1517520 (Refugee)

1517520 (Refugee) [2018] AATA 4980 (7 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1517520
COUNTRY OF REFERENCE:                  Indonesia
MEMBER:Frances Simmons
DATE:7 December 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 07 December 2018 at 1:46pm
CATCHWORDS
REFUGEE – protection visa – Indonesia – political opinion – member of PDI-P Ngawi Regency – victim of threats and physical attack – target of political supporters of President Widodo – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K-LA, 36, 65, 438,499
Migration Regulations 1994 (Cth), Schedule 2

CASES
MZAFZ v MIBP [2016] FCA 1081
MIAC v SZQRB [2013] FCAFC 33
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

The applicants are citizens of Indonesia. They arrived in Australia [in] July 2015 and applied for protection visas on 21 September 2015.
This is an application for review of a decision made by a delegate of the Minister for Immigration on 10 December 2015 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
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.
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 themselves 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, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has considered the evidence before the Department and the evidence before the Tribunal, which includes the applicants’ [temporary] visa applications.
Invalid s.438 certificate
A certificate purportedly issued pursuant to s.438(1)(a) of the Act has been placed on folio 49 of the Departmental file restricting the disclosure of the information contained therein. If a certificate is issued because the disclosure of information or documents would be contrary to the public interest, it is necessary for the certificate to specify the reasons why. The certificate placed on file under s.438(1)(a) of the Act states that the disclosure of the information would be contrary to the public interest because it would reveal internal working documents and business affairs.
In MZAFZ v MIBP [1] the Federal Court held that the Tribunal had erred in treating a non-disclosure certificate as valid where the only reasons cited in the certificate as contrary to the public interest were ‘internal working documents’. The court held this had never been a sufficient basis for public interest immunity whether at common law or under statute and did not identify the harm that could be done to an agency by their disclosure. At best, the words ‘internal working documents’ disclosed a reason that could form part of the basis for a claim, but not the basis of the claim itself.[2]
[1] MZAFZ v MIBP [2016] FCA 1081 (Beach J, 7 September 2016).
[2] MZAFZ v MIBP [2016] FCA 1081 (Beach J, 7 September 2016) at [37]. See also BXD15 v MIBP [2017] FCA 1209 (Flick J, 12 October 2017) at [46]-[48].
The Tribunal finds that the s.438 certificate that has been placed on folio 49 of the Departmental file is invalid. [Details deleted]. At the hearing, the Tribunal disclosed this information to the applicants observing that firstly, this information was known to them, and secondly, the information is not relevant to the issues the Tribunal must determine on review.
Background
The applicants are a family. [The first named applicant] and [the second named applicant] are married. [Their] daughter, was born [in date]. The applicants speak, read and write Indonesian and are of the Muslim faith. They were granted [temporary] visas on 15 June 2015.[3] They arrived in Australia [in] July 2015. These visas expired on 3 August 2015. After initially lodging an invalid protection visa application, in September 2015 they lodged valid applications for protection visas.
[3] Departmental file, folio 3.
The protection visa application forms ask the applicants to provide all the residential addresses that the applicants have lived at in the last 30 years. One address is provided.[4] [The first named applicant] discloses that he has previously travelled to [another country] twice in 2014 for a holiday and in the same year the applicants also travelled to [two other countries].
[4] Department file, folio 28.
According to protection visa application forms, [the second named applicant] was a government employee who worked as [Occupation 1] for the [government] ([workplace]) and she also worked privately as [Occupation 1].
Summary of claims and evidence before the Department
Written claims
[The first named applicant’s] written claims assert that he left Indonesia because he became the target of political supporters of Indonesian President, Joko Widodo, after they accused him of betraying President Widodo. [The first named applicant] believes that President Widodo has not lived up to his election promises as Indonesia is becoming less educated, poorer, prices continue to rise and crime is rampant. Therefore he decided to withdraw his support for President Widodo and he invited other supporters of President Widodo to do the same. In retaliation the President’s supporters threatened to kill [the first named applicant] and his family. He claims that his family (the second and third named applicants) will also be at risk from Widodo supporters if they return to Indonesia because of [the first named applicant’s] political profile.
[The second named applicant] worked for the government as [Occupation 1]. After [the first named applicant] withdrew his support for President Widodo, Widodo supporters came looking for him at his home, on the pretence of seeking [items] from [the second named applicant], but when they were admitted to the home they [attacked the] [first named applicant] and [caused an] injury. Their daughter witnessed this attack and was traumatised; she was scared to go outside or to school, and suffered nightmares. The attack was reported to the police and to [the second named applicant’s] employer. The police came to their home once but did not take ‘firm action’. [The second named applicant] was advised by her employer that [the first named applicant] should not be a political activist because she worked for the government.
The applicants moved to Kalimantan for two months afterwards, but Widodo supporters continued to look for them there. The Widodo supporters had access to intelligence and were prepared to be reckless, so it was easy for them to locate the applicants in Kalimantan.
[The first named applicant] believes that he and his family members will be harmed if they return to Indonesia because he previously convinced many people to support Widodo to become President but since he withdrew his support he has been able to convince many others to withdraw their support from the President. Consequently Widodo supporters hate him and he has become a major target. If he returns to Indonesia the Widodo supporters will have to kill him so that he does not convince people not to support Widodo. [The first named applicant’s] mother and sister live in Indonesia. He often contacts his mum to ‘ask how these people searching/looking [for] me’.
The protection visa application states only [the first named applicant] has claims for protection.[5] However, elsewhere in the application [the second named applicant] states that she fears harm because her husband became a political target and if the people looking for him do not find him they will hurt her and try to kill her daughter. [The second named applicant] fears that when people come to search for [the first named applicant] they will find her and she will then be pushed, slapped and threatened with death if she does not disclose his whereabouts. They have tried to move to Kalimantan and they feel the same there.
[5] Departmental file, folio 16.
The protection visa application indicates the applicant will provide further information which includes ‘political ID member’, ‘letter evidence from a police letter explain[ing] that we report’, and ‘letter evidence from doctor’. Such documents were not provided to the Department.
Interview with the delegate
The Tribunal has listed to the interview the adult applicants attended with the delegate on 4 December 2015 which ran for over three and a half hours. The Tribunal finds that the references to the evidence of the applicants, both of whom were interviewed by the delegate, in the delegate’s decision are accurate. The applicants were unrepresented before the Department. The applicants indicated that they prepared the protection visa application with help from [an organisation] and were aware of its contents.
