1418322 (Refugee)

[2016] AATA 3316

1418322 (Refugee) [2016] AATA 3316 (10 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1418322

COUNTRY OF REFERENCE:                  Indonesia

MEMBER:Suhad Kamand

DATE OF DECISION:  10 February 2016

PLACE OF DECISION:  Sydney

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

Statement made on 10 February 2016 at 12:18pm

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. The applicant, a female national of Indonesia, first arrived in Australia as the holder of a subclass [temporary] visa [in] March 2010. That visa ceased [in] June 2010. The applicant remained unlawfully in Australia until lodging a Protection visa application [in] February 2014. The delegate refused to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act) [in] October 2014 and the applicant sought this Tribunal’s review of that decision. For the reasons below the Tribunal has concluded that the applicant is not a person in respect of whom Australia has protection obligations and affirms the delegate’s decision.

   CONSIDERATION OF CLAIMS AND EVIDENCE

2. The applicant was born in [year]. She is a national of Indonesia and of no other country.

3. Her express claims and those arising on the evidence are that she fears harm in Indonesia for reason of the following, including cumulatively: she engaged a migration consultant in Indonesia who assisted her and a third party named [X] to travel to Australia using fraudulent information; the fraudulent nature of her Australian visa application was discovered by the Australian authorities and she fears that the migration consultant in Indonesia may harm her because his fraudulent conduct has been uncovered in relation to her [temporary] visa application; she also fears prosecution and punishment by the Indonesian authorities for engaging in visa fraud in obtaining her Australian visa. She has also claimed that she suffered harm and hardship in Indonesia which is why she left Indonesia for Australia in 2010. While not expressly claiming to fear harm as a Chinese Christian, the applicant mentioned, during her Department interview [in] October 2014, that there is “pressure” on the Chinese and Christian populations of Indonesia.  Accordingly, the Tribunal has considered the applicant’s ethnicity and religion in its considerations below. In written submissions dated 19 January 2016, received by the Tribunal on 21 January 2016, the applicant informed the Tribunal that “ the situation in Indonesia is terrible”, referencing the “bombing in Jakarta”, “Jakarta attack” and “Aljazeera and other sources”, stating that her life is at risk if she returns to Indonesia. Reports and commentary regarding the 14 January 2016 bombings in Jakarta were submitted in support. The applicant also gave evidence that she is part of a drug trial in Australia and that she would like to continue participating in that trail.  

4. In her Protection visa application form the applicant indicates that she was a successful business woman and was “financially established” in Indonesia, however she was “facing many problems which led me to seek travel to Australia for a better life and to be away from the pressure”[1]; she met  a migration consultant in Indonesia who fabricated and organised documents “and made it easy for me to get a visa with [person X]”[2]; while she did not lodge any further visa application in Australia (before the Protection visa application) she “had in my mind that I did not wish to return to Indonesia because of some problems with my business and I was not able to collect money from my clients and until today I have not approached the Department of Immigration and I remained without a visa until Mr X was interviewed by the immigration Department and was asked questions about me”[3] . She continues that “I fear I will be harmed if returned to my country…because Mr X told the Department of Immigration how we both obtained our visas and now if I returned to Indonesia the consultant who did our application will harm me because the Department of immigration is investigating his behaviour and our behaviour”[4].

   [1] Ibid, folio 22

   [2] ibid

   [3] Ibid, folio 22

   [4] folio 21

5. Regarding what she fears may happen if she returns to Indonesia, she states that she did experience harm in Indonesia but now, if she returns the harm will be “very serious” because “Indonesia is known as a country of corruption were all the boat people come from”, and although she did not come by boat, she fears that the false documents she used “is serious and the consultant who organised it will be in trouble” and that she will be in trouble because the government may prosecute her and the migration consultant may harm her because the Australian Embassy in Indonesia will follow up on his behaviour and will punish him through the Indonesian police[5]. She fears harm from the Indonesian government which may prosecute her, and the migration consultant who may harm her because he will be pursued by the Indonesian police. She adds that she had paid the migration consultant “money to prepare the document including a marriage certificate”, and that the authorities of her country will not protect her as she has “done something against the law but I had strong reasons that led me to escape from Indonesia”.[6]

   [5] Ibid, folio 21

   [6] Ibid, folio 20

   Delegate’s decision

6. The delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention or under complementary protection. A copy of the delegate’s decision record was not provided to the Tribunal by the applicant, despite the Tribunal’s requests. When asked at her Tribunal hearing about whether she has brought a copy of her decision record, she said she did not. She indicated, however, that she has seen it.

