour Must be Corrected’. Other articles in relation to the situation in Aceh and inquiries conducted regarding the atrocities committed against the Acehnese people were provided. .

10. The applicant also provided a statement from [name] of the Government of Independent Aceh Sumatra (GIAS), dated [in] August 2011, who states that the applicant has been a member of the movement which is opposed to the Helskinki MoU and has been active in the Movement’s activities since he arrived in Australia. He states that the applicant would be at risk of harm if he returned to Aceh.

11. The Department file also contains a [agency] assessment addressed to the Asylum Seeker Assistance Scheme stating that the applicant is not capable of paid work due to his reports of a range of symptoms associated with post-traumatic stress disorder.

12. The first application was refused by the delegate [in] August 2011. The delegate accepted that the applicant has joined GIAS and may be opposed to the MoU, but was not satisfied that the applicant had any profile which would result in him suffering serious harm upon his return to Aceh.

13. The applicant lodged an application with the RRT (differently constituted). The Tribunal affirmed the delegate’s decision finding that the applicant’s claims regarding his political involvement had not been mentioned in either of his two statutory declarations; his knowledge of the contents of the MoU was vague and unpersuasive; and it was not credible that he would have been doorknocking to tell villagers that Aceh was not independent as this would have been obvious by the continued presence of the Indonesian police and military and during elections.

14. Following the refusal, the applicant sought Ministerial Intervention and provided further documents including a letter from his wife; news reports and several letters of support from persons; and country information reports.

    Current application to the Department

15. When lodging the current application to the Department, the applicant indicated that he speaks, reads and writes Indonesian and Acehnese. The applicant indicated that his religion is Islam and he was married [in] April 2002. The applicant indicated on the application form that he had [years] of education in Indonesia and worked in a [shop] in Aceh between January 2000 and May 2005. He also stated that from May 2002 to May 2011 he was unemployed.

16. In response to a question on the application form as to why he left Indonesia, the applicant stated that he is an Indonesian from [town] and an active supporter of GAM also known as the ‘Free Aceh Movement’. The applicant strongly believes that Aceh must be governed independently from the Indonesian government. Due to the applicant’s political activities and opinions he was tortured and harassed by Komite Pemulihan Aceh (KPA) members and his father was taken away by Indonesian Army soldiers and he has not seen him since. Since arriving in Australia, the applicant joined the Government of Independent Aceh Sumatra (GIAS) and he has attended meetings, participated in protests and parades and made flags for marches and protests. The applicant fears that due to his political activities in Indonesia and Australia he will be targeted by his political opponents in Indonesia. The applicant fears he will be unable to receive adequate state protection because the authorities are corrupt and he will be unable to move to other parts of Indonesia. The applicant stated that a more detailed statement would follow.

17. The applicant’s representative also stated, [in] October 2012, that a detailed supporting statutory declaration would be provided shortly. However, a statutory declaration was not provided to the Department. At the Tribunal hearing, the representative confirmed that a statutory declaration by the applicant has not been provided in relation to this application.

18. The applicant attended an interview with the delegate [in] July 2014. The Tribunal has listened to the CD Rom recording of the interview. At interview, the applicant advised the delegate that his claims in relation to the previous application should be considered.

    Application for review

19. Following the lodgement of the application to the Tribunal, the applicant’s representative provided their standard submission in relation to their reasons for not provided a copy of the Department’s decison record in accordance with the Principal Member Instructions. A submission as to the effect of SZGIZ was also provided.

20. Following the lodgement of the application to the Tribunal, the applicant’s representative provided a submission to the Tribunal. The submission included an assessment of the country information and statements from [name] of the [agency] and from [name] who is the [official] of the Secretariat General of GIAS; and [name], the [official] of GIAS. A statutory declaration from [name] who states that the applicant is the leader and an active member of the [city] Branch of the GIAS was also provided. The persons refer to the applicant’s active involvement in support for GIAS and his involvement in public rallies for World Refugee Day and Welcome Refugees rallies associated with Palm Sunday. [Name] states that the applicant distributed literature at [agency] meetings and at public rallies and events advocating Aceh’s independence, opposing the integration of Aceh into Indonesia and supported by other pro-Indonesian factions and has explained the manifesto of GIAS.

21. Newspaper reports in relation to the shooting of two citizens who are suspected members of the Din Minimi group. The reports, dated May and November 2015 state that Din Minimi is “in revolt because of the absence of justice in Aceh after nine years of peace between the Republic of Indoensia and GAM”. It states that the Din Minimi movement represents a selection of former GAM combatants who have been neglected by the GAM leaders and elite. The reports state that according to the police, the two people who were shot are former members of GAM who are still bearing arms and had allegedly joined the Din Minimi group and have been in hiding in the Pidie District.

