1701188 (Refugee)

1701188 (Refugee) [2019] AATA 5756 (13 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1701188
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Fiona Meagher
DATE:13 May 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 13 May 2019 at 4:15pm
CATCHWORDS

REFUGEE – protection visa – Indonesia – attended demonstrations against government corruption – credibility concerns – internal inconsistencies – delay in seeking protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994 Schedule 2
CASES
Abebe v The Commonwealth (1999) 197 CLR 510
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Guo v Minister for Immigration and Ethnic Affairs (1996) 40 ALD 445
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259
Sivalingam v Minister for Immigration and Ethnic Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 21 December 2016 to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Indonesia, applied for the visa on
27 October 2015. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as a refugee, as defined in the legislation. Further, the delegate was not satisfied that the applicant was a person in respect of whom Australia has complementary protection obligations as provided for in the legislation.
The applicant appeared before the Tribunal on 13 October 2017 to give evidence and present arguments. The Tribunal was assisted by an interpreter in the Indonesian and English languages. The Tribunal observes in that regard that the applicant had a good command of the English language and accordingly requested that the interpreter only be used as needed. [Ms A], the applicant’s wife, also gave evidence.
CRITERIA FOR A PROTECTION VISA
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.
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.
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 themself 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).
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, which are extracted in the attachment to this decision.
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), which are extracted in the attachment to this decision.
Credibility
The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility. In this context, the Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Guo v Minister for Immigration and Ethnic Affairs (1996) 40 ALD 445, the Full Federal Court made comments on determining credibility. Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. 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.
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’ (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 204):
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.
The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259, and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J said at 293:
First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is not desirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.
However, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. Nor is it required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, or obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. In Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, the Full Court of the Federal Court observed that “where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.” Nevertheless, as Burchett J counselled, in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5], it is necessary to:
… understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
The Full Court of the Federal Court in Sivalingam v Minister for Immigration and Ethnic Affairs [1998] FCA 1167 noted that “refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.” On this point, the Tribunal also takes into account the comments of Professor Hathaway in ‘The Law of Refugee Status’ (1991, Butterworths) at 84-86. Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9. Nor is there a rule that a decision-maker must hold a “positive state of disbelief” before making an adverse credibility assessment in a refugee case. However, if the Tribunal has “no real doubt” that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong. (Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241 per Sackville J (with whom North J agreed)). In addition, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220). The Tribunal is also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth (1999) 197 CLR 510 at [191] as follows:
… the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.
Mandatory considerations
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations, or complementary protection obligations as provided for in the legislation. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Documents before the Tribunal
The Tribunal had before it the applicant’s application for review, the applicant’s application for a Protection visa and identity documents in respect of the applicant and his wife, who, as referred to above was a witness at the hearing. The applicant did not provide the Tribunal with a copy of the delegate’s decision under review, and accordingly as will be referred to below, the Tribunal put extracts of the delegate’s decision to the applicant pursuant to
s. 424AA of the Act.
Country of reference
The Tribunal finds that the applicant is a citizen of Indonesia based upon his passport and will assess his claims on that basis. The Tribunal also finds the applicant is outside his country of nationality, namely Indonesia. Therefore Indonesia is the receiving country for the purpose of assessing the applicant’s claims for protection.
There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than his country of nationality, Indonesia. The Tribunal therefore finds that the applicant is not excluded from Australia’s protection obligations pursuant to s.36(3) of the Act.
The applicant’s claims
In his application for a Protection visa the applicant made the following claims:
•Why did you leave that country(s)? Provide specific details.
I left Indonesia because I want to avoid a risk of being arrested by Indonesian government. Indonesian government want to arrest me because I attended demonstrations against government corruption in Indonesia. I worked for my parents after I graduated from [a university]. Since I was young, I have known my parents always gave money to government officers. After I worked for parents, I got to know my parents must give nearly half of their income to those corruptive government officers. I hate corruptive Indonesian government. In June 2012 I attended a demonstration against government corruption in Bali Indonesia. I was arrested and detained for three days. In September 2013 I attended a demonstration against government corruption in Bali Indonesia. I was arrested and detained for three days again. In September 2013 I attended a demonstration against government corruption in Bali Indonesia. I run away after Indonesian police came. After I arrived in Australia in November 2013, I went back to Indonesia to see my family several times. But [in] August 2014, when I was in Indonesia, several police came to my home to look after me. I was not at home at that time. They told my wife that I must go to police station in two weeks. I believe I will be arrested if I still stay in Indonesia.
