1600031 (Refugee)

[2018] AATA 4593

1600031 (Refugee) [2018] AATA 4593 (5 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1600031

COUNTRY OF REFERENCE:                  Indonesia

MEMBER:Mila Foster

DATE:5 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 05 October 2018 at 2:05pm

CATCHWORDS

REFUGEE – protection visa – Indonesia – particular social group – anti-corruption demonstrator – victim of corrupt bank – police detention – similar application to another applicant – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 424AA, 499

Migration Regulations 1994 (Cth), 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 7 December 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Indonesia, applied for the visa on 29 April 2015. The delegate refused to grant the visa on the basis that the applicant was neither a refugee nor owed complementary protection.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.  

7. 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

8. 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. The Department of Foreign Affairs and Trade produced such a report in relation to Indonesia on 22 December 2017.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The applicant presented his claims and evidence in his protection visa application and at a Tribunal hearing held in May 2018. The issue in this case is the applicant’s credibility. For reasons I give further below, I have concluded that the applicant was not a credible witness and that the decision under review should be affirmed.

   Protection visa application

10. In the protection visa application the applicant said he had completed without assistance, he stated that he was born in Indonesia in [year] and had been a national Indonesia since birth. He arrived in Australia in March 2014 on a [temporary] visa. He had never been married or in a defacto relationship and his family members consisted of his parents who lived in Indonesia. He stated that he had 12 years of education in Indonesia having completed high school in [year], and could speak, read and write Indonesian and English. He had lived and worked as [Occupation 1] in the province of Bali before leaving Indonesia and had not been employed since arriving in Australia.

11. The applicant stated that he left Indonesia because:

    .. I want to avoid risk of being arrested and detained by Indonesian government and police. Indonesian government and police want to arrest me because I attended demonstrations against government corruption. I believe corruption in Indonesia is a big problem. I hate corruption. I could not find a good job because my parents do not have enough money. You must bribe government officers for good jobs. I supported all activities against corruption in Indonesia. In May 2013 I attenced (sic) demonstration against government corruption in Bali, Indonesia. I was arrested by police and detained for 3 days. In early of February 2014 I attended a demonstration against government. I was detained for 3 days.

12. The applicant claimed that he thought he would be arrested and detained by the Indonesian government and police if he returned to Indonesia because he attended demonstrations against government corruption. He said he had been harmed in the past in Indonesia but did not seek help within Indonesia because he did not know who could help him. He did not try to move to another part of Indonesia for safety because he did not know where he could move and said there was no safe place for him in Indonesia. The applicant stated that he did not think the Indonesian authorities could or would protect him if he returned to Indonesia because they would persecute him if they found him. Nor did he think he could relocate within Indonesia because the Indonesian authorities want to arrest him for attending demonstrations against the government.

    Tribunal hearing

13. The applicant testified at the hearing with the assistance of an Indonesia speaking interpreter. He produced his Indonesian passport at the hearing.

14. The applicant testified that prior to arriving in Australia he entered a contract with a [company] to work as [Occupation 2] and was due to start his employment in April 2014. He indicated that he entered into that contract so as to get out of Indonesia.

15. Asked at the beginning of the hearing why he believed he was a refugee or owed complementary protection, the applicant stated that he was involved in a number of anti-corruption demonstrations before he came to Australia, had been in and out of custody three times, and people followed him and came to his home so he no longer felt safe in Bali.

16. After confirming with the applicant that he had been involved in a number of anti-corruption demonstrations, I asked where the demonstrations occurred. He replied, at the government building in Denpasar (the capital of Bali). Asked how many demonstrations he participated in the applicant replied that he took part in two because it was dangerous at the time. When I questioned whether he had participated in demonstrations at some other time, the applicant replied that the other demonstrations were small and were against the district head rather than the government. Upon further questioning the applicant testified that he participated in a total of three demonstrations in Indonesia, all of them in Bali. He participated in what he referred to as two big anti-corruption demonstrations against the central government of Jakarta at the government building in Denpasar, the first in May 2013 and the second in early January 2014, and one small demonstration against the district head in October or November 2013.

