1514316 (Refugee)

[2017] AATA 3032

1514316 (Refugee) [2017] AATA 3032 (4 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1514316

COUNTRY OF REFERENCE:                  Papua New Guinea

MEMBER:Linda Holub

DATE:4 December 2017

PLACE OF DECISION:  Sydney

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

Statement made on 04 December 2017 at 11:33am

CATCHWORDS

Refugee – Protection visa – Papua New Guinea – Indonesia – Imputed political opinion – West Papuan independence – Particular social group – Tribal royal family – Family connection to pro-independence activists – Threats of kidnapping – Fear of extrajudicial killing – False imprisonment – Threats of sexual violence ­– Impact of medical condition on evidence

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 424A, 438, 499

Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant who claims to be a citizen of Indonesia but who has travelled to Australia on PNG passports in [specified years], applied for the visa [in] June 2013.  The delegate refused to grant the visa [in] September 2015.

3. The applicant appeared before the Tribunal on 9 and 24 August 2017 to give evidence and present arguments.  On 9 August 2017, the Tribunal also received oral evidence from [Psychologist A], Psychologist at [Service 1].  The Tribunal hearings were conducted with the assistance of an interpreter in the Indonesian and English languages.

4. The applicant was represented in relation to the review by her registered migration agent.

RELEVANT LAW

1. 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.

2. 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).

3. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

4. 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’).

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

CONSIDERATION OF CLAIMS AND EVIDENCE

10.  The issue in this case is whether the applicant has a well-founded fear of being persecuted for reasons of her race, religion, nationality, political opinion or membership of a particular social group and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Papua New Guinea, there is a real risk that she will suffer significant harm.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

11.  The applicant’s written claims for protection are contained in the application forms submitted to the Department of Immigration and Border Protection [in] June 2013.  It had before it the Department’s file relating to the applicant’s Protection visa application and the Tribunal’s file relation to the review application.  The Tribunal considered the Department of Foreign Affairs Country Reports on Indonesia and Papua New Guinea to the extent they were relevant.

a.She fled West Papua, Indonesia and lived in [Town 1], Papua New Guinea (PNG).  She crossed into PNG by boat illegally.

b.In March 2013, the Indonesian Special Forces (Kopassus) came looking for her [Relative A], and because they were unable to find him they forced her to tell them where he was.  She did not tell them because she did not know where he was.  They threatened to kidnap and kill her. 

c.She moved to Port Moresby to stay at her [Relative B’s] house and while she was there, an Indonesian intelligence officer came to the house and asked for her. 

d.She lived in fear so she decided to leave PNG.  Kopassus paid local people as informants so sooner or later they will find and kill her.

e.When she lived in [Town 1] and at her [Relative B’s] house in PNG, she was watched.  Men would follow her every time she went out and ask her what [her Relative A] is.  They would threaten to kill her if she did not tell them where he was. 

f.She fears that Kopassus (Indonesian Special Forces) will find and kill her.

g.If they cannot find her [Relative A], Kopassus will keep chasing her and will kill her to replace [him].

12.  On the departmental file there is a further undated submission which appears to have been provided separately and subsequent to her application.  In it the applicant provides information about her background and states that:

a.   She has witnessed the rape of close relatives, members of her family have been put in jail and that the Indonesian police, Kopassus or the Mobile Squad shot and killed members of her immediate family.

b.   Her [Relative C, named], as the chief of the tribe has been directly responsible for dealing with [a private company, Business 1] and has often been required to sign documents permitting the Indonesian government and [Business 1] to undertake certain actions.  She believes that if they do not get their way with his agreement then they blackmail or extort him to do things by torturing, imprisoning or killing his relatives and when he sees that happening he agrees to certain things.

c.   Her [Relative A] was falsely imprisoned and tortured. He was detained for [duration] on a [charge].  He was eventually acquitted by the court and released. She believes that he was framed by the police placing [evidence] in his clothing. She attended the court case and saw that the case was dismissed. A judge came from [Indonesia] to hear the case.  Because of her level of education she stayed in [the town] during the court case as some of her family members did not understand what was happening.

d.   Following the release of her [Relative A], the police went to his father’s house and told him that they wanted to interview him and that they would like to transport him to another province for an interview by helicopter. While in prison he was warned by an informer that if he were to be transported by helicopter they would just drop him from the helicopter out at sea. As a result of this her [Relative A] disappeared and eventually went to PNG.

e.   Her permanent residence was at [Town 1], which is [location specified]. She would travel backwards and forwards to [Town 2] in West Papua where her family lived.

f.    After the court case she returned to [Town 1].  The Indonesian police found out that she was there and came asking where her [Relative A] was. She told them she did not know and as a result was threatened that if she did not disclose his whereabouts she would be raped, tortured or killed.

g.   They would often come to her house and ask where he was, so she decided that [Town 1] was no longer safe for her. 

h.   She did not know where here [Relative A] was, she only knew he was moving from province to province in Papua New Guinea.

i.    Her [Relative C] warned her to leave West Papua because it was no longer safe for her to remain, particularly after what had happened to her [Relative A].

j.    Her departure from West Papua was very traumatic and that she had to travel alone.

k.   Agents of Papua New Guinea also came and asked her where her [Relative A] was. So she is not safe in that country either.

l.    She arrived in Port Moresby in April 2013 and the Indonesian police found her there again. Before she arrived in Port Moresby she had been told that the Kopassus had come to the house asking about her. They returned when she was in Port Moresby.

m. On one occasion people came and knocked on the door and asked if she was there. She told her family not to tell them that she was there but to send the people away and that if they came in the daytime she would talk to them herself. Three days later they returned and asked if she knew where her [Relative A] and his family are. She responded that she did not know.

n.   They found out that she was also searching for her [Relative A] so they continued checking on her and watching her carefully. For the following few weeks she was in danger whenever she went out with her family she was followed.

o.   She was told by agents of Papua New Guinea that she should tell them where her [Relative A] is or they would kill her, rape or torture her and they told her not to worry about whether or not they could do that in Port Moresby because they said they called and she believes they are able to. She is aware that other West Papuans have been killed by Kopassus and their agents in Port Moresby.

p.   One day when she was walking to the shops and a [taxi] stopped and two men came out and asked her about her [Relative A]. She told them she did not know and was warned by them to be careful where she was going.

q.   She was in Port Moresby from April 2013 until May of that same year and although she thought she might be able to live there that turned out not to be the case. She had concerns for her personal safety

r.    When she got to Port Moresby, her [Relative A] had already left and after finding out his phone number she contacted him and he told her he was in [Australia].

s.   She obtained a Papua New Guinea passport to come to Australia. She used her own name and correct details including the date of birth. She sent someone else to obtain her passport and her visa because she could not go outside freely. Because of her safety concerns and corruption in PNG it was necessary for her to do whatever had to be done to obtain her passport and visa.

t.    Even when she was at the airport she was concerned that she would be kidnapped at any time by Indonesian police.

