1504928 (Refugee) - [2017] AATA 225

1504928 (Refugee) [2017] AATA 225 (7 February 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1504928
COUNTRY OF REFERENCE:                  Indonesia
MEMBER:Denis Dragovic
DATE:7 February 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 07 February 2017 at 11:50am
CATCHWORDS
Refugee – Protection visa – Indonesia – Debt owed to moneylender – Threats from moneylender – Contractual dispute

LEGISLATION
Migration Act 1958, ss 5(1), 36(2)(a) – 36(2)(c), 65, 91R(1), 91R(1)(b), 91R(1)(c), 91R(2),

Migration Regulations 1994, Schedule 2
CASES

MIMIA v VBAO (2004) 139 FCR 405

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

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 applicant, who claims to be a citizen of Indonesia, applied for the visa [in] November 2014 and the delegate refused to grant the visa [in] November 2014.
The applicant appeared before the Tribunal on 6 February 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.
RELEVANT LAW
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
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).
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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2017] AATA 225
Decision Date: 7 February 2017

CaseChat Overview and Summary

This matter concerned an application for review of a protection visa refusal, brought before the Administrative Appeals Tribunal by an Indonesian national. The applicant's claim for protection stemmed from a debt owed to a local moneylender in North Sulawesi, Indonesia. Following a business venture involving the construction and sale of houses, the applicant was unable to repay the loan, leading to threats from the moneylender and his subsequent flight to Jakarta and then to Australia.

The primary legal issue before the Tribunal was whether the applicant had established a well-founded fear of persecution for a Convention reason, or alternatively, whether he met the criteria for complementary protection. This required the Tribunal to assess the credibility of the applicant's account of the threats he received from the moneylender and to determine if these threats constituted persecution or serious harm, and if so, whether they were linked to a Convention reason or engaged complementary protection. The Tribunal was also required to consider relevant policy guidelines and country information.

The Tribunal, presided over by Denis Dragovic, accepted that the applicant had borrowed money and fallen into debt, and that the moneylender had repossessed the land and was dissatisfied with the repayment. However, the Tribunal found significant inconsistencies and a lack of credibility in the applicant's account of the threats. Specifically, the Tribunal did not accept the applicant's claim that his house had been painted red as a warning, nor that a notice about authorities observing his house had been left. The Tribunal noted the applicant's admission of receiving assistance with his application and his inability to reconcile contradictory statements, leading to a conclusion that the applicant's narrative regarding the threats was not credible.

Consequently, the Tribunal affirmed the decision under review, finding that the applicant had not established a well-founded fear of persecution or met the criteria for complementary protection.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE Summary of Applicant’s Submissions: The applicant, a [age] Indonesian man, claims to have established a business building houses in the Indonesian province of North Sulawesi. He entered into an agreement with a local businessman to borrow money to fund the construction of up to [number] houses. Following the completion of his first batch of houses he was unable to sell them and as a result he was unable to make repayment on the loan. This led to him being threatened and forced to flee to Jakarta where he received a further threat. As a result he fled to Australia. The delegate determined the applicants’ identity as Indonesian, without any information to the contrary I have assessed the applicants’ claims against Indonesia as their country of reference for Refugee Convention reasons and receiving country for Complementary Protection purposes. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Findings of Fact The applicant claims that he borrowed the equivalent of $[amount] at an interest rate of [percentage] per month. He claims to have borrowed the money in 2009. I accept that the applicant borrowed the money as claimed. The applicant claims that he intended to build [number] houses. His plan was to build them in batches of [number] with the first taking three months to build and in the fourth month he would sell them, repay portion of the loan and using his profit finance the building of the next batch. Before fleeing he built [number] to varying stages of completion but he was only able to sell the first [number] at a discounted rate a year after completion in 2010. Using this money he repaid a portion of the debt. Nevertheless he had fallen behind in his payments and owed the lender considerably more. I accept that the applicant was unable to sell the houses at full price and as a result fell further into debt. The applicant claims that the lender calculated that after a year the interest was twice the original loan and equivalent to the remaining [number] partially built houses. As part of the loan contract the lender had a right to reposes the land which he did including the [number] yet to be completed houses. He claims that the lender was not satisfied with the amount of repayment and wanted more and had threatened him. He claims that the lender wanted an additional [amount]AUD. I accept that the lender had reposed the land, was not satisfied with the repayment and wanted more.

Decision

Reasons for decision

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Findings of Fact The applicant claims that he borrowed the equivalent of $[amount] at an interest rate of [percentage] per month. He claims to have borrowed the money in 2009. I accept that the applicant borrowed the money as claimed. The applicant claims that he intended to build [number] houses. His plan was to build them in batches of [number] with the first taking three months to build and in the fourth month he would sell them, repay portion of the loan and using his profit finance the building of the next batch. Before fleeing he built [number] to varying stages of completion but he was only able to sell the first [number] at a discounted rate a year after completion in 2010. Using this money he repaid a portion of the debt. Nevertheless he had fallen behind in his payments and owed the lender considerably more. I accept that the applicant was unable to sell the houses at full price and as a result fell further into debt. The applicant claims that the lender calculated that after a year the interest was twice the original loan and equivalent to the remaining [number] partially built houses. As part of the loan contract the lender had a right to reposes the land which he did including the [number] yet to be completed houses. He claims that the lender was not satisfied with the amount of repayment and wanted more and had threatened him. He claims that the lender wanted an additional [amount]AUD. I accept that the lender had reposed the land, was not satisfied with the repayment and wanted more. The applicant claims that he was first threatened by the lender in October 2010. At the beginning it was through a number of phone calls that the lender demanded to be repaid and threatened him by saying that he would kill him. As a result the applicant claims that he fled to Jakarta in February 2011. He claims that he received a call threatening him again in March 2011 saying that if he did not pay $[amount] he would be killed. This was the last threat he received. I accept that the applicant received the threats as described above and I accept the claimed dates of his movement. Prior to his departure to Jakarta, the applicant claims that the lender visited his home where his parents lived and left a note on the door with a formal notice that the house is ‘under observation by authorities’. I asked the applicant if he had received any other form of threats (apart from the phone calls) to which he responded that he had not. I presented to the applicant the information he provided in his protection visa application in which he wrote, ‘They had once ruin my house, they threw red paint all over my house as a warning sign.’ I asked the applicant why he hadn’t mentioned that. He claimed that the ‘notice’ was written in red paint and that it meant the same thing. I told him that it clearly did not mean the same thing and explained that it is a custom among loan sharks in Malaysia to pour red paint onto houses and not in Indonesia and that it seemed to me that someone else had written his application form. He claimed that he had used Google Translate and that is what appeared. I expressed my disbelief and in response he admitted that he had received help from his girlfriend, a [nationality] woman, in preparing the application. I asked him why he wrote something that did not happen. He continued to ascertain that the meanings were the same. I stated to him that they were not. I do not accept that the applicant’s house was painted red nor do I accept that a notice was left on his house stating that it was under observation by authorities.

Ratio Decidendi

Legal Principle Established

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