17. Asked what kind of corruption he had demonstrated against the applicant stated that it was in relation to banks and tax. Asked to explain what the corruption was relating to banks and tax, the applicant said a bank called [name] failed to return large sums of money to its customers. Asked how that amounted to government corruption, the applicant seemed to suggest that the central government of Jakarta owned the bank. He said customers had complained, there was no clarity about the case, the case ran for a few days, no money was returned and the case ended. He testified that he had been a client of the [financial institution] and had deposited his savings with the bank and had wanted to withdraw his money because the bank was having issues but was unable to do so. He said that happened to him before the second big anti-corruption demonstration in 2014.

18. In relation to the corruption relating to tax, the applicant testified that it was like a development tax which was levied on residents. The proceeds of the tax was supposed to be spent on public facilities but years later there had been no development or construction and he had heard that someone from the central government had embezzled the money. The applicant testified that when he was in year [grade] in 2000 his father died and he inherited land owned by his father and had to pay such a tax each year.

19. The applicant testified that the anti-corruption demonstration in January 2014 was about the corruption relating to the bank and tax. He said he was not too aware of what the issue was at the anti-corruption demonstration in May 2013 or who it was against but it was clearly anti-corruption so he took part. He testified that the demonstration against the district head was not about corruption but the district head’s failure to keep promises he had made during his election campaign to improve the villages and build roads.

20. Asked about being in and out of custody, the applicant testified he was detained for three days on two occasions because he forced entry across the police line at the two big anti-corruption demonstrations. He was not charged with any offence but released after his second detention on the condition that he did not participate in other demonstrations. He added that he was monitored and followed by people from the government which made him uncomfortable.

21. The applicant testified that he was not involved in any other anti-corruption activities in Indonesia and did no fear harm in Indonesia for any reason other than his participation in the three demonstrations referred to in his testimony.

22. At the end of the hearing I put to the applicant, pursuant to s.424AA of the Act,[1] that his claims were very similar in nature and wording to those of another protection visa applicant who was also a national of Indonesia and had the same postal address, on review, as the applicant.[2] The two sets of claims differed in relation to the dates of the demonstrations attended by the applicants and the length of their claimed detentions. I explained to the applicant that the information was relevant to his review because it could suggest that his claims were not true and that he had not been truthful at the hearing, and if relied upon the information would be the reason or part of the reason for affirming the decision not to grant him a protection visa. The applicant chose to comment on or respond to the information immediately at the hearing. He stated that he had testified at the hearing under oath, he was unaware of the similarity between his claims and those of another person, and seemed to suggest that his PO Box may be shared with someone else.

    [1] Although it may be arguable that the information did not inherently amount to a rejection, denial or undermining of the applicant’s claims and thus may not be ‘information’ within the meaning of s.424A(1).

    [2] Tribunal case number 1600029.

    Country of reference finding

23. The applicant claims to have been a national of Indonesia since birth, his passport states he is a national of Indonesia and he testified in Indonesian. On that basis and in the absence of any evidence to the contrary I find that the applicant is a national of Indonesia. Indonesia is thus the country of reference for the purposes of assessing the applicant’s claims for protection.

    Credibility finding

24. I found the applicant to be an unsatisfactory witness. He seemed to modify his evidence as he testified, was vague and unforthcoming about the corruption he demonstrated against, and there were discrepancies between his oral and written evidence. Having regard, cumulatively, to the flaws in the applicant’s evidence as well as the information regarding the similarity between his claims and those of another applicant I find that the applicant was not a truthful and credible witness. I elaborate below.  

