1616170 (Refugee)

[2019] AATA 4781

1616170 (Refugee) [2019] AATA 4781 (11 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1616170

COUNTRY OF REFERENCE:                  Indonesia

MEMBER:Justin Meyer

DATE AND TIME OF

ORAL DECISION AND REASONS:          11 June 2019 at 1:19 pm (VIC time)

DATE OF WRITTEN RECORD:                31 July 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 31 July 2019 at 4:19pm

CATCHWORDS

REFUGEE – protection visa – Indonesia – religion – refusal to join ISIS – physical assault – threats of killing – religious violence – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 36, 65
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.

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 13 September 2016 to refuse to grant the applicant a protection visa under the Migration Act 1958 (the Act).

2. At the hearing on 11 June 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an oral decision with reasons and the time now is 12:32. The criteria for a protection visa as set out in section 36 of the Migration Act and schedule two to the Migration Regulations.

4. The applicant is either a person in respect of whom Australia has protection obligations under the refugee criterion or on complementary protection grounds.  Where relevant, the tribunal has taken into account the policy guidelines prepared by the Department of Immigration of refugee law and complimentary protection and any country information prepared by the Department of Foreign Affairs and Trade, in accordance with Ministerial direction number 56

5. Credibility:  I note before looking at my findings that in questions of credit, I need to give the benefit of the doubt but this should not lead to an uncritical acceptance of any and all allegations made.  It is for the applicant to make their case in as much detail as possible.  Greater weight may be given to one piece of evidence over another and there is no rule that there must be a positive state of disbelief before making adverse assessments.

   Findings and reasons:

   Country of nationality

6. The Applicant presented citizen of Indonesia documentation to the Department.  I accept that the applicant is an Indonesian citizen for the purposes of this review per the applicant’s Indonesian passport.

7. There is no evidence to suggest that the applicant has the right to enter and reside in any third country for the purposes of section 36(3) of the Act.

   Summary of claims

8. The applicant claims in writing that he left Indonesia because he was threatened and frustrated.  His preacher, [Leader A], spread a rumour about him in his village when he refused to go to the middle East and volunteer for the ISIS group.  As a result he lost his customers and his family were shamed.  He claims that [Leader A] threated him and his family.  [Leader A] knew he had [a specified visa] which is why [Leader A] persisted in asking him to go the Middle East.

9. He was attacked and beaten by four people in December 2014.  He was attacked on one evening on his way home.  They left him bloodied, bruised and with a broken nose.  He thinks that [Leader A] had sent these people to beat him.

10. He did not seek help from anyone because it was a religious matter and a sensitive issue.  He did not complain about [Leader A] because he is an influential person.  Also, he did not have any evidence to prove his claim.  He is afraid that if he returns to Indonesia, [Leader A] will continue to threaten him and make him go to the Middle East.

11. He knows some of his friends that went to the Middle East and never came back.  He cannot relocate without his family and his family cannot relocate because they have jobs and extended family in his town.  He further claims that if he lives in Indonesia, [Leader A] will find him through a well-organised and tight network.

12. The applicant claims the authorities including the police will not protect him.  They do not want to get involved in religious matters and they will always side with the highly influential religious leaders such as them.  The applicant in his interview to the department gave more details.  He attended a place of worship where [Leader A] preached in East Java for three or four months.  People are easily influenced in the area.  [Leader A] travelled frequently.

13. The applicant felt his life was threatened because of a religious problem.  [Leader A] said you have to go to Syria, your brothers are there at war,  you have to sacrifice for your religion - you will definitely go to heaven. 

14. The applicant claimed he knew of people in the Surabaya areas going to Syria. The applicant claimed he agreed to going to Syria in front of [Leader A] but you would never agree, nor would your family.  You distanced himself from [Leader A].  In the end the applicant was visited by four people in December 2014.  He did not recognise them but they were Javanese.  They insisted upon him going to Syria.  He declined and they threatened him to die. They were sent by [Leader A].

15. He did not tell anyone about the threat or attack.  He would have been killed.  He was labelled as a Murtad – someone who goes against religion.  A rumour was spread about him. [Leader A] is well organised.

