1417939 (Refugee)

[2016] AATA 3656

1417939 (Refugee) [2016] AATA 3656 (23 March 2016)

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DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1417939

COUNTRY OF REFERENCE:                  Indonesia

MEMBER:Roslyn Smidt

DATE:23 March 2016

PLACE OF DECISION:  Sydney

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

Statement made on 23 March 2016 at 1:30pm

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 is a citizen of Indonesia applied for the visa on [date] December 2013 and the delegate refused to grant the visa on [date] October 2014.

3. The applicant appeared before the Tribunal on 20 January 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

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

   THE RELEVANT LAW

5. 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.

6. 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).

7. 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.

8. 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’).

9. 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.

   CLAIMS AND EVIDENCE

10. The applicant is a [age] divorced man from Indonesia. He completed his education in [year] and was self-employed.  He arrived in Australia on [date] September 2013 on a visitor visa which was issued to him on [date] July 2013. He applied for protection on [date] December 2013.

11. In his protection visa applicant the applicant stated that his religion was “Jemaah Islamiya” and said he feared persecution for reasons of religion, which differed from mainstream Islam and was illegal in Indonesia.  He said that a statutory declaration would be provided setting out his claims, but none was received.  At the hearing the applicant confirmed that no statutory declaration had been prepared or provided.

12. The applicant was interviewed by a delegate of the Minister on [date] September 2014.  He said that he was a follower of Jemaah Ahmadiyah.  He said that he had learned about the religion from reading books in 1999-2000 and that he had been introduced to an Ahmadiyah mosque by a friend called [name].  He joined because he liked the Ahamdiyah teachings and he felt he would gain something from the faith. He later added that Ahmadiyah faith allowed the Quran to be translated, while mainstream religion did not.  He said that he first belonged to a group in Bogor, but in 2005 moved to Pandeglang then Ciegon in Banten and finally to Jakarta in 2012. He said that he attended [mosques] in these areas. He moved because of problems he faced when people learned he was an Ahmadi.  He said that he had occasionally asked people what they knew about his religion but he did not attempt to convert others.

13. The delegate questioned the applicant about the Ahmadiyah faith and how the religion was practiced in Indonesia.  The applicant said that it was similar to other branches of Islam, but had a different prophet called Ghulam Ahmad who was from India.  He said that there was no national leader for the Ahmadiyah religion in Indonesia, but each area had a local leader.  When asked about the Ahmadiyah concept of Jihad, he said that it meant war against things that were not in line with religion, but there was no teaching in the religion which supported the elimination of other religions. When asked about the Ahmadiyah concept of hell he said that it was a place where people who commit bad deeds or do bad things or do not follow Ahmadiyah teaching go, but he did not know if it was an everlasting place.

14. The applicant said that the religion had been banned in Indonesia because it was different from mainstream Islam. He said that there had been massacres of Ahmadiyah followers since the 1950s. When asked about recent attacks on Ahmadiyah followers he said that he had been attacked in Bogor in 2005 when he was praying with [a] people in a [Mosque]. He said that [he] was injured and needed surgery [because of the attack].

15. The applicant was asked how he practiced his religion in Australia. He said that he had attended a mosque near [location] and another in [location], but he had not had any contact with any other members of the Ahmadiyah faith or attended an Ahmadiyah mosque because he had not been able to find one.  When asked, he said that he believed that he would be able to worship peacefully in Australia.

16. The delegate observed that the applicant appeared to have only a limited and general knowledge of the Ahmadiyah religion and asked if he was a genuine follower of the religion. The applicant maintained that he was.

17. The delegate did not accept that the applicant was a member of the Ahmadiyah religion.  In reaching this conclusion he noted that while the applicant had some knowledge of the faith it was not consistent with the knowledge which would be expected of someone who had studied the religion since 1999.

    Application for review

18. The applicant applied for a review of the delegate’s decision on [date] November 2014. On 14 December he was invited to attend a hearing of the Tribunal on 20 January 2016. On 17 January 2016 his representative asked that the hearing be postponed as he was unable to attend at the proposed time. His request was refused, but it was agreed that he would be given a recording of the hearing and time to make post hearing submissions.

    The hearing

19. The applicant confirmed that the delegate’s decision had been explained to him in Indonesian and said that he had understood its contents.

20. The applicant confirmed that he was a member of the Ahmadiyah religion and that this was the only reason he feared returning to Indonesia.

21. The applicant said that he had left Indonesia because the Ahmadiyah religion was banned, adding that it was not permitted to teach the religion and the members of the community are attacked by other Indonesians if they meet and pray.  He said that religion was banned because it was believe to be different from other forms of Islam.

22. The applicant said he had been an ordinary Muslim before converting to the Ahmadiyah religion. He was not particularly devout.  He prayed and attended the Mosque like other ordinary Muslims. 