13.  The applicant provided the Tribunal with a copy of the delegate’s decision record of [September] 2015.  The delegate refused to grant the applicant a Protection visa as the delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations.  The delegate found that the applicant is a citizen of Papua New Guinea.

14.  This is an application for review of that decision and was lodged [in] March 2015.

15.  The Tribunal received a supplementary submission[1] from the applicant’s registered migration agent dated 2 August 2017 prior to the applicant’s first hearing.  The statement refers to case law regarding the applicant’s fear of returning to PNG and provides information regarding the applicant’s travel to Australia in [earlier year].

[1] AAT file, folios 52-54.

16.  The day before the applicant’s second hearing, the applicant provided a statement to the Tribunal on 23 August 2017. It refers to her early life, her travel in [earlier year] to [Country 1] and her departure for Australia[2].

[2] AAT file, folio 76.

17.  In a submission from the applicant’s registered migration agent to the Tribunal dated 7 September 2017, the applicant “respectfully submitted that in the course of the hearing the Tribunal has conducted itself in a manner that displays apprehended bias”[3].  It refers to proceedings before the Tribunal on 9 August 2017 and makes reference to case law with respect to apprehended bias.  The claims regarding apprehended bias relate to confusing questions put to the applicant, that at times questions were not put in a chronological manner, that on occasion several questions were put to the applicant at the one time, that the Tribunal continued to ask for clarification when the applicant had explained inconsistencies.  It also refers to matters that were not put by the Tribunal to the applicant’s witness, aspects of the delegate’s decision and makes claims about the assumptions the Tribunal made.

[3] AAT file, folio 83-103

18.  The submission does not ask that the Tribunal Member recuse herself from the case, however, the submission can be read as if a request for recusal is implicit.  The Tribunal has given careful consideration to the submission and the issues raised therein.  In doing so, the Tribunal has considered:

‘…whether a hypothetical fair-minded lay person, properly informed as to the nature of the proceedings or process, might reasonably apprehend that the decision-maker  might not have brought [or may not bring] an impartial mind to making the decision’[4].

[4] (Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425 at [27] to [31])

19.  The applicant provided more than four hours of oral evidence over two hearings and was given an opportunity to respond to information after the hearing and was granted additional time to add to her written submission.  The Tribunal attempted to assist the applicant by re-phrasing questions and seeking clarification of her responses whenever the Tribunal considered it would help understand her responses.  The Tribunal does not consider that the issues raised in the submission of 7 September 2017 amount to apprehended bias such that a fair-minded lay person might reasonably apprehend that the decision-makes has not brought an impartial mind to making this decision. 

FINDINGS AND REASONS

Nationality

20.  The applicant claims in her Protection visa application that her citizenship at birth was Indonesian and that she acquired citizenship of Papua New Guinea (PNG) [in] 2013. She indicated that she holds citizenship of Indonesia and that she has a right to enter or reside in Papua New Guinea[5].

[5] DIBP file, folio 35.

21.  Subsequent to the applicant’s interview with the delegate which was held [in] November 2013, the applicant submitted a Notification of Incorrect Answers form (1023) indicating that her present country of citizenship is Indonesia. In the form she states:

“Form 866C question 21 states that I acquired citizenship of Papua New Guinea [in] 2013.

I am not a citizen of Papua New Guinea.

Form 866C question 23 states that I have a right to enter or reside in Papua New Guinea.

I do not have a right to enter or reside in Papua New Guinea.

I was issued a Papua New Guinea passport [in] 2013. Somebody else applied for the passport on my behalf. At the time of application I did not know what the requirements for citizenship of Papua New Guinea were. I now understand that although I was issued a passport, I do not meet the requirements for citizenship of Papua New Guinea”[6].

[6] DIBP file, folio 144, pg 2.

22. The Department’s delegate was satisfied that the applicant it is a citizen of PNG and that PNG is the applicant’s country of reference for the purpose of assessing Australia’s protection obligations under the Refugees Convention and is the applicant’s receiving country as defined in Section 5 of the Migration Act, for the purpose of assessing complementary protection criteria.

23.  The Tribunal did not cite a copy of the applicant’s passport as the hearing was conducted by video conference from [city name]. However the Department’s file contains a copy of the cover, front page, information page as well as several other pages of the applicant’s PNG passport which was issued [in] 2013 in Port Moresby. The passport states that the applicant holds PNG nationality that her date of birth is [date] and that she was born in [Location 1][7].  The Tribunal notes that “[details of Location 1 deleted.]”[8].

Applicant’s travel to [Country 1] in [earlier year]

[7] DIBP file, folios 1-6.

[8] [Deleted.]

24.  At hearing the Tribunal discussed the applicant’s previous travel to Australia when she was in transit on her way to [Country 1] in [year]. On that occasion she also travelled on a passport issued by government of Papua New Guinea.

25.  During the course of the applicant’s interview with the delegate she stated that she had never travelled outside of PNG and Indonesia before coming to Australia in March 2013[9]. The delegate in the decision record wrote:

“I find the applicant’s responses regarding her citizenship and prior travel to Australia to be unsatisfactory. I place weight on departmental records indicating she travelled to Australia in [year] on a PNG travel document.  I consider it implausible that a different individual with the same biographic details and a similar signature obtained a PNG travel document and travel to Australia in [year]. I therefore find the applicant did travel to Australia in [year] and has presented false information to the department in regards to her travel history”[10].

[9] AAT file, folio 18.

[10] Ibid., folio 18.

26.  On this issue, the submission of 2 August 2017 provided to the Tribunal by the applicant states that:

“In [year] the applicant travelled to [Country 1] transiting in Australia. The purpose of this travel was to attend a meeting with representatives of [an international agency] in [Country 1], organised by [NGO1], which is a network of [specified] organisations headquartered in [Country 1]. At her interview the applicant denied having previously travelled on a PNG passport, although no submissions were made by the applicant as to whether or not she was a citizen of PNG. She was afraid to admit her active role in the West Papua independence movement and drawing attention to human rights abuses in West Papua”[11].

[11] AAT file, folio 53.

27.  At hearing the applicant claimed that she was not Papua New Guinean.  The Tribunal explained to the applicant its concerns that she was prepared to enter Australia and present herself falsely as a Papua New Guinean.  In response, she stated someone helped her obtain a passport. She stated that a lot of West Papuans use PNG passports.

28.  In her 23 August 2017 submission to the Tribunal the applicant referred to her [year] travel via Australia to [Country 1] and stated that “everything was arranged by a Papua New Guinean woman who was a member of the [NGO1] organisation. She was looking for someone to represent West Papua and found me because of my family background.  She approached me and asked me to travel to [Country 1] to tell my story”[12].