16. The applicant made a number of other claims and gave other evidence in the hearing. To the extent to which it is more detailed it is evidence which is to be preferred: The applicant is [age] years old and he is married with one child.  He is of Javanese extraction and he is from East Java.  His religion is Islam.  He has a brother in Indonesia.  His father recently died and his mother and brothers and sisters are in Indonesia.  His is a practising Muslim.  He prays five times a day.  In 2014 he felt threatened due to a threat to be joined in a recruitment drive. He holds an [specified visa].  He has been to [two specified countries] for holidays.

17. He claimed he attended talks from [Leader A], a fundamentalist radical leader in the village area of [village name], a small subdistrict on the outskirts of a small town.  He claimed he was not invited by anybody but he heard about it.  He happened to like religious activity.  The talks were at a small mosque.  He knew some people at the meeting although he did not worship regularly at that mosque.  Initially [Leader A] sounded very good and spoke well.  Later the conversation became weird or different. 

18. I asked if [Leader A] was a well-known person and the applicant replied ‘not really’.  He was not sure of his age and he said he was not good at guessing ages.  I asked if [Leader A] was 60, 70 or 80 for example.  He said he was sure that he was over 50.

19. He claimed he that although [Leader A] told good stories about the Prophet, his other religious teachings were concerning.  There were not a lot of followers, possibly 20 to 40.  He did not know any other names of [Leader A]. He was asked to participate in jihad.  [Leader A] told him that he must fight for religion and he would go straight to heaven.  He was told, “Look at the other brothers fighting over there.  It is part of our religion.”  This was a reference to Syria.

20. It was not a one-on-one conversation. The applicant said later on he tried to avoid it but other people tried to approach him in the group.  He then realised at that stage ISIS was banned.  He had seen this on television.  He said that the person that had come and approached him later was very pressing about fighting holy war.  He did not recognise the person.  He was over 35 years and had a beard. 

21. Some of these men wore religious clothing and some did not. He was told that he must go or he must bear the consequences.  The applicant said he did not want to go.  He was angry.  He was punched, just once.  I asked if he needed medical attention and he said no.  This did not change the applicant’s mind.

22. Another family member had got caught up in this.  He did not know what had happened to that family member.  I asked the applicant if he suffered any other physical harm.  He said that they were going to harm him but he avoided them.  Shortly after that he decided to go Australia.  He said that was a few months later that he left.  He talked it over with his wife who said it was wise.

23. I asked the applicant if there was any more physical or mental harm to him or his family.  He said ‘no, just to me’.  I asked if the applicant what would happen if he went back to Indonesia.  He said he was traumatised by what happened.  He feared being recruited.  Recent bombings in Indonesia made him scared.  He referred to a church in Surabaya being bombed last May. He did not know the perpetrators but he was nonetheless scared.

24. I asked the applicant if he knew who [Leader A’s] group was to which he replied ‘no’.  He   said he had not talked about the incident of the attempted recruitment to his friends.  I said I was puzzled that he had not spoken about this with his friends.  He said he was afraid of talking within this group as it was banned.  I asked if the applicant how he could know this group was banned if he did not know its name.  He gave confusing evidence of the group not having a name.  They just move from location to location.  I asked the applicant how he knew that they were banned.

25. He said he felt the group were teaching things that were not correct about war or jihad for ISIS in Syria. 

26. The applicant said he had help completing his application form. I put to the applicant contradictions between his oral answers and his written answers in his application form, for example he had written that [Leader A] had not only threatened him but his family as well.  The applicant had told the tribunal that only he had been harmed and threatened.  The applicant responded by saying that he had probably forgot to explain the detail that what was threatened against him could be extended to his family.

27. The tribunal was nonetheless concerned about this evidence. The response to application form question 90 is quite explicit: “they not only threatened me but my family too.”  The tribunal does not accept the evidence of the applicant that he has forgotten about a threat or an implicit threat.  His family was either threatened or it was not. 

