1507550 (Refugee)

[2017] AATA 1130

1507550 (Refugee) [2017] AATA 1130 (26 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1507550

COUNTRY OF REFERENCE:                  Indonesia

MEMBER:Linda Symons

DATE:26 June 2017

PLACE OF DECISION:  Sydney

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

Statement made on 26 June 2017 at 12:51pm

CATCHWORDS

Refugee – Protection visa – Indonesia – Age and vulnerability – No male support – Government corruption – Children in Australia – Male relatives in Indonesia – Children providing financial support

LEGISLATION

Migration Act 1958, ss 36, 65, 189, 351, 417, 424AA, 499

Migration Regulations 1994, Schedule 2

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, first arrived in Australia [in] October 1988 as the holder of a [temporary] visa. This visa expired [in] April 1989 and she thereafter remained in Australia as an unlawful non-citizen. [In] December 1993, she lodged her first application for a Protection visa with the Department of Immigration and Border Protection (the Department). This visa application was refused by the Department [in] April 1994. She then applied to the Refugee Review Tribunal (RRT) (as it was then called) for a review of that decision. [In] September 1995, the RRT affirmed the decision made by the Department.

3. [In] February 1997, the applicant sought Ministerial intervention under s.417 of the Act. [In] October 1997, the Minister decided not to intervene. Between [April] 1989 and [February] 2002, the applicant was granted a series of Bridging visas and also remained in Australia as an unlawful non-citizen for periods of time. [In] February 2002, she was detained under s.189(1) of the Act. [In] February 2002, she was granted a Bridging E visa. She joined the Muin/Lie Class Action [in] February 2002 and was granted a series of Bridging E visas. On 20 June 2003, the Muin/Lie Class Action was withdrawn. [In] January 2005, she departed Australia. [In] March 2005, she lodged an application for a subclass 143 Contributory Parent visa. She withdrew this application [in] January 2006.

4. [In] August 2008, the applicant arrived in Australia for the second time as the holder of a subclass 676 Visitor visa that was valid for 3 months. She departed Australia [in] November 2008. [In] August 2009, she arrived in Australia for the third time as the holder of a subclass 676 Visitor visa that was valid for 6 months. [In] November 2009, she applied for a subclass 835 Remaining Relative visa which was deemed invalid [in] November 2009. [In] January 2010, she was granted a condition 8503 waiver and [in] February 2010 she lodged a second application for a subclass 835 Remaining Relative visa. This application was refused [in] July 2012.

5. The applicant then applied to the Migration Review Tribunal (MRT) (as it was then called) for a review of that decision. [In] September 2012, she departed Australia. [In] November 2012, she returned to Australia. On 18 July 2013, the MRT affirmed the decision made by the Department. [In] August 2013, she sought Ministerial intervention under s.351 of the Act. [In] October 2014, the Minister decided not to intervene.

6. [In] November 2014, the applicant lodged a second application for a Protection visa. [In] May 2015, this application was refused by the Department. On 3 June 2015, she applied to the Tribunal for review of this decision.

7. The applicant appeared before the Tribunal on 28 April 2017 to give evidence and present arguments. The Tribunal also heard evidence from her son, [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

8. The issues that arise on review are whether the applicant is owed Australia's protection under the Refugee Convention or under the complementary protection criterion.

   RELEVANT LAW

9. 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.

10. 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).

11. 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.

12. 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’).

13. 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 AND FINDINGS

14. The applicant’s claims in her first application for a Protection visa lodged [in] December 1993 are summarised as follows:

    ·She has one child of her first marriage, [Mr B] (born on [date]) and three children of her second marriage, [Mr A]  (born on [date]), [Ms A] (born on [date] and [Mr C] (born on [date]).

    ·[Mr B] travelled to Australia with his father (who is a permanent resident of Australia) in 1986 and is now a permanent resident. She has a close bond with [Mr B] and wants to remain in Australia. [Mr B] is also bonded to her son [Mr C].

    ·It would be difficult for her and her family to rebuild their lives if they return to Indonesia. A return to Indonesia would cause economic and social dislocation.

    ·Her Indonesian passport has expired and she is Stateless.

15. The applicant’s second husband and son [Mr C] were secondary applicants and did not make any claims in their own right. The applicant attended an interview with the Department [in] April 1994. [In] April 1994, the Department refused her application. She lodged an application for review of that decision with the RRT. On 1 September 1995, the RRT affirmed the decision made by the Department.

16. The applicant’s claims in her second application for a Protection visa lodged [in] November 2014 are summarised as follows:

    ·She left Indonesia to be with her family in Australia. Her second husband has died and she has no male family members to protect and support her. She is old and vulnerable. She was afraid to stay in Indonesia by herself.

    ·She does not work and has no financial support. The government provides no support or welfare benefits.

