1707822 (Refugee) - [2019] AATA 6695

1707822 (Refugee) [2019] AATA 6695 (26 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1707822
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Simone Burford
DATE:26 September 2019
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 26 September 2019 at 1:38pm

CATCHWORDS
REFUGEE – protection visa – Indonesia – separation from child – post election political unrest – single mother – divorced women – incorrect and inconsistent information – credibility issues – sole custody of child – prevented from taking child overseas – would not face economic harm – no risk of significant harm – no risk of being failed asylum seeker – failed to demonstrate harm – Ministerial Intervention requested – decision under review affirmed
LEGISLATION

Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K-LA, 36, 65, 104, 417, 424AA
Migration Regulations 1994 (Cth), Schedule 2

CASES

Iyer v MIMA [2000] FCA 52
MIAC V SZQRB (2013) 210 FCR 505
MIMA v Rajalingam (1999) 93 FCR 220
SZRSN v Minister for immigration and Anor [2013] FMCA 78
SZSKC v MIBP [2014] FCCA 938

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 6 April 2017 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 national/citizen of Indonesia, applied for the visa on 16 July 2015, and the delegate refused to grant the visa on 6 April 2017.
The applicant appeared before the Tribunal on 20 June 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A], a friend of the applicant. Having taken evidence from the applicant and [Mr A] the Tribunal adjourned the hearing to enable the applicant the opportunity to obtain advice from a registered migration agent regarding her visa options and to consider whether she wished to ask the Tribunal to request Ministerial intervention in the event her application was unsuccessful.
A further hearing was held on 3 September 2019. At that hearing the applicant appeared again before the Tribunal to give evidence and present arguments. At that hearing the applicant indicated that she had not obtained advice from a registered migration agent, however, she had received information on how much it would cost to obtain advice and how much it would cost to file an application for a parent visa. She indicated she did want to ask the Tribunal to request Ministerial intervention in the event her application was unsuccessful. That request is dealt with further below.
The applicant was not represented in relation to this application. The applicant did not request an interpreter and based on her appearances before the Tribunal and interaction at the hearing the Tribunal formed the view that the applicant had a good command of English and was able to fully participate in the proceedings without the assistance of an interpreter.

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) of the Act. 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) of the Act, 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.

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 (the Department) – 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 has a well-founded fear of persecution in Indonesia, because if she is removed from Australia to Indonesia she would be separated from her daughter who is an Australian citizen, or for any other reason, or whether complementary protection provisions otherwise apply.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Country of reference

According to the applicant’s movement record, she arrived most recently in Australia [in] June 2015 on a class FA-600 tourist visa, using her now expired Indonesian passport. The applicant applied for protection on 16 July 2015.
The applicant claims to be a citizen of Indonesia and provided a copy of her passport to the Department with her application.
The Tribunal finds that the applicant is a citizen of Indonesia, which is also the receiving country for the purpose of the refugee and complementary protection assessments. There is no evidence before the Tribunal to suggest the applicant has a right to enter and reside in the third country for the purposes of s.36(2)(aa) of the Act.

CONSIDERATION OF CLAIMS AND EVIDENCE

Credibility assessment

In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[1]
[1] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2011 at paragraph 196.
The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[2] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not 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.[3]
[2] MIMA v Rajalingam (1999) 93 FCR 220.
[3] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.
The Tribunal notes that a decision-maker is entitled to consider whether an applicant subjectively has a well-founded fear of persecution before examining whether such a fear is objectively held or to proceed on the assumption that such a fear is held.
If the decision-maker finds on the evidence that the applicant does not have a genuinely held subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claims are satisfied. The Tribunal notes that in Iyer[4] the Tribunal had concluded that certain return visits to Sri Lanka from Australia were voluntary and supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status. The court confirmed that the Tribunal had applied the correct principles concerning the applicant's fear of persecution and stated that it did not need to go any further in its analysis of the basis of the claim. This decision was affirmed on appeal.[5]
[4] Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]-[34].
[5] Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA(2003) 129 FCR 137 at [19] per Cooper J.
Section 5AAA of the Act clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. Applying this section, the Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim. This is consistent with the well-settled proposition that it is for an applicant to make their own case.[6]
[6] Prasad v MIEA (1985) 6 FCR 155 t 169-70; SZBEL v MIMIA (2006) 228 CLR 152 [40]; Re Ruddoc; Ex parte Applicant S154/2002 [2003] HCA 60 (Gleeson CJ, Gummow , Kirby, Callinan and Heydon JJ, 8 October 2003 at [57] ad [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, I November 2005 at [73]; MIMA v Lay Lat (2006) 151 FCR 214 at [76]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The applicant’s obligations to present their case in full before the primary decision maker and not wait until after the decision has been made are particularly relevant. Firstly, the ongoing requirement under s.104 of the Act is for an applicant to ensure that their relevant details are correct and to change any incorrect information at the first reasonable opportunity.
Secondly, applicants are required to present all claims and evidence to the primary decision maker unless they have a reasonable explanation for not doing so.