Applicant’s move to Papua New Guinea

[12] AAT file, folio 76.

29.  In discussing the applicant’s background with her and how she came to live [where she did in] Papua New Guinea given she claimed to be born in [Location 1], she responded that her people were living in the jungle. The Tribunal attempted to seek further clarification and asked her when she moved to this area. The applicant stated that her family were independence fighters and that the army arrested her father and he went to jail and was released and then rearrested.  The Tribunal asked her when she moved to the [specified] region. She stated she always lived [there] where people move in and out.

30.  In the applicant’s submission of 23 August 2017 she stated that she moved from [Location 1] to [Location 2] when she was very young. She stated that her father was arrested when she around 6 to 7 years of age and that he was in jail for [duration]. During that time she and her mother and [relative] lived in [Location 2] but moved back and forth between [Location 2] and [Town 2]. After his release her father was arrested again soon after. When he was released from jail that time her family fled to hide in the [jungle]. At that time she believes she was around 10 years of age and that they moved from place to place and camped in the jungle or in very small villages. Later she moved to [Town 1] although she does not know how old she was.

31.  At the applicant’s second hearing the Tribunal again attempted to understand the timing of her move to PNG.  The applicant responded that she cannot remember. The Tribunal asked her if she was at school at the time to which she responded she was but she cannot remember how old she was because she was a child.

Access to PNG passports

32.  The Tribunal gave consideration to the applicant’s claim that she does not meet the requirements for PNG citizenship.  In relation to the passport she used to travel on in 2013 in written evidence she wrote:

“I was issued a Papua New Guinea passport [in] 2013. Somebody else applied for the passport on my behalf”[13].

[13] DIBP file, folio 144, pg 2.

33.  During extensive questioning regarding the issue of the applicant’s nationality and how she obtained passports issued by PNG and on which she travelled in [the earlier year] and in 2013, the applicant stated that a special person in PNG organised the passport for her.  She stated that a PNG person took her to a passport office to sign for her passport.  In relation to the passport she used to travel in [the earlier year], at hearing she stated that a special person in PNG organised the passport.  At another time during the course of the hearing’s she also stated that the passport was issued to her because PNG acknowledged problems for West Papuans. She stated that it was not only her but other people in the same situation had with PNG passports from the government.

34.  The applicant own evidence on the question of how she obtained the PNG passports strongly indicated to the Tribunal that the passports were obtained through appropriate channels.  At no time did the applicant claim that the passports were obtained fraudulently.  Based on the applicant’s evidence, the Tribunal considers that the applicant obtained her two PNG passports through appropriate channels.

35.  The Tribunal is prepared to accept that the applicant did not undertake active steps to obtain PNG citizenship.  However, in the light of independent evidence referred to elsewhere, the Tribunal put weight on the applicant’s oral statement that the PNG Government put in place arrangements for West Papuans, the Tribunal is satisfied that the applicant obtained her PNG passports lawfully.

Loss of Indonesian citizenship

36.  The Tribunal put to the applicant information that it had before it which indicates that approximately 11,000 West Papuans crossed the border in 1984 and that in 1986 the PNG government granted West Papuans ‘prime faci refugee status’ with some reservations, including naturalisation and “under PNG law, ‘any foreigner  -  including refugees - wishing to apply for citizenship and has fulfilled eight years of residency must pay a 10,000 kina application fee’[14].  When asked whether she wished to comment she said she had no comments to make.

[14] Department of Immigration and Border Protection: Indonesia: IDN CI 170810115709648 - West Papuan separatists – West Papuan community in PNG”, 21 August 2017.

37.  The Tribunal also put information to the applicant regarding relevant aspects of Article 23 of the Law of the Republic of Indonesia Number 12, year 2006 on Citizenship of the Republic of Indonesia in clause (h) and previously in clause which states that:

“and the citizen will lose their citizenship if that individual possesses a passport or travel document equivalent to a passport from a foreign country or a letter that may be construed as a valid citizenship identity from another country on his/her name”[15].

[15] Department of Immigration and Border Protection: Indonesia: IDN CI 170810115709648 - West Papuan separatists – West Papuan community in PNG”, 21 August 2017.

38.  A similar clause – clause (j) existed in the previous version of the Indonesian citizenship law:

“having a passport or certificate which has the character of a passport from a foreign country in one's name which is still valid”[16].

[16] The applicant was given an opportunity to comment on these provisions and information put to her. The applicant did not respond.

40.  Following the applicant’s second hearing a further submission was provided to the Tribunal which referred to Article 23 of the Indonesian law on loss of citizenship referring specifically to:

“An Indonesian citizen will lose their citizenship due to the following:

(a)  Acquires another citizenship voluntarily …

(i)Living outside the Rep. of Indonesia for 5 (five) consecutive years for non official purposes, without legal reason and deliberately refuses to declare their intention to remain as Indonesian citizens before the 5 (five) year limit ends …

The Review Applicant has repeated on many occasions that she has never made an application to become citizen of PNG.  She repeats her statement to that effect.  Further, she never resided outside of West Papua for a period of more than 5 years”[17].

[17] AAT file, folio 83.

41.  The submission goes onto to emphasise that sub-paragraph (h) of Article 23 refers to a “valid citizenship identify from another country”[18].

[18] AAT file, folio  83, page 2.

42.  The submission also included additional information about the mechanisms available for West Papuans to apply for naturalization in Papua New Guinea and quotes an extract from a discussion paper entitled Papua New Guinea’s Refugee Track Record and Its Obligations under the 2013 Regional Resettlement Arrangement with Australia[19].

[19] AAT file, folio 84.

43.  Information provided on behalf of the applicant refers to the PNG Government announcing a ‘Limited Integration’ policy in 1996 “through permissive residency to West Papuans who wished to remain in PNG and for those who do not wish to integrate, the policy supported voluntary repatriation to the Indonesian Province of Papua”[20].  Permissive residency required refugees to be resident at the East Awin in the six months prior to application.

[20] AAT folio, folio 87.

44.  The submission also provides an extract from a 2003 Joint Mission of the Australian Section of the International Commission of Jurists and the Refugee Council of Australia to Papua New Guinea.  It outlines the PNG Government’s Permissive Residency status that was made available to West Papuans.  According to the information provided, in order to obtain a Permissive Residency Certificate, West Papuans were required to stay in the East Awin camp for a year and that the certificates are renewal for three years under the same conditions.  The submission states that the applicant “has never resided in the East Anwin camp area, has never applied for nor held a permissive residence status and has live in [Town 1], not continuously, i.e. returning from time to time in West Papua”[21].

[21] AAT file, folio 84, page 2.