   Issues before the Tribunal

7. The Tribunal must generally assess whether: it is satisfied of the credibility and truth of relevant aspects of the applicant’s claims and evidence; on the evidence before it, it is satisfied that the applicant faces a well-founded fear, based on a real chance, of persecution involving serious harm for a Convention reason, if she returns to Indonesia. If the Tribunal is not satisfied that she is owed Australia’s protection under the Refugees Convention, it must then consider whether she is owed complementary protection. That involves an assessment of whether there are substantial grounds for believing that she faces a real risk of significant harm in Indonesia for any of the reasons claimed or arising on the evidence.

   Assessment of the applicant’s claimed circumstances – credibility

8. Having had the opportunity to discuss: the applicant’s claims and evidence with her during her Tribunal appearance; and reflect on that evidence in the context of all the evidence before it, the Tribunal has significant concerns regarding the truth of central aspects of the applicant’s claims and evidence. While the concerns detailed below are not singularly determinative of the credibility of the applicant’s claims overall, cumulatively, they cast such doubt on her reliability as a truthful witness that the Tribunal cannot be and is not satisfied: that central aspects of the applicant’s circumstances in Indonesia are as she has claimed; and/or that the applicant is a person in respect of whom Australia has protection obligations.

   Feared harm from Indonesia migration consultant

9. The applicant told the Tribunal that documentation she lodged in support of her Australian [temporary] application was falsified, including a marriage certificate stating that she and X were married; she and X were not really married; the agent who assisted her in Indonesia was named [Mr A] and was located in [City 1], Indonesia, where she lived; she paid [Mr A] to falsify documents as she had good reasons to leave Indonesia and come to Australia; she knew before coming to Australia that [Mr A] was falsifying documents for her [temporary] visa on her behalf. She said that, while [Mr A] assisted her to obtain her [temporary] visa application, she was not assisted by anyone in preparing her Protection visa application. The Tribunal accepts that the applicant and her former agent in Indonesia provided false information and documentation to obtain the [temporary] visa granted to the applicant in December 2009.

10. When asked to elaborate on what harm she fears if she returns to Indonesia her evidence was vague and evolving. She offered that: [Mr A] told her that, when she gets to Australia she should not do anything or apply for any visa because that could lead to investigation of her information which may uncover that she and [Mr A] falsified documents; [Mr A] told her that if she is investigated, he will also be investigated, including by the Indonesian authorities; and she is worried that if [Mr A] is apprehended or imprisoned in Indonesia he would consider her responsible, and would have his assistants “do anything” to her. When asked to be more specific about what harm she fears from [Mr A] her evidence impressed the Tribunal as contradictory and speculative. For instance, at one point she offered that, if he is not apprehended then maybe he won’t do anything bad to her. However, if the Indonesian authorities take action against him he will view her as the cause of his problems, in which case she fears pressure and violence from him as he is “like a mafia person”. She also said, however, that he knows were her family home in [City 1] is as he collected her from there to take her to the airport as “he was kind”.

11. The Tribunal asked the applicant if she thinks that she was the only person [Mr A] falsified documents for. She responded that to the best of her knowledge he did this for many people. The Tribunal asked why, if that is the case, he would blame her specifically if his illegal work is uncovered rather than the many other people he falsified documents for. Her responses were varied, including that as far as she is aware the other people he helped worked overseas for a certain period of time and then returned to Indonesia.  When the Tribunal queried how she could know the circumstances of everyone [Mr A] assisted over the years she responded that, as far as she knows no one else applied for a Protection visa. When asked how she could know such a thing given that the details of individuals who have sought Australia’s protection are generally treated with the highest confidentiality and are not publicly released she repeated that she knows that many people that he helped worked overseas for a short period of three or four years and then returned to Indonesia. Her claim that she would be specifically blamed for exposing [Mr A]’s involvement in migration fraud impresses the Tribunal as entirely speculative and unconvincing.