    ·The Indonesian government and society are corrupt. She had to pay bribes to get government officials to provide services.

    ·If she returns to Indonesia she will be alone and vulnerable and an easy target for criminal elements. She will not receive any assistance for government services and will have to fend for herself. She will not be able to subsist. She will not have a male protector and provider.

    ·The Police will not protect her unless she pays a bribe.  

17. The applicant has provided to the Department a copy of her Indonesian passport.

18. The applicant attended an interview with the Department [in] May 2015. During that interview, she stated that she did not suffer any harm in Indonesia. She stated that she had to pay an exorbitant fee for her passport application in 2009. She stated that her main fear in returning to Indonesia is that she would be apart from her children and grandchildren. She stated that her four children and her brother, who is a permanent resident in Australia, would support her financially if she returns to Indonesia. She stated that she understood that the complementary protection provisions do not apply to her but she would rather die with her children in Australia than return to Indonesia and die alone.   

19. The applicant has lodged with the Tribunal a copy of the Departments Decision Record dated [April] 2015, a Statutory Declaration from her son, [Mr A], dated [April] 2017 and a letter from his treating [doctor]dated [February] 2017.

20. On 13 April 2017, the Tribunal received an email from the applicant’s migration agent enclosing a Statutory Declaration dated [April] 2017 from the applicant and indicating that it contained her ‘refugee claims’. In her Statutory Declaration, the applicant stated the following:

    ·She is a [age] year old widow. Her children reside in Australia and she has no one in Indonesia to help her financially and with accommodation. There is no welfare or health system in Indonesia and she would be left to fend for herself.

    ·She is afraid to return to Indonesia without anywhere to go and no one to help her. She is vulnerable to corrupt government officials and people with bad intent.

    ·Her son [Mr A] is an Australian citizen and suffers from [a health condition]. She supervises and cares for him. As a result he is able to live a stable life, work and not be reliant on the Australian health and welfare systems. Her other children are unable to assist him and he is dependent on her. If she is separated from him he will not be able to cope by himself.

    Nationality

21. The Tribunal finds that the applicant is a citizen of Indonesia based on her Indonesian passport and her evidence and will assess her claims on this basis. The Tribunal finds that the applicant is outside her country of nationality. There is no evidence before the Tribunal to suggest that she has a right to enter and reside in any country other than her country of nationality.

    Does Australia have protection obligations to the applicant under the Refugees Convention?

22. During the hearing, the Tribunal discussed with the applicant her background, her family, where she lived in Indonesia, her financial circumstances, her reasons for leaving Indonesia and why she fears returning to Indonesia.

23. The applicant gave evidence that she returned to Indonesia in 2005 and applied for a Contributory Parent visa. She stated that this visa was granted in 2007. She stated that her husband had a number of problems with his health and did not want to come to Australia. She stated that he told her to come to Australia on her own but she did not want to leave him behind. She stated that he subsequently passed away in 2009.

24. The applicant gave evidence that she has [siblings] who live in Indonesia. [Details of siblings].

25. The applicant gave evidence that she has four children; three sons and a daughter. She stated that they all live in Australia. She stated that her eldest son [Mr B] is married and has a [child]. She stated that he and his wife are both in paid employment. She stated that her daughter [Ms A] is married and has [children]. She stated that she and her husband are both in paid employment. She stated that her son [Mr C] is not married. She stated that he is in paid employment. She stated that her son [Mr A] is separated from his wife and his wife and [child] live in Indonesia. She stated that he is unemployed and last worked 5 years ago. She stated that she lives with her sons [Mr A] and [Mr C] in Australia.

26. The applicant gave evidence that whilst she was living in Australia she worked [but] has not undertaken any paid work since 2001. She stated that she owned three properties in Indonesia. She stated that after her husband passed away in 2009 she sold one of the properties and her car. She stated that when she came to Australia she sold the second property and recently sold the third property. She stated that she now has no assets in Indonesia. She stated that she and her son [Mr C] own the house they live in in [Australia] but the Title Deeds are in [Mr C]’s name. She stated that she has no assets or debts in her name.

27. The applicant gave evidence that after her husband passed away in Indonesia in 2009 she came to Australia in 2010. She stated that her children have been supporting her financially since then. She stated that all of her children give her money. When asked whether there was any reason why they would not continue to support her financially, she answered no.     

28. The applicant gave evidence that her son [Mr A] suffers from [a health condition]. She stated that he has a treating doctor and has been prescribed medication. She stated that he has two or three types of medication which he has to take before going to bed at night. She stated that he is fine if he takes his medication and is not fine when he does not. She stated that she needs to stay in Australia so that she can look after him. When asked how she helps him, she [gave details].   

