1512062 (Refugee)

[2017] AATA 1912

1512062 (Refugee) [2017] AATA 1912 (29 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1512062

COUNTRY OF REFERENCE:                  Indonesia

MEMBER:Christine Cody

DATE:29 September 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 29 September 2017 at 7:13pm

CATCHWORDS

Refugee – Protection Visa – Indonesia – Ethnic group – Chinese – Religion – Catholic Christian – Company corruption – Credibility issues

LEGISLATION

Migration Act 1958, ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 424A, 424AA, 499
Migration Regulations 1994, Schedule 2

CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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 applicants protection visas under s.65 of the Migration Act 1958 (the Act). The relevant law is set out at Annexure A.

2. The applicants claim to be a family and citizens of Indonesia. They applied for the visas [in] March 2015. The first named applicant, the husband/father (hereafter referred to as “the applicant”) applied as the primary applicant. The other applicants are the second named applicant, the wife/mother (hereafter referred to as “the second applicant”), and the third named applicant, the adult son (hereafter referred to as “the third applicant”). The second and third applicants made no claims for protection in their forms other than as members of the applicant’s family unit.

3. The application made [in] March 2015 is the second protection visa application for all applicants. After their last applications were refused, they left Australia (2001) and subsequently returned (2010). They all departed Australia [in] June 2014 and returned [in] June 2014. Their migration history is set out below[1]:

   [1] Refer to delegate’s decision record provided to the Tribunal by the applicants, as well as their evidence/ written material.

   Applicant

   ·     [In] August 1999: applicant arrives in Australia as the holder of visitor visa which ceased [in] September 1999

   ·     [In] September 1999: applicant applies for his first protection visa

   ·     [In] October 1999: first protection visa refused

   ·     22 May 2000: Refugee Review Tribunal (RRT) finds no jurisdiction to review decision

   ·     [In] May 2001: applicant departs Australia

   ·     [In] May 2010: applicant returns to Australia as the holder of a student visa (dependent upon the second applicant’s student visa) valid until [date] October 2012

   ·     [date] June 2014 -[date] June 2014: applicant departs to Indonesia and returns to Australia.

   ·     [In] March 2015: applicant lodges current protection visa application.

   The second applicant

   ·     [In] August 2000: second applicant arrived in Australia with her two children holding a visitor visa which ceased [in] March 2000.

   ·     [date] March 2000-[date] September 2000: unlawfully present.

   ·     [In] September 2000: applies for protection visa with two children.

   ·     [In] May 2001: one son departs Australia.

   ·     [In] May 2001: protection visa refusal is affirmed by the RRT.

   ·     [In] August 2001: makes Ministerial Intervention application.

   ·     [In] October 2001: second applicant departs Australia with other son.

   ·     [In] May 2010: arrives in Australia as holder of a student visa which ceased [in] October 2012.

   ·     [In] May 2014: further student visa granted (applicant and third applicant as dependents).

4. The Tribunal has a number of files before it:

   ·     [File 1] – current Departmental protection visa application file

   ·     [File 2] – Departmental file relating to the applicant’s first protection visa application

   ·     [File 3] - Departmental file for second applicant’s first protection visa application

   ·     N0035767 - Tribunal file relating to the second applicant’s application for review of the delegate’s decision to refuse her first protection visa application.

   · Departmental file relating to the offshore student visa applications of the applicants in 2010. This file was provided to the Tribunal after the hearing; the Tribunal forwarded a letter to the applicants pursuant to s.424A of the Act after receipt of this file.

5. The additional files before the Tribunal are referred to below when relevant. Some of those files contain certificates issued by the Department to restrict disclosure of certain documents; the Tribunal however considers each of the certificates to be invalid, and the documents are either not relevant, or are relevant but otherwise provided or available[2].

   Current application to the Department ([File 1])

   [2] See Annexure B

6. The Departmental file[3] relating to the current protection visa application ([File 1]) contains documents including protection visa application forms, supporting and identity documents (including sourced by the delegate from former files, relating to an initial concern that the applicant may not have been the father of the third applicant)[4]; a recording of the delegate’s interviews with the applicant and the second applicant [in] July 2015, and the delegate’s decision record. The delegate refused to grant the visas, finding that the applicant and the second applicant were not credible witnesses, and not accepting their claims or evidence about a number of key matters.

   [3] The file also contains a Bridging visa application and withdrawal; the applicant told the Tribunal this was not a request to make a temporary return to Indonesia.

   [4] The Birth certificate for the third applicant indicates that the father is [Name 1], whereas the applicant had only declared his name as [Name 2]. The Tribunal accepts that the applicant’s full name is is [Name 1].

   The Tribunal file

7. The Tribunal file contains the application for review as well as a copy of the delegate’s decision record which was provided to Tribunal by the applicants.

8. The applicants were invited to attend a hearing before the Tribunal on 8 June 2017. All three applicants attended to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

9. In accordance with Ministerial Direction No. 56, the Tribunal has also taken into account the country information assessment prepared by DFAT expressly for protection status determination purposes, DFAT Country Information Report Indonesia, 9 June 2015 (“the DFAT report”).

10. The Tribunal has considered express, implied, and possible claims arising on the evidence of the applicants sourced from their written and oral evidence, documentary evidence provided, as well as country information. These are referred to below. For the reasons set out below, the Tribunal does not accept that the applicants have a well-founded fear of persecution, nor that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Indonesia, there is a real risk that they will suffer significant harm. The Tribunal has accordingly affirmed the decision of the delegate to refuse to grant the applicants Protection visas. 

    CLAIMS AND EVIDENCE

    Background and claims

    Current application to the Department ([File 1])

11. According to the written materials, the applicants’ background and claims can be summarised as set out below.

12. Common background/claims: The applicants were all born in Indonesia. The applicant and second applicant married on [date]. They have two children; the third applicant and a daughter (born [birth date] who is living in Jakarta and is married). They lived in the applicant’s parents’ family home at [address], Jakarta[5] when they returned in 2001 until they left for Australia again in 2010. The applicants speak, read and write in Indonesian and English.Their religion is Catholic.

    [5] The applicant said this was his parents’ family home, where he lived all his life, and his family lived there with him. The second applicant declared that she lived there from 1997 to 2000; and then from 2001 to 2010; the third applicant declared that he lived there since his birth [until] 2000 and then from 2001 to 2010.

13. He provided details of only two jobs:

    ·     1994-July 1999: A [company] (name forgotten); he was [in a certain position].

    ·     August 1999 until May 2010 ([Company 1]), [Occupation 1] for a [company].

14. The applicant claims:

    ·     When he was working as an [Occupation 1] with [Company 1] from August 1999 to May 2010 he had found that his colleagues in [a certain] department were involved in corrupt activities. After discovering this, he wanted to report it to the [Senior Employee 1]; however the [Senior Employee 1] was also part of it. The [Senior Employee 1] had intimidated the applicant, telling him several times that he will deny responsibility and instead blame the crime on the applicant.

    ·     The applicant and the second applicant received “numerous threatening calls” from him, and he said that he would pay money to have the applicant harmed. The applicant did not however experience harm in Indonesia.

    ·     If the applicant returns, the [Senior Employee 1] has intimated that he will pay money to gangsters to harm him. The applicant cannot obtain protection as the country is a seriously corrupt country.

15. Although it was stated that he would provide documentary evidence of his claims, as discussed at interview and noted by delegate in the decision record provided by the applicants to the Tribunal, he did not do so.

16. The second applicant:  She was born in [birth date] and is aged [age].

17. Before first coming to Australia she worked in a [business] doing [certain duties]. When they returned to Indonesia (until she came to Australia for the second time) she worked at a [business] as [a certain role].

18. In her form she said that she was a student. Her last degree in Australia was completed ([details of degree]) in November 2014. The Departmental file contained documents relating to the second applicant’s studies.

