1510675 (Refugee)

Case [2018] AATA 1735

1510675 (Refugee) [2018] AATA 1735 (13 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1510675

COUNTRY OF REFERENCE:                  Indonesia

MEMBER:Dr Colin Huntly

DATE:13 April 2018

PLACE OF DECISION:  Perth

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

Statement made on 13 April 2018 at 10:29am

CATCHWORDS

Refugee – Protection visa – Indonesia – Divorced from permanent resident husband – Permanent resident children – Deprivation of Liberty due to separation from children – Credibility

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
AUB16 v MIBP [2017] FCCA 2634
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIAC v MZYYL (2012) 207 FCR 211
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
MZAAJ v MIBP [2015] FCCA 151
MZAAJ v MIBP [2015] HCATrans 238
MZAAJ v MIBP [2015] FCA 478
Randhawa v MILGEA (1994) 52 FCR 437
SAAP v MIMIA (2005) 228 CLR 294
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs [1998] FCA 1167
SZRSN v MIAC  [2013] FCA 751
SZRSN v MIAC [2013] FMCA 78
SZSNX v MIBP [2015] FCCA 2271
WZARI v MIAC [2013] HCASL 201
MZAEN v MIBP [2016] FCCA 620
WZARI v MIMAC [2013] FCA 788

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 and Border Protection 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 on 29 August 2012 and the delegate refused to grant the visa on 28 July 2015.

  3. A hearing was scheduled for the applicant with the Tribunal for 21 August 2017.  This hearing was postponed due to the unavailability of the applicant’s representative.  A hearing scheduled for the applicant with the Tribunal for 27 September 2017 had to be abandoned due to late notice of the applicant’s representative again being unavailable.  A hearing was then scheduled for the applicant with the Tribunal for 19 October 2017. 

  4. The adjourned hearing with the applicant was resumed…

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Details
AGLC
1510675 (Refugee) [2018] AATA 1735
Case
[2018] AATA 1735
Decision Date

CaseChat Overview and Summary

The applicant sought protection in Australia, claiming she would suffer an arbitrary deprivation of her liberty if returned to Indonesia. She had travelled to Australia with her then-husband, a temporary skilled worker, and their children. Following their divorce, her husband, who was a permanent resident, notified the Department of Immigration and Citizenship of the changed circumstances, leading to the cancellation of her business visa. She remained in Australia on a different visa to stay with her children, who were permanent residents. The applicant contended that separation from her children would result in a deprivation of her liberty and human rights as a mother, and that Indonesian authorities would not intervene to protect her. The Administrative Appeals Tribunal was required to assess her claims under both the Refugee Convention and the complementary protection criteria.

The Tribunal was tasked with determining whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth), concerning the Refugee Convention, and under section 36(2)(aa) of the Act, relating to complementary protection. This involved assessing the applicant's claims of fearing harm and arbitrary deprivation of liberty upon return to Indonesia, and whether any such harm would engage the protection provisions of the Act.

The Tribunal affirmed the delegate's decision not to grant protection. It found no nexus with the Refugee Convention and no agent of harm or relevant significant harm for the purposes of complementary protection. The Tribunal considered country information from the Department of Foreign Affairs and Trade, which indicated that Indonesian citizens do not require exit permits for foreign travel and that those returned after seeking protection overseas are unlikely to face attention from authorities, provided they have not crossed certain "red lines" such as advocating separatism. The Tribunal concluded that the applicant's fear of arbitrary deprivation of liberty due to separation from her children did not meet the threshold for protection under the Act.