22. Immediately prior to the hearing, the applicant provided a medical certificate from [name], a Clinical Psychologist with the [name] Medical Centre in [suburb]. He states that he has seen the applicant since he was released from [name] Detention Centre in 2013. He states that he understands that the applicant is an asylum seeker from Aceh and he advised him that he escaped Aceh for fears of his safety. He states that it is his clinical observation that the applicant suffers from post traumatic stress disorder although he requires further psychiatric evaluation. He has no access to Medicare and it is likely that his mental health conditions remain undiagnosed and untreated. He states that he fully supports the applicant’s application for asylum.

23. The applicant appeared before the Tribunal on to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages. The applicant was represented in relation to the review by his registered migration agent.

24. Following the Tribunal hearing, the representative provided a medical certificate from [doctor], dated [in] August 2011, stating that the applicant is suffering from post traumatic stress and depression; a letter from the Aceh Australian Society, dated [in] December 2012; a Supporting letter from the Government of Independent Aceh Sumatra, dated [in] August 211; and a summons from the National Police of the Republic of Indonesia, Aceh area.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Does the applicant have a well founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention?

25. As stated above, the Tribunal must consider whether the applicant has a well founded fear of persecution in Indonesia for one or more of the five Convention reasons. In considering whether there is a real chance that the applicant will suffer serious harm in Indonesia, the Tribunal has had regard to the applicant’s written claims, his oral evidence to the Department and the Tribunal, as well as the written submissions provided to the Tribunal. The Tribunal has also had regard to relevant independent evidence, including that provided by the applicant’s representative and obtained through the Tribunal’s own inquiries.

26. The representative has submitted that the applicant is a person to whom Australia has protection obligations as a result of his political opinion (imputed) for supporting Aceh nationalism; and supporting pro-independence; and as opposed to the Indonesian state and government supporting GIAS; opposing the Helsinki MoU; opposing GAM and KPA members who support the Helsinki MoU. It is also submitted that the applicant is a member of a particular social group of young males of Aceh; and a member of the Acehnese diaspora supporting the independence of Aceh.

27. Having considered all of the evidence, the Tribunal does not accept that the applicant has had any involvement in opposing the MoU in Indonesia or that he has at any time been sought by the Indonesian authorities or any other persons or groups due to any involvement in opposing the MoU. The Tribunal does not accept that the applicant is a truthful witness and considers that he has fabricated the entirety of his claims to fear harm in Indonesia. The Tribunal’s consideration of the evidence and its reasons for reaching these conclusions follows.

    The applicant’s activities whilst in Aceh

28. As indicated above, the applicant has claimed that he was actively involved in opposing the MoU and this resulted in a warrant being issued for him. At the hearing held in November 2015, the applicant was asked why he left Indonesia. In response, the applicant stated that he felt threatened because at that time [Mr A], a former member of GAM, was caught and arrested. The applicant stated that this occurred in February 2011 and after that time he fled to Bandah Aceh until he was able to obtain a passport and leave Indonesia. The applicant stated that he and [Mr A] and some others had formed a group called [name] and this resulted in [Mr A]’s apprehension. The applicant stated that the KPA knew about their involvement in opposing the MoU and they felt threatened. The applicant was asked about his and [Mr A]’s activities in opposing the MoU. The applicant stated that they had discovered that the community had been deceived and the MoU did not result in Aceh achieving independence. When asked what they did to inform the community, the applicant stated that they formed a group of [number] people and they visited people at home to make them understand that the MoU did not result in Aceh achieving independence. The applicant stated that he did this between 2007 and 2009. When asked why he began telling people about the MoU some two years after the MoU was signed, the applicant stated that they waited until after 2006 when the governor of Aceh was appointed. The applicant stated that they thought they had won independence because of member of GAM was appointed as the governor of Aceh.