The applicants claim that [the first named applicant] will be targeted for assassination and killed by Indonesian Democratic Party of Struggle (PDI-P) supporters and/or persons hired by PDI-P supporters and/or supporters of President Joko Widodo. [The first named applicant] told the delegate he was frightened of people hired by a man named [Mr A], a PDI-P local politician sitting on the Ngawi Regency (East Java Province) council. The applicant claims he will be harmed because of his political opinion: he withdrew his support for President Widodo, the PDI-P and [Mr A]; and left his employment with the PDI-P, encouraging many others to also withdraw their support from President Widodo.
[The first named applicant] told the delegate that in 2009 he became an activist for the PDI-P, and he remained in this position until November 2014. He claimed he was employed at a local level within Ngawi Regency and reported to a PDI-P [member Mr A]. He claimed that when he wasn’t involved in [certain work]. He did not have any documentary evidence to prove his membership of the PDI-P. In the interview [the first named applicant] was asked whether he was a member of any political party (other than the PDI-P) and he responded no.[6] Later in the interview, [the first named applicant] claimed he was targeted because he planned to move to another party. Asked if he had moved to another party, [the first named applicant] responded, no I planned to move but I didn’t.[7]
[6] Interview with the delegate, audio recording at 1 hour 33 minutes.
[7] Interview with the delegate, audio recording at 1 hour and 50 minutes.
[The first named applicant] told the delegate that he lived in East Java province. He claims he was attacked at his wife’s workplace. Both he and his wife were questioned by the delegate about this attack, which both applicants said occurred in January 2015. After the problem he went to Kalimantan for two months. He didn’t really remember the address in Kalimantan and he didn’t think it was necessary to include his address in Kalimantan in response to question 82 of the protection visa application form. He was in Kalimantan in January and February and then he went back to Ngawi Regency. He told the delegate that neither he nor his wife were of interest to the Indonesian police; they have no problems with the law. There were no other claims that they wanted to raise.
[The second named applicant] told the delegate that she came to Australia because they were going to kill her husband. Her evidence was that she will not be personally targeted by the PDI-P but she was afraid they would interrogate her regarding the whereabouts of her husband.
Evidence before the Tribunal
The adult applicants appeared before the Tribunal on 26 June 2018. The Tribunal spoke to [the second named applicant] in private and she advised that her only claims for protection were claims that arose as a result of her membership of [the first named applicant’s] family. She did not have any other claims. The Tribunal questioned the applicants together about their claims and they maintained their claims that [first named applicant] has been targeted because of his political opinion. The applicants told the Tribunal that they did not have any documents to support their claims.
[First named applicant] maintained that he would be harmed because he left the PDI-P and because he could recruit supporters to an opposing political party. Before the Tribunal the applicant identified this opposing party as Gerindra. He told the Tribunal he had not specifically mentioned Gerindra in his interview with the delegate. He stated he wanted to join Gerindra and he had an offer to join this party but he never actually joined because the problems arose and he had to run away. He was asked what problems he had after he stopped working for the PDI-P. He said the masses he had gathered, he invited them to move to another party, Gerindra, and he was persecuted. Asked to tell the Tribunal about the occasion that he was attacked, he said it wasn’t just once, he was repeatedly attacked. Asked about the last occasion that he was attacked, he said the last time was when they threw stones at his house, he was often terrorised, his car was damaged, he was hit, kicked and often persecuted. Asked why he was being targeted, he said because he had ‘the biggest group of people’ and he was able to direct them to whatever party he wanted so he was an enemy to them.
The Tribunal questioned the applicants about their claims [the first named applicant] was persecuted because of his political opinion; and discussed with the applicants its concerns about the credibility of their claims and country information about political violence in Indonesia. After the hearing the Tribunal wrote to the applicants and invited them to comment on or respond to information at an interview in accordance with the procedure in s.424A of the Act. The Tribunal has considered the comments and responses the applicants provided at the interview on 19 July 2018. Where relevant the applicants’ evidence, the country information discussed at the hearing, and the applicants’ responses to the information put to them under s.424A is discussed below in the Assessment of Claims and Evidence.
ASSESSMENT OF CLAIMS AND EVIDENCE
The Tribunal accepts the applicants are citizens of Indonesia and that they are who they claim to be. The Tribunal accepts that the first and second named applicants are married and that the third named applicant is their daughter.
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of fact on relevant matters. In assessing the credibility of the applicants’ claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims[8] and it has had regard to the Tribunal’s guidelines on the assessment of credibility in protection visa matters. The Tribunal accepts that the applicants were nervous when they appeared before the delegate and the Tribunal. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[9] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[10]
[8] The United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196].
[9] MIMA v Rajalingam (1999) 93 FCR 220.
[10] Randhawa v MILGEA (1994) 52 FCR 437, 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347, 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.
For the reasons that follow, the Tribunal has significant concerns about the credibility of the applicants’ claims that [the first named applicant] is at risk of political persecution in Indonesia. In summary, the Tribunal was concerned about the credibility of [the first named applicant’s] uncorroborated claim that he worked for the PDI-P as [Position 1] between 2009 and 2014, particularly in circumstances where he did not disclose this employment in his [temporary] visa application or in response to questions about his employment in his protection visa application form. Furthermore, the Tribunal was concerned that the applicants gave vague and inconsistent evidence about a claimed attack upon [the first named applicant] at their home and [the first named applicant] could not recall certain information he had previously given to the delegate. The Tribunal was also concerned that the applicants were unable to credibly explain why they returned to Ngawi Regency from Kalimantan in February 2015 and that, when it was put to the applicants that the fact they were able to live in Ngawi Regency in the months before they travelled to Australia [the first named applicant] then claimed that during this period he was hiding in the forest. The Tribunal does not consider that the applicant’s claims were otherwise credible by reason of persuasive detail, consistency with independent country reports, or corroborating documentation. Further, while it is true that applicants for asylum may often be unable to produce the documents to corroborate their claims, [the first named applicant] was unable to credibly explain why he could not provide documents that he had indicated he would produce in his protection visa application form. The Tribunal’s concerns about the credibility of the applicants’ claims are set out in detail below.

