1512604 (Refugee)

[2016] AATA 3548

1512604 (Refugee) [2016] AATA 3548 (4 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1512604

COUNTRY OF REFERENCE:                  Indonesia

MEMBER:Linda Symons

DATE:4 March 2016

PLACE OF DECISION:  Sydney

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

Statement made on 04 March 2016 at 4:37pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Indonesia, first arrived in Australia [in] August 2006 as the holder of a [temporary] visa. She travelled to Australia on an Indonesian passport issued in the name of [Alias A]. [In] September 2006, she applied to the Department of Immigration and Border Protection (the Department) for a Protection visa and was granted a Bridging visa [in] September 2006. Her application for a Protection visa was refused by the Department [in] October 2006 and she applied to the Refugee Review Tribunal (RRT) (as it was then called) for a review of that decision. On 11 January 2007, the RRT (differently constituted) affirmed the decision made by the Department.

3. [In] February 2007, the applicant lodged a request for Ministerial intervention. [In] June 2007, the Minister decided not to exercise his discretion in the applicant’s case. The applicant’s Bridging visa expired [in] February 2007. She thereafter remained in Australia as an unlawful non-citizen. On [a date in] 2012, she renewed her Indonesian passport in the name of [Alias A] in Australia.  [In] February 2012, she was deported from Australia.

4. The applicant arrived in Australia again [in] October 2013 as the holder of a [temporary] visa. She travelled to Australia on an Indonesian passport issued in the name of [applicant’s name]. She did not inform the Department of her previous identity which was subsequently discovered through a fingerprint match. [In] October 2013, she applied for another Protection visa and was issued with an associated Bridging visa [in] October 2013. [In] April 2014, the Department refused her application.

5. On 26 May 2014, the applicant lodged an application for review with the RRT. The RRT invited the applicant to appear before it on 31 January 2015 to give evidence and present arguments relating to the issues arising in her case. Neither the applicant nor her migration agent attended the hearing nor did they seek a postponement of the hearing. The Tribunal was not satisfied on the limited evidence before it that the applicant met the requirements of s.36(2)(aa) of the Act and affirmed the decision of the Department on this basis.    

6. [In] May 2015, the applicant lodged an application for judicial review with the Federal Circuit Court. [In] September 2015, the Federal Circuit Court remitted the application to the Tribunal on the basis that the applicant’s claims had not been considered under s.36(2)(a) of the Act.

7. The applicant appeared before the Tribunal on 4 March 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   RELEVANT LAW

8. The criteria for a Protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a Protection visa of the same class.

   Refugee criterion

9. Section 36(2)(a) provides that a criterion for a Protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

   Complementary protection criterion

10. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

    Section 499 Ministerial Direction

11. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

    Claims made to the Department

    First application for a Protection visa

12. The applicant's claims in her first application for a Protection visa lodged [in] September 2006 are summarised as follows:

    ·She was born [in] Indonesia on [date] and is an Indonesian citizen. She is a Buddhist and is of Chinese ethnicity. She has [number] years of schooling from [year] to [year] in Kalimantan. 

    ·She was married [in] 1988 and widowed [in] 2006. She did not provide any other details of her family. Her occupation was home duties. She had never been employed.

    ·Her husband worked as [an occupation] for a company. [On a date in] June 2006, his employer asked him to travel to [another province] for work. On the following day, his mobile telephone was disconnected and he went missing. She was unable to obtain further news of him and reported this matter to the Police.

    ·[A few days later], the Police asked her to identify her husband's body. He has been killed by an unknown assassin. After her husband's funeral, "the group member (unknown assassin) still run to me to made trouble. Their snapping at my frightens heart". (sic) She arranged for a visa to travel to Australia and came here to seek protection.

    Second application for a Protection visa

13. The applicant's claims in her second application for a Protection visa lodged [in] October 2013 are summarised as follows:

    ·She was born in [her home town] in Indonesia on [another date] and is an Indonesian citizen. She is a Christian and is of Chinese ethnicity. She had [lesser number] years of schooling from [year] to [year]. 

    ·She is separated from her husband. She did not provide the date of separation. She did not provide any other details of her family.

    ·Her occupation was [occupation]. She was employed from 1975 to 1998 initially as an apprentice and then as [an occupation]. Between 1998 and January 2003 she was unemployed. From January 2003 and October 2013 she was a small business owner.

