1516222 (Refugee)

[2017] AATA 593

1516222 (Refugee) [2017] AATA 593 (31 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1516222

COUNTRY OF REFERENCE:                  Indonesia

MEMBER:C. Packer

DATE:31 March 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 31 March 2017 at 2:12pm

CATCHWORDS
Refugee – Protection visa – Indonesia – Particular social group – Victims of money lenders – Loans for business – Criminal organisation – Physical violence

LEGISLATION
Migration Act 1958, ss 5J, 36, 65, 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. The applicant is a man aged [age], born in Indonesia and an Indonesian citizen.

2. He arrived in Australia [in] July 2014, as a holder of a [temporary] visa. He travelled on his Indonesian passport issued [in] 2013 and valid [until] 2018.

3. [In] March 2015 he applied for a Protection (Class XA) visa.

4. He did not attend an interview with a delegate of the Minister for Immigration.

5. [In] October 2015 the delegate refused the application under s.65 of the Migration Act.

6. On 25 November 2015 the applicant applied for review of the delegate’s decision.

7. On 16 March 2017 the applicant attended a Tribunal hearing.

8. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.

   CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS

   Background

9. The applicant’s protection visa application provided some basic background information, and he supplemented this with further details at the hearing.

10. In his written application, the applicant stated that he was born and raised in Semarang, and from [specified year] to July 2014 lived at [Town 1], both places in Central Java. He has a wife and [children and family] - all live in Indonesia. He listed his only employment as [an occupation] from January 2010 to June 2014.

11. At the hearing he said his mother and [number] other relatives now live in the family home in Semarang, while about a half hour drive away his wife and [children] currently reside with the wife’s parents at [Town 1]. His description of his work in Indonesia included working in a [business], and selling [goods].

12. The applicant’s protection visa application showed he travelled to [Country 1] in March 2014 for ‘pleasure’. At the hearing he said this trip was for the purpose of showing lawful travel when he came to apply for an Australian [temporary] visa. He said he came to Australia with an intention to work and send money home. His remittances support his wife and children and most importantly finance his [specified child’s] [education] that will be complete next year. 

    Summary of claims

13. The applicant claims that in Indonesia in 2007 he took a large loan from an organisation, which he has not repaid. He continues to owe the original loan and in addition the annual interest that accrues. The moneylenders regularly sought repayments and have even beaten him when he did not pay. He reported them to the police but the police took no action. He hid in Jakarta but the moneylenders soon found him there, so he returned home. After he left Indonesia the moneylenders seized some furniture from his wife. The loan business is a criminal organisation with agents throughout Indonesia, and if he does not repay the debt they will harm him, or force him to deal in drugs. However, he has no money or assets and cannot repay any of the large and growing debt unless he stays and works in Australia.

14. The applicant also claims that if he returns to Indonesia he will not be able to continue financing his [child’s] expensive [education]. 

    Evidence

15. The evidence before the Tribunal includes the following material:

    ·The applicant’s Protection visa application form lodged [in] March 2015, which includes handwritten reasons for seeking protection in Australia.

    ·Passport pages.

    ·The applicant’s [temporary] visa application form stamped [in] July 2014, which includes documents provided by him.

    ·The Protection visa decision record (‘delegate’s decision’) dated [in] October 2015, which is the subject of this review.

    ·The application for review, which has attached to it a copy of the delegate’s decision.

16. The applicant appeared before the Tribunal in person to give evidence and present arguments, on 16 March 2017. The hearing was conducted with the assistance of an accredited interpreter in the Indonesian and English languages, who was on the telephone. Soon after the hearing started the applicant stated he wished to proceed without interpretation as he was fluent in English. Nonetheless the interpreter stayed on the phone in case needed. At the end of the hearing the applicant stated he had fully understood everything, and that he had said everything he wished to say. 

17. At the start of the hearing I asked whether he was well and able to talk about his story, and he stated he was. During the hearing he appeared to fully understand questions and he gave coherent answers and explanations. I assess that he spoke English well and understood what was said. I also assess that he was competent to give evidence and had a full opportunity to put forward his story and arguments.

18. The Department had not issued a certificate under s438 of the Act.

    Assessment of claims: credibility

19. The applicant claims to be a national of Indonesia. I sighted his Indonesian passport at the hearing and partial photocopies were made. All the available evidence, including the applicant’s oral evidence and familiarity with Indonesia, supports his claim to be an Indonesian national. I find, therefore, that the applicant is an Indonesia national. Indonesia is therefore the country of reference for the purpose of assessing the applicant’s protection claims, and the receiving country when assessing his claims against the complementary protection grounds.

20. The applicant’s narrative is centred on a large and growing debt he owes to a criminal organisation in Indonesia. At the hearing he provided information about his past and current financial situation and his debts. He says he fears to return to Indonesia because the criminal organisation would then demand payment from him, and as he could not repay any amount, they would kill him or perhaps force him to sell their illegal drugs. However, my significant concerns with his narrative and evidence lead me to find that he has fabricated and embellished claims and that he is not a credible witness. My assessment follows.

