1511213 (Refugee)

[2017] AATA 3065

1511213 (Refugee) [2017] AATA 3065 (8 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1511213

COUNTRY OF REFERENCE:                  Indonesia

MEMBER:Angela Cranston

DATE:8 May 2017

PLACE OF DECISION:  Sydney

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

Statement made on 08 May 2017 at 5:33pm

CATCHWORDS

Refugee – Protection Visa – Indonesia – Fear of violence – Domestic violence – Extortion – Witness credibility – Inconsistent evidence – Whether applicant is separated from former partner

LEGISLATION
Migration Act 1958, ss 5(1), 36, 65, 91R, 91S, 424A, 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, applied for a protection visa [in] November 2014. In her application the applicant stated:

I can’t go back to Indonesia because my husband abused me in Indonesia. I suffered domestic violence. We married in June 2007. Then we have a [child]. Because he started to use drug in 2009, we separated around that time. After we separated, he threatened me many times because he needed money to buy drug. I reported him to police. His friends and him got arrested for using drugs. His family has connections in police station. His friend and him was released only few days after that. Then his friend and him came to my home and threatened me and my child. I gave him my savings. They beat me and my child and they left.

After that, I moved to my parents’ place. He came to give my family trouble. Then I moved again. I rented a small unit in countryside. Husband’s friend still found me. They abused me and slapped me on my face. I was very scared. I left my child with my ex-husband’s parents because he can’t hurt my child in front of his parents.

I need Australian immigration office’s protection.

3.    The delegate refused to grant the visa [in] July 2015 and the applicant applied for review.

4.    The applicant appeared before the Tribunal on 20 April 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

5.    The applicant stated she arrived in Australia [in] August 2014 and applied for a protection visa in November 2014. The applicant stated she had applied for her Australian [temporary] visa through a travel agent. She stated she was required to complete a form and provide a number of documents including her husband’s permission to come to Australia. She stated she had written a letter and asked her husband to sign it in or about June or July 2014. She stated he had signed the letter because she had paid him to do so. The applicant stated her husband knew she was coming to Australia but did not know what she was going to do in Australia.

6.    The applicant stated the last time she saw her husband was in July 2014 and after he had signed the letter permitting her to come to Australia. She stated her husband often came looking for money and the last time she saw him was when he came with his friend and asked her for money. She stated he hit her and took her money.

7.    The applicant stated [Mr A] took her through the steps of applying for a protection visa. When asked how he helped, she stated he filled out the forms and she told him the story. She then stated she read the form and looked up the words she did not understand with an online translator and filled in the form herself while in [Mr A]’s office. She also stated she thought [Mr A] had gone through her answers. She also told [Mr A] what happened to her. [Mr A] typed out her story but did not read it back to her in Indonesian. The applicant stated she thought it was correct because the contents were her story.

8.    When asked where she lived before she came to Australia, the applicant stated she lived with her child at [a particular location] for about two months. Before that, she lived in boarding houses for up to three months and moved when her husband found out her. When asked for her last address before she came to Australia she stated she went back to her parents’ home in [Address 1] for about a month where she lived with them. She then moved to a boarding house with her child in [another location] for about one or two months up until she came to Australia. The applicant stated she was living in the boarding house when she last saw her husband.

9.    The applicant stated that when she first left her husband she went back to her parents. She stated he kept asking for money and she started moving houses when he became violent. The applicant stated she lived with her parents for almost a year after she separated from her husband in November 2009. After that, she moved into boarding houses and never went back to live with her parents.

10.      The applicant said she had never divorced her husband.

11. The applicant stated she reported her husband to the police once in [2014]. She stated he had asked her for money and taken [specified belongings] and money from her wallet and had hit her and her child. She stated the police took a report and told her [a number of] days later that her husband was in the police station but had left. She stated he came back and hurt her badly because he was angry. The Tribunal asked if he was arrested and she stated maybe he was arrested and held for a few days or maybe someone paid some money as he had connections. The Tribunal asked what he was arrested for and she stated he was arrested because he abused her and took money from her. The Tribunal put to her that in her written statement she said that he and his friends were arrested for using drugs. She disagreed stating he took her money to buy drugs.

12.      The applicant stated she could not go back to Indonesia because every time she moved, her husband found her. The Tribunal put to her that there was only one residential address included in her protection visa application. She stated that was the address in her passport. The Tribunal indicated that the relevant question had asked for her to give all the addresses outside Australia where she had lived for six months or more in the last 10 years. She stated she did not understand the question.

13.      The Tribunal put to her that in her [temporary] visa application she had included the same address and had said that her husband and daughter lived there. She stated that was the family home address and in Indonesia the family home address could be the address of the extended family. The Tribunal put to her that her evidence at hearing was that that was her parent’s address but not where she lived with her husband and daughter. She stated she and her husband did not own their own house so they were included in her parents’ family card.