    ·She has travelled to [Country 1] and [country]. She did not disclose that she had previously travelled to Australia.

    ·She worked as [an occupation] after graduating from [School]. She met and married her husband. He started treating her badly after they got married. She talked to him several times about divorce but he shouted at her and beat her on each occasion.

    ·In 2013, she wanted to divorce her husband but he beat her and threatened to kill her if she left home without his permission. She was scared, called the Police who went to her house and questioned them. Her husband pretended they had a small argument. The Police left without doing anything. After the Police left, her husband was angry. He tied her hands behind her back and left her in the house for 2 days. She found a knife to cut the rope. She took her passport and other documents and went to a friend's home. She stayed there and applied for a visa to travel to Australia. She believes her husband will harm, hurt or kill her if she returns to Indonesia.

    ·She came to Australia to avoid harm from her husband. She fears harm from her husband, his friend and some Police officers.  

14. The applicant attended an interview with the Department [in] April 2014.

15. During her first visit to Australia, the applicant renewed her Indonesian passport in the name of [Alias A] at the Indonesian Embassy in Australia [in] 2012. The applicant's Indonesian passport in the name of [applicant’s name] was sent to the Department's Document Examination Unit which indicated that it is a legitimately manufactured document and is personalised in the expected manner with no alterations.

16. The applicant has not provided the Tribunal with any further evidence.

    Applicant’s identity and nationality

17. The applicant travelled to Australia in 2006 on an Indonesian passport in the name of [Alias A]. She lodged an application for a Protection visa in that name. She renewed that passport at the Indonesian Embassy in Australia [in] 2012. She was deported from Australia [in] February 2012. She returned to Australia [in] October 2013 on an Indonesian passport in the name of [applicant’s name]. She lodged another application for a Protection visa in that name. She did not declare her previous identity in her second application for a Protection visa. Her previous identity was discovered by the Department through a finger print match. Her current passport was examined by the Department’s Document Examination Unit and found to be a legitimately manufactured document, personalised in the expected manner, with no alterations.

18. During her interview with the Department [in] April 2014, the applicant stated that her Indonesian name is [Alias A]. She confirmed this in the hearing before the Tribunal. In view of the fact that her previous passport in the name of [Alias A] was renewed by the Indonesian Embassy in Australia [in] 2012 and her current passport in the name of [applicant’s name] was found to be genuine, the Tribunal is satisfied that the applicant is known by both names in Indonesia.

19. In the absence of any evidence to the contrary and for the purpose of this decision, the Tribunal accepts that the applicant’s name is [applicant’s name] and that she is also known as [Alias A] and finds accordingly.  The Tribunal accepts that the applicant is a national of Indonesia and will assess her claims against Indonesia.

20. The Tribunal finds that the applicant is a citizen of Indonesia and that she is outside her country of nationality. There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than her country of nationality.

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

21. During the hearing, the Tribunal discussed with the applicant her background, her family, her relationship with her husband, where she lived and worked in Indonesia, her reasons for leaving Indonesia and why she fears returning to Indonesia. The Tribunal found her to be evasive, contradictory and unconvincing. There were a number of inconsistencies and contradictions between her written and oral evidence and within her oral evidence to the Tribunal. The Tribunal has serious concerns in relation to the applicant’s credibility and the veracity of her claims for the following reasons.

22. During the hearing, the Tribunal asked the applicant where she lived and worked in Indonesia. She stated that she moved from her family home in the “country side” in [her home town] to Jakarta in [year range]. She stated that she worked in [an] industry in Jakarta for several years. She stated that after the riots in Jakarta in 1999 she returned to her family home in [her home town] and lived there until 2003. She stated that she returned to Jakarta in 2003 and lived there for about [number] years. This is not consistent with the records of the Department which indicate that she lived in Australia from [August] 2006 to [February] 2012. (This information was put to the applicant pursuant to s.424AA of the Act as referred to in paragraph 24 below). When the Tribunal raised this as an issue with her, she responded that she had nothing to say but requested that the Tribunal give her a visa because she did not wish to return to Indonesia.

23. The records of the Department indicate that the applicant travelled to Australia on a [temporary] visa [in] August 2006 using an Indonesian passport in the name of [Alias A]. She applied for a Protection visa in that name and that application was refused by the Department and the RRT. She renewed her passport in the name of [Alias A] [in] 2012 and was then deported from Australia to Indonesia [in] February 2012. She returned to Australia [in] October 2013 on a [temporary] visa using an Indonesian passport in the name of [applicant’s name]. She lodged a second application for a Protection visa in that name. She did not disclose her other name in her second application for a Protection visa or that she had applied for a Protection visa previously.