Orders

Orders of the court

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Background

Background to the litigation

The Applicant’s claims for protection, as written by the applicant in her application for protection, in their entirety, are as follows:·I left Indonesia to accompany my husband of the time, whom was employed as a temporary skilled worker. I travel to Australia with my natural dependent children who are now permanent residents of Australia being the dependents of my ex-husband. Since arriving in Australia my partner and I have divorced and he notified of the change of circumstances in our relationship to the Department of Immigration and Citizenship which eventuated in my business Long Stay subclass 457 being cancelled. Since this notification I have remained in Australia under [Visa 1] so I can remain with my dependent natural children and remain a family unit. (Form 866C, Question 43 “Why did you leave that country?”)·No. I seek protection under the complementary protection criteria due to the arbitrary deprivation of my liberty which would result in significant and adverse long-term deprivation of my life. (Form 866C, Question 44 ‘Have you experienced harm in that country? Give details’).·I fear a life of deprivation of liberty being separated from my precious natural children. (Form 866C, Question 45 ‘What do you fear may happen if you go back to that country?’)·The inability to remain in Australia as a family unit with my natural Australian resident infant children will result in a arbitrary deprivation of my liberty and human right as a mother. (Form 866C, Question 46 ‘Who do you think may harm/mistreat you if you go back?’)·I will be subjected to the deprivation of my life and liberty as well as my human right to care and protect my children as a mother. (Form 866C, Question 47 ‘Why do you think this will happen to you if you go back?’)·No. The Indonesian authorities will not intervene in this matter thus I seek protection under the complementary protection criteria to remain in Australia with my children due to a arbitrary deprivation of liberty. (Form 866C, Question 48 ‘Do you think the authorities of that country can and will protect you if you go back?’)Background A hearing was scheduled for the applicant with the Tribunal for 21 August 2017. This hearing was postponed due to the unavailability of the applicant’s representative. A hearing scheduled for the applicant with the Tribunal for 27 September 2017 also had to be abandoned due to late notice of the applicant’s representative being unavailable. A hearing was then scheduled for the applicant with the Tribunal for 19 October 2017. Subsequent to this, the applicant’s agent sought a further postponement of the proceedings and, in the alternative, an offer to attend the hearing by telephone. After considering this request, the Tribunal advised that it would proceed to the hearing as advised, with the agent being permitted to attend by telephone if necessary. The hearing proceeded as advised, and proceedings were eventually adjourned to allow the applicant to consider certain potentially adverse information.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal is required to make an assessment of the applicant’s claims for protection with respect to section 36(2)(a) of the Act, with respect to the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (the Refugees Convention or the Convention) and section 36(2)(aa) of the Act, with respect to the applicant’s eligibility for protection on the basis of complementary protection. Decision Summary The Tribunal has considered relevant country information that is discussed below in this decision; the applicant’s evidence provided in the application for protection; the Department’s files relating to this application; evidence referred to in the delegate’s record of decision; the Tribunal’s own files; and, evidence provided to the Tribunal by the applicant at hearings before the Tribunal. On the basis of the foregoing consideration, the Tribunal finds that it should affirm the decision made by the delegate not to grant protection to the applicant. The reasons for this finding are discussed below.Country Information The Tribunal notes that the delegate could not identify any Convention nexus with the applicant’s claims for protection. The Tribunal also notes that the delegate could find no agent of harm or relevant significant harm for the purposes of an assessment of the applicant’s claims for protection under the complementary protection criteria. Accordingly, the Tribunal was not required to discuss any survey of relevant country information contained within the delegate’s record of decision with the applicant at the hearing. However, the Tribunal has, consistent with Ministerial Guideline No.56, considered the Department of Foreign Affairs and Trade Country Information Report, Indonesia, 22 December 2017. The Tribunal particularly notes the following extract from that document, at [5.19] and [5.20]:Exit and Entry ProceduresThere is no requirement for Indonesian citizens to obtain an exit permit prior to undertaking foreign travel. However, Indonesian citizens leaving Indonesia to reside externally are required to register with the closest Indonesian consular mission within 30 days of arrival. No special entry procedures exist for Indonesian citizens who have been removed or deported from another country. There are a large number of recognised entry ports into Indonesia, including 20 airports, 23 sea ports and one land crossing (at Etikong in Kalimantan).Conditions for ReturneesUnder the New Order regime, an Indonesian national who had actively and publicly criticised Indonesia or the government while in a foreign country would most likely have been questioned or sanctioned on return. Today in Indonesia this is now far less likely to occur, due to an increased acceptance of public protest and dissent. However, crossing acknowledged ‘red lines’—such as publicly advocating a separatist movement or displaying separatist symbols— may still result in additional attention on return to Indonesia. Indonesians who are returned after unsuccessfully seeking protection overseas are unlikely to come to the attention of authorities, provided these ‘red lines’ have not been crossed.Claims considered in this review

Ratio Decidendi

Legal Principle Established

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