Background

As discussed above, the applicant’s movement record indicates that she arrived in Australia using her Indonesian passport [in] June 2015 on a FA-600 tourist visa.
The delegate’s decision indicates that prior to that arrival the applicant first arrived in Australia [in] July 2005 as the holder of a TU-573 student visa. She was granted a further student visa on 4 October 2005. This visa was cancelled on the 12 January 2006. [In] December 2006 she departed Australia to return to Indonesia. [In] December 2006 she arrived in Australia as the holder of a further TU-573 student visa. On 2 November 2007 she was granted a class UK-820 spouse visa. Between [July] 2008 and [April] 2009 she travelled to and from Indonesia four times on a UK-820 spouse visa. She departed Australia [in] July 2008 and returned [in] August 2008; she departed Australia [in] September 2008 and returned [in] September 2008; she departed Australia [in] February 2009 and returned to Australia [in] March 2009. [In] April 2009 the applicant departed Australia as the holder of a UK-820 spouse visa and returned Indonesia. She returned to Australia [in] October 2010 on a FA-600 tourist visa. She was granted further tourist visas on 2 May 2014, 4 March 2014, 17 June 2015 and 10 July 2015. She arrived in Australia [in] June 2015 on a tourist visa and on 16 July 2015 she applied for the protection visa which is the subject of this review. Movement records indicate her UK-820 visa ceased on 29 September 2009.
As noted by the delegate, the applicant had travelled to and from Indonesia 15 times since her first arrival on a student visa in 2005 and the last date of arrival in Australia in 2015.
The applicant’s travel history, as summarised in the delegate’s decision, was discussed with the applicant at the hearing. She told the Tribunal at the first hearing she did not recall her first student visa being cancelled in January 2006. When this was discussed with her at the second hearing she said her visa was cancelled because she didn’t attend classes and she recalled this but did not offer any explanation as to why she had said she couldn’t remember her visa being cancelled earlier.
Adverse information was put to the applicant at the hearing in accordance with s.424AA of the Act at the second hearing. The Tribunal explained the significance of the information to the applicant and why it may be significant to her application. The Tribunal also offered to the applicant an time to consider the information and the option of responding in writing however the applicant indicated she would respond at the hearing.
Information put to the applicant included details of her migration history. The Tribunal put to the applicant that when asked at the first hearing whether she had travelled anywhere other than Australia and Indonesia, the applicant said ‘no’; however in her application for protection she indicated she had previously travelled to [a country] and [another country]. The applicant was asked at the first hearing whether she had returned to Indonesia after her daughter was born. She said she had not returned until she split up with her ex-husband in early 2009, other than for a few days when her grandfather died. Movement records indicated that she left Australia for one month from [July] to [August] 2008. She said she could recall going home when she was pregnant with her daughter around October or November 2007 but she could not recall the travel in 2008.
The Tribunal also put to the applicant that there was information that the applicant had failed to declare previous immigration history and criminal convictions on her last visitor visa application in 2015, had provided inconsistent employment information and declared a person to be her spouse when she later indicated he was just a boyfriend. She said she claimed she had worked for her parent’s company because she needed to show she had an income to get the visitor’s visa. She said she worked for her parent’s [Business 1] but she was not involved in the second. She said they sold [Business 1]. She said they also had [another company] but that has closed down. The Tribunal pointed out she had earlier said she had not worked for her parents, and she said she didn’t work for [a particular business] but had worked at [Business 1]. They open the [business] for Ramadan. The Tribunal notes she had not indicated when previously asked about her parent’s circumstances that they ran [Business 1]. She did not offer any response to information regarding her claimed spouse/boyfriend.
The Tribunal indicated that providing inconsistent or incorrect information on visa applications and in evidence may lead the Tribunal to have concerns regarding the credibility of her claims and the truthfulness of the information she had provided in support of her application for a protection visa and may be the reason or part of the reason for affirming the decision under review. She said she understood this. She said she had no other comment to make on this information.

