1600878 (Refugee)

[2018] AATA 2455

1600878 (Refugee) [2018] AATA 2455 (9 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1600878

COUNTRY OF REFERENCE:                  Indonesia

MEMBER:Mila Foster

DATE:9 July 2018

PLACE OF DECISION:  Sydney

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

Statement made on 09 July 2018 at 9:23am

CATCHWORDS
Refugee – Protection visa – Indonesia – Imputed political opinion – Political bribery – Protested against government corruption – Vague claims – Well-founded fear of persecution – Decision under review affirmed

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

CASES

MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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 21 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 7 August 2015. The delegate refused to grant the visa on the basis that he 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. DFAT produced such a report in relation to Indonesia on 22 December 2017.

   THE APPLICANT’S CLAIMS AND EVIDENCE

9. The applicant’s claims and evidence were presented in his protection visa application. According to the delegate’s decision record,[1] the applicant was invited to attend an interview with the delegate but did not do so. The applicant was invited to a hearing before the Tribunal. He requested that the hearing be adjourned to allow time to prepare for the hearing; he had recently appointed a migration agent and was awaiting Departmental files he had requested in relation to his matter. The request for an adjournment was agreed to.

   [1] A copy of which the applicant provided to the Tribunal with his review application.

10. The applicant’s migration agent subsequently advised the Tribunal that the Department file had been received and requested 3 to 4 weeks to prepare for the hearing. The Tribunal sent the applicant an invitation pursuant to s.424 of the Act inviting him to provide written details about the nature of the persecution or significant harm he would face if he returned to Indonesia, who would persecute him or subject him to significant harm, why he would be subjected to persecution or significant harm, and details of past harm he had experienced in Indonesia which was relevant to his claim for protection. The applicant subsequently requested that the Tribunal proceed to determine his application on the papers. Today the Tribunal received written confirmation that the applicant was consenting to the Tribunal making a decision without a hearing. This matter had therefore been determined on the evidence available to the Tribunal.

11. According to the applicant’s protection visa application he is a [age] year old national of Indonesia. He was born in Indonesia and had lived at one address in [Indonesia]. He completed high school and a university bachelor degree course in Indonesia, and could speak, read and write English and Indonesian. He ran his own [business] in Indonesia from July 2002 until April 2015. He arrived in Australia in May 2015 as a visitor.

12. In relation to his reasons for claiming protection, the applicant stated that he left Indonesia:

    ..in order to avoid a risk of being harmed and arrested by Indonesian government and police. Indonesian government and police want to arrest me because I attended demonstrations against government corruption. I run a small business in Indonesia. I have to bribe those government officers. If I did not give money to them, they would close my business with any excuses. I really hate those corruptive government officers. In [late] 2008 I was arrested by Indonesia police because I attended demonstrations against government corruption. In October 2011 I was detained for one day because I attended demonstrations against government corruption. In March 2015 I was detained for one day because I attended demonstrations against government corruption. I believe I will be arrested again if I stay in Indonesia.

13. The applicant said he was harmed in the past in Indonesia and repeated that he arrested in November 2008, detained for a day in October 2011 and detained for a day in March 2015.

14. The applicant stated that he did not seek help within Indonesia after the harm because he knew that no one could help him. He said he did not move to another part of Indonesia to seek safety because he knew it was useless to move to another part of Indonesia.

15. The applicant said he believed he would be arrested again if I returned to Indonesia because he had attended demonstrations against government corruption. He did not think the Indonesian authorities would protect him if he returned or that he would be able to relocate within Indonesia as the Indonesian government and police want to arrest him because he attended demonstrations against government corruption.

16. Submitted with the protection visa application was a photocopy of pages of the applicant’s Indonesian passport.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

18. I have considered the claims and evidence presented by the applicant and, for the reasons that follow, have concluded that the decision under review should be affirmed.

19. I find on the basis of the applicant’s passport and in the absence of any evidence to the contrary, that he is a national of Indonesia and that Indonesia is thus the receiving country for the purposes of assessing the applicant’s protection claims.

20. The applicant’s protection claims are merely assertions which lack detail. He claims he had to bribe government officers otherwise his business would be closed. He has not identified what government officers he bribed, how often he paid bribes or how much he paid. The applicant claims he was arrested and detained for attending demonstrations against government corruption but does not provide details about the demonstrations he attended. For example, how many demonstrations he attended, where they were held, or what happened at the demonstrations. He does not provide details about his arrest in November 2008 such as where he was arrested, where he was taken when he was arrested or the circumstances surrounding his release. The applicant does not provide the details of the detention in October 2011 and March 2015. For example, where he was detained, what happened to him during his detention, why and on what terms he was released. Given the lack of detail I do not accept the applicant’s claims. I do not accept that the applicant bribed government officers in Indonesia, that he attended any demonstrations against government corruption in Indonesia, that he was arrested in November 2008 for attending demonstrations against government corruption, or that he was detained for a day in October 2011 or for a day in March 2015 because he attended demonstrations against government corruption. I thus do not accept that the applicant has been harmed in the past in Indonesia as he claims or that he faces arrest or any harm if he returns to Indonesia from the Indonesian government or police because he attended demonstrations against government corruption.   

21. Therefore, I am not satisfied on the evidence before me that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion in Indonesia. Nor am I satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia, there is a real risk that he will suffer significant harm.

22. As I am not satisfied that the applicant has a well-founded fear of persecution in Indonesia within the meaning of s.5J, I am not satisfied that he is a refugee as defined in s.5H. I am therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

23. Further, as am I not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia, there is a real risk that he will suffer significant harm, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

24. 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

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

    Mila Foster
    Member