The Tribunal has considered the applicants’ claims in the light of the available country information. Freedom House reports that Indonesia has made impressive democratic gains since the fall of the authoritarian regime led by President Suharto in 1998, establishing significant pluralism in politics and the media and undergoing multiple, peaceful transfers of power between the parties. Jokowi, the candidate for the PDI-P, won the 2014 presidential election with 53 per cent of the vote, defeating former general Prabowo Subianto.[11] Limited voting irregularities and sporadic election-related violence were reported, but the contest was largely considered free and fair.[12] Indonesia’s next presidential and general elections are scheduled to take place in 2019. Freedom House also reports that the right to organise political parties is respected, though in recent years the election laws have been amended to favour large parties by imposing eligibility requirements for parliamentary and presidential candidacy.
[11] Freedom in the World 2017 – Indonesia, Freedom House, 2017, available < See also DFAT Country Information Report: Indonesia, 22 December 2017.
[12] Freedom in the World 2017 – Indonesia, Freedom House, 2017, available < See also DFAT Country Information Report: Indonesia, 22 December 2017.
The Tribunal discussed with the applicants that it had not located country information that supports the claims that [the first named applicant] would be harmed because he left the PDI-P. [The first named applicant] agreed that there was more freedom of speech but claimed that in regional areas a person could become a political target and he referred to an incident in 2001 in which he claims a PDI-P supporter was killed in Ngawi Regency. The Tribunal is prepared to accept that in 2001 a PDI-P supporter was killed in Ngawi Regency, but as the Tribunal discussed with the applicants, it cannot find any recent reports of such killings or of politically motivated violence of the type [first named applicant] has described. While the applicants point out that not everything is reported in the news, as discussed with the applicants, the Tribunal could find reports of politically motivated violence in Papua province[13] and sporadic incidents of violence during elections. However, the Tribunal couldn’t find any recent reports of politically motivated violence at the 2018 regional elections in Ngawi Regency[14] or, more generally, information supporting [first named applicant’s] claims that he would be targeted by hired assassins for leaving the PDI-P and encouraging others to do so.
Claims [the first named applicant] worked as a PDI-P [Position 1]
[13] Sources consulted: CISNET, UNREFWORLD, Google.

