1609203 (Refugee)

[2022] AATA 663

1609203 (Refugee) [2022] AATA 663 (11 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1609203

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Damian Creedon

DATE:11 February 2022

PLACE OF DECISION:  Perth

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

Statement made on 11 February 2022 at 3:08pm

CATCHWORDS

REFUGEE – protection visa – Indonesia – political opinion – Simpang KKA tragedy survivor – support for Gerakan Aceh Merdeka – detention – physical assault – fear of killing – protection money to the army – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 91, 424AA, 499
Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
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 dependants.

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 and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

   Background:

2. The applicant, [an age]-year-old citizen of Indonesia, applied for the visa on 17 January 2013.  He has been granted two Bridging visas since arriving onshore, the most recent on 16 June 2016 which is still current.

   Protection visa application:

3. The applicant’s written claims for protection, which are set out in his protection visa application, are as follows:

   a.The applicant left Indonesia because of political reasons and to save his life.

   b.On 3 May 1999, the applicant was one of the survivors of the “Simpang KKA” tragedy that took place in Aceh, where 46 people died, 156 people were wounded by gunshots and 10 people went missing.

   c.[On a day in] January 2000, the applicant was arrested by the Indonesian army under suspicion of helping one of the Aceh independent movement members[1] that was sick that day. He was beaten and mistreated by the army.

   d.[In] August 2001, the applicant was arrested by the Indonesian army under suspicion of working as [an Occupation 1] for the GAM.

   e.The applicant is afraid that he will be abducted and killed if he returns to his country.

   f.The applicant believes that the Indonesian army will harm him if he returns to Indonesia.

   g.The applicant believes he will be harmed/mistreated if he returns because he was traumatised from his previous experiences and the Indonesian army threatened to kill him.

   [1] The specific group was known as the “Gerakan Aceh Merdeka” (GAM), which translates as the “Free Aceh Movement”.

4. The delegate refused to grant the visa on 16 June 2016 on the basis that the applicant is not a refugee as defined by of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.

5. The applicant applied for a review of the delegate’s decision.

   Application for review

6. The applicant was not represented in relation to the review.

   Pre-hearing submissions

7. The applicant provided a written statement to the Tribunal, received on 21 June 2016.  The statement is short, and it is convenient to set it out in full (uncorrected):

   DISAGREE WITH DECISION

   I was very disappointed with the decision about my application.

   I left a job that I have lived for [many] years and went to Australia to seek protection.  Why do I have to go, because in 2012 the state of Aceh is still very tense.  many murders committed.  i very scared and traumatized moreover there is pressure exercised by individual soldiers on me, because I helped GAM as [an Occupation 1].  I left my wife and [children] who are still studying at [specified institutions]

   I hope that the judges in court accept my application.

   I do not want to go back to Indonesia, if te application is accepted, I will bring my family to Australia

   I attach the newspapers file about the assassination in 2012 of the largest newspaper in Aceh

   [Emphasis in original]

8. Accompanying the applicant’s written statement were copies of the following printouts of online newspaper articles:

   a.Unattributed source, article entitled Police: Shooting in Aceh Lack of Witnesses, 2 January 2012;

   b.Unattributed source, article entitled Shooting in Aceh, Three Victims Brought to Shoot RSUZA, 5 January 2012;

   c.Unattributed source, article entitled Stay rolls Cables and tang Blood, 5 January 2012;

   d.Unattributed source, article entitled Shootings in Aceh: Police Continue to Investigate Shootings Case, 17 January 2012

   e.Unattributed source, article entitled Police Investigate Shooting at Indrapuri, 26 February 2012;

   f.Unattributed source, article entitled Chairman of the DPRK Lhokseumawe shooting, Chairman of the DPRK Shot, 9 March 2012;

   g.Unattributed source, article entitled Shooting in Aceh, CRV shooter Pangkuek Mysterious, 18 May 2012;

   h.Unattributed source, article entitled Shooting in Aceh, The shooting mechanics have not been obvious motive, 11 June 2012;

   i.Unattributed source, article entitled Shooting in Aceh, The case file to the Attorney shooter Kader PA, 3 August 2012

   j.Unattributed source, article entitled Army Officer shooter Cucum resident in trial, 19 January 2013;

   k.Unattributed source, article entitled Shooting in Aceh, Bloody lunch at Teuku Nyak Arief, 17 September 2014;

   l.Unattributed source, article entitled Shooting in Aceh, Shot Enemy of God, 17 September 2014;

   m.Unattributed source, article entitled Shooting in Aceh, After the Maghrib prayer death, 17 September 2014.