Applicant’s claims

During the hearing, the Tribunal questioned the applicant in order to determine the nature of her claims and to satisfy the Tribunal as to the applicant’s credibility. The Tribunal also sought clarification from the applicant about matters of concern raised in the delegate’s decision record.

Delegate’s findings

The Tribunal notes that the delegate’s summary of the applicant’s claims for protection are as follows:
·the applicant stated that her ex-husband has taken her daughter without her consent to Australia and she must be with her;
·the applicant stated if she is separated from her daughter she will be depressed and stressed, and this will amount to ‘inhumane and degrading treatment’;
·the applicant has a custody order issued by the Family Court of [State 1]; she has equal custody of her [daughter], shared with her [ex-husband].
This summary was put to the applicant at the hearing and she confirmed that it was a true and correct summary of her claims, however she claimed that she had been granted sole custody of her daughter from [February] 2017 by the Family Court of [State 1]. She provided a copy of the order to the Tribunal at the hearing.
The Tribunal notes that the delegate found that:
·The applicant stated during a protection visa interview that she quit her job when she departed Indonesia and would have no employment were she to return. The applicant has had employment in both Australia and Indonesia over several years , [in various positions]. The delegate found that the applicant had a supportive family in the capital city of Denpasar, Bali, where she would return. The delegate found that the applicant would not face economic hardship on return to Indonesia.
·The delegate noted that the delegate had advised the applicant that her claim that she feared returning to Indonesia because she would be separated from her daughter was who was taken unlawfully by her Australian citizen father from Indonesia to Australia did not meet the refugee or complementary protection guidelines as outlined in documentation sent to her [by the Department]. According to the decision record, the applicant indicated that she understood but that she had no visa options to remain in Australia.
·The delegate found that the sole reason the applicant did not want to leave Australia is because her daughter currently resides here and she does not want to be separated from her.
·The delegate found that the applicant’s claim to fear harm because she may be separated from her daughter if she departed was unrelated to the refugee criteria assessment.
·The delegate found that the fact that the applicant had a daughter in Australia would not bring her within the legislative provisions relating to complementary protection as it had been held that the relevant act or omission said to constitute significant harm could not be the act of removal itself (citing SZRSN v Minister for immigration and Anor [2013] FMCA 78). Therefore, the delegate did not accept that the applicant’s removal from Australia and consequential separation from her daughter could amount to a claim that there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Indonesia there is a real risk she will suffer significant harm for the purposes of the complementary protection criteria.

These findings were discussed with the applicant at the hearing.