29. When asked why he would not have known what was in the MoU, the applicant stated that only a few people had access to a copy of the MoU. The Tribunal commented that it is difficult to accept that a person who was actively involved in GAM, as he has claimed, would not have known what was in the MoU and not have known that it did not result in Aceh achieving independence. The applicant stated that after the signing of the MoU certain people were given money and projects and people felt that they had not only been deceived but they had also been betrayed. When asked why his friend was arrested in 2011 if they had ceased their opposition to the MoU in 2009, the applicant stated that they resumed their activities in 2010 and they again began giving information to the community. When asked why they would have needed to do so in 2010, which was some five years after the MoU was signed, the applicant stated that they had to tell the people that they were still part of Indonesia and they were given strict warnings from the KPA not to continue to do so. The applicant and the others felt threatened after they were warned in 2009 to stop having any involvement in the group and ceased doing it, but they had resumed it again in 2010. The applicant again stated that they had thought that they would achieve independence and it was only later that they realised this had not occurred. When the applicant fled to Banda Aceh his wife was given a summons for his arrest. The passport was then arranged by his agent.

30. When asked by the Tribunal what he had hoped to achieve by telling people about the MoU and advising them that Aceh did not achieve independence, the applicant stated that the people had in their minds that Aceh had achieved independence, but there was no such thing and they had been deceived. The applicant was asked how he went about doing this and he stated that they would visit people in their homes and tell them about it. The Tribunal discussed the information with the applicant which indicates that the police and military were present in Aceh at all times and elections were held and it would have been obvious that Aceh had not achieved independence. When asked why he supports independence and opposes the MoU, the applicant stated that under Indonesian rule their rights to freedom of speech and thought are taken away and there will be no justice for Aceh until there is independence. The applicant believes that even by making statements that Aceh should be free this will result in a person being harmed.

1. In response to the Tribunal’s queries as to what he believes would happen if he returned to Aceh, the applicant stated that his life would not be safe and he would be in danger because of his activities. The applicant also told the Tribunal that his wife has been visited on a number of occasions and has to continually move from place to place due to her fear of the KPA. When asked why the KPA would be interested in her, the applicant stated that the KPA is made up of ex-members of GAM and because he is opposed to the MoU they do not like his stance and they keep coming to his wife. His wife is stressed and scared about this and although they will not harm her because she is a woman with [children], they keep moving from place to place due to fear. When asked why the KPA would be interested in his wife, the applicant stated that it is because she supports his views on the MoU. When asked whether the KPA is still visiting his wife because of his activities in door knocking and telling people about the MoU prior to his departure in 2011, the applicant agreed. The applicant stated that the KPA has continued to be on “alert” for him and they do not like him because of his opposition for the KPA.

2. The Tribunal does not accept the applicant’s claims as to his experiences in Aceh and does not accept that he and another person formed a group who told people about the MoU. The Tribunal considers that when asked about the MoU, the applicant continually reverted to standard phrases about telling people that Aceh did not achieve independence, and had difficulty going beyond this and difficulty explaining how he believed telling people about the MoU some years after it had been implemented would achieve any particular goals. In the Tribunal’s view, the applicant’s evidence during the hearing is indicative of the fact that his claims have been manufactured. The Tribunal also considers it not credible that the applicant, who claims to have been actively involved with GAM for some years prior to the signing of the MoU, would not know the outcome of the signing of the MoU. The independent evidence indicates that GAM and the Indonesian government entered into an agreement to resolve the conflict and the Helsinki MoU was signed in August 2005. It covered “governance, political participation, rule of law, human rights, amnesty and reintegration, security arrangements, monitoring and dispute resolution”. Under its terms, GAM members put aside their goal of independence, gave up their arms, ran in elections for a self governing Aceh and “thus began the transition being an armed guerrilla group to an open political movement.” [1] The applicant continually claimed that he thought Aceh would be free, but the Acehnese had been deceived. The Tribunal considers that an active member of GAM would have been aware that the MoU did not result in Aceh achieving full independence, and would at least some understanding of the general contents of the MoU and would have considered the implications of it for the Acehnese people. Whilst the Tribunal accepts that copies of the MoU may not have been freely available, the Tribunal nevertheless considers that there would have been considerable discussion amongst GAM supporters and members as well as in the general community regarding the outcome of the MoU.

   [1] International Crisis Group 2006, ‘Aceh’s Local Elections: The Role of the Fee Aceh Movement (GAM)’ Asia Briefing No.57, 29 November.

3. In addition, as discussed at the hearing, the Tribunal considers it would have been apparent to the people of Aceh that they had not achieved independence. This would have been as a result of elections held in Aceh in 2006 in which national political parties ran as candidates and the continued presence of Indonesian police and the army in Aceh. In the Tribunal’s view, the presence of Indonesian police and the army, as well as the presence of candidates who would have discussed their policy and platforms during election time would have alerted the Acehnese to the fact that Aceh had achieved self government and not independence following the signing of the MoU. As discussed at the hearing, the Tribunal accepts that there may be a relatively high level of illiteracy in Aceh, but the independent evidence indicates that although information about the MoU could have been improved there was a high general knowledge of the main points of the agreement and a high level of public participation in the drafting of legislation for Aceh between the signing of the MOU and the election, including large scale marches involving many thousands of persons protesting the decision by the government to remove references to self government in the Law of Government Aceh.[2] The Tribunal considers his claim that he was telling the Acehnese people about the MoU in 2010, some five years after it had been implemented, and advising people that it did not achieve independence, to be not credible and indicative of the fact that these claims have been manufactured.