The Tribunal also discussed with the applicants its concerns about the credibility of [the first named applicant’s] claims that he was employed by the PDI-P in Indonesia. Before the delegate and the Tribunal [the first named applicant] claimed that he was a [Position 1] and worked in this role for four to five years for the PDI-P. He was asked by the Tribunal why he couldn’t obtain any evidence of this employment (for example, bank slips showing payment over time). He responded he would hand out money to people to become involved in politics and then he would get to keep the left over money. He claimed he did this between 2009 and December 2014 in Ngawi. In his protection visa application [the first named applicant] stated he was a political activist in his written claims but did not mention that he was employed as a [Position 1] for the PDI-P until the interview with the delegate. Also, in response to questions about his employment in his protection visa application and the [temporary] visa application, the applicant stated that prior to his travel he worked as a [occupation] for [a] company but did not state he was previously employed by the PDI-P as a [Position 1] or in any other capacity.

The Tribunal is prepared to accept that the applicant has previously worked as a [occupation] for [a] company as stated in his protection visa application and his [temporary] visa application. However, the Tribunal is concerned that the applicant did not mention his employment by the PDI-P as [Position 1] in his protection visa application and, while his written claims do assert he was a political activist, the Tribunal is troubled by the fact that they do not refer to his employment with the PDI-P and also found his evidence about the ‘work’ he did (noted at [25] and [36]) to be vague and limited to generalities. [The first named applicant] has not produced any documentation corroborating his claims to be a member of the PDI-P or his claims that he was employed by the PDI-P as a [Position 1] for five years. Furthermore, for the reasons detailed below, the Tribunal found [the first named applicant]’s evidence about why he could not produce documentation corroborating his claims unpersuasive. In this context, the Tribunal has significant concerns about [the first named applicant] claims that he was employed by the PDI-P between 2009 and 2014.

Also of concern, as the Tribunal put to the applicants under s.424A of the Act when [the second named applicant] was asked by the delegate what was the main work [the first named applicant] did during the two or three years before he came to Australia, she initially gave evidence that he worked on his [business], finding accommodation for people and selling [items]. [The second named applicant] did not speak about [the first named applicant] being a political activist until later in the interview and, as the delegate’s decision record notes, his political activism was not mentioned when she was first asked about his employment. In response to the Tribunal’s concerns, [the second named applicant] said she thought she should mention the job with the salary, which was the [business], as in politics there was only a salary when there was a [particular work]. She then added her husband’s main activity was politics but she didn’t like it. She also said she didn’t like being in Australia: she described poor working conditions and struggling to cover living costs in [Australia]. She said she would like to be in Indonesia where she could live and work as [an Occupation 1] and live close to her parents. She told the Tribunal that the applicants were only in Australia because [the first named applicant] feared persecution. The Tribunal accepts that [the second named applicant] may be working in exploitative conditions to support her family and that she is unhappy in Australia. However, her responses do not resolve or overcome the Tribunal’s concerns about the credibility of the applicants’ claims that [the first named applicant] was a [Position 1] for the PDI-P and his claims that he was targeted by PDI-P supporters/hired assassins after he left PDI-P in December 2014 and encouraged others to do the same.