12. The Tribunal asked the applicant if she has had any contact with [Mr A] since she arrived in Australia in March 2010. She responded that her last contact with him was around 3 years ago, before her [temporary] visa expired (which was in June 2010) and before she lodged her Protection visa application (which was in February 2014). She told the Tribunal that she did not tell [Mr A] that she lodged a Protection visa application. When asked how she thinks he would know that she has applied for a Protection visa she speculated that his “network” might have told him. However, when the Tribunal repeated that the Australian Government treats Protection visa applications with the highest confidentially and does not disclose the personal identifiers or the nature of Protection visa claims to third parties, she responded that she doesn’t know how [Mr A] would know of her Protection visa application. However, later in the hearing she said that [Mr A] definitely knows that she has applied for a Protection visa as a third party  who she named (Y) who came from Indonesia found out about her Protection visa application and told [Mr A]. She could not explain why, only minutes earlier, she told the Tribunal that she does not know how [Mr A] would know of her Protection visa application. The applicant’s evidence regarding how [Mr A] may or may not know of her Protection visa application, as well as her varied evidence regarding what harm she fears from [Mr A] and why she would be specifically targeted by him, impresses the Tribunal as lacking in credibility and raises significant doubt about the truth of the applicant’s claim to fear or face harm of any nature from or in connection with [Mr A].

13. Compounding the above, the applicant gave oral evidence to the Tribunal that [Mr A] knew her address in [City 1], which she said was the home of her elderly mother. She said her [sibling] lives in that home now. When asked if [Mr A] or any of his agents have approached that address since she left Indonesia she offered only that he collected her and took her to the airport when she was leaving Indonesia as he was kind. When asked whether he has approached her mother’s home since the applicant departed Indonesia she said that he did, to “meet my children”. When asked why he wanted to meet her children she responded that she doesn’t know and her children only told her that he came to visit around 2 or 3 months after she left Indonesia. She said she asked her children what he wanted but her children didn’t know, although they told her that he asked how she is. She added that, sometimes her children see him on the streets and, most recently, a few months ago when her daughter moved to Jakarta she saw him on the street, they said something to each other and then walked their separate ways. That was after the applicant had applied for a Protection visa. As explained to the applicant, what she describes of [Mr A]’s interactions with her family in Indonesia does not suggest that he has any intention or desire to harm her in any way. She responded that maybe he wanted to enquire about her Protection visa application, however this was not supported by the interactions she described and impresses the Tribunal as entirely speculative and unfounded.

14. The Tribunal also discussed with the applicant that the evidence she has given reveals that she willingly paid [Mr A] to falsify documents for the purpose of obtaining an Australian [temporary] visa so that she could come to Australia, work and pay debts, and that she did not apply for a Protection visa before February 2014, despite her [temporary] visa ceasing in June 2010, because she hoped to continue working undetected and return quietly to Indonesia. The Tribunal put to the applicant that this is a concern as it suggests that she has a demonstrated willingness to provide false information to obtain a visa outcome. In response she offered that she did not realize what [Mr A] was doing and she left everything to him. She denied that this is inconsistent with the evidence she gave the Tribunal earlier to the effect that she had paid him to falsify documents on her behalf and that she knew that he was obtaining a visa on her behalf on the basis of false information. However, the applicant is audio recorded giving such conflicting evidence, casting further doubt on her reliability as a truthful witness.