9. The applicant also provided a link to a YouTube video[2] entitled Tragedi simpang kka which is recorded on that website as being “not available anymore”.

   Hearing

   [2] [Source deleted.]

10. The applicant appeared before the Tribunal on 9 August 2021 to give evidence and present arguments. The applicant was not represented in relation to the review. 

11. Where relevant, the applicant’s oral evidence to the Tribunal is referred to below.

    RELEVANT LAW

12. 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, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

    Refugee criterion

13. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

14. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

15. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

16. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

17. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

18. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

19. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

20. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

21. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

22. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

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

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

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

    Mandatory considerations:

26. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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

27. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection.

28. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of reference / receiving country:

29. The applicant claims to be an Indonesian national.  Based on the copy of his passport provided to the Tribunal by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that Indonesia is his country of nationality and also his receiving country for the purposes of the Act.

    Oral evidence:

30. The hearing was conducted on 9 August 2021, in-person at the Tribunal’s Perth Registry. 

31. The Tribunal began the hearing by discussing with the applicant his personal history.  The applicant confirmed that he was born in Indonesia in [year], that he first arrived in Australia in 2012 and that he is presently [age] years old.  He stated that his parents are deceased and that he is the youngest of [his family].  He is married; his wife and [children] live in Indonesia and his children are [studying] there.  He has no family in Australia.  Since arriving onshore, the applicant has been working as [an Occupation 2].

32. The applicant confirmed that he arrived onshore holding a Tourist visa but stated that his reason for coming to Australia was because he was afraid. 

33. The applicant stated that he finished his schooling in Indonesia, and began studying for, but did not finish, vocational qualifications as [an Occupation 1].  Although he did not finish his study, the applicant stated that with the knowledge that he did acquire he was self-employed as [an Occupation 1] in a “side business”.  His full-time job was as [an Occupation 3] for a business named “[Employer 1]”.  The business ran factories manufacturing a wide range of products [some specified].  The applicant began his employment with the business in [year]. 

34. The Tribunal then asked the applicant what it was that he feared about returning to Indonesia.  The applicant stated that in 1998, “when the coup happened” and “they” took over from President Suharto, Aceh Province became “aggressive”, and “everyone” started carrying weapons and “shooting each other”.  The applicant stated that “flyers” began to be handed out among employees at his workplace.  The flyers stated to the effect that they had to leave Aceh within 24 hours.  Most of the staff left Aceh.  When pressed by the Tribunal the applicant stated that he was not a native of Aceh, although his wife was.  He himself was of Javanese ethnicity.  When further pressed by the Tribunal the applicant confirmed that he was being told to leave Aceh because he was Javanese.

35. Against this backdrop, in May 1999 the applicant stated that he and other residents at the factory complex were forced to assemble outside their homes.  The applicant clarified that worker accommodation was provided by his employer at the factory site.  When pressed as to who was forcing the assembly, the applicant stated:

    Maybe the group of GAM.  

36. The Tribunal confirmed with the applicant that his reference to “GAM” was to the “Free Aceh Movement”.

37. The applicant stated that approximately 200m from where the group was assembled, he heard shooting.  He stated that “the police” and “the army” were on the scene and that, once the shooting stopped, he saw that people “needed help” and he was helping them.

38. The Tribunal asked the applicant about his claims to having been arrested by the police on [a day in] January 2000 and then again [in] August 2001

39. The applicant stated that “someone reported” him because he was [an Occupation 1].  When pressed by the Tribunal, the applicant confirmed that, as a consequence of this report, the government thought that he was a member of GAM, or at least providing assistance to GAM. 

40. When pressed by the Tribunal as to whether he was in fact supporting GAM, the applicant stated that he was.  He stated that he was not a member of GAM, but that he helped the group, that he “provided assistance”.  When further pressed as to what assistance he provided, the applicant stated that members of GAM brought broken [equipment] to him to repair.  When asked by the Tribunal whether he was referring to military or civil [equipment], the applicant stated military – confirming that they were [brief description of equipment].

41. When asked what use GAM made of [this equipment], the applicant stated to the effect that they would be used as part of their operations.

42. In respect of his claim to have been arrested [in] January 2000, the applicant stated that the incident began with a neighbour in his residential complex who was a GAM member.  The neighbour’s name was “[Neighbour A]”.  He stated that [Neighbour A] was at home and became unwell with [a serious medical condition].  He stated that [Neighbour A’s] wife came to him and asked him for assistance.  The applicant stated that he called an ambulance and, together with another neighbour, whose name was “[Neighbour B]”, he travelled with [Neighbour A] to the hospital.  The applicant stated that the left the residential complex at 10:00pm, with the permission of the security guards on duty.  The applicant stated that they travelled to the hospital and [Neighbour A] was admitted, staying “overnight”.  The applicant stated that when he entered the hospital, he saw two members of the Indonesian Army. 

43. The applicant stated that he left the hospital with [Neighbour B] and the ambulance driver and that all three were driving in the ambulance back to the residential complex.  The applicant stated that 15 members of the army, with weapons, stopped the ambulance.  He stated that the soldiers were wearing masks.  The army told the applicant and [Neighbour B] to get out of the ambulance, and as they did so they were each kicked by the soldiers.  The applicant and [Neighbour B]  were then told to “walk”, which they did; he did not know where he was going but he followed the instructions of the soldiers about where to walk.  After “about five minutes” he was told to get into an army truck, which he did.  The truck would not start, and he was told to help push the truck.  When the truck still would not start, he states that he was beaten by the soldiers.  Eventually the truck started, and he was told to get in, which he did.

1. When pressed by the Tribunal, the applicant stated that he did not know exactly where he was being taken, but thought he may be being taken to a place called [Location 1]; he stated that:

   The army killed the GAM people in [Location 1].

2. The applicant stated, however, that he was in fact taken to an army barracks at a place called [Barracks 1] where all of the army “intelligence” were located; he described them as being “like spies”.  He stated that he was “beaten up” in [Barracks 1].

3. The applicant stated that he “knew someone” in the Army at [Barracks 1] and that this person helped him.  He stated that, before was released, he made a written statement to the effect that he was working for [a specified] company.

4. The applicant stated that when he left [Barracks 1] he returned to the [specified] factory and that he then had a different attitude towards GAM.

5. The second arrest occurred in August 2001.  The applicant stated that he was arrested, along with about [number] others, at the [factory].  He stated that one member of the group was imprisoned “because he was a GAM supporter”.  The applicant stated that he was interviewed and was threatened: he stated that he was told that “they” would kill him and that he was asked to pay money.  When asked why he was threatened, the applicant stated that during conflict in the area three members of the army had been killed and that:

   Maybe it was their family.

6. The applicant stated that he was interrogated for “three hours” but that there was no evidence of his involvement with GAM or in any illegality and he was released with the requirement that he report to the army barracks each week for two years.  When pressed, the applicant stated that they treated the other workers “just the same”.

7. The applicant agreed with the Tribunal’s proposition that his biggest concern at this time was that if he did not pay the protection money, he feared he would be “taken”.  When pressed as to what ground they would have to “take” him.  The applicant stated to the effect that “maybe” they were family members of the “ones who had died”.

8. The applicant stated that in 2003 he was accused of being Javanese and arrested by the army.  He was released after providing his mobile phone number.

9. When asked what happened in the period to 2012, when he arrived onshore, the applicant stated that December 2005 was the time of the Tsunami[3] and the [factory] was closed down as the “gas was switched off”.  After the Tsunami he spent two years working as [an Occupation 1] for “Care International”, before returning to work for the [factory].  At this time the applicant stated that he was still paying protection money to members of the army.

   [3] In fact, the Indian Ocean Tsunami was in December 2004:

10. The applicant then left Indonesia in 2012 to come to Australia, leaving his wife and children in Aceh.  The applicant’s children are presently [studying] in Aceh.  When pressed, the applicant stated that neither his wife nor his children experience any ongoing issues of persecution from members of the army or otherwise.

