1511454 (Refugee)

[2017] AATA 1016

1511454 (Refugee) [2017] AATA 1016 (9 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1511454

COUNTRY OF REFERENCE:                  Indonesia

MEMBER:Mila Foster

DATE:9 June 2017

PLACE OF DECISION:  Sydney

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

Statement made on 09 June 2017 at 2:48pm

CATCHWORDS
Refugee – Protection visa – Indonesia – Drug dealing – Police corruption – Threats from gang

LEGISLATION

Migration Act 1958, s.5H, 5J, 65, 36, 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 [in] July 2015 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] December 2014. The delegate refused to grant the visa on the basis that he was neither a refugee nor owed complementary protection.

   CRITERIA FOR A PROTECTION VISA

3. 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, he or she 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.

4. 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 because the person is a refugee.

5. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b). Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country.

6. 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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B).

   Mandatory considerations

7. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. DFAT produced such a report in relation to Indonesia on 9 June 2015.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The applicant’s claims and evidence were presented in his protection visa application, orally at a hearing before the Tribunal and in a written response to an s.424A invitation sent to him after the hearing.

9. According to his protection visa application the applicant is a [age] year old Indonesian national who can speak, read and write English and Indonesian. He arrived in Australia [in] November 2104 on a [temporary] visa having previously travelled to [Country 1] and [another country] in September 2014. He had [number] years of education in Indonesia, lived in Bali and worked as a [occupation] at a [workplace] for about 4 years.

10. In his protection visa application he claimed he had been persecuted by the government and authorities in Indonesia because of his political views. He said he had been a political activist since university and was opposed to government corruption. He said he had conducted research into corruption whilst at university and found that the police accepted money from local gangs to protect drug dealing. Bali was a major tourist destination and had drug problems because of the police officers. He worked at a [workplace] as a [occupation] and saw people come and go every day, and he knew the names of the police involved in drug dealing. He wrote letters to the police department to report them. He was arrested in September 2014 because of his letter. He was tortured in gaol and released in October 2014. The police threatened him, and told him not to do that again. After his release, he was troubled by the police every day and local gangs came to look for him as well. He came to Australia because he knew he was in big trouble and he can’t return to Indonesia because he will be killed by the police or gangs and harmed or mistreated by government officers.

11. At the hearing on 4 April 2017 the applicant testified that he went to a number of places in a hurry in September 2014 to escape problems he had in Indonesia including [various countries]. He said that after he returned to Bali from these trips the police came to his home, detained him for two weeks and released him in October on the condition that he did not keep writing letters about the police being involved in drug deals. A few days after his release the police caused him problems again and the gangs came to his place looking for him so he decided to come to Australia. 

12. However, for the following reasons I did not find the applicant credible.

13. As stated above the applicant claimed in his protection visa application that he could not return to Indonesia because he could be killed by the police or gangs and harmed or mistreated by government officers. Yet in response to being asked who would harm him if he returned to Indonesia, the applicant identified just one gang, a gang called [Gang 1] and no one else. He did not mention the police or government officers. It was only when I asked whether he feared anyone other than [Gang 1] that he then referred to the local police who protected [Gang 1] and said they had threatened him. In relation to the harm he would face if he returned to Indonesia, the applicant indicated he could be abducted or even killed. If the applicant’s claims were true and he had been detained by the local police, harassed and threatened by them after he was released, and genuinely feared he could be killed by them if he returned to Indonesia then I expect it would not have been necessary to prompt him to specify that he feared the local police.

14. In response to being asked how going to different places (in September 2014) would assist the applicant with his problems in Indonesia, he replied that he had problems with the police and local drug gangs in Indonesia  because they were looking for him. He said he left Bali and went to [Country 1] but couldn’t stay there long because he was being phoned. He moved again but continued to be harassed by phone calls asking where he was. Questioned further, he said he received the calls via [social media] and sometimes on his mobile phone. Asked if he could produce any of the messages he replied that he couldn’t because he had changed his account. I do not find it plausible that the applicant went from place to place in a hurry because he received calls via [social media] and his mobile phone as he could continue to receive such calls wherever there was internet and mobile phone access irrespective of his location or how quickly he changed locations. If he wanted to avoid such calls he could have done so more effectively and simply by changing his account as he claims he did at some stage.