15. Based on all the evidence before it, including the cumulative concerns detailed above, while the Tribunal accepts that the applicant was assisted in the falsification of documentation used to obtain a [temporary] visa to travel to Australia from Indonesia in 2010, the Tribunal is not satisfied that any person named [Mr A] or his networks have or will have, in the reasonably foreseeable future, any desire or interest in harming the applicant in any way. The Tribunal considers the applicant’s evidence that [Mr A] may be investigated by the Indonesian authorities in connection to Australian visa fraud to be entirely speculative. The Tribunal also considers it entirely speculative that, should that remote possibility eventuate, the applicant would be be specifically blamed by [Mr A] or his network.  On the evidence before it the Tribunal is not satisfied that the applicant faces a real chance of any harm, including serious and/or significant harm as contemplated by the relevant law, from [Mr A] or anyone of his agents in Indonesia in the reasonably foreseeable future in connection with the falsification of documents linked to the applicant’s Australian [temporary] visa.

    Fear of prosecution by Indonesian authorities

16. The applicant also claims to fear prosecution under Indonesian law in connection with having been complicit in the falsification of documents for the purpose of obtaining an Australian [temporary] visa in December 2009. She gave no evidence of any enforcement measures being taken against her in Indonesia, and provided no evidence to the Department regarding what, if any, Indonesian laws she thinks she has breached, what penalties she may face or how such penalties may be implemented.

17. She told the Tribunal only that, if [Mr A] is caught by the Indonesian police he would implicate her. When asked what the penalty would be she said “imprisonment”, but when asked what term of imprisonment she understands she may face she said she does not know and that “they could do anything”. When asked what specific laws she thinks she has breached she offered only that she paid someone to falsify documents. The Tribunal explained to the applicant that, without more, facing prosecution for falsifying documents in breach of a country’s laws would not amount to either serious or significant harm as anticipated by the relevant law (annexed). The Tribunal also explained to the applicant that, on the evidence given, it appears that the only reason she would face prosecution in Indonesia is for her complicity in migration fraud, and that there is no suggestion in any of the evidence advanced that a Convention reason would be the essential and significant reason for her being prosecuted. To this the applicant offered only that her main reason to come to Australia was to work and make money to pay off her debts and that she doesn’t want to be in prison.

18. However, on the evidence provided, the Tribunal considers the applicant’s claim that she faces imprisonment in Indonesia to be entirely speculative and unsupported by reliable independent sources. She has given no evidence that any of the Indonesian authorities have approached anyone in her family in Indonesia to ask after her, nor has demonstrated having any interest in identifying what, if any, Indonesian laws she may have breached, what penalties may be imposed or how those laws are generally enforced or implemented. The only evidence before the Tribunal to support the applicant’s claim that she faces serious and/or significant harm through prosecution under Indonesian law are her own unsubstantiated assertions. In the context of the cumulative credibility concerns which raise serious doubts regarding the applicant’s reliability as a truthful witness, the Tribunal does not consider her unsupported assertions on these matters to be convincing.

19. On the evidence before it the Tribunal is not satisfied that the visa applicant faces an real chance of imprisonment or harm rising to the level of serious harm as contemplated by section 91R(1)(b) and 91R(2), or a real chance of significant harm as contemplated by section 36(2A) from Indonesian law enforcement agencies in connection with her complicity in the falsification of documents for the purpose of obtaining an Australian [temporary] visa in 2009.

    Financial concerns

20. The Tribunal explored with the applicant her circumstances in Indonesia which informed her decision to depart in March 2010. Her evidence was to the following effect: between February 2002 and March 2010 she was a successful business owner of a [company] named [name]; she continued to run this business until leaving Indonesia for Australia in March 2010. When asked about the current status of that business, for example, whether it is bankrupt or still operating she said that one year before leaving Indonesia in March 2010 she received a dishonoured cheque for a shipment of [goods]; this had a detrimental impact on her business; her business began to run at only 20% capacity but she kept it running as she had to pay suppliers; she used funds from multiple credit cards to pay, using one card to pay off the debts of another. She also sold jewelry and assets but it was still not enough to pay off her debts. This impacted her daughter’s university as the applicant could not pay her daughter’s tuition fees.  Suppliers were also refusing to give the applicant stock to sell.