19. In her form, she did not respond to the questions “are you making your own claims for protection”, “why did you leave [Indonesia]”, “what do you think will happen to you if you return to [Indonesia]”, or “did you ever experience harm”. She provided no details (as requested) in relation to those questions. She did tick “yes” to the question “do you think you’ll be harmed or mistreated if you return to Indonesia?, although she provided no details (as requested in the form) of this. Further, in response to questions as to whether she could access state protection or relocate, she said “no”, but again did not provide any details.

20. The third applicant: He was born in [birth date] and is now aged [age] years. [Details of education].

21. In his form, he did not respond to the questions “are you making your own claims for protection”; “why did you leave [Indonesia]”, “what do you think will happen to you if you return to [Indonesia]” and “did you ever experience harm in [Indonesia]”. He provided no details as requested in the form in relation to those questions. He did tick “yes” to the question “do you think you’ll be harmed or mistreated if you return to Indonesia?”, although he provided no details as requested in the form of this. Further, in response to questions as to whether he could access state protection or relocate, he said “no”, but did not provide any details.

22. The Departmental file contained documents relating to the Baptism of the third applicant [in] December 2000.

    Interview

23. The applicant and second applicant discussed their claims at interview with the delegate[6].

    [6] The evidence and discussions referred to in this section are sourced from the delegate’s decision record provided to the Tribunal by the applicants.

24. The applicant said that he does not have any documentary evidence that he worked in the companies claimed. He said that he had also worked in other fields besides [Occupation 1], for example between 1995-1998, he [did other work] in Indonesia. The applicant was asked whether he could take up other employment in Indonesia and he responded that his age was a problem and, further, he only has a Bachelor degree, while many younger people have a Masters degree. He does not want to go back to Indonesia, he would prefer to go to the USA.

25. At the interview, the first protection visa applications lodged by both applicants, separately, were discussed. The applicant was asked why he stated in his first protection visa application in 1999 that he did not have a wife and family in Indonesia. He responded that he did not know; his agent filled in the form and he just signed it. He was referred to his claim in his first protection visa application that he feared harm on account of his Christianity. He stated that, since his return to Indonesia in 2001, he had had no problems on this account.

26. The second applicant acknowledged that, in her first protection visa application in 2000, she claimed to fear on account of her Chinese ethnicity. She said that this time, however, she is not making any claims on her own behalf, she is relying upon her husband’s claims.

27. The family’s return to Indonesia between [date] June and [date] June 2014 was discussed:

    ·     The applicant said that they had returned for two weeks in June 2014. They had planned to stay one month but they received calls and threats in Indonesia. His sibling had received the threatening calls on the mobile phone.

    ·     The second applicant said they returned because the daughter got married. They had no problems over the two weeks they were there, but she felt fearful.

28. Further evidence given at interview (including a number of inconsistencies), are discussed below.

    The Tribunal

29. Prior to the hearing, further information was provided to the Tribunal from the applicants, including a correction of an error in relation to the name of the company the applicant had worked for, and noting that the third applicant was enrolled at [a university], seeking to commence in June 2017.

30. At the hearing, the applicants provided their passports, and correspondence in relation to the third applicant’s high school graduation and his completion of a [qualification].

31. When asked what concerned him about going back, the applicant referred to his religion and owing monies (he claimedd there was no interest payable on the monies he owed). He fears harm because Indonesia is racist and there is a lot of brainwashing going on. The Tribunal asked how this would cause him harm, and he said he feels threatened in relation to his religion because he is a Christian, and until this day in Indonesia, Christianity is still a minority religion.

32. When asked what concerned the second applicant about going back, she said that, apart from the situation with the applicant (which she initially claimed not to really know anything about, other than people were looking for him when they went back in 2014), there are fears because of religion, and her ethnicity (she is of Chinese descent). When the Tribunal asked why she has such concerns, she referred to the 1998 riots and that she feared that the situation was returning to the same as the 1998 riots. The Tribunal noted this was a long time ago and put to her that there was no country evidence before it indicating that the situation was comparable to the 1998 riots. In response she said she hopes so, because she has family there.

33. The second applicant told the Tribunal that she did not suffer any problems when she went back after her first protection visa application was refused in 2001, and until such time as she left again in 2010. The Tribunal noted that she had previously claimed to have feared harm (first protection visa application) and yet nothing had happened, so it did not understand why she thought that she would now face harm upon return. She said that there is no harm, but she was quite worried about worshipping. She also said that it is difficult to build a church in Indonesia. The Tribunal asked her whether she wanted to build a church in Indonesia and she said no. The Tribunal asked whether she had any other concerns in Indonesia between 2001 in 2010’ she said that when she was walking she didn’t feel safe.

34. The third applicant said that he didn’t have anything to tell the Tribunal. The Tribunal then asked him whether he had anything to worry about in terms of returning to Indonesia, and he said he can’t speak Indonesian very well. The Tribunal noted that he  had chosen to, and was using, an Indonesian/English interpreter to give his evidence at the hearing, which indicated that he could speak Indonesian. In response he said that he can speak  Indonesian, however he doesn’t understand some words in Indonesian. The Tribunal asked whether there was any other reason why he didn’t want to go back,  and he said no. The Tribunal put to him that it appeared that his concerns did not reach the level of a real chance of serious harm or real risk of significant harm and asked him whether he wanted to comment. He said he did not.

35. The Tribunal had concerns with the credibility and claims made by the applicant and second applicant, which it put to the applicants; it also put relevant information pursuant to s.424AA of the Act. As noted above, after the hearing a s.424A letter was sent to the applicants; and the Tribunal has taken into account their response.

36. Relevant evidence and information is set out below.

    FINDINGS AND REASONS

    Country of reference, identity, family unit

37. The applicants produced passports issued by the Republic of Indonesia to the Tribunal. The applicant’s passport records his name as [Name 2]. The delegate had raised as a concern that perhaps another person may have been involved, namely [Name 1]. The applicant explained that his father’s name was [Name 1] but that this whole name was too lengthy for his passport. After discussions and consideration, the delegate accepted the applicant’s identity. The Tribunal is also prepared to accept the applicant’s claimed identity. The Tribunal accepts that the applicants are nationals of Indonesia, and that the appropriate country of reference for the assessment of their refugee claims, and the receiving country for the purposes of their complementary protection claims, is Indonesia.

38. The Tribunal accepts that the applicant and second applicant were married in 1998, and that they have always lived together except when physically in different countries, but that when this occurred, they were in an ongoing relationship[7]. The Tribunal accepts that they are members of the same family unit. Concerning the third applicant, the Tribunal accepts that he is the son of the applicant and second applicant, and that he is over the age of 18 years. The Tribunal has taken into account the relevant law relating to members of the same family unit. The Tribunal is prepared to accept that the third applicant has part-time work, but that he is dependent upon his parents and lives with them. Thus, although he is [age] years of age, the Tribunal accepts that he is wholly or substantially reliant on his parents for financial, psychological and/or physical support.

    [7] According to their evidence to the Tribunal.

    Credibility

39. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded” or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

1. Pursuant to s.5AAA of the Act it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.

2. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169‑70).

3. The Tribunal had a number of concerns about the applicant and second applicant’s (hereafter together referred to as the “adult applicants”) inconsistent, changing and not credible evidence as to past events, and what they fear upon return to Indonesia. The Tribunal did not find these applicants to be credible, truthful, or reliable witnesses in relation to matters central to, and related to, their claims. The Tribunal has taken into account its concerns relating to each particular applicant in making separate and independent findings as to each applicant’s credibility; although the concerns are set out below in a holistic manner. Further, the Tribunal notes that any one of the concerns below may not have caused the Tribunal to question the adult applicants’ overall credibility, however when looking at the evidence cumulatively, the Tribunal’s concerns with the adult applicants’ credibility are significant.