14.      The Tribunal also put to her that in her [temporary] visa application she had included a letter from the husband stating that he was aware that she was coming to Australia. She agreed. The Tribunal put to her that it was curious that he would support her application to come to Australia if they had been separated since 2009. She stated he used it as an opportunity to ask her for money and she had needed the letter because she had applied to come to Australia on a [temporary] visa. The Tribunal put to her that one of the questions on the [temporary] visa application also related to her relationship status and had given ‘married’, ‘divorced’ or ‘separated’ as options but she had stated she was married. She stated they were not divorced and were not living together and that if she had stated they were separated then she would not have got a [temporary] visa.

15.      The Tribunal put to the applicant that the address in her [temporary] visa application where she said she lived with her husband and daughter was included in her protection visa application which said she had lived there from 2004 to November 2014. The Tribunal also put to her that at hearing she said she called the police when her husband came and stole her [belongings] and hit her and her daughter however, her statement said that she reported him to the police and he was arrested for using drugs. She stated he took her [belongings] and money to buy drugs and that is what she reported. She also stated that her English was not good, and as [Mr A] had typed her statement maybe he had misunderstood. She also said she wrote the same address that was in her passport. 

16.      The Tribunal then looked at her passport which had been issued in [2014] and asked why she was allegedly still using an old address in [2014]. She stated because of the Indonesian family card. She also stated she used that address unless she had a house and then she could make her own family card.

17.      The Tribunal held an adjournment and upon return put to the applicant that her Kartu Keluarga or family card that was dated 2010 indicated that she lived at the address identified in her protection visa application and in her [temporary] visa application. The family card also identified the address as her husband and daughter’s address. The Tribunal put to her that her oral evidence was that was her parent’s address. She stated there was only one family card. The Tribunal asked why her parents were not included in the card and she stated there was another family card that included her parents and used the same address. The Tribunal also put to her that the card was dated after she said she separated from her husband. She stated her husband was still registered there as her husband because they had never divorced. The Tribunal put to her that he was living elsewhere and asked why he would not have changed his address. She stated he still was her husband.

18. Following the hearing, the Tribunal sent the following letter pursuant to section 424A:

Your address

Your [temporary] visa application dated [in] July 2014 includes a Kartu Keluarga that states that you, your husband and [daughter] live at [Address 1].

This address is also included at question 16 of your [temporary] visa application lodged [in] July 2014.

Q. Your current residential address?
A. [Address 1]

This is relevant because this is the same address that was identified as the address where you have lived for 6 months or more in the last 10 years in your protection visa application lodged [in] November 2014.

Q. Give details of all addresses outside Australia where you have lived for 6 months or more in the last 10 years?
A. Jan 2004-11/2014 [Address 1]

This is relevant because country information states that the Kartu Keluarga is a family card which has information about the family structure, such as the heads of family, family size, and relationships and that population registration is conducted through the obligatory use of household forms and identity cards and the reporting of the vital events by households. Household forms are used to register the name and any other information for all household members. Each person aged 17 years and over should have an Identity Card, and the head of household is responsible for reporting any vital event occurring in his or her household.

This is relevant because the Tribunal may find that because your parents are not included as part of the household of [Address 1], then it is not their house. This is relevant because the Tribunal may find the Kartu Keluarga’s inclusion of you husband and child and exclusion of your parents is inconsistent with you statements at hearing that that was your parents address. If the Tribunal does not accept that you have been telling the truth about where and who you have been living with, then, subject to your comments it would affirm the decision under review.

Your [temporary] visa application and accompanying letter from your husband

Your [temporary] visa application states that you are married (as opposed to separated) and includes a letter from your husband dated [in] July 2014 supporting your [temporary] visa application.
This is relevant because it may not be consistent with what you stated at hearing which was that you separated from your husband in 1999. If the Tribunal does not accept that you have been telling the truth then, subject to your comments it would affirm the decision under review.

1. The applicant responded as follows:

   Me and my husband along with our daughter did not have our own home, hence we decide to put my husband’s name and my daughter’s name in one separate family card that has [Address 1].

   Because in Indonesia we could be registered under one family card even though we do not lives in one house. Also if already registered and if we want to move to anywhere we don’t need to report because it’s my parent’s house.

   Family card in Indonesia under one dwelling, we could be make several different cards. In my case, there have two family cards. One card have my name, my husband’s name and my daughter’s name. The other card has my mother’s name and my father’s name.

   I need to clarify that we separated in 2009 not 1999 but legally we haven’t divorced yet. (We lived in different house). My husband always came to my home to ask for money and he always angry, aggressive and even hit me if I did not give him money.

   When I was applying for a visa to Australia, one of the condition was a written confirmation from the spouse/husband. I got this information from travel agent who was arranging for my visa application to Australia at that time.