Evidence at the hearing

Summary of evidence at hearing

At the hearing, the applicant provided the Tribunal with the following additional evidence:
·The applicant indicated that her family in Indonesia included her parents and three siblings. Her parents live in Denpasar in Bali and own a family [business]. Her sister is unmarried and working in Jakarta in connection with the family business. She has one brother who is divorced and recently had [Medical Condition 1] but has now been released from hospital and is living with her parents. She has another brother who is [employed] who was working [but] is currently not [working].
·She said she attended [a] high school in Indonesia and studied [a course] at university, but did not like the university in Indonesia as there was too much bullying.
·She indicated that she had had sole custody of her daughter since [February] 2017. The matter had last been before the Family Court [in] April 2019 when the current orders were extended including an order placing her daughter on the no-flight watch list on her ex-husband’s request.
·The applicant indicated she has not sought her ex-husband’s consent to remove her daughter as she did not currently have any intention to remove her. She said she had previously wanted to travel to Indonesia to visit her brother when he was sick and they could take her daughter with her but she did not end up going.
·When she was asked about her student visa being cancelled in 2006 she said she couldn’t recall the visa being cancelled and returning to Indonesia. She said she married her daughter’s father on 23 April to 2007 and was granted the UK-820 partner visa on 2 November 2007. She said that she and her then husband split up at the end of 2009.
·Her daughter was born on [date].
·In 2008, she travelled without her daughter to visit family for a few days for a funeral. She couldn’t remember the details but thought she couldn’t afford to buy any more tickets. She couldn’t recall going back for a month in 2008.
·She said the partner relationship broke down in December 2008. Her partner had followed her after she moved out and she obtained a restraining order in 2009.
·She took her daughter to Indonesia on an Australian passport although she also had an Indonesian passport and Indonesian citizenship. She said her ex-husband attempted to reconcile and worked flying in and out whilst she was staying in Indonesia with her parents. He stayed in Indonesia on and off from April until November 2009 when he travelled back to Australia to see his father who was ill and later died. He returned to Bali but they fought and he returned again to Australia at the end of 2009.
·In June 2010 her ex-husband travelled to Indonesia again and indicated he wanted the applicant and their daughter to live together in [a city], however the applicant was stopped at the airport and told she couldn’t travel to Australia as her visa had been cancelled. Her ex-husband boarded the plane with her daughter. She said her ex-husband was acting for her in relation to the partner visa application and was her registered contact with respect to the application. She said she didn’t obtain any advice in relation to the refusal of her permanent partner visa and the cancellation of her UK-820 visa.
·She said her ex-husband brought her daughter back again to Indonesia in 2011 when his mother was ill. In 2012 he returned and asked to take her daughter to Australia for a few days but he did not return. She came to Australia on a tourist visa in 2012 to look for [her daughter] but she was in [another country] at that time.
·She returned in 2013 and found out where her daughter was enrolled in school. She obtained shared custody of [her daughter] in May 2014. At the beginning of 2017 her ex-husband breached court orders, not returning with her daughter and not taking her to school.
·During this period she was travelling back and forward to Indonesia working [in a position]. She resigned from that position when she moved to Australia and sought protection in 2015.
·She married another Australian citizen in December 2017. She said they ‘separated’ in January 2019 when he went to work in [a city]. They remain married. She said she had not applied for a partner visa because she spoke to a migration agent on the phone and they told her she couldn’t apply for any kind of visa.
When asked what her fears were if she returned to Indonesia she stated that her daughter still felt trauma and neglected as a result of a dog attack in 2016 when she was in the care of her father. She said that her father cannot look after himself and although he is willing to look after her daughter she is afraid of what will happen to her.
She also stated that she was concerned for the safety of her daughter on return to Indonesia because there were protests going on, blocking the roads, stopping people from going to school. She said she wasn’t involved in politics but her sister had told her there were going to be elections for a new President. She didn’t know when the elections were and said she missed it because she had to work.
The Tribunal discussed with the applicant that the delegate’s decision found that delegate had discussed with the applicant that the main reason the applicant feared returning to Indonesia would be because she would be separated from her daughter who had been taken unlawfully by her Australian citizen father from Indonesia to Australia, and that this reason did not meet the refugee or complementary protection guidelines. Based on this information the delegate formed the view that the sole reason that the applicant did not want to leave Australia was that her daughter currently resides here and she did not want to be separated from her. The applicant told the Tribunal that this was correct and that she didn’t want to be separated from daughter.
The Tribunal asked the applicant why she waited until July 2015 to apply for the protection visa when her UK-820 visa had ceased in September 2009. She stated that she didn’t know what was going on. She talked to a migration lawyer who told her to apply for citizenship but said it would be expensive. She didn’t understand about the parenting visa back then so she applied for the protection visa. Her migration agent told her there was nothing else she could do until the protection visa was decided.
The delegate’s decision raised that the applicant claimed that she would face financial hardship if returned to Indonesia. The Tribunal discussed with the applicant that the delegate had found that her employment background and family support in Bali would mean she would not suffer economic hardship if returned to Bali. The applicant said the Indonesian economy was going down and that would impact her. The family business was running but all the money was going to medication and treatment for her brother who had suffered [Medical Condition 1] this year. When asked whether the family had health insurance she said that they did but it only covered while he was in hospital. She said it was not safe for her daughter to go to school because there were protests in Denpasar in June 2019 and roads were blocked. She said her daughter would go to [a school]. She said when they had been in Indonesia her daughter had gone to [a] school in Bali.
The Tribunal put to the applicant, pursuant to s.424AA of the Act, that according to information before the Tribunal her family had supported her and her brother to study overseas and have applied to come to Australia as visitors. This had included information that they could support themselves financially for such travel. They had also paid for her to attend [a] school in Indonesia. This may lead to the conclusion that she will not face financial hardship on return to Indonesia. She said members of her family had applied for visas to visit her in Australia, including to attend her most recent wedding in 2017, but these had been refused. She said this was doing damage, emotionally and psychologically to herself, her daughter and her extended family and to Australia’s reputation. She said that her family was now spending money on supporting her brother who had suffered [Medical Condition 1] this year. She said her only way of supporting herself was her current employment in Australia. She agreed that she would be likely to be able to get employment in Indonesia again.
She said she wanted the opportunity to raise her daughter in Australia where she had opportunities for a better education. The applicant said there was no other reason she feared harm and no other basis on which she would be harmed on return.
Later in the hearing the applicant stated that her daughter had attempted to kill herself because of what the applicant’s ex-husband had done to her.
The Tribunal noted that this claim had not been raised before and there was no other evidence before the Tribunal that the child had engaged in self-harm. The applicant said that the matter is in the family court, waiting on the report of a single expert and the independent children’s lawyer had permission to inspect the matter and the orders had just been extended. She indicated that her ex-husband had claimed her daughter would kill herself. She then stated that it would be harmful for her and her daughter to be separated.
She asked that the Tribunal give her additional time to save money so she could save money for a parent visa.