•What do you think will happen to you if you return to that country(s)?
I believe I will be arrested if I still stay in Indonesia because I attended demonstrations against government corruption in Indonesia.
•Did you experience harm in that country(s)?
Yes.
·Give details (including the type of harm you experienced, the person/people responsible for the harm and why they harmed you).
Yes, in June 2012 I attended a demonstration against government corruption in Bali Indonesia. I was arrested and detained for three days. In September 2013 I attended a demonstration against government corruption in Bali Indonesia. I was arrested and detained for three days again. In September 2013 I attended a demonstration against government corruption in Bali Indonesia. I run away after Indonesian police came.
•Did you seek help within the country(s) after the harm?
No.
•Give reasons for why you did not try to seek help.
I believe no one can help me in Indonesia.
•Did you move, or try to move, to another part of that country(s) to seek safety?
No.
•Give reasons for why you did not try to move to another part of the country(s).
I believe there is no safe place for me in Indonesia.
•Do you think you will be harmed or mistreated if you return to that country(s)?
Yes.
·Give details (including the type of harm or mistreatment you are likely to experience, the person/people who would be responsible for the harm or mistreatment, why they would harm or mistreat you).
I believe I will be arrested if I still stay in Indonesia. In June 2012 I attended a demonstration against government corruption in Bali Indonesia. I was arrested and detained for three days. In September 2013 I attended a demonstration against government corruption in Bali Indonesia. I was arrested and detained for three days again. In September 2013 I attended a demonstration against government corruption in Bali Indonesia. I run away after Indonesian police came. After I arrived in Australia in November 2013, I went back to Indonesia to see my family several times. But [in] August 2014, when I was in Indonesia, several police came to my home to look after me. I was not at home at that time. They told my wife that I must go to police station in two weeks.
•Do you think the authorities of that country(s) can and will protect you if you go back?
No.
•Give details about why you think the authorities could not, or would not, protect you.
I believe Indonesian authorities will arrest me rather than protect me because I attended demonstrations against government corruption in Indonesia.
· Do you think you would be able to relocate within that country(s)?
No.
•Give details about why you are unable to relocate.
I believe I would not be able to relocate within Indonesia because there is no safe place for me in Indonesia.
Departmental interview
The applicant attended an interview with the Department on 11 October 2016. The information provided that that interview was summarised in the delegate’s decision, a copy of which was not provided to the Tribunal by the applicant. Accordingly, as is set out below, the Tribunal put to the applicant the summary of the information provided at the departmental interview pursuant to s.424AA of the Act.
Evidence at hearing
At the hearing the Tribunal asked the applicant what was his understanding of why his application for a Protection visa had been refused. The applicant responded that he did not understand the reason for refusal – he had not been harmed, just threatened with harm. The applicant told the Tribunal that when he last returned to Indonesia he was threatened and told that he should not participate in demonstrations. He said that his wife had told someone who came looking for him that he was not around and that he had had to go overseas.
The Tribunal confirmed with the applicant that the extent of his claims was covered in his written claims.
The applicant said that he had been threatened by someone who said he was from the police, although that person may be someone who holds opposite political beliefs from himself, or is a gang member.
The applicant said that he had been involved in two protests in Indonesia, one in [District 1] and one in Denpasar. The applicant said that one of the protests, which occurred in 2011, was a major protest about land reclamation and government corruption. The applicant said he was not concerned about the small protest, indeed he has been involved in a number of minor protests, about which he is not concerned.
The applicant told the Tribunal that the problems he had flowed from the major protest. He said that a developer paid a lot of money to landowners and the locals did not agree with the use of the land. He said that he voiced an opinion on the side of the locals and was quite vocal and loud. The applicant told the Tribunal that in response he was given a “gentle reminder” not to participate in protests, but that he ignored the reminder and continued to participate. When asked by the Tribunal about the nature of the “gentle reminder” the applicant said that he did not know who gave him the gentle warning, but that it was given verbally, and perhaps by the developer. He said that he was also told that “they’ll do something to your family”. The applicant said that no one harmed him but he became scared that his family would be harmed.

The applicant told the Tribunal that “they kept terrorising me – they stopped me in the middle of my way back home from work. They terrorised me with words”. The applicant said that the threats included to kill him and to hurt him. He said that he was threatened about eight to 10 times.