   I was lost faith, how I going to get that from my husband?

   But I prepared the letter for him to sign.

   When he came, I shown him the letter of confirmation that I prepared to my husband. At first he did not want to sign the letter as he was coming to see me to ask for my money. I insisted that I will give him money if he signed the letter. At first he keeps saying no because he think I will leave him and he threatens to kill me if I dare to leave him and I told him I was only going for holiday in few weeks.

   He finally agreed to sign the letter that I have prepared with one condition that I must give him [money]. Then finally he signed the letter.

   RELEVANT LAW

   20. 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

   21. 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).

   22.      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.

   23. 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.

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

   25. 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.

   26.      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.

   27.      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.

   28.      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.

   29.      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.

   30.      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

   31. 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’).

   32. ‘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.

   33. 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

   34. 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

   35.      The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Convention in Indonesia and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to Indonesia, there is a real risk that she will suffer significant harm.

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

   37.      The applicant has stated that she fears returning to Indonesia because of domestic violence and that after she separated from her husband in 2009, he continued to hurt her and approach her for money. The Tribunal found the applicant’s evidence unconvincing for the following reasons.

   38.      The applicant’s [temporary] visa application dated [in] July 2014 includes a Kartu Keluarga that states that she, her husband and [daughter] lived at [Address 1]. This address was also included at question 16 of her [temporary] visa application and that question was: ‘what is your current residential address?’ This is also the same address that is identified by the applicant as the address where she lived for 6 months or more in the last 10 years in her protection visa application lodged [in] November 2014. At hearing however, the applicant stated that that address was her parent’s address and that she did not live there after living with her parents for almost a year after she separated from her husband in November 2009.

   39.      The Tribunal finds that the Kartu Keluarga’s inclusion of her husband and child’s name and the exclusion of her parents’ names are inconsistent with her statements at hearing that that was her parents’ address. That is because country Information including the UN Statistics Division 1993, Country Report on Civil Registration and Vital Statistics Systems in Indonesia[1] indicates that the Kartu Keluarga is a family card which has information about the family structure, such as the heads of family, family size, and relationships and that population registration is conducted through the obligatory use of household forms and identity cards and the reporting of vital events by households. Household forms are used to register the name and any other information for all household members and the head of household is responsible for reporting any vital event occurring in his or her household. The Tribunal is of the view that if that address was her parents’ address, then that fact and the fact that the applicant had not been living there since approximately 2010 and her husband had not been living there before that would have been reflected in that family card. Instead, the card identifies that the applicant has been living at that address with her husband and daughter. When this was put to her at hearing, she stated that was the address in her passport and that she and her husband were still on her parents’ Kartu Keluarga since they did not have a house of her own, but the Tribunal does not accept that explanation since her parents’ names do not appear on the Kartu Keluarga, the reporting of vital events by households is obligatory and the applicant allegedly moved from that address years ago.

   [1]     The Tribunal does not accept that the applicant has been telling the truth about where and who she has been living with. In addition, her [temporary] visa application form states that she is married even though the form also provides a ‘separated’ option to indicate relationship status. When this was put to the applicant at hearing, she stated she received advice that suggested she should indicate that she was married, because if she indicated she was separated, then she may not get the visa. Although the Tribunal has considered this, the Tribunal is not persuaded that if the applicant had separated from her husband in 2009 she would rely upon information from a travel agent that suggested she would need to falsely state that she was married in order to obtain an Australian visa. In the Tribunal’s view the more probable explanation is that she was not separated from her husband as claimed and that they continued to live together at the address disclosed not only in her [temporary] visa application but in her protection visa application. In reaching this conclusion, the Tribunal has also considered that in her statement, the applicant stated that she had separated from her husband in 2009 and that she had reported him to police and he and his friends were arrested for using drugs, however at hearing, she stated she had only once reported her husband to police in [2014] and he was arrested because he abused her and took her money. When this was put to her, she stated that maybe [Mr A] had misunderstood her however it is difficult to understand how he could have done that given that she also stated that she told [Mr A] what happened and he had typed out her story into English.

   41.      The Tribunal does not accept that the applicant is separated from her husband, or that he has assaulted her, or that she has complained to the police and he was arrested as a result. The Tribunal is not satisfied that the applicant fled to Australia as a result.

   42.      For the reasons above, the Tribunal does not accept that the applicant has suffered any previous harm in Indonesia, nor that there is a real chance that she will suffer serious harm from her husband, or anyone else in the reasonably foreseeable future. The Tribunal does not accept that she has a well-founded fear of being persecuted for one or more of the Convention reasons if she returns to Indonesia now or in the reasonably foreseeable future.

   43.      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 s.36(2)(a).

   44. 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). On the basis of the applicants' lack of credibility, the Tribunal has rejected the applicant's claims. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

   45. 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

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

   Angela Cranston
   Member