1. She said that her business was formally registered in her own name but that she does not have any documents with her to evidence her ownership of that business. Despite: the passage of around 4 weeks since her Tribunal appearance; the passage of around 2 years since she lodged her Protection visa applicant; the provision of post-hearing information regarding the Jakarta bombings and details of a drug trial she is participating in, the applicant has not provided any documentation substantiating her claimed ownership of a [business] in Indonesia, or of it’s financial status. Given the applicant’s demonstrated willingness to falsify documents to achieve a visa outcome as well as the cumulative credibility concerns detailed in the balance of this decision record, the Tribunal has concerns regarding the truth of the applicant’s claimed business in Indonesia.

2. Regarding the extent and nature of her debt in Indonesia the applicant told the Tribunal that, at the time she left Indonesia her debt was around [amount] million Rupia, the equivalent of around $AU [amount]. She has paid half of that back.  She said that this sum does not include the [amount] million Rupia she paid [Mr A] for her Australian visa, which she has already paid off by selling her assets and jewels.

3. Regarding how she has paid off half of her debt to her former business suppliers in Indonesia she said that she sends money through a money transfer service. Again, however, she did not substantiate this with any documentary evidence and the Tribunal has only the visa applicant’s own testimony as evidence of this. She said that she transfers money to her daughter in Indonesia who then allocates the funds to various suppliers.   When asked if her daughter has informed her of any problems with any of the suppliers to whom she owes debts the applicant offered that she has told her daughter to keep in touch with them so they won’t get a bad impression and that she has not had any specific problems to date.

4. When asked if any action has been taken, legal or otherwise, against her or her company by the suppliers to whom she owes debts she responded that she told suppliers she will repay them in stages. She identified no action being taken by them to pursue repayment of the debts.

5. When asked about how she plans on repaying the balance of her debts she said that, before lodging her Protection visa application she was working and saved some money which she sent back to Indonesia to pay off some of the debt and also to support her daughter’s education. After her Department interview in respect of her Protection visa, however, she was told she cannot work and is not working now other than doing some casual [work] to support herself. She did not address the question put to her.

6. When asked what she thinks may happen to her if she returns to Indonesia without repaying her debts she said that the debt collector might come to her and she doesn’t know what would happen then as it hasn’t happened before. However, contradicting this, she also said that the debt collector has come to her home in Indonesia once before and he confiscated the assets in her house. When asked if she has looked into how debt collection is enforced in Indonesia  she said she had not, but when the debt collectors came to her home last time they took things like jewelry and her motor cycle. The Tribunal asked the applicant why she thinks she will experience serious or significant harm in Indonesia in relation to the debt collection issue given that she has not looked into what the process involves. She responded only that she has not obtained legal advice about how debt collection is enforced in Indonesia.  When asked if she has thought about asking her daughter in Indonesia to look into  what options she may have in respect of repaying the debt, for example repayment by installments or waiver of part of the debt, she said she has not looked into it and has never asked her daughter to because the situation her family is in is difficult and how are they meant to repay the debt? She said that any contact with the legal authorities requires money and they do not have spare money.

7. The Tribunal asked why, given her extensive employment history, her demonstrated desire and capacity to work, the education of her daughter and [her] [children] being of working age in Indonesia, as well as the applicant having her siblings and mother in Indonesia, they could not, together, pay of the debt in installments. She responded only that it is her problem, not theirs, and her siblings can’t help her.

8. Based on all the evidence before, while the Tribunal accepts that the applicant has debt in Indonesia and that she came to Australia to work and send money to Indonesia to cover a range of expenses, the Tribunal is not satisfied of the truth of the claims made in respect of her claimed business. On the evidence before it the Tribunal is not satisfied that the applicant’s business suffered losses and acquired debts flowing from a dishonored cheque or that the extent of the applicant’s debts in Indonesia are as she has claimed. The Tribunal accepts that the visa applicant has an extensive employment history in Indonesia and a demonstrated willingness and ability to work The Tribunal also notes that the visa applicant has siblings and her mother in Indonesia, and that her mother has a family home which is accessible to the visa applicant. The applicant also has [adult] children with a demonstrated capacity to work. Based on what the Tribunal accepts of the applicant’s circumstances, the Tribunal is not satisfied that she faces, in Indonesia in the reasonably foreseeable future, economic hardship  that threatens her capacity to subsist, or that she faces a denial of access to basic services or a denial to earn a livelihood where the denial threatens her capacity to subsist. Nor is the Tribunal satisfied, on the evidence before it, that the applicant faces, in respect of her financial difficulties in Indonesia, a real chance of persecution involving serious harm as contemplated by the relevant law, in the reasonably foreseeable future. The Tribunal is also not satisfied that the financial hardships the applicant faces in Indonesia in the reasonably foreseeable future rise to the level of significant harm as contemplated by the relevant law.   