   First protection visa applications

4. The Tribunal had a number of concenrs about the adult applicants’ credibility concerning claims made when lodging protection visa applications. In particular, concerning the first protection visa applications, the Tribunal notes as follows. 

5. Firstly, the Tribunal had concerns about the second applicant’s evidence, and the adult applicants’ documents, provided in the first protection visa proceedings, as set out below.

   ·     According to her first protection visa application form signed [in] September 2000, the second applicant said that she was living at an address which was [Address 1] and, although she said she was married, she claimed she did not know where the applicant was, including which country he was in.

   ·     However, the available evidence indicates that the applicant was living in Australia; and, that they were residing at the same address: according to the files relating to the  applicant’s first protection visa application and the review, in 1999/2000, he was also residing at [Address 1], although, in his first protection visa application form, he did not claim to be married, nor to have any children.

   ·     According to the RRT decision in the second applicant’s first protection visa application, she claimed at the hearing[8] that she had separated from her husband a few months before she came to Australia in August 2000; that they were not living together in Australia, and she did not know where he was.

   [8] Which occurred before or in May 2001.

6. All of the above was inconsistent with the evidence given by both the applicant and the second applicant at the current Tribunal hearing; that, ever since their marriage, they have remained in a committed marital relationship. Even if they were physically separated, the marriage has always been ongoing.

7. The Tribunal was concerned that the adult applicants were prepared to rely upon untruths in their first protection visa applications seeking to obtain the best outcome; the second applicant was prepared to make claims that she was the sole parent of two children; and the applicant was prepared to claim that he was here alone, and had not left behind a wife and children.

8. In response to the s.424AA information, the second applicant said that she came to Australia with the children at the time of the riots. She didn’t know what visa to use in order to remain in Australia. She was introduced to an agent who suggested that she use the riots to stay here, and she agreed. The agent created a story, she went along with it although she knew it was wrong. The applicant and third applicant did not seek to comment. The Tribunal has considered the explanations but does not find them persuasive. The Tribunal considers that the applicant and second applicant appear to have told untruths in order to present separate cases for protection and that they have been willing to mislead in order to obtain visas. The Tribunal considers that this undermines their credibility.

9. Secondly, when the Tribunal asked what specific claims the applicant had made in his first protection visa application, he said he was not sure. When the Tribunal put to him that his first protection visa application was based on Christianity[9], he said he did not recall. The Tribunal put to him that it would think that if he had had genuine claims and fears, he would recall what specifically he had claimed; in response he said that it was a long time ago; he cannot really recall this although he recalls it was in relation to religion. The Tribunal has considered this response but does not find it persuasive. The applicant claimed that he had to leave his country and seek protection in Australia. While the Tribunal accepts that this occurred a long time ago, it considers that he would be able to recall specific claims made in support of his first protection visa application if he had genuine fears of harm. The Tribunal considers that this undermines his credibility.

   [9] See delelgate’s decision record

10. Thirdly, the Tribunal was concerned that, given the claims which the applicant made in his first protection visa application, that when he came to Australia that first time, he would leave his wife and children behind.

11. The applicant said to the Tribunal that he lodged his first protection visa application because at the time there were problems because of the economc crisis in Indonesia; a lot of companies closed. The Tribunal asked what was the basis of his application for a protection visa at the time, noting that a protection visa should be made because of a claim to be in fear of harm. The applicant said whether or not he was scared, it was to do with the economic situation and changes of political situation, a lot of churches were being burnt and they were frightened for these reasons. The Tribunal was concerned that the applicant would would leave his wife and children behind, given his claims of danger in Indonesia.  It was put to the applciant that if he and his wife were frightened for the reasons claimed, the Tribunal did not understand why he would have left his wife and children behind and, additionally, why he did not even mention in his first protection visa application that he had left a wife and children behind (he had declared that he had a mother back in Indonesia).

12. In response, the applicant said that this was his stupidity. The Tribunal does not find this to be persuasive; it also notes that this response is inconsistent with what the applicant told the delegate at interview (that it must have been his agent’s fault that he did not declare he had a wife and children)[10]. The Tribunal is not satisfied with the applicant’s reasons for failing to mention in his first protection visa application form that he had left a wife and children back in Indonesia, and that they faced harm because of her ethnicity and the riots (which was the reason for the wife and children lodging their own protection visa application forms). The Tribunal considered that if his wife and children had genuinely faced harm at the time of the riots, then the applicant would have mentioned this in his first protection visa application and he would not have left them behind. The Tribunal considered that the applicant’s failure to make such claims indicated that there was no harm or concerns for his wife and children.

    [10] See delelgate’s decision record

13. When the above was put to the applicants pursuant to s.424AA of the Act, the applicant said that the riots had occurred in 1998 and that was different, it wasn’t the same year as when he came to Australia and made his first protection visa application (which was the next year, 1999). The second applicant and third applicant said they do not wish to comment. The Tribunal does not find these responses to be persuasive. The Tribunal considers that the applicant’s failure to mention his wife andf children in the claimed cirucmstances undermines his credibility and their claims that, when they came to Australia the first time, the wife and children were experiencing fear and faced harm.

    Failure to disclose past visa applications in second application for visitor visa

14. The Tribunal had concerns generally with the crerdibility of the adult applicants because, in their joint offshore student visa application signed [in] February 2010, they claimed that they had never previously made any type of Australian visa application. This, however, was inconsistent with Departmental records  which indicated that  the applicant had  previously applied for, and received, a visitor visa which he used to first arrive in Australia [in] August 1999, and that he applied for a protection visa [in] 17 September 1999.  Further, the second applicant (with the third applicant as a dependent) previously applied for, and received, visitor visas which were used to first arrive in Australia [in] August 2000, and then she (with the third applicant as a dependent) applied for protection visas [in] September 2000. 

15. The Tribunal was concerned that this failure to disclose previous visitor visa applications, as well as failed protection visa applications, which led to them leaving Australia in 2001, undermine their credibility. This was put to the applicant s pursuant to s.424A of the Act and, in response, they stated that they had to come to Australia, because their daughter was studying in Australia, and had a problem with her [relative] in [Australia] and she did not feel like studying and being terrorised by her [relative]. Further, their son wants to study in Australia like his sister. They had no plans at all to ask for a protection visa.However, when they were on holiday to Indonesia, the applicant’s sister gave him his old sim card with a threatening short message from his former employer. Upon returning to Australia, he consulted with some of his friends about the matter and they advised him to ask for a visa after the student visa expired. The Tribunal notes that there is no explanation for their failure to declare their past visa applications on their visitor visa application forms. The Tribunal considers that this indicates that they are not witnesses of truth, and that they are prepared to mislead the Department in order to obtain desired visa outcomes. The Tribunal considers that this undermines their claims and credibility.

    Inconsistencies in relation to the applicant’s claimed work in Indonesia

16. Firstly, the Tribunal was concerned about the significant inconsistencies in relation to the applicant’s claimed work in Indonesia, especially given that this was the claimed source of the corruption, his problems, and his reason for leaving Indonesia and lodging his current protection visa application.

17. In his current protection visa application form, the applicant claimed in response to the question why did you leave Indonesia, “when I was working as [Occupation 1] with [Company 1] on August 1999 to May 2010, I had found our colleagues of [a certain] department had series of corruption. After I found this serious crime and I wanted to report to [Senior Employee 1] but I could not believe that he was also their team. He had intimidated several times that he will shirk and blame the crime to my responsibilities. Me and my wife received numerous intimidating calls from him and said even he would pay money to harm me”. His form indicates that the problems occurred when he worked at [Company 1] (before he came to Australia in 2010).

18. In the work history section of his protection visa application form, he said that he worked at [Company 1] as [Occupation 1] from August 1999 until he came to Australia for the second time in May 2010. He did not list any other employment during that time.