23. When asked how he had become an Ahmadiyah, he said he had a friend who was an Ahmadiyah practitioner and he learned about the religion by reading books including one called Ahmadiyah Teachings and by speaking to Ahmadiyah practitioners.  He said that he was attracted to the Ahmadiyah religion because, unlike mainstream Islam which did not permit the translation of Koran, Ahmadiyah teachings have been translated into Indonesian.  In addition, he liked the core of the Ahmadiyah teaching which opposed hurting people. When asked how this differed from Islam teachings he said that the Ahmadis had a different prophet.

24. I asked if any particular incident or attack had caused the applicant to flee. He responded that there had been a lot of incidents in Ahmadiyah Mosques. I asked him if he himself had ever been attacked. He said that for a long time he had been attacked by people near the Ahmadiyah mosques and he had to move many times. I asked him to tell me about the most recent attack.  He spoke about an attack when he was attacked while praying and said that his tooth had been cracked. He said that this attack had occurred some years ago. When asked to confirm that he had not personally been attacked or harmed since 2005, which was when he had previously stated that this attack occurred, the applicant said he had always been fearful and other members of the religion had told him about attacks.

25. The applicant said that the Ahmadiyah religion had already been banned when he converted and he had been aware of this when he converted.  I observed that it would clearly have been a very major step to convert to the Ahmadiyah religion when it was opposed by my most of his countrymen and advised him that I had difficulty understanding why he would have converted merely because he could read Ahmadiyah teachings in Indonesia and because he had what appeared to be a fairly vague belief that the religion was kinder than mainstream Islam. The applicant said that he believed that if he was good God would protect him.

26. I asked the applicant how he had practiced the Ahmadiyah religion in Indonesia. He said that he had attended Mosques in Bogar, Jogjakarta and Java, but in recent years he had practiced at home because he was afraid. I asked how he was able to attend Ahmadiyah Mosques if the religion was banned. He said that only Ahmadis knew where the Mosques were and they were difficult to get to.  He said that if the government had learned where the mosques were they would have been closed. When asked he confirmed that the religion was completely banned.

27. I advised the applicant that while I understood that it was illegal for Ahmadis to attempt to spread their religion in Indonesia and many Muslims opposed the religion, it was not my understanding that the religion was totally banned or that the government closed Ahmadiyah mosques. I advised him that this combined with what appeared to me to be very unconvincing reasons for converting to the Ahmadiyah religion caused me to doubt that he was a genuine Ahmadi. The applicant maintained that his claims were true and said that if he returned to Indonesia and was attacked the government would not protect him because of his religion.

28. The applicant said that he had obtained a visa for Australia with the intention of applying for protection after checking on the internet to confirm that the Ahmadiyah religion was not banned in Australia. He said that he knew that there were Ahmadis in Australia but did not ask his fellow Ahmadis in Indonesia for contacts in Australia and did not try to contact any Ahmadis when he arrived because he was fearful that the Indonesia government would learn that he followed the Ahmadiyah religion if he did so. He later stated that he had not contacted Ahmadiyah practitioners in Australia because he was still traumatised and he did not yet have a proper status. I advised him that I found it strange that he had not attempted to contact other Ahmadis in Australia, particularly as it was my understanding that they would have given him assistance and support.   He said that he did not know the character of the Ahmadis in Australia but he would meet them later. I noted that it was over two years since he arrived in Australia. He said that he had been busy with other activities. I observed that this appeared to suggest that his religion was not very important to him. He said that he prayed to God and God would surely help him.

29. I noted that the applicant had not applied for protection in Australia until a considerable time after his arrival and asked why he had waited. He said that he had not known anyone in Australia when he arrived and he needed to work out who he could ask for help.

30. I advised the applicant that as a result of the problems raised earlier and his failure to make contact with any Ahmadis in Australia, I doubted that he was a genuine follower of the Ahmadiyah religion. He maintained that his claims were true.

31. Following the hearing a recording was forwarded to the applicant’s representative. The representative asked for two extensions of time to provide a submission, most recently until 19 February 2016. However, no submission has been received.

    Country information taken from DFAT Country Information Report: Indonesia 16

32. The Ahmadiyah religion was established in the 19^th century.   Followers of the religion identify as Muslim and share many of the beliefs and practices of mainstream Islam. However, there are a number of differences, most significantly that that fact that Ahmadis believe that the founder of their religion was a prophet like Mohammad. This claim is unacceptable to many mainstream Muslims and followers face restrictions and bans in a number of countries. 

33. There are an estimated 200,000 to 400,000 Ahmadis in Indonesia. Acceptance of the religion and treatment of its adherents has varied over time. Calls by religious leaders for the sect to be banned in 2008 were not successful at the national level. However, while followers can still worship and practice their religion they are banned from proselytizing and some provincial government have taken steps to limit Ahmadiyah activities, for example closing their mosques on pretexts such as avoiding clashes. In some area Ahmadiya mosques and homes have been destroyed by Islamic hard-liners.