   [2] Feith, Peter 2007, The Aceh Peace Process: Nothing Less than Success, United States Institute of Peace Special Report 184, March, p. 2, pp.6-7.

4. The Tribunal also considers the applicant’s claims in relation to his wife and children being required to move from place to place due to the applicant’s involvement with GAM to be not credible and indicative of the fact that his claims have been manufactured. The evidence, as discussed, below does not indicate that the police or government are pursuing people who had GAM associations or who those who opposed the MoU, or that there is any reason why the KPA[3]  would be interested in pursuing the applicant’s wife or children. In the Tribunal’s view, anyone who had any interest in the applicant would be well aware he went to Australia some years earlier and there would be no utility in threatening his wife. The Tribunal does not accept some four years after the applicant left Indonesia for Australia that persons from the KPA would have any interest in harming the applicant. As discussed below many people from GAM have formed part of the government of Aceh since the MoU was signed. The Tribunal does not accept that the KPA has any interest in the applicant or that there is any reason why they would wish to target his wife or children several years after the MoU was signed and many persons associated with GAM have become part of the governing body in Aceh.

   [3] The KPA, Komite Pemulihan Aceh,or Aceh Transition Committee (KPA) is an organisation established shortly after the 2005 peace accord to represent the former combatants of Fee Aceh Movement (GAM) separatist’s group’s military wing – Peacebuilding and Security Sector Governance in Asia, Yuji Uesugi, ed. Lit Verlag, 2014.

5. The Tribunal does not accept that the applicant is a truthful witness and does not accept his father was taken away by GAM or that his shop was destroyed and he was beaten and he then became a GAM member in 2003. Nor does the Tribunal accept that the applicant was part of a small group who door knocked and told villagers about the MoU or that someone called [Mr A] was taken away by the police. The Tribunal does not accept that the applicant was ever warned in relation to this incident or that he fled from Aceh and was in hiding or that he was only able to obtain a passport due to the assistance of an agent. The Tribunal also does not accept that the police have issued a summons for the applicant or that his wife has been sought at any time following his departure from Aceh or that the applicant had any adverse political profile in Aceh when he departed in 2011. The Tribunal considers that the applicant has manufactured the totality of his claims to fear harm in Indonesia. The Tribunal has considered the summons purportedly issued to the applicant. Given that the Tribunal does not accept any of the applicant’s claims to have been of any interest to the authorities the Tribunal does not accept that the summons is a genuine document and considers it has been manufactured by the applicant in an attempt to support his claims for refugee status.

6. The Tribunal has also had regard to the psychologist’s reports and the medical report stating that the applicant suffers from post traumatic stress and depression. The Tribunal is not satisfied that the psychologist or medical practitioners have any personal knowledge of the applicant’s experiences in Aceh. The Tribunal has not accepted the applicant’s claims regarding his experiences in Aceh and is not satisfied that any stress or depression suffered by the applicant is due to any harm as a result of involvement in GAM or opposing the MoU. The Tribunal is not satisfied, therefore, that the reports overcome the Tribunals’ adverse findings in relation to the applicant’s credibility. The Tribunal is also not satisfied that the applicant’s ability to give evidence at the hearing was affected by stress, depression or any other factors. The Tribunal considers that the problematic nature of his evidence is due to the fact that he has manufactured his claims and had difficulty elaborating on aspects of those claims.

   The applicant’s return to Aceh

7. The Tribunal has found above that the applicant did not have any adverse political profile at the time he left Indonesia in 2011. The Tribunal has considered the evidence as to the applicant’s involvement in independence activities in Australia and whether such involvement will result in a real chance that the applicant will suffer serious harm upon his return to Indonesia. The applicant has claimed that due to his involvement with pro-independence organisations in Australia which oppose the MoU he will suffer harm upon his return to Aceh. He has claimed that he returns to Aceh he will have a profile as a known political activist due to his involvement in highlighting the issues of Acehnese in Indonesia before he came and in Australia, and he will face serious harm in Indonesia. It is submitted that the authorities will persecute him and he faces harm not only from the authorities but also from the GAM-KPA members who support and endorse the Helsinki MoU.