19. However, at the delegate’s interview, he changed his evidence about where he worked, the name of the company where he experienced problems, and when he worked there. He said that he worked at [Company 1] only for a few months, and that this was a “good” company, which was connected to his [relative]. He  worked at [Company 1] after he had worked at the company where he had the problems, which was called [Company 2]. He worked there for 2 years from 2008 to around January/February 2010.  This however was inconsistent with his protection visa application form, both in terms of the timing of where he worked, as well as the name of the company where he worked which caused him problems. The company he now claimed led to his problems was not even mentioned in his protection visa application form.

20. In his pre-hearing email to the Tribunal dated 7 February 2017 the applicant stated “I want to tell you that there are errors in the writing of the company name in my case, the name of the company not [Company 1], but [Company 2]”.

21. However, in his evidence to the Tribunal, he claimed that:

    ·     From 2001-2005 he helped his [brother-in-law] in his [business]. He has, however, forgotten  the name of  the business.

    ·     From 2006-2007, he worked at [Company 2]. He worked in [a certain area and] he would look for [clients]. When asked where he found his clients, he said through his [wife]. When the Tribunal suggested that his wife's client details would be confidential, he said he could talk to the clients  who were close to the wife. He obtained three clients plus his mother to invest money. This was the company where the problems occurred, and it was these [clients] whose money was lost.

    ·     From 2007 - 2008 he again assisted his brother-in-law in his company (cannot recall name).

    ·     From 2009-2010 he worked for the company [Company 1], doing [details of work].

22. The Tribunal put to the applicant that it did not understand how there could be such different evidence: for example there was no mention of the corrupt company [Company 2] in his protection visa application form work history; instead it was [Company 1] where he worked for over 10 years; but at interview he said he only worked there for a few months before he came to Australia. The applicant referred to his email to the Tribunal about the different name and he said “they” got the name wrong. When the Tribunal noted it was his signed form, he said that it had been typed incorrectly. The Tribunal also put to the applicant pursuant to s.424AA of the Act that his changing and inconsistent evidence about where he worked between 2001 and 2010 undermined his claims and credibility. In response, he said that, when he was interviewed by immigration, he could not recall the name of [Company 2], it was only after he went back and looked for some nametags that he saw it was [Company 2]. The applicant did not otherwise explain why there was such significant inconsistencies concerning his claimed employment, including when he worked where. The Tribunal does not find his explanations persuasive, and considers that this undermines his claims as to where he worked, and what happened where he worked, and his credibility. The second applicant and third applicant were offered an opportunity to comment/respond, but did not wish to do so.

23. Secondly, the Tribunal had concerns about changing evidence of the adult applicants concerning the corruption and problems at the applicant’s work leading to the claims for protection (put pursuant to s.424AA of the Act when required). In the current protection visa application, the applicant claimed that he was an [Occupation 1] who discovered corruption, and threatening phone calls were received from the [Senior Employee 1] by both himself and the second applicant. However:

    ·     At the delegate’s interview, the second applicant said that she did not receive threatening phone calls.  This was inconsistent with the applicant’s written protection visa application form.

    ·     Then, at the interview, after the second applicant was presented with what the applicant had said in his written claims, she then changed her evidence and told the delegate that she was threatened by people who had business with both her husband and the [business] where she worked.

    ·     The second applicant also changed her evidence at the hearing before the Tribunal. Initially, she told the Tribunal that she did not have the details about why the applicant had claimed protection; later however she changed her evidence and suggested that he was claiming protection because of the money being owed to the [clients]. When the Tribunal raised a concern about her change in evidence, she said that she had previously been a bit confused so she did not understand what the Tribunal meant. The Tribunal does not find this response persuasive, given that her intial response (lack of knowledge about why the applicant was claiming protection) was explored with her at the time.

    ·At interview, when the delegate put to him that as the company was a limited liability company, so the delegate did not understand why a worker such as himself would be pursued for money owed by the company, the applicant’s evidence changed and he said that he agreed to become the [Senior Position 1] after the money disappeared and he feared the owner/director of the company (instead of him being the [Occupation 1] who feared the [Senior Employee 1]). [The Tribunal notes, however, that the applicant did not claim in his protection visa application form work history, or at all in that form, to have held the role of [Senior Position 1] in any company].The Tribunal was concerned that the applicant changed his evidence about who he feared (the [Senior Employee 1], then the owner/director), and also his roles in the company (he was the [Occupation 1] who was threatened by the [Senior Employee 1]; later he was the [Senior Position 1] who was threatened by the owner/director).

24. The Tribunal put the above concerns to the applicants pursuant to s.424AA of the Act, noting that the claims of both adult applicants about what had happened had changed, and if the threats had actually occurred, the Tribunal would expect their evidence in this regard to be fairly consistent, including who made the threats.

25. In response, the applicant said that, about the [Senior Employee 1] he mentioned in the hearing, he is also the owner [this however is inconsistent with his evidence at interview[11]] and the second applicant did not know about threats, which were received by SMS. This however is inconsistent with her evidence which changed from not knowing about the threats to saying that she had been threatened. The second applicant said that she is not telling a lie and she still needs to return money to the clients. She doesn't want to have a debt in her life. She introduced customers who lost money. The Tribunal has considered this response but does not find it persuasive, especially given her earlier evidence to the Tribunal:

    ·When asked if the applicant owed any money in Indonesia, she said they have no debts.

    ·When asked if anyone wanted any money from the applicant, she said she doesn’t know; he doesn’t talk about things like that. 

    [11] Set out in the delegate’s decision record.

1. The Tribunal considers that this undermines her subsequent evidence that they do owe money to clients.

2. Further inconsistencies occurred in relating to the threats. At the hearing, the second applicant was asked when the threats occurred, and she said it was in 2006/2007 by way of phone calls. The applicant, however, gave evidence that the threats occurred in 2014, that they were not by way of telephone calls, but by way of SMS. The Tribunal noted that if the second applicant's evidence was to be believed, there would be a significant delay between the threats occurring (2006/2007), their arrival in Australia (2010) and the lodgement of the protection visa application (2015). These further inconsistencies were also put to the applicants pussurant to s.424AA of the Act.

3. In response, the applicant said that they didn't come to Australia to lodge a protection visa application, they came with with student visas for the second and third applicants to study, as it is easier to get student visas. They were going to go back to Indonesia, however, they got the SMS threats (in 2014) and they came back to Australia because the son was studying here. That is when the applicant lodged the (second) protection visa application.  The second applicant then said that is true and they originally only came here because she was not getting on with her [relative] and so they wanted their son to go to school in Australia. An agent had also suggested that they go. She also had a good job but she wanted her son to be able to study in Australia. She didn't know about the SMS messages but there were lots of phone calls (this however is inconsistent with the applicant’s subsequent response that there were no phone calls, but instead there were SMS’s).

4. The Tribunal does not find the above to be persuasive responses to the concerns raised. The applicants have not explained why the second applicant said that the threats occurred in 2006/2007, whereas the applicant said that they occurred in 2014; further, the applicant’s protection visa application had said the reason why they came to Australia was because of the problems he was experiencing before he came to Australia the first time (paragraph 57 above).

5. The Tribunal considers that the evidence about the threats, when they occurred, whether by phone calls or SMS, whether from the [Senior Employee 1] and/or owner, and whether or not the second applicant knew about them, and the generally changing and inconsistent evidence of the applicant and second applicant, undermines the credibility of the adult applicants and their claims.

6. Thirdly, the Tribunal was concerned that the applicant's evidence concerning money owed was changing and not credible; and that it was inconsistent with the second applicant's evidence (put pursuant to s.424AA of the Act when required):

   ·     The applicant told the Tribunal that there was a threat made in 2014 that he would have to pay back the losses [to] the four clients. He confirmed that this was the only money sought from him, from those [people]; no one else wants any other money from him.