25. The applicant claimed in his protection visa application that he supported ‘all’ activities against corruption in Indonesia giving the impression that he supported many anti-corruption activities and referred to attending two anti-government corruption demonstrations which resulted in him being detained by the police twice. At the beginning of the hearing the applicant stated that he was involved in a number of anti-corruption demonstrations against the government and was in and out of custody three times. A ‘number’ of anti-corruption demonstrations suggested that he had participated in several anti-corruption demonstrations. However, the applicant subsequently testified that he participated in just two anti-corruption demonstrations as opposed to a number of them, did not engage in any other anti-corruption activities, was detained on two occasions, and participated in a third demonstration which was not an anti-corruption demonstration. Questioned about the written claim that he supported ‘all’ activities against corruption in light of his testimony, the applicant responded that he was referring in his protection visa application to all the demonstrations he took part in. That response appears to suggest that the applicant’s written claim was that he took part in all the demonstrations he took part in. I do not consider that logical and hence do not accept the explanation. Asked why he only mentioned two demonstrations he was involved in in his protection visa application if, as he testified, he feared being harmed for attending all three demonstrations, the applicant replied that the two demonstrations referred to in his protection visa application were the dangerous ones and, as the third demonstration was a small demonstration, he thought there may not be any point in referring to it (in his protection visa application) and he could provide further details when he was asked. If the applicant had attended many demonstrations but only two of them resulted in him being detained it would be reasonable in my opinion for him have highlighted just those two demonstrations in his protection visa application. However, if he participated in just three demonstrations and feared future harm because he attended those three demonstrations and no other reason, I except he would have indicated that he attended three demonstrations in his written claims even if only two of them were ‘dangerous’.  

26. The applicant claimed in writing and at the beginning of the hearing that he attended demonstrations against government corruption. Yet the testimony he gave about the nature of the government corruption he says he demonstrated against was vague and unforthcoming. When first asked what specific corruption he demonstrated against he replied merely that it was against banks and tax. That response gave no indication of the nature of any corruption. Asked to explain the nature of the corruption relating to banks and tax, he vaguely stated that it was unclear where funds from a tax on property owners went and gave no indication of how there was any government corruption involving banks. It took further questioning to eventually elicit the nature of the alleged government corruption involving a bank and what the applicant said was a development tax. It was also after considerable questioning about the corruption he demonstrated against that the applicant revealed that it was only the demonstration in January 2014 that was about the corruption relating to the bank and tax. If as the applicant himself had lost his bank savings due to corruption involving a bank, had himself paid tax on land he had inherited which he thought was embezzled and the demonstration he attended in January 2014 was about that corruption I expect the applicant would have been able to give far more direct and forthcoming testimony about that corruption.

27. The applicant’s testimony about the first demonstration in May 2013 was vague. He stated he was not too aware of the issue but it was about anti-corruption yet he offered no details of what he was aware of. Questioned about why then he participated in the demonstration he contradicted his earlier testimony that the first and third demonstrations were against the central government in Jakarta and stated that he was not sure who the first demonstration was against but was clearly anti-corruption so he took part. Overall the applicant’s testimony about the first demonstration seemed intentionally vague and evasive.  

28. Significantly, the nature of the corruption the applicant testified he demonstrated against was different to what he indicated in his protection visa application. When I put to the applicant that he had testified that the corruption related to a bank and tax but in his application the only corruption he mentioned was that it was necessary to bribe government officers to get a good job, the applicant replied that he provided simple reasons in his application and hoped he could explain himself at an interview as he had done at the hearing. I do not accept that explanation. The issue is not that the applicant described the nature of the corruption in his protection visa application in simple terms but that the nature of the corruption referred to in his protection visa application was entirely different to the nature of the corruption he referred to at the hearing and he made no mention at all at the hearing of the corruption he referred to in his protection visa application. Further, the applicant’s testimony that his father died in 2000 when he was in Year [grade] is inconsistent with the written claim that his parents did not have enough money to bribe government officers to get him a good job and the information in his protection visa application that his father was living in Indonesia. Invited to explain these inconsistencies the applicant stated that he had looked for work when he graduated from high school (which according to his protection visa application was in [year] and thus [number of] years after his father died) and when he referred to his parents he meant his mother because his father had passed away. That however does not explain why, if his father had died in 2000, his protection visa application indicated his father was living in Indonesia nor why he would refer to his parents having to pay bribes to get him a good job if he meant his mother and his father had been deceased for [years] when he finished high school and began looking for work. I thus do not accept that explanation.