34. DFAT assesses that members of the Ahmadiyah community in parts of West and East Java face a high risk of official discrimination and violence by way of police or mob violence or harassment. DFAT assesses that in West and East Java, Ahmadiyah face a moderate risk of societal discrimination where local residents may feel pressured to conform to the more hard-line beliefs of local officials. Outside of these areas, given the long-standing existence of Ahmadiyah community members alongside other local residents, DFAT assesses that members of the Ahmadiyah community face a low level of official and societal discrimination and violence.

    CONSIDERATION OF THE APPLICANT’S CLAIMS UNDER S.36(2)(a) (REFUGEE STATUS )

35. Prior to the hearing the applicant’s representative asked that the hearing be postponed to allow him to attend. This request was refused, but he was advised that I would allow him time to review the recording of the hearing and make written submissions. No submissions were received within the agreed time frame and the applicant and his adviser were given until 19 February 2016 to provide submissions. No submissions have been received.

36. After considering all of the relevant evidence, I do not find the applicant to be a truthful or a credible witness.

    Firstly, I found the applicant’s evidence about his conversion to the Ahmadiyah religion and Indonesia unconvincing.  When questioned about the Ahmadiyah religion he displayed relatively little knowledge of the faith. When asked why he converted he said that unlike mainstream Islam, the teachings of the Ahmadiyah faith had been translated into Indonesian and that, unlike mainstream Islam Ahmadiyah religion opposed hurting people. While I accept that followers of many religions do not have a detailed knowledge of the history and tenets of their faith, I believe that someone who had taken the highly unusual and risky step of converting from a mainstream, dominant religion to a minority religion which was opposed by many of his countrymen would not have done so without gaining deeper knowledge of his new faith and would be able to provide a more convincing account of his decision to convert. While this alone would not have caused me to reject the applicant’s claim, I find it to be a reasonably strong indication that he was not follower of the Ahmadiyah religion in Indonesia.

37. Secondly, despite claiming that he came to Australia with the intention of seeking protection, the applicant did not apply for a protection visa until 3 months after his arrival. If the applicant had genuinely feared persecution in Indonesia when he arrived in Australia, I believe that he would have lodged an application in a more timely fashion.  In reaching this conclusion I have noted the applicant’s evidence that he did not know anyone in Australia and was not aware of how to seek protection. I do not accept this explanation. By his own account the applicant investigated the situation of Ahmadis in Australia before leaving Indonesia. He clearly had the skill and ability to investigate and find information on how to apply for protection in Australia and to obtain assistance to do so. I believe the applicant failed to apply for protection in a timely manner because he did not leave Indonesia because he feared persecution.

38. Third and most significantly, despite being aware that there are Ahmadis in Australia and being aware that Ahmadis can practice their religion openly in here, the applicant has not joined the local Ahmadi community or made any attempt to contact them.  I believe that a genuine, committed Ahmadi would have contacted his fellow Ahmadis and worshipped with them in Australia and find the applicant’s failure to do so a clear indication that he is not an Ahmadi.

39. In reaching this conclusion I have considered the applicant’s explanations for not making contact with other Ahmadis, but I find them contradictory and unconvincing. He claimed that he has not contacted other Ahmadis because he is fearful of the Indonesian government and traumatised, but also because he is too busy.  I do not accept that the applicant would have avoided contact with his coreligionists in Australia because he was fearful of the Indonesian government. Furthermore, I find the claim that a genuine Ahmadi would not have contacted his coreligionists, the people most likely to provide him with support and assistance, because he was traumatised or too busy, completely implausible.

40. After considering all of the evidence, I do not accept that the applicant is or ever was a follower of the Ahmadiyah religion. I therefore do not accept that there is a real chance that he would be persecuted if he returned to Indonesia because he is an Ahmadi. As the applicant has not claimed to fear persecution for any other reason, I do not accept that there is a real chance that he will be persecuted for any of the reasons in the Convention if he returns to Indonesia.

    Findings in relation to Refugee Status s.36(2)a

1. There is no evidence before the Tribunal which suggests that there is a real chance that the applicant would suffer serious harm in the reasonably foreseeable future for a Convention reason if he returned to Indonesia and therefore I do not accept that he has a well-founded fear of persecution for a Convention reason. I am not satisfied that he is a person in respect of whom Australia has protection obligations under the Refugees Convention and he therefore does not satisfy the criteria set out in s.36(2)a.

   CONSIDERATION OF THE APPLICANT’S CLAIMS UNDER S.36(2)(aa) (COMPLEMENTARY PROTECTION )

2. The applicant’s application for complementary protection relies on the same claims as those put forward in his refugee application. As set out above, I do not accept that the applicant is an Ahmadi.  The applicant has made no other claims and there is no other evidence before me which suggests that he faces a real risk of suffering significant harm if he returns to Indonesia.

   Findings in relation to s.36(2)(aa)

3. After considering of all the relevant evidence, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to Indonesia, there is a real risk that he will suffer significant harm

   CONCLUDING PARAGRAPHS

4. 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).

5. 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).

6. 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

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

   Roslyn Smidt
   Member