15. I found the applicant’s testimony about when he began having problems with [Gang 1] and the police unforthcoming and confused, and his evidence about the problems he had before he wrote the letter contrived. On the first occasion that I asked him when his problems began, he replied it was about April or May 2014. He said he saw people coming and going at the [workplace] in a suspicious way and uncovered that they were selling prohibited drugs. He said he knew the names of those people and decided to write a letter reporting this to the local police and that caused problems for him. This evidence suggested that the problems began in about April or May 2014 after he wrote the letter. Yet when I sought to confirm this later in the hearing the applicant seemed evasive, hard to pin down and his evidence unclear. Initially, he said he did not know the exact month but ‘the beginning’ was in about April or May 2014 and that he did not write the letter until about August. He then seemed to indicate that in about April or May 2014 he was establishing whether what he suspected was happening at the [workplace] was true and that was not when his problems started.  Nevertheless, he still he did not indicate when his problems did begin if they did not start in about April or May 2014. When I noted that his earlier testimony suggested that he had problems from about April or May 2014, the applicant then indicated that they were beginning to watch what he was doing and [Mr A] would draw away from him and not talk to him at the bar anymore. Hence, the applicant seemed to contradict what he had indicated a moment before - that his problems did not begin in about April or May 2014. Furthermore, it appeared that the applicant had finished his testimony at that point but then, in what  seemed an afterthought, he added there were people watching him in a suspicious manner and people watching him if he went anywhere. He continued, hesitantly, that after perhaps a few months he realised he would have to write a letter because he was not living at home during those months. In the end, not only did it appear that the applicant had been intentionally evasive and contradictory about when his problems with [Gang 1] and police began, it also seemed he was inventing the evidence about being watched and followed as he testified rather than recounting events he had actually experienced.

16. Asked why he was not living at home, the applicant replied that he did not feel safe. He said that if he went out on his bike there would be people following him, and if he went out to, say, a minimarket, people would come up to him and ask where he was going. He didn’t know who they were but they would be following him. He had mentioned in his protection visa application that local gangs came to look for him after he was released from detention in October 2014 but he did not mention that he was watched and followed before he wrote the letter. He said he was not sure what he needed to write down because a friend had helped him with the application and he just wrote it in an abbreviated form. I do not accept that explanation. The concern is not that an abbreviated form of this claim was made in the protection visa application but that there is no mention at all in his protection visa application that he was watched and followed before he wrote the letter. If it was true that the applicant had been watched and followed for months wherever he went and hence felt so unsafe that he was not living at home and even left Indonesia for a period of time, then I expect he would have referred to this in his protection visa application.   

17. The applicant’s testimony about the people he said were selling drugs at the [workplace] was hesitant and contradictory. Initially he testified that he knew the names of the people he observed selling drugs at the [workplace] because they often came to buy [product] and talk. Yet when I asked what their names were, the applicant named just one person - [Mr A]. In later testimony he said that he not only named [Mr A] in his letter to the police but also identified [Mr A’s] ethnicity and what area he was from. If that was true then I expect the applicant would have been able to confidently name [Mr A] when I first asked for the names of the people who were dealing drugs at the [workplace]. Instead, the applicant seemed unnerved by my question and named [Mr A] tentatively. More significantly, when I asked for the names of the other people selling drugs, the applicant contradicted the testimony he had given just moments before and said he did not know their names because he did not talk to them.