24. The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, that this tended to indicate that she had deliberately tried to deceive the Department and that it raised concerns in relation to her credibility and the veracity of her claims. She responded that she was afraid that she would be deported and did not dare tell the Department that she had used her Indonesian name.

25. The applicant was interviewed by the Department [in] April 2014 in relation to her second application for a Protection visa. During that interview, she stated that she had been to Australia before, a very long time ago and stayed less than one year. This is not consistent with the records of the Department referred to in paragraph 23 above. The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, that it indicated that she was not truthful to the Department and that it raised concerns in relation to her credibility and the veracity of her claims. She responded that she cannot remember. She stated that she was asked a lot of questions and has forgotten all about it.

26. The Tribunal asked the applicant whether she had lodged an application for a Protection visa prior to her current application for a Protection visa and she answered yes. However, she subsequently stated that she told a friend that she wanted a work permit and wanted to pay tax and he prepared a visa application for her. She stated that she does not know what kind of visa application it was or what was in the application. When the Tribunal reminded her of her earlier evidence that she had lodged an application for a Protection visa previously, she responded that she does not know much.

27. In view of the applicant’s evidence that she was not aware of what was in her first application for a Protection visa, the Tribunal asked her what her reason/s was for coming to Australia in 2006. She responded that she wanted to come over here and have a look. She then made a new claim that someone in Indonesia was demanding money from her every week and that she came to Australia to escape from that. She stated that she did not report this person to the Police because she was afraid to do so. When asked whether she met this person again after she returned to Indonesia in 2012, she answered no.

28. The applicant did not make this claim previously despite having the opportunity to do so. The Tribunal is of the view that if the applicant came to Australia on a temporary visa to escape harm from this person and if she feared returning to Indonesia for this reason, she would have obtained some immigration advice on her options for remaining in Australia permanently and made this claim in her first application for a Protection visa. Her evidence to the Tribunal is that she did not seek immigration advice on her previous trip to Australia. This raises concerns in relation to the veracity of this claim.

29. In any event, when the Tribunal asked the applicant what she feared would happen if she returned to Indonesia, she did not raise any concerns about this person who she claims was demanding money from her every week. In view of this and her evidence that she had no contact with this person when she returned to Indonesia in 2012, the Tribunal is satisfied that she has no fear of returning to Indonesia for this reason.  

30. Towards the beginning of the hearing, the Tribunal asked the applicant what family she had in Indonesia. She responded that she had [siblings]. She made no mention of a husband or children. She subsequently stated that she has [adult] children who are married and have their own children. When asked why she did not say this earlier when asked about her family in Indonesia, she responded that she has not seen or had any contact with them for a very long time. When asked about her husband, she stated that they got married in 1987 but are no longer married. She stated that they separated a long time ago. When asked if she could be more specific, she stated that it was several years ago. She then stated that it was 2 or 3 years ago.

31. The applicant was interviewed by the Department [in] April 2014 in relation to her second application for a Protection visa. During that interview, she stated that she separated from her husband a “long time ago, many years, 6 or 7 years”. The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and noted that the inconsistencies in her evidence raised concerns in relation to her credibility and the veracity of her claims. She responded that the last time she was in Australia she was here for over 5 years and that is why she stated that she separated over 5 years ago.

32. When asked whether she has divorced her husband, the applicant responded “not yet”. When asked why she had not divorced her husband, she responded that she has not gone back to sign the papers. When the Tribunal noted that she returned to Indonesia in 2012 and asked her why she had not divorced him if he was beating her, she responded that he refused to sign the papers and in Indonesia you need the signature of both parties to get divorced. This is not consistent with the country information which indicates that divorce proceedings can be initiated by either the husband or the wife.[1] When the Tribunal put this information to the applicant, she responded that she did initiate divorce proceedings but her husband refused to sign the papers and she was about to return to Australia. These inconsistencies within the applicant’s evidence and between her evidence and the country information raise concerns in relation to the credibility of her claims.  

    [1] How to Divorce in Indonesia, Simbolon & Partners. HG.org Legal Resources. (>

    At various times the applicant has claimed to the Department that she is single, separated, divorced and widowed. The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and noted that these inconsistencies in her evidence raised concerns in relation to her credibility and the veracity of her claims. She responded that she was previously deported from Australia and was afraid it would happen again.