28. I put to the applicant his answer to question 92, quote:

    On December 2014 a few youngsters in my village beat me in the evening when I was on my way from my sister’s home.  There were four guys beating me with some piece of wood.  I had blood all over my face and I thought that my nose was broken.  I had bruises and scars all over my body.  They did not stop beating me until I couldn’t get up and walk.  I believe these people were sent by [Leader A].

29. I put to the applicant that the only incident was being punched once, therefore his evidence was highly contradictory.  He said he forgot as it was so long ago.  He said he only remembered that he was beaten.  He repeated that he did not go to the police or anyone else because he was scared. He was not sure who they were. He did not go to hospital or a doctor.  He treated himself with medication.  He had no written or photographic evidence.  There were no witnesses.  The tribunal has considered this evidence and finds that the applicant is not a credible witness.

30. I put to the applicant that I did not accept that he had forgotten a serious beating as this.  I did not accept that he found it difficult to admit this and I simply do not accept that such an event occurred or that there was punching or beating. 

31. The applicant’s delay in leaving Australia he said was about obtaining money to depart.  He said there was no other reason why he could go back other than suicide bombings and feeling very threatened.

32. I then put to the applicant his answer to question 91, ‘what do you think will happen to you if you return to that country’, to quote:

    The preacher named [Leader A] will continue to threaten me and my family.  He will never stop until he has got what he wants.  I knew that some of my friends which are still young, they went to the Middle East and never came back. 

33. I asked the applicant to explain what he meant by this.  The applicant said that he did not understand the difference with what he had said in his oral evidence: that no friends had gone to the Middle East or anywhere else to fight with militants or ISIS.  He was simply unable to explain the contradiction. 

34. I asked the applicant if he had any assistance with filling out the form.  He said it was a friend from [another country] who helped him translate.  He said his English was bad at the time.  He was not close to this friend from [the other country].  He couldn’t recall his name and described him as a man.

35. The tribunal does simply not accept that the applicant had friends that were forced to go fight abroad.  The oral evidence was that there were no such friends.  It contradicts his claim that there were such friends.  I find his evidence unreliable and there were no friends that had to fight.

36. I note for the record that the applicant’s migration agent received the application late in the piece and did not appear to formulate the claims for him.  

37. I have carefully considered the claims of the applicant.  I have considerable doubts about much of his evidence.  It was vague, undetailed and contradictory.

38. He has been unable to supply sufficient evidence to demonstrate his claims for fear of harm. The applicant has contradicted key points of his claims and the violence that he said occurred to him.  I have failed to accept that he was threatened, that he was harmed and that he faces any such threat or harm upon returning to Indonesia.  I find that he is a Javanese Indonesian Muslim. I find he did not attend any lectures by an individual named [Leader A]. Nobody tried to recruit him to go to the Middle East.  He was not physically harmed of threatened, nor was his family.  There was no group that did so either.  He never refused to go to Syria or anywhere else.  He will not get arrested, nor is he likely at risk. 

39. He is not a member of a group that is classified as facing harm.  He did not have a reason under the legislation and migration regulations, under the refugee definition, of race, religion, nationality, membership of a particular social group or political opinion.

40. I turn now to whether he has a well-founded fear of persecution.  I find that he does not. 

41. Turning now to complementary protection.  I do not find that he will be significantly harmed on the basis of any of the things claimed and would not have a real chance of facing serious harm for any of the reasons claimed.  There are no grounds for believing that a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia that there is a real risk will suffer significant harm.

42. Furthermore in respect of both parts of the protection equation, relocation and state protection are not relevant matters and I have dismissed the genuineness of his claims.  No other reason for harm was proffered to the tribunal.

43. For the reasons given above, the tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a).

44. Having concluded that the applicant does not meet the refugee criteria, the tribunal has considered the alternative complementary protection criteria. The tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(aa). There is no suggestion the applicant satisfies section 36(2) on the basis of being a member of the same family unit as someone who meets either of these criteria. Therefore the applicant does not satisfy the criterion in section 36(2).

45. The tribunal affirms the decision not to grant an applicant a protection visa. 

46. The time is 1:19 pm and the tribunal makes the following decision.

    DECISION

47. The Tribunal affirms the decision under review.

    Justin Meyer
    Member