18. The testimony the applicant gave about how he discovered these people were selling illegal drugs at the [workplace] was vague and hesitant. Initially, he stated he wasn’t suspicious at first but they were coming every day and then began to come in a suspicious way. He said he tried to see what they were doing from different locations and then saw them doing transactions. As his reference to the people acting suspiciously and doing transactions was vague, I asked what he actually saw which indicated to him that illegal drugs were being bought and sold. The applicant then responded in a tentative fashion that he saw them take goods from places that didn’t usually have them, carrying out tests to see what the stuff contained, making purchases and sales, and that the next morning he saw [people] collapse from overdoses. The applicant did not indicate what the ‘goods’ looked like which led him to suspect they were illegal drugs, what tests he observed being carried out or how he knew that [people] had collapsed from overdoses. It seemed that the applicant was thinking up this evidence as he testified.

    It took considerable questioning to elicit from the applicant exactly how the local police were involved in [Mr A’s] drug dealing at the [workplace]. When first asked how the police were involved, he gave a very general response stating that from his studies he was well aware that the police were involved in protection rackets in terms of gambling and drugs. Questioned further about the involvement of the local police in [Mr A’s] drug dealing at the [workplace], the applicant gradually revealed that people who turned up at the [workplace] would go through a metal detector, their goods examined and their identity established at a security post by the [workplace]’s security personnel who would then make a report to the police stationed there. He said security facilitated the drug transactions by enabling the people who sold drugs to enter the [workplace] as the request of the police. I expect that if all this was true then the applicant would have been far more forthcoming when first asked how the police were involved in [Mr A’s] drug dealing. Furthermore, the applicant testified that he did not identify any police officers involved in his letter because no particular police personnel were involved; it was just a constant procession of police who would appear and do their work at the security check point. This however is directly inconsistent with the claim in his protection visa application that he knew the names of the police involved in the drug dealing and wrote letters to the police department to report them. When I noted this, the applicant replied that what he meant was that he knew the names of the police who had detained and subsequently threatened him. I do not accept that. His written claims state unambiguously that he knew the names of the police involved in drug dealing.

19. I queried how police involvement in drug dealing came up in his studies given that, according to his testimony, he had studied [course]. The applicant then appeared to amend his earlier testimony that this came up in his studies and stated that there was a student group which was concerned about the national narcotics problem, and they did programs about the dangers of drugs and research into the growth of drugs and drug transactions in their country. When I sought to clarify whether that was done as part of his studies, the applicant did not answer that simple question directly. Instead he responded that they were given facilities as a student organisation to carry out these studies and programs. Thus, his responses indicated that rather than gaining knowledge about police involvement in drugs in the course of his [studies] he was involved in a student group which conducted drug education programs and research. Thus, it seemed that he intentionally tried to avoid answering my question and altered his evidence in response to my query about how police involvement in drug dealing came up in his [studies].

20. The account the applicant gave at the hearing about the phone call he received after he sent the letter also changed. Initially he said that about a day after he wrote the letter he got a phone call asking where he was, why he wanted to get mixed up in this affair, and suggesting they meet with him. He said he did not pay any attention and did not respond, and then on another day someone came looking for him. Questioned about the identity of the caller, the applicant said the caller did not identify himself but he could only guess he was from [Mr A] because they were reacting threateningly, knew where he worked and knew his name from the police. When I queried how the applicant was aware that the caller knew his name from the police, he replied that he asked them what business they had looking for him and they said he had written a letter about [Mr A] and it was not appropriate for him to do that. They said they were looking for him and wanted to meet him and asked what he wanted. The applicant said he replied that it was just not appropriate for them to sell narcotics on their island, an argument followed and the caller began to threaten him. This testimony was contrary to the evidence the applicant had given just moments before that he did not pay attention to the call and did not respond.

