1600028 (Refugee)

[2018] AATA 2267

1600028 (Refugee) [2018] AATA 2267 (1 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1600028

COUNTRY OF REFERENCE:                  Indonesia

MEMBER:Paul Millar

DATE:1 June 2018

PLACE OF DECISION:  Sydney

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

Statement made on 01 June 2018 at 4:12pm

CATCHWORDS
Refugee – Protection visa – Indonesia – Political opinion – Demonstrations against corruption – Fear of police – Failure to report to police – Fraudulent document – Delay in applying for protection – Credibility issues – Decision under review affirmed

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

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 3 December 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).  The applicant, who the Tribunal finds to be a citizen of Indonesia, applied for the visa on 24 June 2015.[1]  The applicant appeared before the Tribunal on 1 June 2018 to give evidence and present arguments in relation to the review. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian language.

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

   CRITERIA FOR A PROTECTION VISA

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

3. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

4. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail 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).

5. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA.     

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

   Mandatory considerations

7. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – 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.

   FINDINGS

8. For the following reasons, the Tribunal concludes that the decision under review should be affirmed.  According to his evidence to the Department and the Tribunal, the applicant claims protection on the ground that Indonesian police will harm him because of his participation in demonstrations against corruption in Indonesia.[2]  The Tribunal holds the following concerns about the applicant’s credibility.

   Credibility concerns

   Omission of important claims from protection visa application

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

9. To the Tribunal, the applicant related the following account of events on which his protection claims are based.  In May 2009 he took part in a demonstration outside a local government office to protest corruption by a local government leader.  Police arrested the applicant and another person and detained him for three days.  On his release, the police told the applicant that he had to report to them once each week and tell them he had not been participating in any other demonstrations.  The applicant complied but it made him feel ‘not calm'.  After one year this reporting requirement finished, but, in August 2011, the applicant took part in another demonstration against corruption by the local government leader.  The applicant was again arrested and detained for three days.  The police again told the applicant that he had to report to them once each week as he had done before. 

10. However, as soon as he was released, the applicant went into hiding living in different places.  This was because he no longer felt safe and decided that he had to leave Indonesia.  In this period, the applicant made contact with an agent who told him about applying for a student visa to come to Australia.  From this time, the agent began taking steps to have the applicant apply for and obtain a student visa.  After he was granted a student visa, the applicant departed from Indonesia [in] December 2011.  In February 2012, Indonesian police went to the applicant’s family home and asked his wife where he was.  Being told of that visit made the applicant afraid because he thought that if he had been there they would have arrested him.

11. In his protection visa application, the applicant said that he participated in demonstrations in May 2009 and in August 2011 and that he was arrested and detained on both occasions. He said that that if he returned to Indonesia police would arrest him because he had been in those demonstrations which were against government corruption. The applicant omitted from his protection visa application the very important claims he made to the Tribunal that after each arrest he had to report to the police once each week; this made him afraid; after his arrest in August 2011 he went into hiding and failed to report to the police and after he left Indonesia the police went to his home to find him.  When the Tribunal put this to the applicant, he said that a friend assisted him to complete the application and he did not know what to put in it.

12. The Tribunal put to the applicant that he and his friend both had sufficient understanding of the application to mention his participation in demonstrations and being arrested and detained because of that.  The Tribunal put to the applicant that if those things were mentioned in the application, then his friend could also have mentioned the important claims he made to the Tribunal which demonstrated danger for him in Indonesia, in particular, failing to report after August 2011, going into hiding and the police coming to his home looking for him after he left Indonesia.  In response, the applicant said that perhaps they just forgot or his friend thought that they had said enough in the form.  The Tribunal rejects all of these responses and does not believe that important claims were omitted from the protection visa application for those reasons.  The Tribunal can accept that in the application form, applicants might not insert great detail but, if the applicant was relating a truthful account, he would have mentioned in the application form if in only the briefest form, the important matters he advanced to the Tribunal and which amount to evidence of risk for him in Indonesia.

    Evidence in support of student visa application

13. The Department file contains documents related to the student visa application made by the applicant to come to Australia.[3]  One document is an employment reference dated [July] 2011 according to which the applicant was employed as ‘[an occupation]’ for a company in Bali where he lived and that he had been so employed since 2001.  The other documents comprise certificates issued in July 2011 related to the applicant’s enrolment in different courses in Australia.  These documents convey the impression that the applicant had decided to leave Indonesia by July 2011 at the latest and that he was making arrangements to apply for a student visa at that time.  That is inconsistent with his evidence to the Tribunal that his decision to leave Indonesia was not made until after he was released from detention in August 2011. It was at that point that he went into hiding and in that period learned about the option of applying for a student visa to come to Australia.  Further, the employment reference was inconsistent with his evidence to the Tribunal that from May 2009 until he was arrested in August 2011 the applicant was working for someone else as [another occupation].