The applicant told the Tribunal that therefore when (sometime before 2013) he had a chance to go to Australia he took it. He said that he had to try and disappear. He said that he hoped that “they” might forget him. The applicant said that he returned to Indonesia in 2013. The Tribunal asked him whether he suffered any harm upon his return to Indonesia in 2013. The applicant responded that he had not suffered any harm, and that he had not worked on that occasion as he had savings. The applicant said that he returned to Indonesia for a month in 2013, and that while he was there someone came to his house when he was out but his wife was home. The applicant said that he returned to Australia in 2013, and has not since returned to Indonesia. The applicant then corrected himself and said that maybe he had returned to Australia at the beginning of 2014.
The Tribunal pressed the applicant in relation to his evidence. The Tribunal noted for the applicant its concerns as to the vagueness of his evidence, and the time taken to apply for a Protection visa. The applicant’s response was that in 2015 a friend told him he could get a Protection visa in Australia.
The Tribunal asked the applicant about his immigration history. He acknowledged that he had visited Australia several times, including under another name. During his evidence it became clear that the applicant had returned to Indonesia since the events he claims give rise to his claim for a Protection visa. When asked whether he had suffered any harm in Indonesia he said that he fears that something may happen to him and that he “cannot see his family as he may be killed or taken somewhere”. The applicant said that the last time he was in Indonesia someone had enquired of his wife, while she was at their son’s school, as to his whereabouts.
The Tribunal asked the applicant about his family. He said that he met his wife in the [Country 1] in 2004. He said that she, like him, is from Bali. He said that they have two children, a [child] nearly [age] years old, and a [child] [age] years old. The applicant said that he and his wife met while they were both in the [Country 1] as [students], studying [Discipline 1]. He said that they married in [Country 1] in [year], and that their [child] was born there in [year].
The applicant said that his wife is in Australia on a “[temporary] visa”. He said that he has asked her to seek a Protection visa as she has her own case arising out of what happened to her in Indonesia when he was not home.
The applicant’s wife gave evidence. She told the Tribunal that before her husband returned to Indonesia a lot of people came looking for him. She said that occurred about five times, and sometimes there were two people. She said that she was not aware who the people were. She was unable to tell the Tribunal precisely when the people came looking for her husband, but she confirmed that was when her husband was not home. She went on to say that perhaps it was in 2010 or 2011.
The applicant’s wife told the Tribunal that someone picked her husband up and brought him “somewhere”. She said that when she picked him up she asked him what happened and he said “it was just some protest”. The applicant’s wife told the Tribunal that she does not know the precise nature of the protest, but thinks that it is something to do with unfair treatment of his parents. She said that her husband knows that she is panicky so he does not tell her the exact nature of his activities. She said that he only tells her “after the event”.
The applicant said that she did know where her husband was when the people came to the house, but he had told her that next time someone asked for him she was to say that he was not there.
The applicant’s wife went on to say that she worked at [a company] in Indonesia. She said that whilst at work a man asked her to go for drinks. She said that she felt uncomfortable because the man was wealthy and a member of a gang and her husband was not there.
The applicant’s wife told the Tribunal that her husband fears being taken away “like last time”. The Tribunal asked the applicant how long her husband was taken away last time. She said that she was not sure – perhaps it was for a couple of hours. She said that she just received a phone call to come and pick him up. The applicant’s wife went on to say that someone keeps asking whether her husband is home. She said that someone is monitoring their house. She said that she stays inside with the children and keeps everything closed. She said she rarely opens the door and she is afraid that people will ask for her husband’s whereabouts.
The applicant’s wife concluded her evidence by saying that her husband is afraid of being kidnapped or taken away.
The Tribunal discussed country information with the applicant. In particular the Tribunal told the applicant that country information indicated that protests in Indonesia are usually peaceful, and usually attended by the police. They are usually well organised, and there is an orderly way of dealing with them. The applicant’s response was that the government and the developers did not allow him to go peacefully. He was intercepted in the middle of the road and threatened. He said that he worried other things might happen. The Tribunal asked the applicant if he had ever been arrested. He said that he was arrested once. The Tribunal asked him why he had not mentioned that earlier in the hearing.. The applicant said that he “forgot” to do so. He went on to say that he was not really arrested – he said that “they just took me somewhere”. He said that he was allowed to go home straightaway.