21. Finally, the applicant testified that after he left Indonesia and came to Australia his parents told him that ‘they’ continued to ask for him and that he had not told anyone he was in Australia. He reiterated this at the end of the hearing stating that he had not told anyone where he went or where he was. He added that he was afraid that the gang might even send someone here to harm if they found out where he was. However, as particularised in the s.424A invitation, the applicant has a publically accessible [social media] account in his full name with many [social media] friends which states that he is currently living in Australia.[1] Further, the posts on that account go back to 2010, that is, before he claims he began to have problems with [Gang 1] and police in 2014. His [social media] friends include [Ms B] whom he appears to be in a relationship with. In a post she made on her publically accessible [social media] account [in] November 2014 she indicates that the applicant is going to Australia for two years to work.[2] This information undermines and is inconsistent with the testimony the applicant gave that he had not told anyone where he was and was afraid the gang might send someone to Australia to harm him. It is difficult to make sense of the applicant’s written reply to the s.424A invitation.[3] In the first paragraph he seems to indicate that the [social media] account referred to in the s.424A invitation is his real and private [social media] account, not a fake once he gave [Mr A] and/or [Gang 1] which is now inactive. In the second paragraph he seems to indicate that the real [social media] account is accessible to people in Indonesia but it is in his real name and that he is hiding here in his real name. It is not clear how the account can be private if it is accessible to people in Indonesia or how he can be hiding under his ‘real name’. If the applicant is suggesting that [Mr A] and/or [Gang 1] were not aware of his real name I do not accept that claim. There was no suggestion in the applicant’s oral evidence that he concealed his name from [Mr A] or the gang nor does there seem to have been any reason for him to have done so before he began to observe [Mr A’s] drug dealing. Further, the applicant testified that he had interacted with [Mr A] at the [workplace], had included his name in the letter he sent to the police and the threatening caller referred to his name being in the letter. If the applicant meant to say he provided [Mr A] and/or [Gang 1] with a [social media] account that was not in his real name that still does not explain why he would disclose his whereabouts on a publically accessible [social media] account which is in his full name and thus anyone including [Mr A] or a [Gang 1] member could access that information. I have considered the applicant’s written response but have concluded that his disclosure to [Ms B] that he going to Australia, and the disclosure on his publically accessible [social media] account that his is in Australia is inconsistent with the evidence he gave at the hearing that he had not told anyone where he was and feared the gang may send someone to harm him here if his whereabouts were known.

    [1] Tribunal file at ff.44-47.

    [2] Tribunal file at f.42.

    [3] Tribunal file at ff.52-53.

1. The above matters taken into account collectively, led me to conclude that the applicant was not credible and hence that his protection claims have been invented. Thus, while I accept that the applicant is a national of Indonesia based on his Indonesian passport, I reject the protection claims he has made in his protection visa application and at the hearing in their entirety. Specifically and to avoid doubt, I do not accept that the applicant was a political activist since university and opposed to government corruption, or that he conducted research into corruption or drug programs whilst at university. I do not accept that he discovered that a person named [Mr A] or members of gang called the [Gang 1] or any gang were selling illegal drugs at the [workplace] where he worked, that the local police and [workplace] security facilitated that activity, or that he wrote a letter to the police reporting that activity. I do not accept that the applicant was threatened in any way, followed, visited at home, detained, harassed or harmed by a person named [Mr A], any gang member, the police or anyone else in Malaysia for the reasons he has claimed. I thus find that the applicant will not be harmed by government officers, police officers, [Mr A], any gang or gang members for the reasons he has claimed if he returns to Indonesia.

2. Having rejected the claims for protection made by the applicant, I find that he does not have a well-founded fear of persecution within the meaning in s.5J(1) and hence he is not a refugee as defined in s.5H. I am thus not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

3. As I have concluded that the applicant does not meet the refugee criterion in s.36(2)(a), I must consider the alternative criterion in s.36(2)(aa). However, having found the applicant was not credible and rejected all his claims for protection I find that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Indonesia, there is a real risk that he will suffer significant harm. I am therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

4. 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

5. The Tribunal affirms the decision not to grant the applicant a protection visa.

   Mila Foster
   Member