Inconsistent, vague and changing evidence about the attack on [the first named applicant]

The Tribunal considers that, despite being advised to provide detailed and specific responses to Tribunal’s questions, the applicants’ evidence about the harm [the first named applicant] claimed to have suffered in Indonesia because of his political opinion was expressed in very general terms. For example, while his written claims only refer to an attack that was reported to the police, when the Tribunal asked him to tell the Tribunal about the attack on him, he said it wasn’t just one attack he was repeatedly attacked. Asked about the last occasion he was attacked, he then said ‘they’ threw stones at his house, he was often terrorised, his car was damaged, he was hit, kicked and often persecuted. Furthermore, while [the first named applicant] suggested to the Tribunal that there were many attacks upon him, this assertion was not accompanied by any meaningful detail and the Tribunal was concerned that the applicants’ evidence about an attack that was mentioned in the written claims lacked credibility.

As noted above, in the written claims and evidence to the delegate the applicants both spoke about an attack on [the first named applicant] that they claimed occurred at their home in Ngawi Regency; before the delegate both applicants said this attack occurred in January 2015. However, when asked about this attack by men on motorcycles at his home, [the first named applicant] told the Tribunal he could not remember when this attack occurred. When [the second named applicant] was asked about the attack on her husband she said that the people came on motorbikes; she could not remember how many people there were; her husband thought they were [clients]; and straight away they started hitting him and stamping on him and his daughter knew about it. Asked why she believed the incident was politically motivated rather than criminal, she responded her husband had moved to Gerindra and he started getting attacked.

The Tribunal was concerned that there were inconsistencies between [the second named applicant’s] and [the first named applicant] evidence about the attack by men on motorcycles and also that their evidence about this attack was vague and, in some respects, lacked the same detail as their earlier evidence to the delegate. The Tribunal put the following to the applicants under s.424A of the Act:

·When [the first named applicant] was asked by the delegate about the attack by the men on motorcycles he claimed it was perpetrated by four or five men whose faces were concealed by motorcycle helmets.
·When [the second named applicant] was asked by the delegate about the attack she claimed there were two attackers and she could see their faces.
·In contrast to her evidence to the delegate, [the second named applicant] told the Tribunal she could not remember how many men attacked her husband.
·[The first named applicant] told the Tribunal he had forgotten when the attack by men on motorcycles had occurred.

As the Tribunal put to the applicants, it was concerned that their evidence about this attack was vague; they gave inconsistent evidence to the delegate about the number of attackers; and then when they appeared before the Tribunal [the first named applicant] could not remember when the attack occurred and, despite telling the delegate there were two attackers, [the second named applicant] was unable to remember how many men attacked her husband. In response to the Tribunal’s concerns, [the first named applicant] said the attack happened but he couldn’t remember the date and he restated his claims that he was attacked by between four to five men. He suggested maybe his wife forgot how many men attacked him. [The second named applicant] said that at the time she had a [client] and she couldn’t see how many people attacked her husband. She also said that what happened to her husband made her panic and made her scared and that was why she didn’t remember how many men attacked her husband. At that time she was [with a client] so she couldn’t see whether the husband of her [client] was involved as an attacker.

In the Tribunal’s view the applicants have not adequately explained the discrepancies in their evidence about the claimed attack on [first named applicant] by men on motorcycles. While the Tribunal is mindful that two people might recall the same traumatic event in different ways, the Tribunal is concerned that [the first named applicant] and [the second named applicant] have not adequately explained why they gave different evidence about the number of attackers and given [the second named applicant] told the delegate there were two attackers the Tribunal finds unpersuasive her claims she didn’t know and couldn’t see how many men attacked her husband and does not accept the suggestion she confused the husband [with] an attacker. These concerns are compounded by the fact that neither [the second named applicant] nor [the first named applicant] were able to adequately explain why they could no longer recall information that they each provided to the delegate (in [the second named applicant’s] case the number of attackers, in the case of [first named applicant] when the attack occurred). The Tribunal does not find the applicants’ evidence about the claimed attack on [the first named applicant] to be credible and this, in turn, casts doubt on the credibility of the applicants’ claims that they left Indonesia to escape political persecution.

The applicants’ residence in Ngawi Regency in the months before travelling to Australia

The Tribunal also considers that the fact the applicants were living in Ngawi Regency in the months before they left Indonesia casts doubt on the claims that [the first named applicant] was at risk of being assaulted or assassinated because of his political opinion. At the hearing the applicants initially gave evidence that before they left Indonesia they lived at the address stated in their [temporary] visa application and that they had lived there for around six years. Their daughter attended school in Magetan. The Tribunal asked whether, when he was having problems after he left his political position, [the first named applicant] relocated within Indonesia. The applicant told the Tribunal he tried to relocate to [Kalimantan] for two months; he thought it was January to February 2015 before returning to Ngawi. He claimed that he was also attacked in Kalimantan and his motorbike was hit with stones. When the Tribunal questioned the applicants about why they decided to return to Ngawi, [the first named applicant] said that he went back to Ngawi with his wife and daughter because his wife had to go back to work again to help others. He said he went back to Ngawi because his situation was safe but it turns out he was assaulted. It was put to [the first named applicant] that, on one view, the fact he and his wife were living in Ngawi might indicate he was not living in fear of being harmed. [The first named applicant] then raised for the first time a claim that he was hiding in the forest.