The Tribunal told the applicant that it had concerns regarding his evidence. The Tribunal said that it found his evidence to be vague, and internally inconsistent. The Tribunal also told the applicant that there are inconsistencies between the evidence given by his wife and that which he had given. The Tribunal also told the applicant that this gave rise to concerns about his credibility. The Tribunal said that its concerns were exacerbated by the inconsistencies between the information contained in his written claims for a Protection visa, the information provided the Departmental interview, and the evidence given by the applicant at the hearing.
Pursuant to s.424AA of the Act the Tribunal put to the applicant the summary of the information provided by the applicant at the Departmental interview to the applicant as it was set out in the delegate’s decision. The Tribunal told the applicant that it had information to put to him that would, subject to his comments or response be the reason or part of the reason for affirming the decision under review to refuse to grant the visa. The Tribunal told the applicant it would explain the information and its relevance and ask him to comment upon or respond to the information put. The Tribunal told the applicant he was entitled to seek additional time to comment upon or respond to the information, and that if he wished to seek additional time his request for same would be considered. The applicant did not seek additional time to comment upon or respond to the information.
The Tribunal read the following extract from the delegate’s decision to the applicant:
The applicant attended a Protection visa interview on 11 October 2016. At the interview he provided the following information:
•The applicant advised all the information in his application was true. He took an oath to that effect.
•Following the oath the applicant advised he has previously been in Australia on a [temporary] visa in the identity of [Alias 1] born [date]. He stated he formally changed his name when he returned to Indonesia after he protested in order to avoid detection by the authorities. He has brought his wife and children to Australia and they have also applied for Protection visas.
•His family has the same claims of police harassment. They have the same claims as the applicant. The applicant is an Indonesian citizen. He and his wife lived for a few years in [Country 1] and his son was born in and is a citizen of the [Country 1] as well as of Indonesia.
•The applicant stated he was born in [a] small village in [District 2].
•The applicant has lived in [Town 1] Queensland for a total of five years apart from a few months when he lived in Victoria with a friend who told him about applying for a Protection visa.
•He pays $200 rent per week.
•The applicant's wife's name is [Ms A] born [date]. They married in [Country 1] in about 2006 and returned to Indonesia in 2007. She arrived in Australia about three or four months ago and now helps work [in a location] and looks after the children. [One of their] child will go to school next week.
•The applicant's parents and siblings live in Indonesia still.
•The applicant still has his old address in Bali. It is a suburb about [number] minutes from Denpasar. The house is empty and guarded by security cameras and visits from his brother. The applicant had [a] business which has now closed down. The applicant stated that his original passport in his original identity was locked in a security cabinet at his house and if the applicant gets a visa he will sell the house and move all his belongings to Australia.
•The applicant applied for his current passport in the normal way by lodging an application, having an interview, photograph and fingerprints and providing his Birth Certificate. The applicant said he did not declare it was not his original identity, although he knew that was a crime.
•The applicant said that he could not say that he could not return to Indonesia but he was very scared as the police would still be looking for him. They looked for him the last time he was in Indonesia in August 2014 and fortunately he was not at home.
•The applicant said there was a risk of him being arrested or killed by people he did not know and he needs to be able to feed his children as his wife cannot do everything.
•The applicant feels safe with his new name as the police do not know his new name.
•In 2011 the applicant came to Australia with a friend and returned a couple of times to Bali. At that time he was not involved in politics.
•In 2012 or 2013 he became political against government corruption.
•The applicant claims he did not know about Protection visas in Australia until 2015.
•The applicant says the worst thing that could happen to him would be if he were kidnapped as he would not see his family again. He said he could go to another island. Nothing has happened to his wife or children nor to his parents and siblings although he had not told his parents about his trouble with the authorities.
•The applicant experienced no difficulty at the airport as he left the country.
•The applicant understands that technically it is legal to demonstrate in Indonesia.
•The applicant protested about the reclamation of land to build a casino or tourism centres where the fishermen will lose their fishing sites and the beaches will become part of private ventures.
•The applicant protested about 10 times. He thinks it was in December or January 2012.
•The applicant did not know the date he was arrested. He found out about the protest through a friend. Less than 50 people attended the protest. The applicant does not know if anyone else was arrested. It was at a [specified part in Denpasar].
•The applicant was taken by a person dressed in black from his house in the afternoon and threatened not to do it again. The applicant does not know who the person was or who they worked for. He was released a ten minutes' walk away from his own driveway so he walked home. He demonstrated again before the baby was born in either [month] or [month] and nothing happened.
•The applicant was not required to go before a court.
•The applicant said he returned to Australia in November 2013 because people were watching his house sitting on a motor cycle.