   ·     He told the Tribunal that the last threat received to pay the money was in about 2008/2009. The Tribunal noted, however, that the money was lost in 2006/2007, he did not come to Australia until 2010; thus the people to whom he owed the money had had plenty of time to take action to get their money back; to report him to the police; or take proceedings against him, or to harm him, in order to get their money back, while he was still residing in Indonesia. The Tribunal put to him that it was difficult to understand why they would want money from him, and demand it then, seven years later, when he went back to Indonesia in 2014.  He later changed his evidence to say that it was not the clients who are seeking the money from him, instead it was the owner of the company who wanted the money from him; the owner asked for the money in 2014 when the applicant was back in Indonesia. The Tribunal was concerned with the applicant’s changing evidence about when the threats were made, and who was seeking money from him.  

   ·     The applicant then claimed that he offered to pay [Amount 1] to the clients even though it was not his fault that their money was lost. The Tribunal asked when he offered to pay, and he said he cannot recall, it was around 2007/2008 and he discussed it with his wife, but he did not pay it (other than he paid [amount] million rupiah, leaving [Amount 2] rupiah which he has promised to pay). The Tribunal put to him that it was difficult to understand why he promised to give [Amount 1] of his own money when the loss was not his fault. He did not explain why, other than to say that he made a promise, but he did not pay the money. The Tribunal was concerned with his inability to explain why he would promise to pay such money.

   ·     The Tribunal sought clarification as to who wanted money from him, and he said that the owner wants [Amount 1] from him, and the applicant has promised to pay the balance of [Amount 2] rupiah to the clients. The Tribunal put to the applicant that it had previously asked him how much money he owed, and he had insisted that it was only [Amount 1] rupiah which he was paying to the [clients]. Now, however, he was claiming that he owed [Amount 1] million rupiah to the owner, plus [Amount 2] to the clients, which is a total of [amount] million rupiah. The applicant's only response was to say that the owner did not know he has a personal relationship with the clients. The Tribunal is not satisfied as to why the applicant changed his evidence about who wants money from him, and how much he owes. Further, the Tribunal was also concerned as to why the owner/director would seek [Amount 1] from the applicant, given it was not his fault. The applicant was unable to explain why the owner would want him to pay back [Amount 1] rupiah; what he said was that he had been promoted to [Senior Position 1] and asked to manage the losses. The Tribunal is not satisfied as to why the owner/director would consider the applicant responsible for the losses which occurred before the applicant was [Senior Position 1].

   ·     The applicant claimed that the persons who own the company are ex-armed forces and “they won’t let you alone”. The Tribunal put to him that this seemed inconsistent with the claim that the owner wanted him to pay [Amount 1] (while the applicant was still in the country from 2007 until mid-2010); yet he did not pay that money to the owner, and nothing was done to the applicant. He then said that he had no problems before 2014, when he received SMS on his phone in Indonesia that he had left with his sister. The applicant did not explain why, despite the ex-armed forces owner believing the applicant owed him [Amount 1] ever since 2006/2007, and that “they won’t let you alone”, the applicant had no difficulties for the three years that he remained in the country. The Tribunal also put to the applicant that it was difficult to accept that the owner would ask the applicant to pay money in 2014, some seven years after the money was gone. The Tribunal noted that from 2007, there had been plenty of opportunities to threaten or harm the applicants, or to take money from him, yet this did not occur. In response, the applicant said that they are in a different location and they could not meet him before. He received the SMS’s when he went back to Indonesia. The Tribunal is not prepared to accept the applicant’s explanations. It notes he is suggesting that the only attempt the owner/clients made to obtain money off him was simply sending him SMS’s, to which he did not respond, which is inconsistent with his own description of these people. Further, considering his claims that if he returns he will face serious/significant harm for not having paid the money, the Tribunal considers that he has not satisfactorily explained why he was able to remain without harm from 2006/ 2007 until 2010, while the money was outstanding.

   ·     The applicant’s evidence that he had discussed, with the second applicant, paying [Amount 1] (of their money) to the clients was inconsistent with the second applicant’s own evidence. When the Tribunal had asked her whether, if the applicant was going to pay a large amount of money to people that he didn’t have to do, he would discuss this with her, she said that they both have money and if he was going to give money to someone else, he would tell her about it. Further, she said that she would know if he owed money. The Tribunal considers that if there was a discussion about a debt owed to clients (who were obtained from the [wife]), and if the applicant was going to pay this money, then the applicant and the second applicant would not have given inconsistent evidence in this regard. They did not provide an explanation for their inconsistent evidence as to whether or not they discussed the applicant paying the clients [Amount 1] rupiah (despite the loss of the money not being the applicant’s fault). The Tribunal was also concerned that this debt, which the applicant claims he owed, was not mentioned in the protection visa application form. In response, the applicant said that he never said the clients asked for money. Instead, the owner asked him to pay the money to the clients. The Tribunal noted that this was different from his earlier evidence.

7. The Tribunal considers that all of the above undermines the adult applicants’ claims and credibility. The Tribunal’s concerns were heightened because the Departmental file relating to the 2010 offshore student visa applications for the applicants shows that it was asserted that they had had access to a total sum equivalent to $[amount], which was required for the grant of student visas, which equates to a sum of about [amount] million rupiah[12]. It also showed that their visas were being financially supported by [Ms A] who said she would provide them with money, and the applicant himself had money in his bank account, as [in] February 2010, the sum of [amount] rupiah.

   [12] >

   This was difficult to understand given that the applicant and second applicant (at one stage) both claimed that they had to leave Indonesia because the applicant was sought after because of money. The applicant told the Tribunal (at one stage) that the amount he had to repay was [Amount 1] rupiah. If this was the case, the applicant could have used the available funds (that, instead, was spent on student visas), in order to repay the debts. If they had done so, they would not have faced harm. This was put to the applicants pursuant to s.424A of the Act, and in response, they stated that they wanted to apply for a student visa, and the second applicant’s far-away relative [Ms A] sponsored the guarantee for the making of the visa; regarding the money of [amount] rupiah in his bank account, it is the remainder of the sale of their home in [address]; they sold that house because they were going to Australia and needed cash money.

8. The Tribunal notes that the applicant has not explained why he did not use the funds to repay the debts he claimed he promised to repay. The Tribunal considers that this undermines the claims that they had outstanding debts, and thus face harm for that reason.

   Changing claim

9. Finally, in relation to the current protection visa applications, the Tribunal was concerned with developing claims.

10. The Tribunal was concerned with the applicant’s new claim made to the Tribunal to feel threatened on the basis of his religion. As noted above, he told the Tribunal that he felt threatened in relation to his religion because he is a Christian. The Tribunal asked why and he said that he went to a church in Bekasi and it was burnt down in 2009. The Tribunal put to him that this had not been mentioned in his protection visa application form, and, given that this was his second time in lodging a protection visa application, it would think that he would be aware that he should mention any past harm suffered. Further, the Tribunal noted, that as set out the delegate’s decision record, at the interview [in] July 2015, he had claimed that since 2001 he had no problems in relation to Christianity in Indonesia.

11. The applicant then changed his evidence and said he had not gone to the church, but it was in his area. The Tribunal noted that he had told the delegate that he had no fears of harm based on Christianity, and that his current protection visa application form only related to fears in relation to the company.

12. The Tribunal is concerned by the applicant’s changing evidence, and considers that, if he had genuine fear of harm in relation to his religion, he would have mentioned this in his protection visa application form, and he would not have told the delegate at interview that since 2001 he had no problems in relation to Christianity in Indonesia. The Tribunal considers that this undermines his claims concerning any fear arising from a church burning in 2009, or in relation to any circumstances occurring before the interview [in] July 2015.

13. For the reasons set out in the above paragraphs, the Tribunal does not consider the applicant and second applicant to be credible witnesses.