21. There is no documentary evidence that shows the loan. The applicant says this is because although he signed a loan document, he subsequently misplaced the copy of the signed loan document he had been given. Nor can the applicant show documentary evidence of repayments as he says he has made none. He says he knows the moneylenders are a criminal organisation because they have no office and it is easy to get a loan from them.

22. The applicant has explained how the loan came about. In the application he wrote that he started borrowing from the ‘loan company’, which he also described as a ‘crime organisation’, because he lost a lot of money in investment and he had no extra money to pay the investment company. At the hearing he explained in greater detail that he operated a business involved in distributing [goods] to [retailers]. He would show samples of [his goods] to the retailers, take their orders, then purchase the ordered [goods] from industry/wholesalers, and finally deliver the [goods] to the retailers. But his business had a cash-flow problem. He said that he needed more cash to continue this business because the retailers only paid him after a three month delay. In July 2007 he therefore borrowed from the moneylenders [amount] million rupiah (he estimated about $[amount][1]) at 25% annual interest. This evidence was broadly similar to the application, although in the application the only work he listed was as [an occupation] from January 2010 to June 2014, which is some years after he says he borrowed the money. 

    [1] [Information deleted].

23. In the light of his evidence that he borrowed the large sum for the purposes of addressing a cash-flow problem in his business, I queried what his turnover had been each year in the last few years of his business, and then I pressed him that he must have been earning a lot of money so that he thought he could repay the interest. But he then merely spoke about providing for his [children] and also that he gave greater priority to a bank loan. However, having described how he needed the large loan in order to keep the business operating while he waited for retailers’ payments, the applicant’s scant details about his business finances when asked, raises significant doubts with his explanation of how the loan came about.

24. At the hearing the applicant described the onerous loan conditions of 25% interest accruing year after year. But his evidence is that when he got the loan in July 2007 he made no plans at all to repay the debt until perhaps after [his specified child] completed High School. After further questions he said a bank loan was his priority, and he had thought he would come to Australia to work. But he did not make any arrangements to come to Australia until six years later when he got his passport, and he says the [child] will only complete [schooling] in 2018 which is eleven years after he says he got the loan. In light of the applicant’s narrative that the loan came from a dangerous criminal organisation, his evidence that he had made no plans to repay the debt beyond a long-term hope of working in Australia, is unpersuasive.

25. At the hearing I queried what efforts the moneylenders had made between 2007 and 2014 to get payments from him. He described being beaten severely three times although he said all the beatings were in 2009, and thereafter he was merely asked infrequently. In the applicant’s narrative the moneylenders were prepared to readily use violence to encourage payments and punish for non-payment. It is difficult to accept, therefore, that after the 2009 beatings and his continuing lack of payment, the moneylenders did not seriously threaten or punish him but instead merely accepted his assurances, which he failed to act on, year after year. The applicant’s evidence about the moneylenders’ infrequent and low level approaches to him after 2009, despite his lack of any payment at all, is unpersuasive.

26. The applicant spoke of the time in 2009 when he went to Jakarta to hide, but within a week he was found by the moneylenders. However, his explanation for being discovered so quickly was just that ‘people talk’. When I pointed out that Jakarta was a huge metropolis and given that he was hiding he would have been discrete, he then explained that perhaps they knew he had a [Relative 1] living in Jakarta. However, he had earlier said he secretly rented a small, cheap room and he agreed he did not stay with the [Relative 1]. He then speculated that perhaps the [Relative 1] had told the moneylenders, but he was unsure about this as he never asked the [Relative 1] so as to spare her from feeling guilty. He then suggested maybe the [Relative 1] does not like him. In sum, the applicant’s changeable explanation for how the moneylenders found him so quickly in Jakarta, a huge metropolis some distance from his home, is unconvincing. Nor did his evidence about his hiding in Jakarta explain why the moneylenders used significant resources to search for him away from his home area, and yet after he returned to his home area made infrequent and low level approaches to get repayments in the following years. As well, I disbelieve that in the serious circumstances described by the applicant that he says led him to suspect the [Relative 1] had informed on him, either by mistake, through coercion, or deliberately- he failed to ever ask the [Relative 1] merely because he wanted to spare her feelings.

27. The applicant says he sought help from the police in Indonesia, but was told they would not take any action. When I asked whether he had made his complaint to the police in writing, he said he did and he kept a copy, but he’d since lost the copy. His evidence is that he now has no documentary evidence of having approached the police.

28. I have additional concerns with the applicant’s narrative and evidence:

    ·A puzzling aspect of the applicant’s narrative is his evidence that before coming to Australia he was able to access large sums of money. This allowed him to travel to [Country 1] in March 2014, and as well, to finance his travel to Australia a few months later. I asked him how much he had in bank accounts at the time he applied to come to Australia and he said he and the wife had significant sums in bank accounts of up to [amount] million rupiah (up to about $A[amount]). He explained that by then he had sold his house, but he also borrowed [amount] million rupiah from a good friend to finance his [Country 1] trip. The applicant explained that some money went to pay off a bank loan. However, given that he had access to a significant sum in 2014, and in light of his claimed great fear of the moneylenders, I am concerned as to why the applicant made no attempt at all to discharge any of the debt.