•I asked the applicant when he changed his name. He said he had changed his name in 2013. When I told the applicant his passport was issued in 2012 in his new name he said he changed his name before he came to Australia so that he could escape all the problems. He enrolled in a course and paid the teacher for the [qualification] without studying.
•I asked the applicant if he changed his name before the problem. He said he changed it after the problem. He came to Australia because it was safer.
•The applicant is a bit nervous he might be recognised at the airport and does not want to live in another location in Indonesia. He might be able to move to [Country 2] or [Country 3] or another island that does not need a visa.
•If the applicant returns to Indonesia he will do something for his family, although he is not sure at the moment what that would be.
•If the applicant returned to Indonesia he would return to his parents' place. He speaks with his parents every couple of weeks.
The Tribunal explained that the difference between the applicant’s written claims, the information he had provided at the Departmental interview, and at the hearing, and the differences between his evidence and that of his wife’s caused the Tribunal to have concerns regarding his credibility, which might cast doubt on whether the events occurred. The Tribunal explained that were it to reach the conclusion that the events did not occur, it would affirm the decision to refuse to grant the visa.
The applicant said that he had no comment to make. He said that he doesn’t feel as fearful as he was before because he is living here with his family. The applicant’s wife said that her husband suffers from anxiety and has had to be taken to the emergency department twice with his hands shaking. She said that he keeps his anxiety to himself because he does not want her to worry. The applicant’s wife went on to say that at night her husband suddenly wakes up and tells her that he is fearful his life is going to end. She said that she only found out her husband was suffering anxiety when she joined him in Australia, although it had been happening in Australia before she arrived.
Findings
The Tribunal accepts that the applicant is from Indonesia, is married and has two children. The Tribunal also accepts that the applicant attended one or more protests.
Based on the vagueness of the applicant’s evidence, the internal inconsistencies within his written claims, the Department interview and his oral evidence at hearing, and the inconsistencies between his evidence and that of his wife, the Tribunal does not accept that the applicant has been arrested or is being targeted for his involvement in protesting. In that regard the applicant was unable to provide consistent details regarding the number and nature of the protests. Nor was his evidence consistent regarding the number of arrests, and as is set out more fully below, ultimately he stated that he “was not really arrested” – he “was just taken somewhere”. His evidence overall, as well as being inconsistent lacked specific details and shifted between the versions given in the written claims for protection, at the Departmental interview and in the hearing.
The Tribunal’s concerns arising from the applicant’s evidence regarding for example his arrest or arrests are amplified by his claim to have “forgotten” being arrested in the earlier part of the hearing, as he claimed when he told the Tribunal in the later part of the hearing that he had been arrested once. When pressed about this arrest in the hearing the applicant said that he had not really been arrested just “taken somewhere”. Furthermore the Tribunal notes that in his written claim for protection the applicant states that he was arrested twice, and detained each time for three days. The Tribunal considers that if the applicant were fearful of suffering serious harm in Indonesia he would have remembered being arrested, and indeed how many times.
Given the Tribunal’s concerns regarding the applicant’s credibility the Tribunal does not accept that the applicant has been threatened by the police or a gang member or someone of an opposing political persuasion as claimed.
Also based on its concerns regarding the applicant’s credibility, the Tribunal does not accept the applicant’s claims regarding people stopping him on his way home from work, threatening him, watching his house or asking for him in Indonesia.
The Tribunal places little weight on the evidence of the applicant’s wife in this regard as it was vague and lacking in detail – she was unable to remember when people came looking for her husband. In addition the applicant’s wife’s evidence was inconsistent with that of her husband – she stated that the protest or protests were something to do with her husband’s parents, rather than to do with land reclamation or government corruption as claimed by the applicant.
The Tribunal also has concerns regarding the time taken by the applicant to make his claim for protection. When asked about that, the applicant said that he was only told by a friend about Protection visas in 2015. The Tribunal considers that if the applicant had genuine fears of suffering serious, or significant harm in Indonesia he would have taken steps to understand his options regarding applying for an alternative visa earlier, including on one of his previous visits to Australia. The Tribunal notes that the applicant has navigated the visa system of the [Country 1], for the purposes of studying there, and consequently considers that the applicant has the skills and initiative to obtain any necessary information regarding visas, including particularly in circumstances where he feared suffering harm.
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).
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).
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
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Fiona Meagher
Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)   the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)   without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)   the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)   a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)   significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)   a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)   any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)   protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2019] AATA 5756

13 May 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness