1513572 (Refugee)

[2017] AATA 1527

1513572 (Refugee) [2017] AATA 1527 (26 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1513572

COUNTRY OF REFERENCE:                  Indonesia

MEMBER:Paul Millar

DATE:26 August 2017

PLACE OF DECISION:  Sydney

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

Statement made on 26 August 2017 at 11:53am

CATCHWORDS
Refugee – Protection visa – Indonesia – Religion – Christianity – Ethnicity – Chinese – Imputed political opinion – Anti-corruption activist – Police detention and beating – Fear of discrimination and violence – Credibility

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

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] August 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).  The applicant, who the Tribunal finds to be a citizen of Indonesia, applied for the visa [in] May 2015.[1]  The applicant appeared before the Tribunal on 3 August 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.  

   [1] The Tribunal's finding on citizenship is based on the applicant’s Indonesian passport which he produced at the Tribunal hearing.

   CRITERIA FOR A PROTECTION VISA

2. 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.

3. 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.

4. 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).

5. 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.

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

7. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration (‘the department’) – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.[2]

   [2] In this respect, the Tribunal has taken account of DFAT ‘Country Information Report Indonesia’ issued on 9 June 2015.  The Tribunal relies on this report to the extent that it is cited further below in this decision.

   FINDINGS

8. For the following reasons, the Tribunal concludes that the decision under review should be affirmed.  According to his evidence to the department and to the Tribunal, the applicant claims protection on the ground that people in Indonesia will harm him because of his participation in demonstrations in Jakarta, his Chinese ethnicity and his practice of Christianity.[3]

   Credibility Concerns

   Evidence about willingness to participate in a demonstration in January 2015

   [3] The applicant's evidence to the department and the Tribunal comprises the contents of his protection visa application forms and his evidence at the Tribunal hearing.  The applicant did not attend an interview with the delegate.

9. To the Tribunal, the applicant related the following account of events on which his protection claims are based. In this respect, from 2010 he undertook a [degree] at a university in Jakarta.  At the university he belonged to a [student group].  The group provided assistance and training for other students in relation to their courses.  In addition, members of this group would discuss the prevalence of corruption in Indonesia.  In 2011, because of his membership in this group, the applicant attended a demonstration in Jakarta along with students from other universities.  He went in another similar demonstration in 2012 in which students protested against corruption.  The applicant was a mere participant at these events. He did not make speeches and he did not encounter difficulties from anyone for going in them. 

10. In January 2014 he commenced work at a business in Jakarta.  His last classes for his university studies were in May 2014 and he graduated in October that year.  In July 2014, the applicant participated in a demonstration against corruption in Jakarta after fellow students urged him to join in.  Approximately [number] people were at the demonstration and a number of people in plain clothes came to break it up.  The applicant was beaten by some of these people and he and some others were taken from the scene to an office where he was held for one night.  The people who had apprehended him told him not to go in such demonstrations, alleging that this would attract other people to join in.  They said that if he went in another demonstration they would come after him.

11. After being spoken to that way, the applicant was afraid and thought that if he went in another demonstration he could be killed. In October and again in December 2014 these people came to the applicant’s workplace looking for him and asking if he had been in any more demonstrations. This made the applicant feel unsafe and insecure.  He thought that if he was to go in another demonstration these people would come to his workplace and find him.  For that reason, in January 2015 he left his employment planning to look for work possibly away from Jakarta.  Even so, two weeks after leaving his work, at the end of January 2015 the applicant went in another demonstration against corruption in Jakarta along with other students.  As with previous demonstrations, the applicant was a mere participant and had no other role.  Again, people in plain clothes came to break up the demonstration and the applicant and others ran away.

12. The Tribunal put to the applicant it had difficulty accepting that he was willing to participate in this demonstration in January 2015, having only that same month left his employment because he felt unsafe and insecure due to visits to his workplace by people checking on whether he had been in any demonstrations since they apprehended him in July 2014.  As set out above, the applicant indicated to the Tribunal that when released on that occasion and warned not to go in demonstrations, he feared for his safety.  In response to this concern, the applicant said that he went in this demonstration in January 2015 because there had been no change in the situation with respect to corruption, other students urged him to attend and he felt solidarity with them.

13. The Tribunal is not persuaded by those responses. The Tribunal acknowledges evidence the applicant gave about his parents having to pay bribes to ‘government elements’ to operate their business and the applicant himself having to pay bribes with respect to obtaining his education.  Even so, the clear tenor of the applicant’s evidence was that after July 2014 when he had been warned against participating in demonstrations, he feared for his safety.  This fear caused the applicant to leave his employment in January 2015 because people had been going there questioning him about demonstrations. The Tribunal does not believe that he would, in those circumstances, be willing to participate in this demonstration in January 2015 for any of the reasons he gives.  