    Other matters

14. The Tribunal does not consider that the information in the 2010 offshore visa application documents adversely affects the credibility of the third applicant, noting that he was [age] at the time. The Tribunal does not consider that any of the above adversely affects the third applicant’s credibility (although it was concerned with his claim not to speak Indonesian when he had chosen to do so for the hearing).

15. Whilst the adult applicants gave some consistent evidence, the Tribunal does not accept that this can overcome the difficulties with their evidence.  Further, whilst the Tribunal accepts that they could have been nervous in giving their evidence, the Tribunal is not satisfied that this can explain the difficulties with their evidence.

    Corroborative evidence

16. The applicant said that, a few months ago, the second applicant was sent photos and videos of things happening in Indonesia, but he is not sure as to whether she kept them. The second applicant however did not make any suggestions that she had any corroborative evidence, nor did she produce anything to the Tribunal. The Tribunal notes that the applicants were informed on numerous occasions that they should produce to the Tribunal anything in support of their claims before a decision is made on the application for review: the application for review form lodged 3 September 2015, the Tribunal’s acknowledgement letter dated 7 September 2015, the hearing invitation dated 10 May 2017 (requesting that all documents, submissions and evidence upon which the applicants seek to rely be provided to the Tribunal by 1 June 2017)[13]. The Tribunal also notes that they did produce some documents at hearing. Further, the applicants produced to the Tribunal the delegate’s decision record which commented on the applicant failing to produce supporting documents despite his claim in his protection visa application form that he would do so. The applicants also were provided with time after the hearing, in which they could have produced any further documents in this regard; they did not do so. The Tribunal is not satisfied that the applicants had supporting evidence to provide to the Tribunal other than that which was provided.

    [13] TF1, 36

    Credibility summary  

17. Considered cumulatively, the concerns the Tribunal holds about the applicant’s and second applicant’s credibility, as discussed above, lead the Tribunal to conclude that they are not witnesses of truth and that they have a history of exaggerating and fabricating accounts of events in order to obtain visa outcomes, and that they have made up their claimed fears upon which they have based their protection claims.

    Findings on the applicant’s claims

    Claims of past harm and reasons for coming to Australia

18. On the basis of the adverse credibility finding, the Tribunal does not accept that the adult applicants are credible witnesses. The Tribunal does not accept that the applicants or their family members have been adversely affected in the past because of economic crises, riots, corruption or religion or ethnicity.

19. The Tribunal does not accept that when they lodged their first protection visa applications in 1999/2000, they did so for genuine reasons; instead, it finds that they did not have any fear of harm (and they had not experienced harm), but that they were hoping to travel to Australia and claim protection in order to obtain a visa outcome of remaining indefinitely in Australia. The Tribunal finds that when they returned home in 2001, and until they returned to Australia in 2010, they did not suffer any harm.

20. In particular, the Tribunal does not accept that there was any loss of money to anyone (including the second applicant’s [clients] or the applicant’s mother); it does not accept that any clients or [Senior Employee 1] or owner/director considered that the applicants were in any way responsible for or owed money to anyone nor does it accept that they considered themselves responsible for and owing money to anyone nor that they offered to pay any losses; it does not accept that there were threats of harm, by way of phone calls or SMS, and it does not accept that they had any reason relating to a fear of harm to leave Indonesia in 2010 other than because they wanted to come to live in Australia.

21. The Tribunal finds that, in making the 2010 offshore student visa applications, the applicant and second applicant misled the Australian authorities by failing to disclose their past visits to Australia including their failed protection visa applications. When this was put to them pursuant to s.424A of the Act, they did not deny this. The Tribunal considers that they did not have any fear of harm in 2010, nor have they had any genuine fear that they face a chance or risk of harm in Indonesia since that time. The Tribunal considers that they are prepared to make up claims in order to obtain a visa outcome, namely to remain in Australia.

22. On the basis of the adverse credibility findings, the Tribunal does not accept that the applicants faced any harm or felt any fear or received any threats when they returned to Indonesia in June 2014 for their daughter’s wedding. The Tribunal finds that they made up such claims to support a protection visa. The Tribunal does not accept any of the claims of past harm made by the applicants. It does not accept that the applicants have ever faced harm or been fearful in Indonesia. The Tribunal rejects all such claims and all claims flowing from these claims.

    Returning to Indonesia – future fears

23. The Tribunal has not accepted the claims of past harm or threats and has found that the applicants have not experienced past harm or threats when residing in Indonesia (before 200/2001 and from 2001 to 2010 and in 2014). The Tribunal is not satisfied that the applicants experienced corruption nor that they have any genuine fear of experiencing corruption in the future. The applicants have managed to work, buy a home, raise children, afford to come to Australia on two separate occasions with children, including accumulating funds for a student visa in 2010. The Tribunal is not satisfied that the applicants have been adversely affected for any reason in the past in Indonesia, including after their first return after having failed in their separate first protection visa applications. The Tribunal also notes that, after their travel to Australia in 2010, they were prepared to return, and did return, to Indonesia in June 2014 for the marriage of their daughter. The applicants did not provide any country information to the Tribunal which would support that they face a real chance of serious harm or a real risk of significant harm for any reason. The Tribunal has considered the DFAT Report and country conditions, as put to the applicants at hearing.

    The financial position/work of the applicants

1. The Tribunal did not consider that the adult applicants had been truthful about their financial position back in Indonesia and it is not prepared to accept the claim that they sold all of their assets to come to Australia. It considers that they are resourceful and will continue to be resourceful in Indonesia. Both the applicant and the second applicant said that they had always been working in Australia, and they both said they had held professional jobs in Indonesia ([details of occupations held]). Although the Tribunal does not consider that the applicant has been honest about his past work, it accepts that he has been working in Indonesia, and that he has significant work experience. The Tribunal considered that they both have significant work experience, and that they would be able to return to Indonesia and obtain work again. It has taken into account the applicant’s claim at interview, namely that his age would prevent him from getting a job. Although he did not make such a claim before the Tribunal, the Tribunal raised this with him at the hearing. It put to him that, having regard to his resourcefulness and his experience (claimed to be in a variety of fields), it did not appear that his age would adversely affect him such that he faced a real chance of serious harm or risk of significant harm. The Tribunal is also not satisfied on the evidence before it that the applicant not holding a Master’s Degree, and only holding a Bachelor’s Degree, will lead to him suffering a real chance of serious harm or a real risk of significant harm. The Tribunal is not satisfied that there is a real chance or a real risk that the applicants will not be able to find work again leading to serious harm or significant harm or an inability to support themselves and the third applicant (who, as their dependent in Australia, they are supporting here).

   Christianity/Chinese ethnicity/ the second applicant’s claim not to feel safe and to have general concerns for the safety of her adult children

2. The Tribunal is prepared to accept that the applicants are Christians, and that the second applicant and third applicants are of Chinese ethnicity. The Tribunal has found that the applicants have not suffered any harm or fear of harm in the past, and it does not accept that they have any genuine fear of harm on the basis of ethnicity, religion, or their relationship, in the reasonably foreseeable future. The Tribunal notes that the other child of the family (now an adult who is married) remains in Jakarta, and it has not been suggested that she has faced serious or significant harm on the basis of her religion or ethnicity. The Tribunal had concerns about the adult applicants’ credibility concerning where they lived in Indonesia. Their protection visa application forms referred to living in Jakarta, and the Tribunal finds that they will return to Jakarta and live in a residence there.