29. In her Statutory Declaration dated [April] 2017, the applicant stated that she is the primary carer for her son [Mr A]. She stated that she closely supervises him and his medication. She stated that he is very dependent on her. She stated that her other children are busy with their lives and cannot provide him with the type of intensive hands on supervision and care that he requires. She stated that due to her supervision and care he is able to have a stable life and is able to work and not be reliant on the Australian health and welfare system.

30. This evidence is not consistent with the applicant’s evidence to the Tribunal that her son [Mr A] is unemployed and last worked 5 years ago. This evidence is also not consistent with her evidence to the Tribunal that the other day he did not take his medication and he is not fine when he does not take his medication.

31. The applicant has provided to the Tribunal a letter dated  [February] 2017 from [a doctor] in relation to her son [Mr A]. [The doctor] indicates that [Mr A] is a [age] year old divorced man who is employed as [an occupation]. [The doctor] stated that he suffers from a chronic [condition] which has been controlled with medication and supervision from his mother. He stated that he requires a close family member, like his mother, to look after him.

32. The applicant’s son, [Mr A], gave evidence that he is currently not working but previously worked as [an occupation]. He stated that he last worked 2 years ago. He stated that he is currently looking for work. He stated that he would like his mother to stay in Australia, keep an eye on him and supervise him. The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and noted that his evidence in relation to when he last worked is not consistent with her evidence. The Tribunal also noted that his evidence that he is currently looking for work tends to indicate that he is willing and able to work. The Tribunal noted that it has doubts that he is as dependent on her as she claims. She responded that she forgot to tell the Tribunal that he got a job through an [agency].

33. The Tribunal asked the applicant what she thought would happen if she returned to Indonesia. She responded that she is concerned about her son. She stated that it would be okay if he was married but he is not. She stated that he cannot cook. She stated that she has to look after him.

34. The Tribunal raised as an issue with the applicant the fact that three of her four children were working and the fourth was looking for work. The Tribunal noted that her children had been supporting her financially for many years and her evidence is that there is no reason why they would not continue to do so in the future. The Tribunal noted that it would be a lot easier to support her in Indonesia as the cost of living would be less. The Tribunal noted that with their financial assistance she should be able to obtain accommodation and domestic help including for someone to live with her and assist her if necessary. The Tribunal noted that because of the financial assistance she receives from her children she will not have to rely on the Indonesian government for financial assistance. The Tribunal noted that it doubted that she would not be able to subsist if she returned to Indonesia.

35. The applicant responded that she cannot live in the village by herself. She stated that her sister is unwell and questioned who would look after her if she became ill. She stated that her children are in Australia and no one would know if something happened to her. When asked about her illnesses, she responded that she has [health conditions]. She stated that she is also on medication for [other health conditions]. (She has not provided the Tribunal with any evidence in relation to her medical condition.) She stated that she is [age] years old and questioned who would look after her. The Tribunal noted that she has [siblings] in Indonesia. The Tribunal noted that she had family members to support her and male family members to offer her protection.

36. The applicant responded that she cannot live with her brother. She stated that he has [children] and a lot of things to look after. She stated that her sister has a [family] and it is impossible for her to look after her. When the Tribunal noted that her children could pay for someone to look after her, she responded that that is not possible. She stated that if she is in Australia her children can look after her but if she is in Indonesia and gets sick or dies it would be impossible for them to get there quickly.

37. The Tribunal discussed country information with the applicant that Indonesia now has a universal healthcare system.[1] The Tribunal noted that she would be able to access health care and medication in Indonesia. The Tribunal also noted that with the financial assistance she receives from her children she may also be able to access private medical care if necessary. She responded that many people have told her that the health care system in Indonesia is not good. She stated that you still have to pay money and if you do not you are not looked after. She stated that you have to wait if you get sick.

    [1] Universal Health Coverage and Health Care Financing Indonesia, World Health Organization. ( type="1">

38. The Tribunal raised as an issue with the applicant its concerns that she does not satisfy the requirements for a Protection visa. She responded that she cannot return to Indonesia. She stated that she has been in Australia since 1988 and her life is here.

39. The country information indicates as follows:

    The Indonesian National Police (INP) is estimated to have a complement of around 440,000 personnel, of which around 420,000 are sworn police and 20,000 are civilian support staff. The INP was established at the time of Indonesia’s Independence and operated as a unit of the Indonesian military until 1999 when the INP was formally separated from military and placed under the direct command of the Office of the President of Indonesia. A 2002 Police Law provides the INP the lead role in handling non- defence related security matters. Indonesia’s Police Chief is a cabinet-level appointee selected jointly by the President and parliament.

    A semi-independent government advisory body (KOMPOLNAS) maintains oversight of the INP and acts as an alternative advisor to the President on policing issues. KOMPOLNAS has limited investigative powers and can recommend follow up actions but can’t order them. External scrutiny of the INP is also exercised by the credible Corruption Eradication Commission (KPK).

    The INP maintains a separate unit to deal with disciplinary issues in relation to its members. It is therefore possible for any member of the public to make complaints of ill-treatment by INP to senior officials in the chain of police command, however, the usual preferred process for complaints against individual police officers, or the police force in general, is to lodge the complaint with KOMPOLNAS, KOMNAS HAM (for very serious allegations) or the Ombudsman (for cases relating to the administrative aspects of detention). Corruption cases above one billion rupiah can be reported to the KPK. Societal expectations about INP’s role are changing. For example, there have been widespread protests over attempts by the INP to charge and arrest KPK officials.

    DFAT assesses that public confidence in the police is generally low and corruption is endemic (for example, it is generally accepted that police recruits must pay to be accepted into the force and pay again to graduate, and the police ranked as the least trusted public body in Indonesia according to a 2013 Transparency International Indonesia poll). In 2012 the then Police Chief announced a 10 stage police reform program spanning 12 years. The reform plan aims to raise professional standards, enhance community relations, invest in IT and training, update and harmonise law enforcement legislation and fight corruption. Despite this, there has so far been little progress on police reform. Generally speaking, the capacity of the INP to investigate crime varies depending on the INP’s priorities and the resources it allocates accordingly. For example, the counter-terrorism unit (Det-88) is considered to be high performing.[2]

    [2] DFAT Country Information Report on Indonesia, 9 June 2015.

40. The Tribunal has had regard to the Tribunal's Guidelines on the Assessment of Credibility when assessing the applicant's credibility. The Tribunal has also had regard to the DFAT Country Information Report on Indonesia and the Department's Policy Guidelines to the extent that they are relevant to the decision under consideration.

    Findings

41. Having considered all the applicant’s claims and all the evidence, the Tribunal finds that the applicant was born on [date] [in] Indonesia. The Tribunal accepts that she has one child of her first marriage, [Mr B] (born on [date]) and three children of her second marriage, [Mr A] (born on [date]), [Ms A] (born on [date] and [Mr C] (born on [date]). The Tribunal accepts that she has a brother who is a permanent resident in Australia. The Tribunal accepts that her four children reside in Australia and are permanent residents.

42. The Tribunal accepts that the applicant has [siblings] who live in Indonesia. [Details of siblings].

43. The Tribunal accepts that the applicant owned three properties in Indonesia which she has now sold. The Tribunal accepts that she has no assets or debts in Indonesia. The Tribunal accepts that she and her son [Mr C] own a house in [Australia] but that the house is registered in his name only. The Tribunal accepts that she has no assets in Australia that are in her name and no debts. The Tribunal accepts that her children have been supporting her financially since 2010 when she returned to Australia. The Tribunal accepts that all her children give her money. The Tribunal accepts that she is confident that her children will continue to support her in the future.

44. The Tribunal accepts that the applicant’s son [Mr A] has been diagnosed with [a health condition] and that he is on medication. The Tribunal accepts that [Mr A] currently lives with her and her son [Mr C]. The Tribunal accepts that she assists [Mr A] and that he relies on her. The Tribunal is not convinced, on the evidence before it, that [Mr A] is as dependant on her as she claims. The Tribunal accepts that she is concerned about [Mr A] particularly as he is no longer married. The Tribunal accepts that [Mr A] would like his mother to remain in Australia. The Tribunal accepts that the applicant has a strong desire to remain in Australia with her children and grandchildren.

45. The Tribunal does not accept that the applicant has no male family members in Indonesia to protect and support her. The Tribunal does not accept that she has no financial support. The Tribunal does not accept that she will not be able to subsist in Indonesia. The Tribunal does not accept that she will not be able to obtain government services including health care services. The Tribunal accepts that she may feel vulnerable because of her age and feel that she will be an easy target for criminals. The Tribunal accepts that she is afraid to live in Indonesia without her children being in close proximity. The Tribunal is not satisfied, on the evidence before it, that the Police will not protect her unless she pays a bribe. 

46. Having considered all of the applicant's claims, individually and cumulatively, and all the evidence, the Tribunal finds that there is no real chance that she will suffer serious harm for reason of any of the grounds under the Refugees Convention if she returns to Indonesia now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for a Refugees Convention reason and is not a refugee. Accordingly, the Tribunal finds that she does not satisfy the criterion in s.36(2)(a) of the Act.

    Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that she will suffer significant harm

47. The Tribunal has considered the applicant’s claims under complementary protection. 

48. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if she returns to Indonesia now or in the reasonably foreseeable future.

49. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on her, she will be subjected to cruel or inhuman treatment or punishment or she will be subjected to degrading treatment or punishment if she returns to Indonesia now or in the reasonably foreseeable future.  

50. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia, there is a real risk that she will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.

    CONCLUSION

51. The Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(a) or s.36(2)(aa) of the Act.

52. There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or s.36(2)(aa) of the Act and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.

    DECISION

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

Linda Symons

         

Member