45.  The Tribunal is prepared to accept that Permissive Residency status was made available to certain West Papuans with certain requirements and conditions attached, one of those relating to residency of East Anwin camp and that the applicant did not live in the camp.

46.  The Tribunal put some weight on written evidence provided by the applicant in an undated submission to the Department which states at paragraph 19, that “my permanent residence was at [Town 1], which is [in] West Papua [in a specified region][22].  However, the Tribunal put significant weight on independent information that [Town 1] is not [in] West Papua.  “[Town 1] is [located] in Papua New Guinea”[23].  [Another independent source] on Papua New Guinea, also refers to [Town 1] as being in [Papua New Guinea][24] No source of independent information accessed by the Tribunal corroborated the applicant’s statement that is in West Papua.  Consequently, the Tribunal considers that he applicant’s statement that [Town 1] is in West Papua, is misleading.

[22] DIBP file, folio 122.

[23] [Source deleted.]

[24] [Source deleted.].

47.  While the Tribunal put significant weight on the independent evidence to the Tribunal regarding the applicant’s mental health.  The Tribunal was prepared to accept that the applicant was unable to provide the details regarding the timing of her move into PNG, however, evidence before the Tribunal indicates that the applicant lived in PNG since she was a child. Having been born in [year] this would suggest she lived in PNG since the early 1980s, albeit the Tribunal was prepared to accept she travelled frequently into and out of West Papua.

48.  The Tribunal has considered the issue of the applicant’s nationality in the context of written and oral evidence provided regarding the applicant’s travel to [Country 1], transiting through Australia in [year], access to PNG passports, and about the loss of Indonesian citizenship.

49. In the light of independent information regarding loss of Indonesian citizenship, and information regarding the numbers of West Papuans who entered into PNG in the 1980s, and the applicant’s own evidence that she went to PNG as a child and that she travelled on PNG passports in the [earlier year] and again in 2013 and that she went to the Passport Office and signed for her passport and that the PNG government made arrangements for West Papuans to remain in PNG, and that at no time did she claim that she obtained the passports fraudulently, the Tribunal finds that the applicant’s claims should be assessed against Papua New Guinea for the purposes of the Convention in s.36(2)(a). The Tribunal also finds that the claims should be assessed as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa). On the basis of Indonesian law regarding loss of citizenship, the Tribunal is satisfied that the applicant does not have a right to enter and reside in another country for the purposes of s.36(3).

Material under a public interest non-disclosure certificate

50. There is a certificate made by a delegate of the Minister under paragraph 438(1)(a) of the Migration Act of the Department's file [number] in respect of the application. That provision permits the Minister to certify that the disclosure of information would be contrary to the public interest for any reason specified in the certificate that could form 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. The certificate relates to folio 161 of that file, the disclosure of which it states would be contrary to the public interest because the folio contains information relating to an internal working document.

51.  The Tribunal is satisfied the certificate is invalid and of no effect because the fact that the folio contains information relating to an internal working document and business affairs is not a reason that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the information should not be disclosed.  Further, the Tribunal is satisfied that the folio is not relevant as it contained a screen print of the front page of a different person’s passport.

52.  The Tribunal discussed the certificate, the Tribunal’s assessment of the certificate’s validity and its relevance with the applicant at hearing and asked if she wished to comment.  The applicant had no comment.  As requested by the applicant’s representative the Tribunal provided further clarification about the certificate and the Tribunal’s assessment of its validity and relevance. 

Mental health issues

53.  Prior to her first hearing the applicant submitted:

a.   A report dated [in] August 2017 from [Ms B], Coordinator, [Agency 1], where the applicant had been attending counselling sessions until [her local] office closed [in] October 2016[25].  The report provides information regarding the referral source and history of contact between the applicant and the service, relevant background information, and information about the applicant’s psychological presentation and functioning.

In brief, the applicant referred herself to the Service [in] October 2015. The applicant attended the service and was seen by [Psychologist A] for 13 sessions over an 11 month period and between counselling sessions there was regular telephone contact between the parties. It goes on to say that during her assessment and subsequent sessions the applicant presented in a vulnerable state, was highly distressed, and spoke about receiving a protection visa refusal [in] September 2015 and her fears of returning home. The applicant had reported [a specific condition] every day and had spoken of her poor sleep and depression during her counselling sessions.  In subsequent counselling sessions, her symptoms presented as less severe as she engaged with new activities in a volunteering capacity. The applicant’s final counselling session was [in] September 2016 during which she indicated that she was doing “OK” and a decision was made that the applicant would not be referred to another service. Her file was closed. At the time of closure, the applicant reported that she was receiving emotional and practical support from the local community and relevant services.

b.   A report dated [in] August 2017 from [Psychologist A], Psychologist at [Service 1].  [Psychologist A] states in her Letter of Support that prior to seeing the applicant privately she was engaged as a counsellor at [Agency 1] and saw the applicant during many counselling sessions over the course of late 2015-2016.  It provides some background regarding the applicant’s adverse mental health symptoms as a direct response of her trauma history”[26].

It also refers to the applicant’s assessment indicating that for Depression, Anxiety and Stress (DASS) the applicant rated in the extremely severe category and the applicant scored [score] on the Harvard Trauma Assessment which is indicative of [a specified condition] when [in that range][27].

[25] AAT file, folios 60 & 61.

[26] AAT file, folio 59.

[27] AAT file, folio 59.

54.  At the applicant’s first hearing by telephone, [Psychologist A] indicated that the report provided by [Agency 1] accurately portrays what happened during the counselling sessions she provided to the applicant during the period she was employed by [Agency 1] and that she is still seeing the applicant.  She stated that in 2017 the applicant consulted her on two occasions – [in] February and [August] and they also had telephone contact over that period.  She stated that it is very common for people experiencing [her condition] not be able to attend sessions.  She said that it is often related to a person’s inability to maintain normal functioning as they often have difficulty to get themselves from one thing to another. 

55.  The Tribunal asked [Psychologist A] how she reconciled this with evidence provided by the applicant that over several years she had had an active volunteering role with [two specified agencies][28] and attended various training and leadership courses[29].  The witness stated that the applicant attended 13 sessions over an 11 month period and was unable to be more regular than that.  She stated that reports from the community and volunteer organisations with which the applicant was involved indicated that the applicant was not always able to attend and maintain volunteer work.  She stated that on any given day the applicant may not have been able to undertake normal activities.

[28] AAT file, folios 47 page 1, 50 & 51,

[29] AAT file, folios 45-49.

56.  The Tribunal asked the applicant if she wanted to comment on the preceding discussion the Tribunal had with [Psychologist A].  The applicant stated that she is traumatised and she cannot explain what she had to face to get to Australia and claim protection.

57.  The Tribunal indicated to the applicant that in relation to both oral and written evidence provided in relation to her mental health it accepts she had been received counselling for the reasons stated.  It went on to explain that of itself it does not necessarily mean that she satisfies the requirements for the grant of a Protection visa.