11. When asked by the Tribunal what he feared about returning to Indonesia now or in the reasonably foreseeable future, the applicant stated that he does not know.  When pressed as to whether the army are still there or not, he stated that he does not know.  When further pressed as to whether relocating within Indonesia was an option for him, the applicant, claimed that it was not, stating:

    Maybe this guy [from the army who was targeting me] was a spy.

12. When pressed as to whether this person was acting on official orders or abusing their position the applicant stated to the effect that he was from “army intelligence”, “a spy”.  When asked whether it was this one person who was causing the problems the applicant confirmed that this was the case.  When pressed as to the person’s name the applicant stated that he was a ”captain” like a “sergeant”.

13. At the conclusion of the hearing the Tribunal put to the applicant, pursuant to s.424AA of the Act, information that it had that may be the reason or a part of the reason for affirming the delegate’s decision.  The information was a copy of the delegate’s decision record dated 16 June 2016.  The Tribunal provided the applicant with a copy of the decision record and he confirmed in oral evidence that he was familiar with the document but had deleted it.  The applicant stated that he wished to take it home and, if necessary, provide a response within 14 days which the Tribunal allowed.  To date no further substantive submissions have been received from the applicant.

14. The Tribunal also discussed with the applicant the following country information from the DFAT:[4]

    3.74      The 2005 peace agreement between the Indonesian government and the Free Aceh Movement (GAM) effectively resolved the question of Acehnese secession, with many prominent members of the GAM leadership becoming members of the Acehnese provincial government. Aceh’s legislature controversially passed a regulation in 2013 making the outlawed the red, white and black ‘Crescent Moon’ flag the province’s official flag. While the central government has repeatedly said it does not accept the provincial flag, DFAT is not aware of cases where persons raising the flag have been subsequently arrested or subjected to discrimination. DFAT assesses that people previously affiliated with the GAM are not subject to official discrimination.

    [4] Department of Foreign Affairs and Trade (DFAT), “DFAT Country Information Report Indonesia”, 25 January 2019 (DFAT Report).

15. The Tribunal put to the applicant the proposition that, were it to accept that country information, any association that the applicant had had with the GAM (either real or perceived) would not be held against him.  In response the applicant stated to the effect that there are still media reports of violence in Aceh and that he is not sure who they are.

    Assessment of Claims and evidence, and findings:

16. 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. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. 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).

17. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

18. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. there are good reasons to the contrary, be given the benefit of the doubt’.  (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196).  However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

19. The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.

    Written claims for protection

20. In his written claims for protection the applicant states that he was one of the survivors of the “Simpang KKA” tragedy.  This event is described by Amnesty International in the following terms:[5]

    On 3 May 1999, dozens were killed when military personnel opened fire at a crossroads near the Kertas Kraft Aceh (KKA) pulp and paper mill, known widely as Simpang KKA, at Cot Morong village in Dewantara sub-district in North Aceh. The incident was one of the worst killings to take place during the brutal and decades-long Aceh conflict between the Indonesian government and the armed pro-independence movement, the Free Aceh Movement (Gerakan Aceh Merdeka, GAM). According to the North Aceh Human Rights Victims Community (K2HAU), 21 people were killed while 156 people were injured during the attack. Although the incident was recommended for prosecution by the 1999 Independent Commission for the Investigation on Violence in Aceh set up by former President Habibie, no one has been charged in relation to the crimes.

    [5] Amnesty International Public Statement, “Indonesia: Simpang KKA victims still waiting for truth, justice and reparation in Aceh”, 3 May 2013.

21. The applicant maintained this claim during his oral evidence.  Although he provided no corroborating evidence, the applicant's statements were coherent and plausible, and the Tribunal is prepared to accept the truth of the applicant’s account.

22. The Tribunal is also prepared to accept the truth of the applicant’s uncorroborated evidence that he was arrested [in] January 2000 and [in] August 2001 as being a suspected member of GAM; such a possibility does not run counter to generally known facts. 

23. Notwithstanding the applicant’s evidence that, at least on the latter occasion of his arrest, the applicant was released as there was insufficient evidence of his connections with GAM, the Tribunal also accepts the applicant’s evidence that he was in fact aiding GAM during this period, drawing upon his skills as [an Occupation 1].