The Tribunal has considered the applicants’ claims that they attempted to relocate to Kalimantan and that, after they returned to Ngawi Regency, [the first named applicant] went into hiding. The Tribunal acknowledges that responses to threatening situations can be complex and the mere fact a person does not immediately flee a situation where they are at risk does not mean that the risk does not exist. However, in this case the Tribunal is troubled by the applicants’ evidence that they voluntarily returned to Ngawi Regency, the place where it is claimed [the first named applicant] was attacked and at risk of being assassinated because he left the PDI-P in late 2014, and remained there until they travelled to Australia in July 2015. The explanation given by the applicants for returning to Ngawi was that [the second named applicant] had important work to do as [Occupation 1]. The Tribunal accepts that the work [the second named applicant] did as [Occupation 1] is important but, as it put to the applicants, if [the first named applicant] and his family were at risk of harm it is difficult to accept that their priority would have been for [the second named applicant] to continue her work as [Occupation 1] rather than to relocate to another part of Indonesia to avoid the risk of [the first named applicant] being killed or otherwise harmed.

The Tribunal does not accept that it is credible that, if the applicants were at risk of harm they would have remained in their home area for over three months before they travelled to Australia because [the second named applicant] had work obligations. Furthermore, as the Tribunal put to the applicants under s.424A of the Act the applicants’ [temporary] visa application contains the following information:

·The [temporary] visa application form (signed on 5 June 2015) states the applicants’ residential address was in [an address].[15]
·A letter dated [in] May 2015 from [a doctor], the Manager of [Business 1], states that [the second named applicant] is an employee of [Business 1] since 2006 ‘until now’. It also states that [the second named applicant] will be travelling to Australia ‘since [date] July until [date] July 2015’ and will return to Indonesia after the trip is completed because she will work again at [Business 1].[16]
·A letter from the infant applicant’s school dated [in] May 2015 which indicates that she is a student of [a school] and she will be travelling to Australia from [date] July until [date] July 2015.[17]
·The [temporary] visa application also states that [first named applicant] is a ‘business owner’ of [a business] and [an] organiser.
[15] [Temporary] visa application, folios 48, 58.
[16] [Temporary] visa application, folio 27.
[17] [Temporary] visa application, folio 25

The Tribunal put to the applicants that the above information suggests that in the months before the applicants travelled to Australia in July 2015 they were able to live and work in Ngawi in East Java and send their daughter to school in Magetan, East Java. As the Tribunal put to the applicants, if it were to form the view that they were all able to live in Ngawi, East Java in the months before they all travelled to Australia, it may be part of the reason for concluding that none of the applicants were at risk of harm in Ngawi because of the political profile of [first named applicant] and it might also cast doubt on the applicants’ claims that they relocated to Kalimantan for two months in January 2015 in an attempt to avoid harm.

The Tribunal has considered the applicants’ evidence that [the second named applicant] was not the main target and she was not working full-time and that in the months before they travelled to Australia [the first named applicant] was hiding and moving from place to place. However, in the Tribunal’s view the fact [the second named applicant] was working in their home area in the months before they travelled to Australia and that their daughter was continuing to attend school in Magetan also cast doubt on their claims that they were at risk of being targeted by political supporters of President Widodo who were looking for [the first named applicant]. Further, the Tribunal also does not find credible the claim that in the months before they travelled to Australia [the first named applicant] was hiding in the forest or moving from place to place. As [the first named applicant] acknowledged he had not raised the claim with the delegate that he was hiding in the forest after he returned from Kalimantan to Ngawi and nor is this information, which the Tribunal considers to be significant, mentioned in his protection visa application or written claims. Nor did he mention hiding in a forest at the outset of the hearing when he was asked where he was living before he travelled to Australia.