58.  [Psychologist A] provided a further submission immediately prior to the applicant’s second hearing dated 24 August 2017 indicating that:

“During the hearing I understand that comment was made with regard to [the applicant’s] ability to provide evidence and that I… did not provide evidence to suggest that [the applicant] was unable to provide evidence. Firstly I would like to state that I was not requested to provide such information. In addition, I would like it noted that having a diagnosis of [a specified condition] does not necessarily prevent a client from providing evidence, however inconsistencies in memory, levels of concentration, confusion, distress can indeed occur (and did).

At the level of [the applicant’s] traumatisation I would indeed expect her condition to impact on the accuracy and consistency of her testimony particularly when referring to times, date, years, separate traumatic incidents and particularly when referring to events, written statements and details that occurred many years ago[30].

[30] AAT file, folio 77.

59.  The Tribunal accepts that a person experiencing [this condition] may have difficulty in providing consistent evidence in regard to details about certain events, trouble concentrating and be confused and distressed at times.  The Tribunal notes that the applicant was tentative and emotional during the hearings and acknowledges that the process would not have been easy for her. 

Did the applicant suffer any of the claimed harm?

60.  The Tribunal asked the applicant how her Protection visa application was prepared.  She stated that she wrote it herself in Indonesian and translated by using a dictionary.  Her [relative] typed it for her.  She stated that she stands by her application and evidence provided at her interview with the delegate of the Department.

Evidence provided by the applicant

61.  The Tribunal asked the applicant why she came to Australia.  She stated that she came to Australia because someone was looking for her.  She stated that a special agent was looking for a member of her family so they sought her to ascertain his whereabouts.  She stated that she hid her relative and his family after they crossed the border between West Papua and Papua New Guinea.  She stated that the family entered PNG before December 2012 but was unable to be more specific regarding timing.  When asked why she did not include the information that she hid her relative in her written claims she stated that she was concerned for their safety.  The Tribunal put it to the applicant that she lodged her application for protection in Australia in 2013 and therefore it was unclear why she felt her safety could be compromised, as she was already in Australia.  Despite putting this concern to the applicant a number of times, she did not provide a plausible explanation as to why her written claims did not refer to hiding her [Relative A].  According to the applicant’s evidence to the Tribunal her [Relative A] was already in Australia therefore the Tribunal was not satisfied with her explanation as why she could not include this aspect of her claims in her written application. 

62.  When asked what harm she experienced before she came to Australia, she stated that she suffered trauma because she saw her family being tortured.  She also referred to being pursued and that the special agent wanted to kidnap her.  At another time she stated that she has been traumatised since she was a young child.

63.  If she returns to PNG she fears she will be beaten and killed because she protected a person and because she is involved in issues relating to West Papua.  She stated that her people are being killed and she is always protecting them and is frightened for her safety.  The Tribunal put it to the applicant that she did not make any reference to her involvement in the West Papuan independence movement in her written application.  The written claims refer to her [Relative C’s] role in dealings associated with [Business 1].  She responded that she is a child of [a leader] of the West Papuan movement and she was frightened she would be hurt and that Australia would not provide her with protection if referred to her involvement in the West Papuan Movement.

64.  Following further discussion with the applicant during which time the Tribunal attempted to obtain from her sufficient detail to understand what had transpired in relation to her claims that she hid her [Relative A], she stated that her [Relative A] flew to Port Moresby in 2011 or 2012 to organise his passport. She stated she hid him in 2011- 2012 at [a location] between West Papua and Papua New Guinea and then later in Port Moresby.

65.  The Tribunal asked the applicant about her claims regarding her [Relative A’s] court case. Her written statement submitted refers to her [Relative A] being jailed for [duration] during which time he was tortured but eventually acquitted by the court and released.  At hearing the applicant was unable to specify when this occurred. She stated that it was perhaps in 2009.  Subsequently the written submission provided after the hearing refers to her [Relative A] being arrested again [year] and released after [duration][31].

[31] AAT file, folio 76, page 2.

66.  The Tribunal asked the applicant if her [Relative A] had been acquitted why he was being sought again by the Indonesian authorities. She stated that it was because he was a guerrilla fighter and that he provided assistance to guerrilla fighters. The Tribunal asked the applicant when the Kopassus agents came looking for her [Relative A]. She was unable to provide a timeframe but stated that the agents heard that she provided assistance to her [Relative A] and his family. 

67.  The Tribunal put to the applicant that it had undertaken research in relation to her [Relative A] and since [year] he did not have a significant profile and there was nothing that would suggest he had been active in recent years.  She stated that he provided a lot of assistance in the jungle.

68.  While the Tribunal was unable to establish the applicant’s [Relative A] had been arrested, prosecuted and acquitted by an Indonesian court as claimed by the applicant, it was satisfied that her [Relative A] did have a public profile and was arrested in [year] for his involvement in a pro-independence organisation. Based on the available evidence the Tribunal did not accept that the applicant’s [Relative A] subsequently sought by the Indonesian authorities or that if the applicant were to return to Papua New Guinea would be wanted by the Indonesian authorities.  The available information regarding any activity or profile of him dates back to [year].

69.  The Tribunal considered the applicant’s written evidence that she arranged for her [Relative A] and his family to hide in Port Moresby.  It referred to her contacting people she knew to collect her [Relative A] from the airport and take him and his family to their home[32].  The Tribunal asked the applicant how she was able to arrange for her [Relative A] and his family to be hidden there. She responded that she was able to protect him because there are people in Port Moresby who can provide protection. The Tribunal put it to her that it appeared that she was not the one providing protection. She said that she was helping him and making arrangements. The Tribunal sought from the applicant further information about what role she specifically played in hiding her [Relative A] and his family. The applicant responded that there is a house in Port Moresby for West Papuans.  Again the Tribunal attempted to ascertain what her actual role was. The applicant responded that as a daughter of a West Papuan leader she had a role in helping protect people.

424A information

[32] AAT file, folio 76, page 2.

70. Following the second hearing, the Tribunal wrote to the applicant on 16 October 2017 under the provisions of s.424A of the Migration Act indicating[33]:

[33] AAT file, folio 111-112.

“At your hearings in August 2017 you gave evidence that you fear that you will beaten
and killed because you protected and assisted a certain person, being your [Relative A]. You gave evidence that you helped your [Relative A] and his family both at [a location] between Papua New Guinea and West Papua and also in Port Moresby before
they came to Australia.

As mentioned at your second hearing, the Tribunal undertook research in relation to
your [Relative A] and has been unable to identify any information that your
[Relative A] has been sought by Indonesian authorities following his release in [year]. The
particulars of the information available to the Tribunal are:

“Information was found suggesting that [Relative A] is or has been connected to the Organisasi Papua Merdeka (Free Papua Movement or OPM) and [Leader A], described in a number of sources as a senior OPM leader.