3. The Tribunal notes the second applicant’s claim that she felt worried about worshipping as a Christian in Indonesia between 2001 and 2010. The Tribunal was concerned because not only was this not a claim made in her current protection visa application form, in her  evidence to the delegate at interview, she said that she was not making any claims of her own, instead she is relying upon her husband’s claims[14]. The Tribunal put to the second applicant that she had had plenty of opportunity to make specific claims of past harm or future harm on the basis of her religion. In response she said that she had not understood. The Tribunal is not persuaded by her explanation, given it is her second protection visa application and the opportunities she has had to present specific claims.  On the basis of the adverse credibility finding and the lack of reference to this earlier, the Tribunal does not accept that the second applicant felt worried about worshipping as a Christian in Indonesia between 2001 and 2010 as claimed at hearing. Similarly, the Tribunal was concerned with the applicant’s changing evidence about whether or not he was in a church which had been attacked; the Tribunal does not accept this claim.

   [14] See delegate’s decision record.

4. In her evidence at hearing, the second applicant said that she has concerns generally about the situation for her children in Indonesia, more than for herself and her husband, as the children have a longer future. The Tribunal is not persuaded that there is evidence that the third applicant faces a real chance of serious harm or a real risk of significant harm for any reason. Further, although the adult daughter is not an applicant before the Tribunal, there is no suggestion that she has faced or does face a real chance of serious harm or a real risk of significant harm in Indonesia.

5. Similarly, the second applicant told the Tribunal that when asked about any difficulties in Indonesia between 2001 and 2010, she said that she didn’t feel safe when she was walking. The Tribunal put to her that if this was the case, it would have expected this to be in the protection visa application form. She said that she had a feeling of fear. She has not explained why did not mention this in the protection visa application form (nor in her evidence to the delegate at interview that this time she is not making any claims of her own, instead she is relying upon her husband’s claims[15]); the Tribunal is not satisfied that this is a genuine fear.

   [15] See delegate’s decision record.

6. The Tribunal does not find the adult applicants’ claims of future feared harm to be credible; it has found that they are prepared to make any claim in order to remain in Australia. The Tribunal has however carefully considered the contents of the DFAT Report in order to assess whether the applicants face a real chance or a real risk of harm because of their profiles. The Tribunal notes the applicant’s assertion that Indonesia is racist and there is a lot of brainwashing, and the second applicant’s claim that she was worried about the 1998 riots repeating and worshipping. The DFAT report notes that Christians make up approximately 10% of the 253 million people in Indonesia (paragraphs 2.7, 2.9), and it refers to occasional incidents of low level societal discrimination against Chinese Indonesians, and that Christians are at low risk of official discrimination and violence and, although there have been increasing acts of religious intolerance, they are usually able to practice their faith without interference owing to their officially recognised status. It also notes that there is violence and crime in Indonesia, and that some women are able to achieve less than men (although the second applicant is educated and experienced professionally). The Tribunal  has found that in the past the applicants have not faced serious or significant harm for any reason. The Tribunal put to the applicants at hearing that it did not appear that the country conditions (in the DFAT Report) indicated that they faced a real chance of serious harm or a real risk of significant harm for any reason. They were each offered an opportunity to comment on this and they chose not to do so. Taking into account the country information as referred to in the DFAT Report, as well as the findings relating to these particular applicants (as to their age, that they are educated and experienced and resourceful, they will return to Jakarta and reside there and attend church again), the Tribunal is not satisfied that any of the applicants face a situation which amounts to a real chance of serious harm or a real risk of significant harm for reason of the security situation generally, their gender, age, religion, ethnicity, employment conditions, finances, or any other reason.

   The third applicant

7. The applicant, in response to information put him pursuant to s.424AA of the Act, said that his son cannot speak academic Indonesian and can't write and so he wanted to go to school here. The third applicant however did not wish to make his own comment in this regard and the Tribunal does not give the applicant’s claims about his son’s ability much weight. The Tribunal did however consider the third applicant’s claim that he doesn’t understand some words in Indonesian. As discussed with the third applicant at hearing, the Tribunal does not consider that his claimed inability to know all words in Indonesian means that he faces a real chance of serious harm or real risk of significant harm in Indonesia.

8. The Tribunal is not satisfied on the evidence before it that the applicants suffered, or face a real chance of suffering in the reasonably foreseeable future, harm in the form of adverse interest from anyone or any organisation or authority or being targeted on the basis of religion, ethnicity, gender, age, general violence or crime, discrimination, harassment or persecution. It does not accept that anyone will seek money from them or that they will be unable to return and obtain work again (like the adult applicants did the last time they returned, and noting that the third applicant is educated and has work experience in Australia, and will be residing with his parents). It does not accept that they face a real chance of serious harm on the basis of their age, gender, ethnicity, religion, relationship to each other, education, or knowledge of Indonesian language.

9. The Tribunal has considered the applicants’ claims individually, and on a cumulative basis, having regard to the findings that the adult applicants are not credible witnesses concerning past or future harm feared, as well as the relevant country information, other than those claims accepted above, the Tribunal rejects all the various claims made and finds that they do not have a well-founded fear of persecution for any of the reasons put forward by them, or on their behalf.

   Complementary protection

10. Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa) (see Annexure A, which provides a summary of the relevant terms).

11. The Tribunal has accepted that the applicants are a married couple with an adult son who has completed his education in Australia and has been working. The applicants are Christians, and the second and third applicants are of Chinese ethnicity. They are a family returning to Indonesia, a place where the adult daughter lives, and to where they have previously returned after spending time in Australia. The Tribunal does not accept that they will have financial difficulties or that they will not be able to work.  It does not accept that they have experienced significant harm, nor that they have been targeted, in the past, for any reason. The Tribunal is not satisfied, on the findings made and having regard to the country information before it, that there is a real risk that they will be targeted in the future for reason of their profile including their age, ethnicity, religion, gender, family relationship. The Tribunal does not accept that they have experienced any of the past harm claimed. It has not accepted that the applicants fled Indonesia in fear nor that anyone, any group or the authorities has ever shown any adverse interest in them. The Tribunal has found that the adult applicants have been prepared to make up claims of persecution and feared harm in order to attempt to remain permanently in Australia for the second time.

12. While accepting that there are violent incidents in Indonesia, and crime, including sometimes towards Christians and/ or ethnic Chinese, the Tribunal is not satisfied that there is a real risk of significant harm for these particular applicants in the form of harassment or discrimination or violence on the basis of their religion or ethnicity or family relationship or age or gender or for any other reason.

13. The Tribunal is not satisfied that any of the factors contributing to the applicants’ profile, including their religion, ethnicity, age, or gender, having regard to the country information, whether individually or cumulatively, support a finding that there is a real risk of significant harm for the applicants. The Tribunal considers they will return to reside in their home area (Jakarta), and they will continue to practice their religion and find jobs.

14. On the evidence before it, and for the reasons discussed above, and having considered the claims singularly and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to a receiving country, namely Indonesia, that there is a real risk they will suffer significant harm. Accordingly, the Tribunal finds that the applicants do not satisfy the requirements of s.36(2)(aa) of the Act.

15. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.

16. 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 ss.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

17. The Tribunal affirms the decision not to grant the applicants protection visas.

    Christine Cody
    Member

    
    

    ANNEXURE A - CRITERIA FOR A PROTECTION VISA

18. 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.

19. 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.

20. 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).

21. 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. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted below.

22. 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), which are extracted below.

    Membership of family unit

23. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in the Regulations to include dependent child over the age of 18 years in certain circumstances: in relation to an application for a protection visa, a person (the first person) is dependent on another person, if the first person is wholly or substantially reliant on the other person for financial, psychological or physical support.

    Mandatory considerations

24. 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 expressly for protection status determination purposes (DFAT Report on Indonesia, 9 June 2015), to the extent that they are relevant to the decision under consideration.

    Extract from Migration Act 1958

    5 (1) Interpretation
    …
    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)that is not inconsistent with Article 7 of the Covenant; or

    (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)that is not inconsistent with Article 7 of the Covenant; or

    (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)for the purpose of intimidating or coercing the person or a third person; or

    (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    receiving country,  in relation to a non-citizen, means:

    (a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5J Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)   the real chance of persecution relates to all areas of a receiving country.