Relevant country information

The Tribunal has also had particular regard to credible country information at the hearing with the applicant. Country information was not raised the delegate’s decision.
The Tribunal put to the applicant that the latest Country Information Report prepared by the Department of Foreign Affairs and Trade in January 2019 indicates that returnees who unsuccessfully seek protection overseas are unlikely to come to the attention of authorities on return. The applicant said she had no comment to make on this information.
The Tribunal finds, based on credible country information, that there is no real risk the applicant will face serious or significant harm on return to Indonesia as a failed asylum seeker from a western country.
Further credible country information indicates that some post-election violence occurred in Indonesia earlier this year, however it does not suggest ongoing issues in Indonesia post-election, with the possible exception of political activists who may be subject to adverse attention of authorities. The applicant said she was not politically active. She said she remained concerned about their safety and that with respect to the violence she was ‘not saying it is a lot but a few people got killed who were involved in the protests’.
Based on credible country information and the evidence of the applicant’s circumstances, the Tribunal finds that the applicant does not have a well-founded fear of persecution due to post-election political unrest in Indonesia. Further, the Tribunal finds that she is not involved in any political activity in Indonesia. Based on credible country information the Tribunal finds there is no real risk the applicant will face serious or significant harm on return to Indonesia due to claimed political unrest in Indonesia.
The Tribunal notes that country information suggests that women who are divorced and single mothers may face some social stigma and harassment including sexual harassment. However, single and divorced women are able to act as the head of a household in their own right.
The Tribunal discussed this information with the applicant. The Tribunal asked the applicant whether she had suffered harm on this basis and she said that she had from her neighbour and father. When asked what kind of harm she had suffered she said that, ‘When we do family ceremony, they are insulting me’. She indicated that they say that she is ‘a single mum now, that child doesn’t have any father and stuff like that’. She said divorce is taboo where she comes from. The Tribunal asked whether she would live anywhere else to avoid this treatment, for example with her sister in Jakarta. She stated that she couldn’t live there because she couldn’t stand the traffic and population there, and her daughter would have to get up early in the morning to go to school. When the Tribunal put to her that she was suggesting she couldn’t live in Jakarta because she didn’t want to live there she agreed that this was the case.
The Tribunal accepts the applicant may face some social stigma on the basis of being a divorced single mother in Indonesia. However, the Tribunal notes that the applicant divorced in October 2014 and has not raised any instances of persecution in Indonesia on that basis. She has returned to Indonesia repeatedly following her divorce. She did not claim any fear of harm on return to Indonesia on that basis. Based on credible country information and the evidence of the applicant’s circumstances, the Tribunal finds that the applicant does not have a well-founded fear of persecution as a divorced, single mother in Indonesia. In any event, there is no information before the Tribunal that she faces a real risk of serious or significant harm on return to Indonesia or in the reasonably foreseeable future on that basis.