An individual named [Relative A] is mentioned in a number of [sources] as a member of the OPM. For example, a [source] referred to a protest against the [jailing] of [Relative A] from [Town 3] – a town in western Papua province – to a prison in [the provincial capital][34]. 

[Details deleted.][35].

[Another source], accessed using Google Translate, also referred to the same incident. It appears to suggest that [Relative A] was arrested in [Town 3] following an incident at [location] and that he had been accompanying a senior OPM leader, [Leader A][36] .

[A further source] similarly referred to the incident:

[Details deleted.][37].

[34][Source deleted.]

[35] [Source deleted.]

[36] [Source deleted] Source disclaimer: Google translations can often be poor and can contain errors; as such they give only a rough indication of the contents of a document. For any further reliance on information translated via Google Translate, a professional translation should be obtained.

[37] [Source deleted.] 

71.  The letter states that this information is relevant because it would lead the Tribunal to conclude that Indonesian authorities have not been seeking your [Relative A] in recent years and subsequent to his release in [year], and as a consequence have not sought you to obtain information about his whereabouts.  If the Tribunal makes this finding, it may find that you do not face a real chance of serious or significant harm on this basis and that you are not a person in respect of whom Australia has protection obligations.

72.  The applicant was invited to comment on or respond to the information.  A response was received by the Tribunal dated 30 October 2017 stating[38]:

“I refer to the Invitation to Comment on or Respond to Information dated 16 October 2017.

1. Comments on the information – arrest of [Relative A] in [year]

The invitation states that the information is relevant because it would lead the Tribunal to conclude that Indonesian authorities have not been seeking [Relative A] subsequent to his release in [year], and as a consequence have not sought the applicant to obtain information about his whereabouts. The information consists of [independent] reports of [Relative A’s] arrest in [year]. Following these events he went into hiding, and soon after fled to Australia. The only reason there are no more recent reports is because he has not been located or arrested again. This does not mean he is not still wanted or that it is safe for him to return.

The information indicates that [Relative A] was released following [protests] by local residents of [Town 3] against his unfair treatment, when a group of [people] marched to the police station armed with [weapons]. This information should lead to the conclusion that the authorities will continue to seek information relating to [Relative A], and there is a real risk they will use threatened or actual violence against the Applicant to obtain information, or as punishment for helping [him]. The Applicant fears that having been forced to release [Relative A] in [year] due to a lack of evidence and in response to protests, the anti-West Papuan agents or militias will resort to extra-judicial methods to detain, torture, or kill [him]. This would extend to the Applicant, who could be a target in order to locate [Relative A], or simply as punishment for helping him previously.

There are elements within the Indonesian government, military and/or police forces that continue to actively suppress any form of pro-independence movement or campaigning in West Papua, in order to maintain control over the region and its significant mineral resources. As recently as 2015 this has occurred specifically in Timika: Update on Indonesia’s brutality in Timika, Free West Papua Campaign,

[Sources] indicate that an individual named [Leader A variant name], identified as an OPM Commander, was killed in a shootout with police in 2015, see [source deleted]. Our client does not know if this was an alias of [Leader A], or a relative.

International interest in West Papua has been recently renewed. There has been widely reported news in the last month concerning a petition signed by 1.8 million Papuans despite being specifically banned by the Indonesian Government, calling for a free independence vote. It is likely there will be an uptick in violence against West Papuans in retaliation. Even if it is accepted that the Applicant has not been a person of interest in recent years, she could easily become a target again as a result of these developments”[39].

[38] AAT file, folios 115-119.

[39] AAT file, folio 119.

73.  The Tribunal has considered this response:

74.  The Tribunal is prepared to accept that there may not have been further reports regarding the applicant’s [Relative A] because he has not been located or arrested again.  However, the Tribunal put weight on the fact that according to the applicant her [Relative A] came to Australia in 2012 and had there been a continuing effort on the part of the Indonesian authorities to locate her [Relative A], it might reasonably be expected that there would be at least some coverage early after the incidents referred to in the blogs.  The Tribunal could not be satisfied based on the evidence available to the Tribunal that even if [Relative A] is being sought by the Indonesian authorities following his acquittal, that the applicant is at risk of serious or significant harm as a result.

75.  The Tribunal accepts the more general claims made by the applicant in her response to the 424A letter that Indonesian authorities continue to suppress pro-independence activism in West Papua and that there are incidents involving various individuals and Indonesian authorities, however, the Tribunal does not accept that this directly links to the applicant and that the applicant is at risk of serious or significant harm as a result.

76.  The Tribunal is prepared to accept that there is agitation both internationally and in West  Papua has been recently renewed seeking a pro-independence vote, however, the Tribunal does not accept that this directly links to the applicant and that the applicant is at risk of serious or significant harm as a result.

77.  As hearing, the Tribunal explained to the applicant that the evidence put forward did not provide the clarity needed for the Tribunal to be satisfied that she would be sought by Kopassus agents for her role in protecting her [Relative A].  The applicant then stated that she was a leader for women and children who are suffering and that she assisted her [Relative A] by protecting his wife and children by helping them to get passports and with their daily life functioning.

78.  Based on the applicant’s evidence the Tribunal could not be satisfied that the applicant played a significant role in hiding her [Relative A] and his family in Papua New Guinea.  Also, given the evidence she had provided about people assisting her to obtain her own passport, the Tribunal could not be satisfied that the applicant was herself instrumental in obtaining her [Relative A’s] passport.

79.  The Tribunal explained to the applicant that it had concerns regarding some aspects of her credibility, which had been outlined during the course of the hearing, the fact that there was no recent independent information that her [Relative A] was sought by Indonesian authorities in recent times, and her own evidence that he was released by an Indonesian court, that she was at risk of serious or significant harm if she were to return to Papua New Guinea. The applicant was given an opportunity to comment.

80.  The applicant stated that the events that she referred to in relation to her [Relative A] really did occur. The Tribunal explained to the applicant that it was prepared to accept that he was previously involved in various activities in relation to the independence movement in West Papua but the Tribunal was having some difficulty accepting that she would be harmed as a result of that. The applicant responded that he is safe now because he is under protection but that she is worried that she will be prosecuted or killed because she protected him. She stated that at that time he was wanted by the Special Forces. The Tribunal explained to the applicant that based on the evidence before the Tribunal to date it was difficult to accept that this claim was plausible. She responded that although her [Relative A] was released he was still sought by the authorities.  Further, the applicant gave evidence that her [Relative A] and his family are in Australia and are also seeking protection.