    Evidence about the people he fears going to his family to find him after the demonstration in January 2015

14. After running away from the demonstration in January 2015, the applicant went to Bandung where he remained for two or three weeks during which time he applied for a visa to visit Australia at the suggestion of a friend here.  After this, the applicant went to an area outside Jakarta where he remained for one or two weeks before then coming to Australia in February 2015.  He chose not to stay at his parents’ home as he was afraid these people would come there looking for him. He said that in the period he was hiding in Bandung, his family had told him that two or three times people had gone to them looking for him.  In addition, he told the Tribunal that in contact with his family one month after he arrived here (and before he applied for protection in May 2015) they again told him that people had been going to the family home and to the family business looking for him.  In further contact with family and friends he has been given this same news.

15. The Tribunal put to the applicant that in his protection visa application forms he made no mention of people going to his family looking for him either before or after he left Indonesia. The Tribunal also put to the applicant that he made no mention in his protection visa application forms that the people he fears went to his workplace in October and December 2014 and questioned him as he had told the Tribunal.  In response, the applicant said that he was very brief in his protection visa application forms and left out some details. 

16. The Tribunal rejects the applicant’s response because, in his protection visa application forms he was able to say that he participated in demonstrations in July 2014 and in January 2015; that the police came to both demonstrations arresting him on the first occasion and the applicant fleeing from them on the second occasion.[4] If the applicant was relating a truthful account then he would also have been well able to say that people came to his workplace following the July 2014 demonstration and that people came to his family looking for him after running away from the demonstration in January 2015.  The applicant has not done that and he has failed to provide any adequate explanation for the omission of these important claims from his protection visa application forms.

    Evidence about the timing of the second demonstration

    [4] At the latter stages of the Tribunal hearing the applicant also referred to the people he fears as police.

17. Towards the end of the hearing, the Tribunal asked the applicant when in January 2015 the demonstration, in which he participated, took place.  In response, the applicant was vague saying that he could not recall.  The Tribunal asked the applicant whether the demonstration was at the beginning of January, in the middle of January or at the end of that month. In response, the applicant said that the demonstration was held at the end of January. The Tribunal put to the applicant that in his protection visa application forms he said the demonstration took place at ‘end January 2015’.  The applicant said that was correct.

18. Pursuant to s. 424AA of the Act, the Tribunal invited the applicant to comment on or respond to department records indicating that he was granted a visitor visa on [date] January 2015 and, therefore, if his decision to apply for the visa was made after running away from the demonstration, it could not possibly have been held at the end of January 2015. In response, the applicant said that he did not know when his visa was organised but the demonstration was held at the end of January 2015.[5]

    [5] The applicant elected to comment at the hearing and he told the Tribunal that he did not seek extra time for this purpose.

19. That claim is inconsistent with the applicant being granted a visitor visa on [date] January 2015 and his evidence that the decision to apply for that visa was not even made until after he had run away from the demonstration.  This claimed demonstration occurred only two and a half years ago and the applicant can reasonably be expected to give a consistent account of when in January 2015 it actually took place, especially when, according to his claims, this event precipitated his flight from Indonesia. His failure to do so reflected poorly on his credibility.

    Conclusions on credibility

20. Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility lead the Tribunal to find that he is not a witness of truth and the account of events on which his protection claims are based is false.  Accordingly, the Tribunal disbelieves the applicant’s claims that he participated in demonstrations in Indonesia; that he was beaten, apprehended and detained for doing so; that he fled from Jakarta and spent a period of time in hiding and that people, who he appeared to claim were plainclothes police, questioned him at his workplace and then made enquiries of his family to find him.  Because the applicant is not a witness of truth, the Tribunal also disbelieves his evidence about belonging to a student group at university and discussing the prevalence of corruption in Indonesia. The Tribunal disbelieves his claims about him and his family having to pay bribes.

21. The Tribunal finds it has no credible evidence as to why the applicant left Indonesia and why he does not want to return there. There is no credible evidence before the Tribunal that the applicant suffered harm in Indonesia and that anyone in Indonesia seeks to harm him.  The Tribunal will accept that the applicant is ethnic Chinese and a Christian.  According to available country information, there are 2.8 million ethnic Chinese in Indonesia and they are influential in the business sector.[6] Since 1998, most discriminatory anti-Chinese aspects of Indonesian public policy have been dismantled.[7] Similarly discriminatory practices requiring Chinese to pay what were, in effect, bribes to obtain certain official documents rarely still occur.[8] DFAT assessed the overall position for ethnic Chinese as follows:

    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.[9]

    [6] DFAT ‘Country Information Report Indonesia’ 3.2, 3.4

    [7] DFAT ‘Country Information Report Indonesia’ 3.4

    [8] DFAT ‘Country Information Report Indonesia’ 3.6

    [9] DFAT ‘Country Information Report Indonesia’ 3.8

22. The Tribunal infers from this country information that the risk of this applicant suffering serious harm in Indonesia because of his ethnicity is remote, an inference enhanced by the fact that there is no credible evidence that the applicant suffered harm in Indonesia on this ground.  According to available country information, there are approximately 22 million Christians in Indonesia.[10] DFAT assesses the risk of harm for Christians in the following terms:

    DFAT assesses 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.[11]

    [10] DFAT ‘Country Information Report Indonesia’ 3.46

    [11] DFAT ‘Country Information Report Indonesia’ 3.48

23. Similarly, the Tribunal infers from this country information that the risk of the applicant suffering serious harm in Indonesia because of his religion is remote, an inference enhanced by the fact that there is no credible evidence that the applicant suffered harm in Indonesia on this ground. The Tribunal discussed this information (related to Chinese ethnicity and religion) with the applicant at the hearing and put to him the inferences it draws from it.

24. In response, the applicant said that he had seen anti-Christian and anti-Chinese material on the Internet. He had seen videos of small children being told to kill the former Chinese Christian governor of Jakarta. Even if that is the case, that does not cause the Tribunal to depart from the inference that the risk of the applicant suffering serious harm because of his ethnicity is remote. These claims made by the applicant do not amount to evidence that ethnic Chinese people including those who are Christian, are being harmed in Indonesia.  He said that while the position put to him by the Tribunal with respect to Christians could be true at present one never knew what could happen in the future.  Country information set out above indicates that in the reasonably foreseeable future the risk of the applicant suffering serious harm because of his religion and his ethnicity is remote.

25. Earlier in the hearing, the applicant broadly claimed that controversy around the election of a Chinese Christian man as governor of Jakarta was evidence that the applicant was at risk for being Chinese and Christian. He feared a re-occurrence of the violence against ethnic Chinese that took place in the late 1990’s.  The Tribunal rejects these claims because the country information set out above with respect to ethnic Chinese indicates that the violence against ethnic Chinese in the late 1990’s has not re-occurred.  While some elements of Indonesian society objected to an ethnic Chinese Christian man being governor,[12] country information set out above makes no mention or claim that this has manifested in harm against ethnic Chinese or Christians. 

    [12] DFAT ‘Country Information Report Indonesia’ 3.5.

26. At the hearing, the applicant submitted articles from the media about corruption among government officials in Indonesia, the prosecution of the Chinese Christian man referred to above for blasphemy and anti-Chinese and anti-Christian statements made against him.  These articles also related to the behaviour of Islamic radicals towards this individual and their activities in Indonesia to achieve an Islamic state. The Tribunal has acknowledged the treatment of this particular Chinese Christian man and what was said against him, but, for the reasons given above, the risk of the applicant suffering serious harm because of his religion and ethnicity is remote.

1. The Tribunal acknowledges the articles about the activities of Islamic radicals but country information set out above indicates that Christians are generally free to practice their religion and incidences of harm against them are infrequent.   Accordingly, these articles produced by the applicant do not cause the Tribunal to depart from its view that the risk of the applicant suffering serious harm because of his religion is remote.  With respect to articles from the media about the corruption of government officials, the applicant did not establish any case or claim as to why he is at risk of harm in Indonesia on this particular ground.  He purported to claim participation in demonstrations against corruption in Indonesia but the Tribunal disbelieves that evidence.  There is no credible evidence that this applicant suffered harm on that ground in Indonesia.  There is no credible evidence that he will seek to go in demonstrations against corruption on return to Indonesia.  The risk of him suffering serious harm on this ground is remote.

2. For the reasons given above, there is not a real chance that the applicant will suffer serious harm in Indonesia. He does not hold a well-founded fear of persecution within the meaning of s 5J(1) of the Act.

   Complementary protection

3. With respect to the complementary protection criterion, for the same reasons the Tribunal finds that there is not a real chance that the applicant will suffer serious harm in Indonesia,     it also follows that there is not a real risk that he will suffer significant harm.  The Tribunal repeats its finding that the applicant is not a witness of truth and the account of events on which his protection claims are based is false. There is no credible evidence that the applicant suffered harm in Indonesia and there is no credible evidence that anyone in Indonesia seeks to harm him. There is no credible evidence as to why he left Indonesia    and why he does not want to return there.  In those circumstances, there are not substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to the receiving country, Indonesia, there is a real risk that he will suffer significant harm.

   CONCLUSIONS

4. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

5. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

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

   DECISION

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

   Paul Millar
   Member