The applicants’ immigration history also reinforced the Tribunal’s concerns about the credibility of their claims that they travelled to Australia to escape political persecution. [The first named applicant] told the Tribunal he decided to travel to Australia in 2015 because he kept getting attacked. [The first named applicant] acknowledged that he had previously applied for a [temporary] visa to travel to Australia before 2015. He thought that perhaps he did so once in 2013 but, as the Tribunal discussed with him, and put to the applicants under s.424A departmental records indicate that the applicants have previously applied for [temporary] visas to visit Australia on two occasions in 2014 and these applications were refused on 19 May 2014 and on 11 April 2014. The applicants said the purpose of coming to Australia on those occasions were for a holiday and for a honeymoon on their anniversary. The applicants did not have problems at this time.

The Tribunal acknowledges that the applicants’ earlier [temporary] visa applications predate [the first named applicant’s] claims that he was targeted by Widodo supporters and does not draw any adverse inferences from the fact that [the first named applicant] was confused about whether he previously applied for a [temporary] visa once or twice. If the applicants’ claims were otherwise credible, the Tribunal would not be concerned by the fact that the applicants previously applied for [temporary] visas to Australia in 2014. However, the Tribunal has numerous concerns about the credibility of their account about why they left Indonesia and travelled to Australia. In this context, while the fact that the applicants applied to travel to Australia on two previous occasions does not undermine the claims upon which they now rely, it does suggest to the Tribunal that the applicants may have had other motivations for travelling to Australia. This, in turn, reinforces the Tribunal’s concerns that the applicants have not told the truth about the reasons they travelled Australia.
Evidence not otherwise credible by reason of corroborating documentation
The Tribunal is also concerned that the applicant has not provided any documentation corroborating his claim to have been a member of the PDI-P or that he was previously employed by the PDI-P as [Position 1] from 2009-2015. As noted above, the applicant’s protection visa application and his [temporary] visa application do not refer to his claimed employment at the PDI-P as [Position 1]/political activist. The Tribunal was also concerned that although he claims he reported the assault on him to the police and his protection visa application suggests he could provide a letter from the police, he has not produced any police reports. Furthermore, [the first named applicant] has not provided any medical documentation corroborating his claims that he required medical treatment because of injuries sustained in a politically motivated attack in January 2015.
The Tribunal questioned the applicants about why they had not produced any corroborating documentation. In response, [the first named applicant] claimed that he was not able to obtain such documentation as he was hiding and they came to Australia straight away. As noted above, [the first named applicant] did not mention to the Department that he was hiding in a forest in Ngawi in the months immediately before he travelled to Australia and the Tribunal did not find his evidence about this issue credible. Furthermore, the applicants’ evidence to the Tribunal indicates that in the months immediately before they travelled to Australia in July 2015 [the second named applicant] was working as [Occupation 1] in Ngawi while their daughter attended school. Accordingly, the Tribunal does not accept that the applicants were not in a position to acquire documentation (including police and medical reports) supporting their claims. In this context, the Tribunal is drawn to the conclusion that the reason that there is no documentation corroborating the applicants’ claims that they reported the attack on [first named applicant] to the police or that [the first named applicant] required medical treatment for his injuries is that the attack never occurred.
Findings
For all the reasons set out above, the Tribunal concludes that the applicants’ claims are not credible. The Tribunal is not satisfied that [the first named applicant] became the target of political supporters of President Widodo, after they accused him of betraying President Widodo or that he was of adverse interest to politicians or political operatives or activists in the Ngawi Regency, including [an official] of the Ngawi regency or [Mr A]. The Tribunal rejects the applicants’ claims in their entirety as lacking in credibility. The Tribunal does not accept that [first named applicant] was ever employed by the PDI-P as a political activist or [Position 1] and rejects in their entirety his claims that he was targeted by political supporters of President Widodo after he left the PDI-P. The Tribunal does not accept that [first named applicant] was attacked once or on multiple occasions or that he relocated to Kalimantan to avoid being harmed or that he was hiding or moving from place to place in the months before he travelled to Australia.
The Tribunal does not accept that [first named applicant] was or is of adverse interest to any party, group or individuals because of his actual or perceived political opinion. The Tribunal does not accept that [the first named applicant] was ever assaulted, threatened, or harmed by supporters of President Widodo or members of the PDI-P or any other persons or group and, because it does not accept he was ever assaulted, rejects his claim that in January 2015 he sought medical and police assistance after being assaulted in Ngawi. The Tribunal does not accept that [the first named applicant’s] family were ever harmed or threatened or that he had stones thrown at his property or vehicle as claimed. The Tribunal finds that [the first named applicant] is not a political activist and has no political profile in Indonesia. The Tribunal finds that at the time [the first named applicant] travelled to Australia he had no other profile other than that of an ordinary Indonesian citizen. The Tribunal does not accept that he was ever an assassination target or otherwise of adverse interest to political supporters of President Joko Widodo, [Mr A], members of PDI-P, people hired by the PDI-P or any other persons or group in Indonesia. Having regard to its findings of fact, the Tribunal finds that there is no real chance that [first named applicant] will face serious harm or significant harm if he returns to Indonesia in the foreseeable future for reasons of his actual or imputed political opinion or for any other reason.