   Chinese Catholics

9. In giving her evidence to the Department and Tribunal the applicant made passing mention to being a Chinese Christian living amongst a majority Muslim population. She told the Tribunal that Muslims often said bad things about the Chinese Christians. She said, however, that this was not a problem for her as she could overcome the problems and was able to have continuous employment and own her own business which did very well for several years. She said that her daughter, however, went to school where many of the Muslim girls wore headscarves while her daughter didn’t, so the other students would comment. She said that she moved her daughter to a private school because of that. When asked if she or her family experienced any other problems in Indonesia in connection with being Chinese and/or Christian she said that during  Christmas holidays they did not go to celebrations and maintained a low profile. However, as discussed with the applicant, reports, including by the Australian Department of Foreign Affairs and Trade (DFAT) indicate that: the treatment of ethnic Chinese in Indonesia has eased and discrimination is low level; members of the Chinese population remain very successful in business in Indonesia; Christianity is officially recognized in Indonesia with DFAT assessing that Christians in Indonesia are generally at low risk of official discrimination and violence and are generally able to practice their faith without interference owing to their officially recognized status[7]. The Tribunal also put to the applicant that it is not aware of any reliable sources identifying restrictions on Christians celebrating Christmas in Indonesia, with DFAT reporting that many areas in Indonesia are Christian dominated. She responded that it is true that Chinese people do well in business in Indonesia, and that Christians can celebrate Christmas, however her daughter applied to work for a bank and when they found out she is not Muslim she was not given the job. She said her daughter has had to work for a Chinese company and it is hard for her to get a Government job. The applicant’s evidence as to the reason why her daughter did not get the bank job impressed the Tribunal as entirely speculative. Nor does her evidence regarding her daughter’s experiences at school, her attendance at a private school or in seeking employment  suggest that the applicant faces a real chance of any harm, including serious or significant harm, in the reasonably foreseeable future, in Indonesia in connection with being Chinese and/or Christian.

   [7] DFAT Country Information Report Indonesia, 9 June 2015

10. As put to the applicant, based on the DFAT report referred to above, as well as her own evidence of her successful employment history and business in Indonesia, her mother’s ownership of a family home, her children’s education and job prospects, the evidence in its totality does not suggest that she faces any hardship in Indonesia in connection with being Chinese and/or a Christian. The Tribunal is not satisfied on the evidence before it that the applicant faces a real chance of harm rising to the level or serious or significant harm, as contemplated by the relevant law, in connection with being Chinese and/or Christian in Indonesia in the reasonably foreseeable future.  

    Jakarta bombings

11. In post-hearing submissions dated 19 January 2016, received by the Tribunal on 21 January 2016, the applicant informed the Tribunal that “the situation in Indonesia is terrible”, referencing the “bombing in Jakarta”, “Jakarta attack” and “Aljazeera and other sources”, stating that her life is at risk if she returns to Indonesia. Reports and commentary regarding the 14 January 2016 bombings in Jakarta were submitted in support. She provided no information as to how the information relates to her as a person. Her evidence to the Tribunal was that she lived in [City 1], East Java, some 800kms from Jakarta. She did not explain, nor is it apparent on the evidence submitted, how a random act of criminal terrorism in Jakarta would impact on the applicant who lived and worked in [City 1]. While the Tribunal is mindful that the attack in Jakarta in January 2016 has heightened fears of terror based attacks generally in Indonesia, the Tribunal considers the attack to be a random, incident and is not satisfied that the visa applicant, a resident of [City 1], and part of a population of around 253 million Indonesian people[8], faces anything more than a remote or far-fetched possibility of harm in connection with such an incident. Based on the evidence before it the Tribunal is not satisfied that the general concerns arising in connection with the recent attacks in Jakarta give rise to a real chance of serious or significant harm to the applicant in Indonesia in the reasonably foreseeable future.