1. The applicant gave evidence that she instructed a migration agent in relation to her second application for a Protection visa. She stated that her migration agent prepared her second application for a Protection visa on her instructions. She stated that her instructions were true and correct and that she was satisfied that her second application for a Protection visa is accurate. She stated that she did not wish to make any changes to her second application for a Protection visa. In her second application for a Protection visa, she claimed that her husband started treating her badly after they got married.  (She gave evidence to the Tribunal that they got married in 1987). She claimed in her second application for a Protection visa that she talked to him several times about divorce but he shouted at her and beat her on each occasion. She claimed that in 2013 she wanted to divorce her husband but he beat her and threatened to kill her if she left home without his permission. She claimed that she called the Police who went to her house and questioned them but then left without doing anything. She claimed that she came to Australia to avoid harm from her husband and  fears harm from him, his friend and some Police officers if she returns to Indonesia.

2. During the hearing, the Tribunal asked the applicant when her husband was first violent towards her. She responded that it was not long after she returned to Indonesia in 2012. When asked whether she reported him to the Police when he beat her, she responded no. When asked what she thought would happen if she returned to Indonesia, she responded that she did not know. She stated that her husband would keep asking about her. This evidence is not consistent with her written claims. These inconsistencies in her evidence raise concerns in relation to her credibility and the veracity of her claims.

3. The applicant gave evidence to the Tribunal that she did not seek any legal advice in Indonesia. When asked why she did not do so, she responded that she did not know how to do that. When the Tribunal stated that it had difficulty accepting that, in light of her ability to find a migration agent in Australia, obtain immigration advice and instruct him to lodge an application for a Protection visa on her behalf despite not speaking English, she responded that she did not think about it. The Tribunal is of the view that if the applicant’s husband started treating her badly after they got married and they are not already divorced, she would have thought about seeking legal advice and divorcing him when she returned to Indonesia in 2012 if not before that. Her failure to do so raises further concerns about her credibility and the veracity of her claims.   

4. The Tribunal asked the applicant whether she had travelled to any other countries besides Indonesia and Australia. She responded that she had not. She provided the Tribunal with her passport which indicates that she travelled to [Country 1] in March 2013 on a [temporary] visa.    

   Findings

5. Having considered all the evidence, the Tribunal is of the view that the applicant is not a witness of truth and that she was manufacturing some of her evidence as she was giving it. The Tribunal is of the view that she fabricated her material claims and was prepared to say anything to obtain a Protection visa without any regard for the truth. The Tribunal finds that the applicant is not a credible witness.

6. The Tribunal accepts that the applicant got married in 1987 and has [adult] children who she has not had contact with for a very long time. The Tribunal accepts that the applicant separated from her husband but does not accept that they did so 2 or 3 years ago. The Tribunal does not accept that the applicant and her husband are not divorced and accordingly does not accept any of her evidence in relation to why she is not divorced.

7. The Tribunal finds that the entirety of the applicant’s material claims in her first application for a Protection visa lodged [in] September 2006 are fabricated and rejects them. The Tribunal does not accept that the applicant left Indonesia in 2006 and escaped to Australia because a man was demanding money from her every week and rejects this claim. 

8. The Tribunal finds that the applicant’s claims in relation to her husband, his friend and the Police in her second application for a Protection visa lodged [in] October 2013 are fabricated and rejects them.

9. In view of the above findings, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm for any of the reasons put forward by her if she returns to Indonesia now or in the reasonably foreseeable future.

10. Having considered all of the applicant’s claims, singularly and cumulatively, the Tribunal finds that there is no real chance that she would be at risk of persecution on the grounds of membership of a particular social group or any other Refugees Convention reason if she returns to Indonesia now or in the reasonably foreseeable future. The Tribunal finds that she does not have a well-founded fear of persecution for a Refugees Convention reason. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(a) of the Act.  

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

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

12. In view of the above findings, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia, there is a real risk that she will be arbitrarily deprived of her life, that the death penalty will be carried out on her, that she will be subjected to torture, that she will be subjected to cruel or inhuman treatment or punishment or that she will be subjected to degrading treatment or punishment as defined.

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

14. Accordingly, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.

CONCLUSION

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

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

   DECISION

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

   Linda Symons
   Member