81.  For the reasons outlined, the Tribunal was unable to be satisfied that the applicant will be at risk of serious or significant harm due to the fact that she may have hid her [Relative A] in either 2012 or 2013 in Papua and New Guinea.

Documentary evidence provided by the applicant

82.  The Tribunal asked the applicant about the copies of photos she provided. Many of the photos show people, who have been injured, jailed, participating in demonstrations, or holding flags of West Papua[40].  The Tribunal explained to the applicant that it would give limited weight to these photographs as it was not possible for the Tribunal to identify the individuals in the photos nor the circumstances of the photos. The applicant was given an opportunity to comment. The applicant responded that the photos are true showing people who have been injured and in demonstrations.

[40] DIBP file, folios 48-86.

83.  The Tribunal asked the applicant about the copy of the report prepared by the Centre for Peace and Conflict Studies, at the University of Sydney, Entitled Anatomy of an Occupation: the Indonesian Military in West Popular dated August 2011 and confirmed with her that there was no reference to her, her [Relative A] or her [Relative C] in the report. The Tribunal indicated that it accepted that report discussed the independence movement and circumstances involving some West Papuan fighters and that their efforts had resulted in injuries and deaths, but again it did not establish that she herself was at risk as a result.  The applicant stated that her [Relative C] was not mentioned in this report because he had already passed away by that stage.

84.  The Tribunal was prepared to accept that the applicant undertook various volunteering and support roles with [specified agencies] and that she undertook a two-hour [course] with [Agency 2],  that she completed a Community Work Skills Project, completed a life coach training workshop through [a church group], and training at [Church 1]. The Tribunal also noted the character reference provided by the Senior pastor of [Church 1] and is prepared to accept she is of good character[41].

Further issues referred to in the applicant’s 424A response

[41] AAT file, folios 45-51.

85.  The 30 October 2017 response to the Tribunal’s 424A letter also raises the following[42]:

“2. Applicant’s other claims

The Applicant’s reasons to fear returning are not limited only to her role in [Relative A’s] departure to Australia. As stated in submissions made to DIBP [in] November 2013 (folio 136):

The Applicant is also a member of the ‘royal family’ of the tribe, which is also a particular social group. Her [Relative C, named], is the highest chief of all [their] tribes. According to the cultural tradition of the tribe, the applicant is the chief’s [relative].

She is of particular importance because of her education and English ability. An example of this is that when present at [Relative A’s] trial, she was confronted by [authorities] as to why there were so many westerners there. She had to explain to them that the people were geologists and as a result was identified as an activist or tribal spokesperson for [her] tribe.

As a member of the chief’s family she also has knowledge of various important sites to the family, including not only cultural sites but also of significant commercial value in terms of [resources]”.

[42] AAT file, folio 117-118.

86.  The Tribunal has considered the applicant’s claims and is prepared to accept that the applicant is also a member of the ‘royal family’ of the tribe, which is also a particular social group and that her [Relative C, named], is the highest chief of all [their] tribes and that according to the cultural tradition of the tribe, the applicant is the chief’s [relative] and that she is f particular importance because of her education and English ability and explained why there so many westerners there [Relative A’s] trial and as a result was identified as an activist or tribal spokesperson for [her] tribe.  However, the applicant did not provide any evidence to support her claims that she was at risk of serious or significant harm as a result of this.  Nor, was the Tribunal able to locate any evidence to support such claims.  \

87.  No evidence was made available by the applicant that being a member a chiefly family constitutes a particular social group for the purposes of the assessing her claims under the Refugee Convention.  There was no evidence available to the Tribunal in this regard and therefore the Tribunal could not be satisfied the applicant would suffer serious or significant harm as a result. 

88.  The Tribunal gave consideration to the applicant’s other claims regarding her importance because of her knowledge of the English language and of important cultural sites.  However, in the absence of any evidence the Tribunal was not satisfied that the applicant would suffer suffer serious or significant harm as a result. 

89.  The 30 October 2017 response to the Tribunal’s 424A letter also raises the following:[43]

“The Applicant’s relationship with [Relative A] is not the only family link between her and the West Papua independence movement. She gave evidence at the hearing concerning her father’s imprisonment during her childhood. She also stated that ‘I was scared that they would find me that I was [related to a leader] right back from the era of the [Dutch]’. This refers to the Applicant’s [Relative D, named], who is mentioned in [sources] as a [West Papuan] leader at the time of annexation.

Attached are copies of the relevant pages of [sources deleted]. 

[43] AAT file, folio 118.

90.  The Tribunal notes that one of the documents make reference to [the applicant’s Relative D] travelling to [a location] as a delegate of the Papuan Congress[44] and the other states that a “[person with the same surname] … attending [an international] debate on the Agreement”[45].  The Tribunal accepts that the applicant’s family has had a long connection with the pro-independence movement.  However, the applicant did not provide any evidence to support her claims that she was at risk of serious or significant harm as a result of this historical family connection.  Nor, was the Tribunal able to locate any evidence to support such claims.

[44] AAT file, folio 116.

[45] AAT file, folio 117, page 2.

91.  The applicant also requested an extension of time to provide further comments on the information put to the applicant. The Tribunal responded on 1 November 2017 agreeing to the request to provide further comment or response to information put to the applicant. The Tribunal’s response indicated that the Tribunal would consider any further information received by 15 November 2017[46].  No further response was received.

Independent Country Information

[46] AAT file, folio 120.

92.  The Tribunal has taken into consideration information contained in the Department of Foreign Affairs and Trade Country Information Report, on Indonesia in relation Papuan separatists.  The report states:

“2.42 A number of areas in Indonesia are subject to ongoing inter-communal and sectarian tensions that have the potential to spill over into violent incidents. Inter-communal and sectarian violence resulting in a number of deaths have occurred in Central Sulawesi, Maluku, Papua and West Papua provinces in recent times. Tensions associated with anti-government groups or local political factors have sometimes resulted in violence. Security in the provinces of Papua continues to be volatile, particularly in the highlands and in mining areas including the Freeport site in Timika. Much of this violence is criminal rather than separatist in nature (see section on ‘Papua’ below).

Papuan separatists and pro-independence figures

3.59 The Papuan independence movement is neither a coherent political nor guerrilla force. Papuan independence supporters can be broadly divided into three groups: 1) several small, low-calibre armed rebel groups (mostly based in the highlands, the area around the Freeport mine, and the border areas with Papua New Guinea) who call themselves the armed wing of the Free Papua Movement (Organisasi Papua Merdeka - OPM) but who operate entirely independently of one another and whose activities are limited to occasional sporadic low-level attacks, usually against police or military targets; 2) a small number of highly factionalised hard-line activists who protest in support of a referendum aimed at achieving Papuan independence; and 3) a large swathe of the Papuan grassroots community, who do not actively struggle for independence, but support independence as a means of expressing their dissatisfaction with the status quo.