    [8] According to the July 2014 census, reported in DFAT Country Information Report, Indonesia, 9 June 2015.

    Drug trial

12. The applicant also gave evidence that she is participating in a medical research trial in Australia. She provided documentation comprising a “consent to participate in a research study” dated [in] March 2014 indicting that she is participating in a drug trial relating to [medical condition]. She told the Tribunal that the trial gives her access to a drug and to doctors which would not be as easily accessible for her in Indonesia. She said that she is submitting this information to the Tribunal to demonstrate how grateful she is for the opportunities she has in Australia. The Tribunal put to the applicant that there is no evidence before the Tribunal as to her [medical condition] or regarding the impact on her health should she no longer have access to the trial drug, and that there is no evidence before the Tribunal suggesting that her well-being relies on the drug or on her ongoing participation in the drug trial. The applicant accepted that she has no such evidence.

13. As explained to the applicant, while the Tribunal is willing to accept that she has [medical condition], without more the Tribunal does not accept that this amounts to or gives rise to serious or significant harm to the applicant in the reasonably foreseeable future, whether the applicant has access to the drug trial she is participating in or not.

14. Based on all the evidence before it, the Tribunal is not satisfied that the visa applicant’s [medical condition] or her inability to continue participating in an Australian drug trial should she return to Indonesia amounts to or gives rise to a real chance of serious or significant harm as contemplated by the relevant law.

    Summary of findings – Refugee

15. Based on all the evidence before it, including the cumulative credibility concerns detailed above, the Tribunal is not satisfied that the applicant faces a real chance of persecution involving serious harm, as contemplated by sections 91R(1)(b) or 91R(2) of the Act, for any of the reasons she has claimed, including cumulatively. It follows the Tribunal is not satisfied that the visa applicant has a well-founded fear of persecution in Indonesia in the reasonably foreseeable future.

16. Summary of findings – Complementary Protection

17. The Tribunal has also assessed the applicant’s claims under the complementary protection provisions. Based on what the Tribunal accepts of the applicant’s claimed circumstances, and as reasoned above, the Tribunal is not satisfied that the applicant faces a real risk of being arbitrarily deprived of her life or of the death penalty being carried out on them.

18. Regarding torture, cruel or inhuman treatment or punishment and degrading treatment or punishment, the Tribunal each of those types of harm require an element of intention to harm a person, which, on the evidence before it, the Tribunal is not satisfied exists in the applicant’s case. 

19. In relation to torture specifically the legislation requires severe pain and suffering to be intentionally inflicted on a person for specific purposes. The Tribunal is not satisfied on the evidence before it that the applicant faces a real chance of torture in Indonesia in the reasonably foreseeable future for any reason.

20. Regarding cruel or inhuman treatment or punishment, this refers to severe pain or suffering which is intentionally inflicted on a person, while degrading treatment and punishment refers to “an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable”. The Tribunal is not satisfied on the evidence before it that the applicant faces a real chance of cruel or inhuman treatment or punishment, or degrading treatment and punishment in Indonesia in the reasonably foreseeable future for any reason.

21. Taking into account all the evidence before it, the Tribunal is not satisfied that the applicant faces in Indonesia, a real risk of: being be arbitrarily deprived of her life; or the death penalty will being carried out on her; or being subjected to torture; or being subjected to cruel or inhuman treatment or punishment; or being subjected to degrading treatment or punishment. 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 a receiving country, she will suffer significant harm.

    Conclusions

22. 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).

23. 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).

24. 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

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

    Suhad Kamand
    Member

    
    

    Annexure 1

    RELEVANT LAW

26. 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

27. 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).

28. 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.

29. 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.

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

31. 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.

32. 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.

33. 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.

1. 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.

2. 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.

3. 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

4. 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’).

5. ‘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.

6. 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

7. 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.