1. The applicant testified that the last demonstration he attended in Indonesia was in early January 2014 whereas his protection visa application indicates it was early February 2014. Invited to comment on that discrepancy the applicant replied that he had been confused, he knew it was the beginning of the month but was not sure whether it was January or February, and it had been a while since it had happened. The applicant had not indicated any confusion during the course of the hearing about when the last demonstration occurred. Further when he first stated that the demonstration occurred in the beginning of January 2014 I confirmed that timing with him and subsequently referred to that demonstration occurring in January 2014 during the hearing. At no point did the applicant indicate any doubt, uncertainty or confusion about the timing of that demonstration even though it had been over four years since the alleged demonstration. In addition, if it was the last demonstration the applicant attended, he was detained for a second time as a result of attending that demonstration and the demonstration occurred within three months of him leaving Indonesia I expect he would have a good recollection of whether it occurred at the very beginning of the year in early January 2014 or a month later and closer to when he left Indonesia. While I would not make an adverse credibility solely or even largely on the basis of such an inconsistency I have given the discrepancy some weight in combination with the other issues in assessing the applicant’s credibility.

2. Finally, I have also given some weight to the similarity between the applicant’s claims and those of the other Indonesian protection visa applicant who shares the same postal address as the applicant. While that information alone would not lead me to conclude that the applicant has not been truthful, in the absence of a credible explanation for the similarity in the claims and combined with the above issues with the applicant’s own evidence, I have given the information some limited weight in concluding that the applicant was not a truthful witness.

   Findings on protection claims

3. Having found that the applicant was not a credible witness I do not accept the claims he has made about why left Indonesia and has applied for a protection visa. Specifically, I do not accept that the applicant was not able to get a good job in Indonesia because his mother or parents could not afford to bribe government officers. Nor do I accept that the applicant lost savings he had deposited in a bank due to corruption or that he experienced corruption in relation to tax he paid on land he had inherited from his father. I do not accept that the applicant participated in any anti-corruption demonstrations against the central government in Jakarta, that he attended a demonstration against a district head for unfulfilled election campaign promises, or that he was detained by the police for attending anti-corruption demonstrations. I do not accept he was released from detention on the condition that he not participate in demonstrations or that any people came to his home in Indonesia and followed him because he attended demonstrations. I thus do not accept that the Indonesian government or police will arrest or detain the applicant or that anyone will come to his home or follow him if he returns to Indonesia because he attended demonstrations in Indonesia or because he breached a promise that he would not attend demonstrations. Furthermore, as I do not accept that the applicant engaged in anti-corruption activities or participated in demonstrations of any kind in Indonesia in the past I find that he does not wish to nor is there is real chance that he will engage in such conduct in the reasonably foreseeable future if he returns to Indonesia. I therefore find that there is not a real chance that the applicant will be persecuted or suffer significant harm if he returns to Indonesia for the reasons.

   Findings on protection visa criteria

4. Having rejected the applicant’s claims and found there is not a real chance that he will be persecuted if he returns Indonesia I find that the applicant does not have a well-founded fear of persecution within the meaning of s.5J and hence he is not a refugee as defined in s.5H(1). I am therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

5. As I have concluded that the applicant does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa). Having rejected the applicant’s claims and found there is not a real chance he will suffer significant harm if he returns to Indonesia, I find there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Indonesia, there is a real risk that the applicant will suffer significant harm within the meaning of s.36(2A). I am therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

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

   DECISION

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

   Mila Foster
   Member