3.60 Human Rights Watch claims it has documented dozens of cases between 2011 and 2014 which indicate that police, military, intelligence officers, and prison guards used unnecessary or excessive force when dealing with Papuans exercising their rights to peaceful assembly and association. Human Rights Watch also claims 65 Papuans were in prison on charges of “treason" as of January 2015.

3.61 DFAT observes that ‘Papuans’ and ‘separatists’ are not synonymous and their treatment by the Indonesian authorities differs accordingly. The Indonesian Government has historically taken a strong stance against separatist movements within its own borders. Individuals engaging in separatist activities can be charged with ‘rebellion’ under Article 106 of the Indonesian Criminal Code, which carries a 15-year jail sentence. Reports indicate a number of individuals have been charged with this offence in Papua, including some who were allegedly involved in peaceful protests. Government Regulation 77/2007 on ‘Regional Symbols’ explicitly bans the display of separatist symbols and specifically lists the flags used by the respective separatist movements in Aceh, Papua and Maluku provinces and there have been a number of arrests allegedly related to the display of the ‘Morning Star’ flag in Papua and the ‘Benang Raja’ flag in Maluku (although enforcement has been inconsistent, as outlined above). According to the 2013 Human Rights Report on Indonesia released by the US State Department most of those arrested were detained by police for between one to three days before being released.

3.62 DFAT assesses that, generally speaking, the majority of problems raised by Papuans are issues replicated across the archipelago, including: entrenched local corruption, Javanese cultural superiority, subpar health and education, and chronic distrust of local security forces. DFAT assesses as credible reports that state while some of the violence in the highlands is perpetrated by separatists, violence in most areas tends to be more criminal in nature. DFAT assesses there have been some credible allegations of torture and ill-treatment of detainees in Papua and West Papua provinces. Similar incidents have occurred in other parts of Indonesia. In some cases, perpetrators of torture or ill-treatment in Papua have been prosecuted (see ‘Torture’ below). DFAT notes there are a number of Papuan separatists currently living abroad in self-imposed exile, many of whom left Indonesia during Suharto’s New Order era. Some of these exiles returned to Indonesia under former President Yudhoyono, citing the improved conditions under Special Autonomy.

3.63 DFAT assesses that Papuans engaged in separatist or criminal activities are at high risk of official sanction or discrimination by Indonesian authorities. Papuans who are not active in promoting separatist or criminal activities have a significantly lower risk of official discrimination or violence. Broadly speaking, societal discrimination against Papuans is widespread throughout the archipelago. DFAT assesses that treatment of Papuans is often worse than that experienced by other non-Javanese Indonesians who also experience discrimination”[47].

[47] DFAT Country Information Report, Indonesia, 2015, pp 8,9 and 18.

93.  The Department’s Country Information Report on PNG does not provide information about West Papuans in PNG.

FINDINGS

94.  Considering the above issues the Tribunal has had regard to the applicant’s oral and written evidence to the Department and the Tribunal and the representative’s submissions.  Having considered all of that evidence, the Tribunal:

a.accepts that the applicant has received counselling for the reasons outlined in the written evidence provided by her psychologist and that a person experiencing [the specified condition] may have difficulty in providing consistent evidence, have trouble concentrating and be confused and distressed at times. 

b.is prepared to accept that the applicant’s [Relative A]  was arrested, charged, tried and acquitted by an Indonesian court.

c.is prepared to accept that the applicant provided some assistance in her [Relative A’s] travel from West Papua to Papua and subsequently to Australia, however, on the evidence available the Tribunal, could not accept that the applicant was at risk of serious or significant harm as a result.

d.on the evidence available to the Tribunal does not accept that the applicant’s [Relative A] was sought by the Indonesian authorities subsequent to his release in [year] and therefore does not accept that she was approached by Indonesian authorities or agents of the PNG government looking for him.

e.does not accept that the applicant will be sought by Indonesian authorities or agents of the PNG government for having provided such assistance.

f.does not accept that the applicant would suffer serious or significant harm as a result of her being a member of a chiefly family or that this constitutes a particular social group, or being because of her knowledge of the English language and of important cultural sites. 

g.the applicant made no claims that she will re-engage with the West Papuan pro-independence movement if she were to return to PNG.  On that basis, the Tribunal is satisfied the applicant will not be at risk of serious or significant harm as a result.

h.accepts that the applicant’s family has had a long connection with the pro-independence movement, however the Tribunal was not satisfied based on the evidence available that that she was at risk of serious or significant harm as a result of this historical family connection.

1. is prepared to accept that there may not have been further reports regarding [Relative A] because he has not been located or arrested again.  However, Tribunal could not be satisfied based on the evidence available that even if he is being sought by the Indonesian authorities following his acquittal, that the applicant is at risk of serious or significant harm as a result.

j.accepts the claims made by the applicant that Indonesian authorities continue to suppress pro-independence activism in West Papua and that there interest  in a pro-independence vote however, the Tribunal does not accept that  the applicant is at risk of serious or significant harm as a result.

Does the applicant meet the refugee criterion?

95.  As the Tribunal was not satisfied with the claims made by the applicant and having had regard to all the evidence, and the applicant's claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.

96. In view of these findings of fact, the Tribunal is not satisfied that the applicant has a well-founded fear of Convention related persecution for any of the reasons she has claimed. Accordingly, the Tribunals finds there is no real chance that she will be subject to serious harm for one or more of the reasons set out in the Refugees Convention or for any other reason if he returns to PNG now or in the reasonably foreseeable future. The applicant does not satisfy the criteria in s.36(2)(a).

Does the applicant meet the complementary protection criterion?

97.  The Tribunal has considered whether on the evidence before it, that there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Papua New Guinea.

98.  Having considered the applicant's claims singularly and cumulatively, the Tribunal finds that the applicant does not meet the criteria for complementary protection criteria. Taking into account the Tribunal’s findings of fact and the available country information, it is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if she returns to Papua New Guinea now or in the reasonably foreseeable future.

99.  The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will be arbitrarily deprived of her life, that the death penalty will be carried out on her, that she will be subjected to cruel or inhuman treatment or punishment or she will be subjected to degrading treatment or punishment if she returns to Papua New Guinea or in the reasonably foreseeable future.

1. Accordingly, the Tribunal is not satisfied that that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Papua New Guinea there is a real risk that she will suffer significant harm as defined in s.36(2A) and s.5(1) of the Act. The applicant does not satisfy the criterion in s.36(2)(aa).

CONCLUSION

1. 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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

2. 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).

3. 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

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

Linda Holub
Member

Key Legal Topics

Areas of Law

• Immigration

• Administrative Law

Legal Concepts

• Judicial Review

• Procedural Fairness

• Statutory Construction

• Jurisdiction

• Standing