8. The representative has provided independent evidence to the Tribunal in relation to “continuing human rights abuses and violations in Indonesia”. The representative refers to a report from the International Crisis Group in an article ‘Indonesia: Tensions Over Aceh’s Flag’ which refers to the decision of the Aceh provincial government to adopt the banner of the former rebel group Free Aceh Movement (Gerakan Aceh Merdeka) which is “testing the limits of autonomy and irritating Jakarta”, reviving a campaign for the division of Aceh and raising fears of violence as a national election approaches in 2014. The representative also referred to United States Department of State and Human Rights Watch reports which refer to violations of human rights and security forces continuing to enjoy impunity. Reference is also made to a January 2015 report, Freedom House report and Amnesty international 2015 reports which refer to power struggles between two political parties in Aceh between members who were once part of the Free Aceh Movement. The reports also refer to continued serious human rights violations by the security forces and the fact that Ryamizard Ryacudu has been appointed as the Defence Minister and he oversaw military operations against pro-independence movements in Easter Timor, Aceh and Papua.  It is submitted that the reports show that the government or its agents continue to commit arbitrary or unlawful killings; security forces responsible for human rights violations continue to enjoy impunity; and the newly appointed Defence Minister is a former Army General who oversaw military operations in Aceh.

9. The representative also refers to 2012 reports which state that it is an offence to oppose the Helsinki MoU and pro-independence activism is punishable under Article 106 of the Indonesian Penal Code. A 2011 report by the RRT is also cited which refers to continuing suspicious between GAM and the Indonesian military and cites Dr Edward Aspinall in 2008 repeating his advice that persons who advocate for the independence of Aceh may be at risk of harm. The representative submits that these reports show that anti-MoU Acehnese face harm from the Acehnese who support the MoU, including GAM-KPA affiliated persons; anti-MoU Acehenese and pro-independence Acehnese face arrest and/or other negative treatment by the authorities and the Indonesian authorities continue to target and harm pro-nationalist supporters. Reference is also made to decisions of the RRT dated 2011 accepting that Acehnese activists will suffer harm upon their return and to court judgments relating to political opinion, state protection, relocation, and Complementary Protection, as well as credibility guidelines and principles for assessing credibility.

10. The representative concludes by submitting that it is a criminal offence to advocate for the independence of Aceh or any other part of Indonesia and the information confirms that individuals known to be associated with groups, including GIAS, which continue to favour Aceh’s independence, would run the risk of harassment, arrest or persecution in Indonesia, if their presence, views and affiliations become known to the authorities. It is submitted that the independent evidence “confirms that there have been instance of persons arrested and charged for separatist activities in Papua, Maluka and West Java” and the RRT Research Advice of 2012 confirms that the outlook of the Indonesian authorities has not changed and the authorities continue to target Aceh separatists such as the applicant.

11. At the Tribunal hearing, the applicant was asked about his involvement in activities in Australia. The applicant stated that he has sent letters to international organisations. When asked which organisations he has sent letters, the applicant stated that they are international organisations and he was asked by the chairman to send the letters and to post them. The applicant continually attempted to refer to documentation in his bag. The applicant was advised that he was being asked what organisations he sent letters. The applicant stated that he does not know. When asked why he would not know which organisations he had sent letters to about Aceh, the applicant stated that he was just given the letters and asked to post them. When asked about his other activities in Australia, the applicant stated that he has been involved with the [agency]. The Tribunal commented that the [agency] is active in pursuing rights for refugees, but the Tribunals’ inquiries do not indicate that the organisation was involved in pursuing campaigns relating to the independence of Aceh. The Tribunal commented that the only reference to any association that the organisation has in relation to Aceh is advocating for Rohinga refugees who are in Aceh. The applicant agreed but stated that he has told people about the problems he faced in Aceh and that his father was taken away and his shop burned down.

12. The applicant also stated that every year he has been involved in activities to commemorate Acehnese independence. The applicant stated that this involves raising the Acehnese flag in [suburb]. The applicant also stated that he took part in demonstrations in 2011 and 2012 and in 2015 he also attended a demonstration. The applicant stated that the 2015 demonstration was held at the [location] and it was to let people know that Aceh is still not independent. The Tribunal queried whether other groups were also demonstrating at the [location]. The applicant agreed that there were several groups protesting. He stated that he does not have any photographs of his involvement in the 2015 [location] protests in [city]. The applicant also told the Tribunal that he will continue to advocate for the independence of Aceh because of his commitment to Aceh and as a result of the abduction of his father and destruction of his shop. The representative submitted that the applicant will continue to suffer serious harm in Aceh because he will continue to express his opposition to Aceh and this presents a serious challenge to the status quo.