    Note: For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note: For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)   conceal an innate or immutable characteristic of the person; or

    (c)   without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)   the persecution must involve serious harm to the person; and

    (c)   the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)   a threat to the person’s life or liberty;

    (b)   significant physical harassment of the person;

    (c)   significant physical ill‑treatment of the person;

    (d)   significant economic hardship that threatens the person’s capacity to subsist;

    (e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K  Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)   disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L  Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)   a characteristic is shared by each member of the group; and

    (b)   the person shares, or is perceived as sharing, the characteristic; and

    (c)   any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)   the characteristic is not a fear of persecution.

    5LA  Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)   protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)   the person can access the protection; and

    (b)   the protection is durable; and

    (c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (2A)A non‑citizen will suffer significant harm if:

    (a)   the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)   the death penalty will be carried out on the non‑citizen; or

    (c)   the non‑citizen will be subjected to torture; or

    (d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)   the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …

    ANNEXURE B – NON- DISCLOSURE CERTIFICATES

1. There are a number Certificates on the files before the Tribunal

2. The Tribunal notes that there were s.438(1) certificates placed on the Departmental files by the Department. It is appropriate to address the validity of the s 438(1) certificates, which require that the reason specified in the certificate for why disclosing matters contained in a document or information would be contrary to the public interest must be capable of forming “the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence”. The only reason stated in each of the certificates is that the folios “… contain information relating to an internal working document and business affairs”.  That is neither a necessary nor a sufficient basis for public interest immunity.  At best, it is only a reason that could form part of the basis for a claim, not the basis, and does not communicate to the Tribunal any reason which meets the description in s.438(1). Since the certificates are not valid they do not trigger the operation of ss. 438(3)(a) and 438(3)(b) in relation to how the documents or information can be dealt with and the Tribunal has proceeded to treat the documents in the usual way as if there was no certificate.

   [File 1] – current Departmental protection visa application file

3. The certificate on Departmental file for the current protection visa application covers folios 45, 74-76, 100-103, 91. Some of the documents are administrative documents which the Tribunal considers to be not relevant. Folios 74-76 are a report from the Asian Human Rights Commission: A Critical Review on Witness Protection Law dated 11 July 2007, which the Tribunal does not consider to be relevant. Folio 103 is a transcript relating to the second applicant [details of study]. Folio 102-101 information about family members of the applicants provided in earlier proceedings. This was relevant to an issue raised by the delegate at interview (whether or not the applicants name was also [Name 1] or whether the second applicant had been involved with another person), but which appears to have been resolved by the delegate at interview, and is not an issue before the Tribunal.

   [File 2] – Departmental file relating to the applicant’s first protection visa application

4. The certificate is placed on folios 23, 34-35, 50 – 53. Most of the documents are administrative documents which the Tribunal considers not to be relevant. The other documents are movement records relating to the applicant  (the details of which have been referred to in the delegate’s decision record provided to the Tribunal by the applicants).

   [File 3] Departmental file for second applicant’s first protection visa application

5. The certificate is placed on folios 29-30, 53-54, 62-65. Most of the documents are administrative documents which the Tribunal considers not to be relevant. The other documents are movement records relating to the second applicant  (the details of which have been referred to in the delegate’s decision record provided to the Tribunal by the applicants).

   ANNEXURE C

   The DFAT Report

   The DFAT Report, published on 9 June 2015, notes the improvement in the current experiences of ethnic Chinese Indonesians.

   In summary, DFAT assesses, that “Chinese Indonesians are at low risk of official discrimination although memories of the 1998 crisis have resulted in continued anxiety amongst some members of the Chinese community. Persistent historical bias against Chinese Indonesians may amount to occasional cases of prejudice resulting in a low level of societal discrimination.”

   Christians: While some instances of forced closures of churches have been reported in areas where “hard-line Muslim organisations are influential” as well as disruption of some church services and obstruction of parishioners attending services, DFAT concludes with an assessment that “Christians in Indonesia are generally at a low risk of official discrimination and violence and are generally able to practice their faith without interference owing to their officially recognised status”. That said, DFAT observes that incidents of religious intolerance appear to be on the rise in Indonesia and members of Christian minorities can face a higher risk of societal discrimination and violence in regions where hard-line Muslim organisations are influential. DFAT assesses such incidents occur relatively infrequently in Indonesia. While acts of religious intolerance rose in part as a result of former President Yudhoyono’s failure to act decisively in response to attacks on minorities and the subsequent emergence of a culture of impunity, DFAT assesses that this situation could change depending on how President Widodo responds to such incidents when they occur.”[16]

   [16] Ibid, para 3.48.

   Corruption: 2.37 Indonesia ranks 107th out of 175 countries and territories on Transparency International's 2014 Corruption Perceptions Index. A 2013 poll by Transparency International Indonesia found the DPR to be the third least trusted public body in Indonesia (behind the police and political parties). DPR members tend to be highly educated, with significant business interests. According to Indonesia Corruption Watch (ICW), 48 DPR members have concerning links to corruption cases, including some key DPR office holders. ..

   5.8 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.

   5.14 Although it is too early to assess any progress in judicial reform made by the new government, President Widodo’s campaign manifesto included a 42-point plan for law and justice reform. DFAT assesses that, broadly speaking, while public confidence in the judiciary is higher than for the police or prosecution, it is still regarded with suspicion and very few people voluntarily resolve disputes through courts. Corruption, inefficiencies, and a lack of access to justice remain ongoing challenges. Broadly speaking, cases that are appealed to the Supreme Court usually result in generally just outcomes with lower level courts slowly heading in a similar direction.

   Employment: 2.27 The World Bank reports that Indonesia's unemployment rate was 6.3 per cent in 2013. Youth unemployment has fallen in recent years, from 25 per cent in 2007 to 17.1 per cent in the first quarter of 2014.

   Security Situation: 2.40 Petty crime, such as opportunistic theft, is common in Indonesia and violence is sometimes used. Despite police efforts, the threat of terrorist attacks in Indonesia remains high, though the scale of attacks now tends to be smaller. The last large-scale terrorist attack in Indonesia occurred in 2009. Tourist areas, Western interests, central business areas, and symbols associated with the Indonesian Government and police remain potential targets. Indonesia had an intentional homicide count of 1,456 per 100,000 population in 2012, far lower than a number of other countries in the Southeast Asian region.

   Women: 3.86 Women in Indonesia lag behind men in key development indicators. According to UNDP, 39.9 per cent of adult women reach at least a secondary level of education compared to 49.2 per cent of adult males. According to UNDP, female participation in the labour market is 51.3 per cent compared to 84.4 for men. The majority of Indonesia’s migrant workers are female. Trafficking and the forced labour of women (and children) remains a concern. For every 100,000 live births, 220 women die from pregnancy related causes; and the adolescent birth rate is 48.3 births per 1,000 live births.
   3.87 A 2008 law states that 30 per cent of a political party's candidates and board members must be women. Despite this, women hold only 17 per cent (97) of the seats in the current DPR. According to a survey undertaken by the Asia Foundation and funded by the Australia Indonesia Electoral Support Program (AIEP), 57.9 per cent of respondents from six provinces of Indonesia (Aceh, Jakarta, East Java, East Kalimantan, East Nusa Tenggara and South Sulawesi) indicated they would prefer to vote for male candidates. A recent survey by the Indonesian Survey Circle showed that 61 per cent of Indonesians would accept a female President (as they have in the past when Megawati Soekarnoputri served as President from 2001 - 2004). Indonesia has a Minister for Women's Empowerment and Child Protection with the position currently held by Dr Yohana Susana Yembise. Yembise is the only Papuan in President Widodo’s cabinet and the first ever female cabinet minister from Papua.