The claims put forward by [the second named applicant] rest upon the claims made by her husband about his political profile. [The second named applicant] told the Tribunal she did not have any other claims for protection. For the reasons given above, the Tribunal does not accept that claims made by [the first named applicant] are credible and rejects these claims in their entirety. The Tribunal does not accept that [the second named applicant] was pushed off her motorbike when she was picking her daughter up from school by people looking for her husband or that she has been threatened, harassed or otherwise harmed by supporters of Widodo/ leaders/members of the PDI-P/hired assassins. It follows that the Tribunal does not accept [second named applicant] will face harm of any type because of her husband’s profile and rejects these claims in their entirety.
The claims that have been made on behalf of the infant applicant are essentially that she will be harmed by supporters of President Widodo as a result of her father’s political profile. Her protection visa application states ‘we will again become a target of assassination’ and ‘threats have been made against my life’. In the interview with the delegate and before the Tribunal [the second named applicant] stated that her daughter had been traumatised by the attacks on her father. It claimed that she may also be traumatised by future attacks if the family is returned to Indonesia. Before the Tribunal the adult applicants confirmed the only reason their daughter would face harm was because of her father’s claimed political profile. No other claims have been raised on her behalf and none arise on the evidence before the Tribunal.
For the reasons given above, the Tribunal does not accept the claims made by the adult applicants are credible. Because the Tribunal does not accept that [the first named applicant] was ever assaulted as claimed, the Tribunal does not accept that this attack was witnessed by his daughter and that, as a result, she was traumatised. Because the Tribunal does not accept that [the first named applicant] is of any adverse interest to supporters of President Widodo or to any person or group in Indonesia, the Tribunal does not accept that his daughter will be threatened, targeted or otherwise harmed or exposed to violence because of her father’s profile. The Tribunal does not accept that [the first named applicant] has any profile other than that of an ordinary Indonesian citizen and rejects the claims that the infant applicant is at risk of harm because of her father’s profile.
The applicants are not refugees or owed complementary protection
The Tribunal has considered each of the applicants’ claims singularly and cumulatively. On the evidence before it, the Tribunal is not satisfied that there is a real chance that any of the applicants will be subject to serious harm or significant harm at the hands of supporters of Widodo or any other persons or groups in Indonesia if they return to Indonesia now or in the reasonably foreseeable future. The Tribunal finds that there is not a real chance that any of the applicants will be persecuted for any reason (including race, religion, nationality, membership of a particular social group or political opinion) if they return to Indonesia. The applicants’ claimed fear of persecution is not well-founded as required by s.5J of the Act. Therefore the applicants are not refugees within the meaning of s.5H.
Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the complementary protection criteria in s.36(2)(aa). In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[18] ‘Significant harm’ is exhaustively defined in s.36(2A) and s.5(1) of the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of life, the death penalty will be carried out, or the person will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. ‘Torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ require intentionally inflicted severe mental or physical pain and suffering or extreme humiliation.
[18] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
The Tribunal has found that the applicants’ claims are not credible. Having regard to the evidence before it and its findings of fact, the Tribunal does not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed to Indonesia, there is a real risk they will suffer significant harm as defined in the Act for any reason. The Tribunal finds, based on the evidence before it, that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Indonesia there is a real risk that any of the applicants will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicants are persons to whom Australia has protection obligations under s.36(2)(aa).
CONCLUSION
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criteria set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criteria set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Frances Simmons
Member

ATTACHMENT – Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)    the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)    conceal an innate or immutable characteristic of the person; or
(c)    without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)    the persecution must involve serious harm to the person; and
(c)    the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)    a threat to the person’s life or liberty;
(b)    significant physical harassment of the person;
(c)    significant physical ill‑treatment of the person;
(d)    significant economic hardship that threatens the person’s capacity to subsist;
(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)    disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)    a characteristic is shared by each member of the group; and
(b)    the person shares, or is perceived as sharing, the characteristic; and
(c)    any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)    the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)    protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)    the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)    the person can access the protection; and
(b)    the protection is durable; and
(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36 Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2018] AATA 4980

7 December 2018

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Immigration

Statutory Interpretation

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Procedural Fairness

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