    [3] See folios 59 – 61, 65.

14. Pursuant to s.424AA of the Act, the Tribunal put these discrepancies to the applicant. He elected to comment at the hearing and did not seek extra time for that. The applicant said that he made the employment reference of July 2011 himself. He said that he fabricated it to assist him to obtain a student visa. As for the impression conveyed by all of these documents that he was in the process of applying for a student visa in July 2011, the applicant said that after his arrest in 2009 he had been looking for information about how to go overseas. He said that it was only after 2011 that he confirmed arrangements to come here. He said that he had been seeking information and if he was able to depart Indonesia then he would. The Tribunal rejects all of these comments as his evidence to the Tribunal was that it was not until after he was released from detention in August 2011 that he decided to leave Indonesia because of fears for his safety. It was only after making that decision that he learned about applying for a student visa and began to take steps to obtain one. That is inconsistent with the documents on the Department file and the applicant has not given a satisfactory explanation for that.

    Delay in applying for protection

15. To the Tribunal, the applicant said that he left Indonesia in December 2011 to come to Australia for his safety.  Not long after, in February 2012, he learned that the police had gone to his home to find him and that only confirmed his fear.  Even so, the applicant did not apply for protection until almost four years later in May 2015. The Tribunal put to him that a delay of that magnitude in seeking protection suggested that he was not genuinely in fear of harm in Indonesia.  In response, the applicant said that he came to Australia with a student visa that was valid for three years and, therefore, thought that he would be safe in Australia in that period.  However, the applicant told the Tribunal that he did not actually undertake any study in Australia.  The Tribunal put to the applicant that in those circumstances he would have known there was the possibility that the government might cancel his visa and he could be sent back to Indonesia.  In response, the applicant said he did not know that. The Tribunal finds that response unconvincing and does not accept the applicant would not appreciate the risk of his student visa being taken from him if he was not undertaking study.

16. Further, when the Tribunal asked the applicant what steps he took after arriving in Australia to find out how he could stay here permanently and avoid returning to Indonesia where he could suffer harm, the applicant said that he did look for information about how he could stay but at no stage consulted a lawyer or migration agent and instead just chose to make enquiries with friends.  He said that it was not until early 2015 that a friend told him about applying for protection and that was why he applied in May 2015.  He said that he did not consult a lawyer or agent because his English was not good.  The Tribunal does not believe that someone in the applicant’s claimed circumstances would try to, in effect, save his life, by asking some friends how he could remain here.

17. The Tribunal does not accept that the applicant’s limited language capacity would prevent him from consulting a lawyer or agent about that. His English language skills did not prevent him from finding work, the applicant telling the Tribunal that he was able to find work after he came to Australia. Overall, there has been a significant delay on the part of the applicant in applying for protection and he has not provided a satisfactory explanation for that. The delay on his part is not consistent with the behaviour of an applicant in genuine fear of harm in their home country.

    Conclusions on credibility

18. Considered cumulatively, the concerns that the Tribunal holds about the applicant’s credibility lead the Tribunal to find that he is not a witness of truth and the account of events on which his protection claims are based is false.  Accordingly, the Tribunal disbelieves the applicant’s evidence about participating in demonstrations in Indonesia, being arrested and detained, having to report to police, going into hiding in fear of the police and the police coming to his home after he left Indonesia.  In addition, because he is not a witness of truth, the Tribunal also disbelieves a claim he made at the hearing that he would always oppose and protest against corruption.  The Tribunal has no credible evidence as to what the applicant’s views are about the corruption of officials in Indonesia and it has no credible evidence that he has ever protested against that.

19. With respect to the employment reference lodged with his application for a student visa, the Tribunal can accept the possibility of genuine applicants for protection resorting to the use of false information to secure a means of leaving a country where they fear persecution.  However, for the reasons given above, the Tribunal does not believe that the applicant is genuinely in fear of harm and, because he is not a witness of truth, the Tribunal has no credible evidence before it as to the employment reference, how it came into existence and the information it contains. There is no credible evidence that the applicant suffered harm in Indonesia. There is no credible evidence that anyone in Indonesia seeks to harm him. There is no credible evidence as to why the applicant left Indonesia and why he does not want to return there.  For all of these reasons, the applicant does not hold a well-founded fear of persecution within the meaning of s.5J(1).  For those same reasons, the Tribunal finds that the applicant does not meet the complementary protection criterion.

CONCLUSIONS

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 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

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

   Paul Millar
   Member