24. Country information informs the Tribunal that the “Gerakan Aceh Merdeka”, the “Free Aceh Movement”, had its origins in the 1970s and its aims as the secession of Aceh Province from the Republic of Indonesia.  Country information suggests that in the 30 years of conflict between 10,000 and 30,000 people were killed, including civilians, and atrocities were committed by both members of the GAM and the Indonesian army.  The conflict was ended by the signing of a Memorandum of Understanding between the GAM and the Indonesian Government on 15 August 2005 in Helsinki.  Although imperfect, notably in failing to establish a truth and reconciliation commission, country information suggests that the intended peace has held in the province and that the GAM is no longer regarded as an insurgent or terrorist organisation.  In respect of individual members of GAM, DFAT records that “prominent members of the GAM leadership [have become] members of the Acehnese provincial government” and assesses that “people previously affiliated with the GAM are not subject to official discrimination”.[6]

    [6] See generally: Stange G, Patock R, Journal of Current Southeast Asian Affairs, “From Rebels to Rulers and Legislators: The Political Transformation of the Free Aceh Movement (GAM) in Indonesia”, Vol 29 Is 1, 1 March 2010; Hamid, U, The Diplomat, “13 Years of Peace Without Justice or Truth in Aceh”, 15 August 2018; DFAT Report at [3.74].

25. In light of this country information the Tribunal finds that, to the extent that the applicant was, or was perceived as being, a member or affiliate of GAM, there is not a real chance that he will suffer serious harm in Indonesia on this basis.  He does not hold a well-founded fear of persecution, and there are not substantial grounds for believing that as necessary and foreseeable consequence of being removed to Indonesia there is a real risk of his suffering significant harm in this regard.

    Other grounds for protection

26. The applicant gave evidence that he was the subject of claims for protection from a person whom he identified as a “captain” in the Indonesian Army, although at times he referred to what appeared to the Tribunal be a group of people collectively.  When pressed as to why he was being so targeted, the applicant was unable to state a specific reason, claiming merely that “maybe” they were family members of deceased members of the army.  When pressed as to whether now, some 10 years after the events he described, he still holds a fear on this basis the applicant stated that he “did not know”. 

27. Overall, the Tribunal finds that the applicant’s fear of persecution on this basis if he is returned to Indonesia now or in the reasonably foreseeable to be mere speculation on his part not amounting to a well-founded fear.[7] 

    [7] MIEA v Guo (1997) 191 CLR 559 at 574-5.

28. Based upon the series of articles provided by the applicant, the Tribunal accepts that Aceh Province is susceptible to violence.  The Tribunal notes, however, that the articles refer to acts appropriately regarded as criminal in nature and which are, in at least some cases, the subject of police investigations and judicial proceedings.  The DFAT Report suggests that Indonesia has an existing and developing human rights framework[8], an effective internal security force[9] and assesses that:

    Active armed insurgencies against the central government, for example in Aceh, have largely ceased.[10]

    [8] DFAT Report, at [2.39]-[3.40].

    [9] Ibid, at [2.42].

    [10] Ibid, at [2.44].

29. There is nothing in this material to suggest to the Tribunal that the applicant holds a well-founded fear of persecution, or that there are substantial grounds for believing that as necessary and foreseeable consequence of being removed to Indonesia there is a real risk of his suffering significant harm.

    Conclusions

30. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, and country information, as well as having considered the personal circumstances of the applicant as contained in his application and as discussed in the hearings, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion, or any other reason if he returns to Indonesia now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Indonesia.  Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act. 

    Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm

31. The Tribunal has considered the applicant’s claims under complementary protection. 

32. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to Indonesia now or in the reasonably foreseeable future.

33. The Tribunal is satisfied there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment.  It is also not satisfied that there is a real risk he will suffer arbitrary deprivation of his life or the death penalty. The Tribunal finds no grounds that suggest the applicant will be subject to significant harm for any reason if he returns to Indonesia.  Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.

    Conclusion: Refugee Criterion

34. Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group).  His fear of persecution is not well-founded as required the Act and therefore he is not a refugee.

    Conclusion: Complementary Protection

35. Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia that there is a real risk that he will suffer significant harm.

    Overall conclusion:

36. 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).

37. 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).

38. 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

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

    Damian Creedon
    Member