13. The Tribunal has had regard to the submissions by the representative and the independent evidence, as well as the applicant’s evidence in relation to the harm he will experience. The Tribunal has also had regard to the statements from persons regarding the applicant’s role in opposing the MoU and his involvement in independence movements in Australia. The information before the Tribunal indicates that in May 2005, following the MoU, GAM disarmed and ceased its military activities for special autonomy of Aceh.[4] As discussed with the applicant during the hearing, the independent evidence does not indicate that the authorities have any continuing interest in persons in Aceh who express opposition to the MoU or that there is any adverse interest from the KPA towards such persons. Nor does the independent evidence indicate that any such groups are active in Aceh or elsewhere in Indonesia, and it instead indicates that there was a relatively smooth transition to self government.[5] Whilst the Tribunal accepts that it remains an offence to advocate for independence, there is no evidence of prosecutions in recent years. Furthermore, although the issue of independence remains of concern to the central government, including the decision in 2013 of the provincial government to introduce a flag resembling the former GAM banner, the matter was subsequently resolved at a political level. The Tribunal’s searches also do not indicate that there were any further ramifications in relation to this issue.

    [4] Department of Foreign Affairs and Trade (DFAT) 2013, CIR No.13/21: Indonesia: Aceh Sumatra National Liberation Front (ASNLF), Country Information Report No.13/21, 28 May. CISNET CX30824.

    [5] Feith, Peter 2007, The Aceh Peace Process: Nothing Less than Success, United States Institute of Peace Special Report 184, March, p. 2, pp.6-7.

14. In May 2013, the Department of Foreign Affairs and Trade (DFAT) reported that many former members of GAM have transitioned to provincial politics as members of the Aceh Provincial Government and they “openly acknowledge their past allegiances and in some instances have done so to gain political advantage”. The former separatist movement has also been cautiously welcomed by the central government in Jakarta since the MoU and it has accepted former separatist activists remaining politically engaged through the Aceh Party, the ruling party in provincial government and legislature under the arrangement of special autonomy. [6] 

    [6] Department of Foreign Affairs and Trade (DFAT) 2013, CIR No.13/21: Indonesia: Aceh Sumatra National Liberation Front (ASNLF), Country Information Report No.13/21, 28 May. CISNET CX30824.

15. The Tribunal has also considered the information relating to persons who openly advocate for independence and reject the MoU. In February 2011 Dr Aspinall of the Australian National University stated that if someone openly advocated independence there was the possibility of harm from former GAM members who supported the MoU as well as prosecution by the Indonesian Government. However, he stated that there had been no cases of prosecution by the Indonesian Government with respect to Aceh since August 2005 and no reports in recent times of violence directed against those who reject the MoU and advocate Independence.[7] In February 2012, Professor Damian Kingsbury of Deakin University stated that he is not aware of any threats or activities against any pro-independence proponents by former GAM factions or individuals and he does not consider former GAM factions to pose a threat to such proponents. He stated that their main concern appears to be with each other and the heightened completion for achieving office. He also stated that although there are many people in Aceh who continue to promote the idea of an independent Aceh and do not appear to suffer for it. However, being a vocal supporter may not be “too wise” but he is not aware of any such supporters being targeted.[8]

    [7] Aspinall, E. 2011, Letter to Refugee Advice and Casework Services, ‘Situation in Aceh, Indonesia, 11 February.

    [8] Kingsbury, D. 2012, E-mail to RRT Country Advice Service ‘Re: Request for Information from the Refugee Review Tribunal, 23 January.

1. The Tribunal has conducted searches to determine whether there was any recent information relating to an independence movement in Aceh or harm to persons who advocate independence. The Tribunal found no such information and, apart from the 2013 reports relating to the Acehnese flag and the demands by the Indonesian government that it be taken down, no further information was found in relation to any pro-independence activities currently being undertaken in Aceh or any information to indicate that persons are being prosecuted or harmed as a result of any involvement in opposing the MoU or for promoting independence. Furthermore, in May 2013 DFAT advised that the Indonesian media had not shown much interest in the activities of overseas based activists and comments made by individuals purporting to be speaking on behalf of any groups do not appear to have produced a response from the central government which generally views the MoU and provision of special autonomy as having resolved the issue of independence.[9] DFAT also stated that it was unaware of any significant activities in relation to ASNLF, one of the purported pro-Acehnese independence groups operating in Australia, and it stated that its activities had been limited to the maintenance of a website and some occasional blog postings.[10]

   [9] Department of Foreign Affairs and Trade 2013, CIR No.13/21: Indonesia: Aceh Sumatra National Liberation Front (ASNLF), Country Information Report No.13/21, 28 May. CISNET CX30824.