    ·He claims he has a great fear of the moneylenders to whom he owes an ever growing debt, and that his fear is based on their criminal operations including the sale of drugs and because in the past they had severely beaten him as they were unhappy at his non-payment. However, that he left the wife and [children] in his home area where they could be easily located by the moneylenders and be subjected to reprisals does not support his claims to have had such a fear.

    ·His evidence is that since coming to Australia he has regularly sent large sums back to his wife but he confirmed this money is just for his family’s expenses and [children’s] schooling. His evidence is also that the moneylenders had invaded the wife’s home and seized some furniture. In these circumstances where his family remain vulnerable, and in light of his claimed fear of the moneylenders, I am concerned as to why he has not at least tried to discharge some of the debt since coming to Australia.

    ·Given that the debt is central to his claim to fear harm and at the hearing he said he intended to repay it, I am concerned that he was not able to say exactly what the debt amounted to, beyond a vague summation that perhaps the debt was now [amount] million rupiah.

29. In sum, I accept that at times the applicant may have faced financial difficulties in supporting his family in Indonesia and in particular, difficulties in financing his [specified child’s] High School education as he stressed. I accept that poor economic conditions in Indonesia and the applicant’s belief that he could earn more in Australia may well have influenced his decision to come to Australia and seek to stay.

30. But taking all of my foregoing concerns together, I find unconvincing and do not accept his claim that in Indonesia he took a loan from moneylenders to whom he now owes a growing debt. I do not accept that: in July 2007 he took a loan from a criminal organisation or any other organisation; he borrowed [amount] million rupiah at 25% annual interest; he has made no repayments and so now owes a much larger debt; he once fled to Jakarta where he was discovered by the moneylenders; they severely beat him several times; he went to the police about these problems; furniture was later seized by the moneylenders from the wife’s home. I conclude that moneylenders have not threatened and harmed him or the wife as he claims, and that he has made no efforts to repay the debt because there is no debt.

31. I do not accept either that the applicant departed Indonesia so as to escape feared harm (such as threats, intimidation, physical or other harm) from moneylenders there, or that he now fears to return to Indonesia for the reasons he has given. I conclude the applicant has had no dealings with a criminal organisation/moneylender and is of no past or ongoing interest to such people.

32. The applicant’s evidence that I do accept shows he worked in Indonesia and works in Australia. He has work skills that will enable him to seek and to get work in Indonesia. Before coming to Australia he sold a house, had money in the bank, and a bank loan was repaid in full. I conclude that at times he had access to significant sums of money before he departed Indonesia. In sum, I do not accept that poor economic conditions in Indonesia will result in significant economic hardship that threatens the applicant’s capacity to survive.

33. The applicant departed Indonesia on his genuine Indonesian passport that is valid to [2018]. As I discussed with the applicant, he is an Indonesian national and he will be able to return to Indonesia without difficulties. Country information[2] shows that Indonesian nationals who apply for protection in Australia for the purpose of extending their stay to work are generally of little interest to Indonesian authorities. In light of my findings above, while the applicant has stayed and worked in Australia and sought protection, I do not accept these actions will cause him to face harm on his return to Indonesia.

    [2] DFAT Country Information Report Indonesia 9 June 2015

34. I am therefore not satisfied that he has a well-founded fear of persecution for any of the reasons enumerated in s.5J(1)- race, religion, nationality, membership of a particular social group or political opinion- now or in the reasonably foreseeable future, if he returns to Indonesia.

    Refugee criterion

35. In light of the above assessment, the Tribunal finds that in Indonesia the applicant does not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future, for the reasons he claims. The Tribunal finds that in Indonesia the applicant does not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future, for one or more of the five reasons set out in s.5J(1) of the Act either when looked at individually or cumulatively.

36. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    Complementary protection

37. I considered whether on the evidence before me, there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia, there is a real risk that he will suffer significant harm.

38. I accept the applicant may face ongoing financial difficulties in supporting his family in Indonesia. However, in light of the foregoing I do not accept that the applicant took a large loan from moneylenders to whom he now owes a growing debt. I conclude he has had no dealings with a criminal organisation/moneylender as he claims and is of no past or ongoing interest to such people. I do not accept that poor economic conditions in Indonesia will result in significant economic hardship that threatens the applicant’s capacity to survive.

39. In sum, I find there is no real risk that he will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. Nor am I satisfied that there is a real risk that he will suffer arbitrary deprivation of his life or the death penalty. I am not satisfied the applicant will be subject to significant harm for any reason if he is removed/returns to Indonesia.

    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 s.36(2)(a).

2. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal considered the alternative criterion in s.36(2)(aa). However, 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

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

   C. Packer
   Member

   
   

   ATTACHMENT A – RELEVANT LAW

   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.

   Refugee

   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.

   A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

   Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. 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.

   Complementary protection

   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’).

   ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

   There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

   Mandatory considerations

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