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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Indonesia, applied for the visa [in] November 2014 and the delegate refused to grant the visa [in] November 2014.

3. 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

4. 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

5. 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).

6. 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.

7. 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.

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

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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

15. 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’).

16. ‘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.

17. 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

18. 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

19. 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.

20. 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.

21. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Findings of Fact

22. 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.

23. 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.

24. 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.

25. 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.

26. 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.

27. The applicant claims to have lived in Jakarta from February 2011 through to August 2011 when he left for Australia on a [certain] visa. I asked the applicant why he didn’t flee to Malaysia or Singapore immediately after receiving the threat in March, noting that it left me with the appearance that he was not genuinely fearful of his life if he was willing to remain in Jakarta for five months after receiving the threat. The applicant stated that he believed that he could start a new life in Australia because he had contacts there who could get him a job while in the other countries he knew no one. I do not accept that the applicant had a genuine fear for his life while he was living in Jakarta.

28. The applicant claims that shortly after the threats to his life began he lodged a police report in North Sulawesi. He claims that in response the police suggested that he go back to the lender and to offer to repay him in instalments. He explained that the lender wanted the money immediately and hence the threat was real. The police declined to process his report because they saw it as a contractual dispute (the applicant had earlier stated that there was a contract detailing the loan). Because of this he believes that they were in cahoots with the lender and acting as debt collectors for him. He substantiated this belief by explaining that during one of the visits to his home the lender was accompanied by a man in civilian clothes and when the applicant said that he would go to the police to report the threats the civilian clothed man said, ‘I am the police’. I accept that the applicant went to the police to make a report and that the police did not act on it other than to make the recommendation that he find an alternative payment plan. I do not accept that the police are in cahoots with the lender and instead find that the police were upholding the law by enforcing a contract that the applicant had entered into.

29. I asked the applicant if he had thought about reporting this to the police in Jakarta. He claims that he had but decided against it because to submit a report to the police requires payment of an administration fee of 250,000 Rupiah and he claims that he didn’t have the money. I asked the applicant how he came to Australia to which he responded that his boss assisted him to get a visa and paid for his flight because, he claimed, that his boss didn’t want the trouble to come to him. I asked why he didn’t ask for money to pay for the administrative fee to which he then added another reason, which was that he feared that they would send the case back to North Sulawesi and he’d have to deal with the same people. I accept that the applicant did not make a police report in Jakarta.

30. I asked whether any members of his family had received threats including his parents or his former wife to whom he was married to at the time of entering into the loan and with whom he continues to be in touch with as he sends money to her on a monthly basis for his [number] children. He responded that none had been threatened or harmed. I accept that none of his family had received a threat or have been harmed.

    The applicant’s fear of harm stemming from the lender’s threats

31. The applicant claims that he fears harm from a lender to whom he owes at least $[amount]. I have accepted that this lender has made threats to his life. I have also accepted that for a period between October 2010 and February 2011 no harm befell him despite this being the period in which the threats were made. I also accepted that after he travelled to Jakarta and another threat was made to him in March 2011 no harm befell him for a further five months until he left for Australia.

32. I note that in MIMIA v VBAO[1], Marshall J held that threats in the form of declarations of intent cannot prima facie on their own constitute ‘serious harm’ within the meaning of s.91R. His Honour held at [41] that ‘serious harm’ contemplates that a person’s livelihood or well-being will be jeopardised in a material way, adding that ‘this is not to deny that threats in the form of declarations of intent can never constitute serious harm, but they do not of themselves automatically qualify for that description.’

    [1] MIMIA v VBAO of 2002 (2004) 139 FCR 405

33. Considering that the applicant encountered no harm while in his home town or in Jakarta and that over a period of six years since the applicant entered into the loan his former wife has not faced any harm even though she continues to live in the same area and noting that once the applicant fled to Jakarta over a period of seven months he received only one phone call from the lender I find that the applicant does not face a real chance of serious harm for Refugee Convention reasons or a real risk of significant harm as a necessary and foreseeable consequence of his return to Indonesia.

34. 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).

35. 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).

36. 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

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

    Denis Dragovic
    Senior Member