   [10] Ibid.

2. The Tribunal accepts that the applicant has had some involvement in pro-independence organisations, specifically with the Government of the Independent Aceh of Sumatra (GIAS). The Tribunal does not accept that this involvement has been significant or that there is any evidence that the groups in which the applicant has been involved are involved in anything other than attending marches with other groups. Whilst the Tribunal accepts that the applicant was involved in Refugee Day March, which appears to involve GIAS holding banners at an event whereby they joined with the Labour Party in relation to its protests as to various issues, and that he was also involved in the recent commemoration of Acehnese independence, the Tribunal considers that much of the evidence of the applicant’s involvement in Australia is limited to assertions as to various meetings that he attended and his activities. Thus, whilst asserting that he has sent letters to international organisations, the applicant indicated at the hearing that he was unaware which organisations he had purportedly sent the letters. As also discussed during the hearing, the Tribunal can find no record of any public activities in which GIAS or other pro-independence groups have been involved in recent times or any evidence that GIAS maintains a website or has any active involvement in promoting the cause of pro-independence or opposition to the MOU. The Tribunal can also find no record that the [agency] actively opposes the MoU or is involved in promoting independence in Aceh. As discussed above, the group supports the rights of refugees more generally and any recent activities in relation to Aceh are supporting Rohinga refugees who are residing in Aceh. The Tribunal is not satisfied that the claims that GIAS is actively involved in promoting pro-independence and opposing the MoU is supported by the evidence provided to the Tribunal, which indicates that although it appears to hold regular meetings at a house in [suburb] and occasionally attends rallies with other groups, it has no other active involvement in promoting independence.

3. The Tribunal accepts that Aceh has an extremely violent history and that numerous abuses were committed by the Indonesian government, many of which were not investigated. The Tribunal also accepts that it continues to be an offence in Indonesia to promote independence and to be involved in pro separatist activities and accepts the recent statement by Professor Kingsbury (see above) whereby he provided advice to the Tribunal stating that “it may not be too wise to be too vocal” in opposing the MoU and advocating for the independence of Aceh and that such persons may have problems with the police or the Indonesian military, as in Papua. However, as indicated above, Professor Kingsbury has also stated that he is not aware of threats or activities against pro-independence proponents. The Tribunal prefers the more recent advice of Professor Kingsbury against the more dated advice of Dr Edward Aspinall, who has not responded to the Tribunal’s request for an updated comment on his views as to the treatment of opponents of the MoU. The Tribunal also considers that Professor Kingsbury’s advice is consistent with the views expressed by DFAT. The Tribunal is not satisfied that the independent evidence establishes that people who advocate the causes of Aceh in Australia and other countries are of interest to the former GAM members and supporters or the Indonesian government and there are no reliable reports of persons being harmed on that ground alone in recent times.

4. The Tribunal is satisfied that the risk of the applicant suffering serious harm in Indonesia because of his activities in Australia is remote. The Tribunal also does not accept that the applicant will seek to involve himself in pro-independence activities upon his return given that he has not done so in the past and as a result of his limited involvement in Australia which has primarily been done to strengthen his claim to be a refugee. The Tribunal does not accept that the applicant has developed such a strong commitment to Acehnese independence through his involvement with GIAS and his limited involvement in pro independence activities in Australia such that he will seek to involve himself in opposition to the MoU or in pro-separatist activities upon his return to Aceh.

5. The Tribunal is prepared to accept that the applicant holds views opposed to the MoU and may support independence of the province. However, the Tribunal has not accepted that he was politically active prior to his departure from Indonesia and does not accept that he will be politically active upon his return to Indonesia in any manner of significance that would lead to a real chance that he will suffer serious harm. The Tribunal is satisfied that the information upon which the applicant seeks to rely to support his claims that Acehnese activists will suffer harm in Indonesia is out of date and there is no recent evidence of harm directed against persons in Indonesia as a result of their opposition to the MoU. In any event, the Tribunal has not accepted that the applicant has been politically active or has expressed his opposition to the MoU in the past and is not satisfied that he will do so in the future.

6. The Tribunal has had regard to the articles provided in relation to Din Minimi. Another article obtained from the Tribunal indicates that rather than being wanted for pro-independence the group is primarily being sought as a result of its involvement in armed crimes. The Tribunal does not accept that this indicates that the articles in relation to Din Minimi support the applicant’s claims that people are being sought for harm as a result of their opposition to the MoU or their involvement in GAM or in promoting independence following the signing of the MoU in 2005.

7. The Tribunal has not accepted the applicant’s claims in relation to his reasons for leaving Aceh. The Tribunal has also not accepted that the applicant will suffer serious harm as a result of his involvement in independence groups in Australia or that he will continue to seek to have involvement in such groups upon his return. As noted above, the Tribunal has also found no evidence to indicate that such groups are active in Aceh. In reaching the above conclusions, the Tribunal has had regard to the submissions that some other RRT decisions have found that persons involved in advocating independence in the post MoU period may be at risk of arrest and harsh treatment. The Tribunal is not bound by the decisions of differently constituted Tribunals and, in any event, the current matter turns on its own facts and the decisions.

8. Having considered all of the evidence, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm as a result of his political opinion (imputed) for supporting Aceh nationalism; and supporting pro-independence; and as opposed to the Indonesian state and government supporting GIAS; opposing the Helsinki MoU; opposing GAM and KPA members who support the Helsinki MoU. Nor is the Tribunal satisfied that the applicant will suffer serious harm as a member of a particular social group of young males of Aceh; or as a member of the Acehnese diaspora supporting the independence of Aceh. The Tribunal is not satisfied, having considered all of the evidence, that the applicant has a well-founded fear of persecution for any Convention reason if he returns to Indonesia now or in the reasonably foreseeable future.

   Are there 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?

9. The Tribunal has considered whether the applicant meets the alternative provisions regarding Complementary Protection as set out in s.36(2)(aa). The Tribunal also finds that the receiving country for the purposes of the Complementary Protection Provisions is Indonesia. The Tribunal has not accepted any of the applicant’s claims to have been involved with GAM or to have formed a group which spoke to people and told them about the MoU. The Tribunal has found above that there is not a real chance that the applicant will suffer harm as a result of his limited involvement in independence activities in Australia and will not seek to become involved in Acehnese politics upon his return to Indonesia. For the same reasons as those set out above, the Tribunal is also not satisfied that there is a real risk that the applicant will suffer significant harm for these reasons upon his return to Indonesia.

10. Accordingly, the Tribunal is not satisfied on the evidence before it that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia that there is a real risk that he will suffer significant harm. The Tribunal is not satisfied, therefore, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, Indonesia, there is a real risk that he will suffer significant harm, including arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.  Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Australia to Indonesia, there is a real risk that the applicant will suffer significant harm. Accordingly, the Tribunal finds that this matter does not meet the Complementary Protection provisions under paragraph 36(2)(aa) of the Act.

    CONCLUSIONS

11. 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).

12. 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).

13. 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

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

    Susan Pinto
    Member

    
    

    ATTACHMENT

15. In accordance with section 65 of the Migration Act 1958 (the Act), the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 (the Regulations) have been satisfied. The criteria for the grant of a Protection visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. Subsection 36(2) of the Act provides that:

    ‘(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 under the Refugees Convention as amended by the Refugees Protocol; 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.’

    Refugee criterion

16. Subsection 5(1) of the Act defines the ‘Refugees Convention’ for the purposes of the Act as ‘the Convention relating to the Status of Refugees done at Geneva on 28 July 1951’ and the ‘Refugees Protocol’ as ‘the Protocol relating to the Status of Refugees done at New York on 31 January 1967’.  Australia is a party to the Convention and the Protocol and therefore generally speaking has protection obligations to persons defined as refugees for the purposes of those international instruments.

17. Article 1A(2) of the Convention as amended by the Protocol relevantly defines a ‘refugee’ as a 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.’

18. The definition contains four key elements.  First, the applicant must be outside his or her country of nationality.  Secondly, the applicant must fear ‘persecution’.  Subsection 91R(1) of the Act states that, in order to come within the definition in Article 1A(2), the persecution which a person fears must involve ‘serious harm’ to the person and ‘systematic and discriminatory conduct’.  Subsection 91R(2) states that ‘serious harm’ includes a reference to any of the following:

    (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.

    Complementary protection criterion

19. The Complementary Protection criterion is set out in paragraph 36(2)(aa) of the Act. A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’.  The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.

    Ministerial direction

20. In accordance with Ministerial Direction No. 56, made under section 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration and Citizenship - ‘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.