Consideration of claims

Findings

The Tribunal has carefully considered the claims made by the applicant.
The Tribunal finds that the applicant has failed to demonstrate that she would suffer any real chance of serious harm on return to Indonesia or that she faces a real risk of significant harm on return.
Based on the foregoing factual findings, and the credible country information referred to in this decision, the Tribunal finds that the applicant does not have a well-founded fear of persecution on return from Australia to Indonesia.
The Tribunal has considered each of the integers of the applicant’s claims for protection individually and then cumulatively. The Tribunal finds that the applicant’s evidence discussed above in connection with each of the integers of the applicant’s claims lacks credibility and is in important respects, as outlined above, inconsistent with credible country information.
While the Tribunal found that the applicant genuinely desires to remain in Australia with her daughter and applied for the visa because she believes it is her only option to remain with her daughter, the Tribunal did not find her claims to fear harm on return to Indonesia to be credible. Some aspects of the applicant’s testimony cast doubt on the credibility of her claims. She was unable to recall details of her visa and travel history including that an earlier student visa had been cancelled in 2006 and did not recall a return trip to Indonesia which she took for a month without her daughter in 2008. Further, she provided inconsistent information regarding her parent’s business activities in Indonesia and had previously provided incorrect information on her prior visa application. This causes the Tribunal to have concerns about the truthfulness of the information she provided and to form the view she provided information which she felt may assist her claims for protection rather than which reflected a truthful account of her circumstances.
Further, the Tribunal did not find the applicant’s evidence in relation to her daughter’s attempts to self-harm were credible. They were raised late in the proceedings and were not supported by the documents she had provided to the Tribunal concerning the custody proceedings. Further, the applicant’s evidence regarding the alleged self-harm lacked the detail it would be reasonable to expect with regard to such an allegation or event.
The Tribunal finds that the applicant currently has sole custody of an Australian citizen child and that proceedings concerning the care and protection of that child are ongoing before the Family Court of [State 1]. The Tribunal finds that the applicant wishes to remain in Australia to remain with her child and ensure that her child continues to have access to the benefits of citizenship including access to the Australian health and education systems. The Tribunal further finds that the applicant has not sought the agreement of the child’s father to remove her from Australia, however the Tribunal accepts on the evidence that the child is on the relevant travel watch list and would not be able to be removed from Australia without the appropriate parental or court approvals being sought and obtained.
On the basis of the evidence before it, the Tribunal does not accept that the child has engaged in self harm but does accept that she was placed in the sole care of her mother after injuries received in a dog attack and for other reasons considered by the Family Court of [State 1]. The Tribunal accepts it is in the best interests of the child that she has the care and protection of her mother and that it is likely she will be without her care and protection in the event her mother is removed from Australia to Indonesia. The Tribunal has assessed the applicant’s claims on the basis that it is likely that the child would be required to remain in Australia now and for the foreseeable future.
The applicant did not claim and, based on the evidence, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution on return to Indonesia for the reason she may be separated from her daughter who may remain in Australia. There was no submission that the serious harm arising from the possible separation of the applicant and her daughter is or would be the consequence of persecution for a reason covered by s 5J(1) of the Act. The applicant does not identify how the separation from her daughter arises from, would be a consequence of or would give rise to persecution for a reason provided for in s.5J of the Act.
The Tribunal finds that there is no real chance of persecution being faced by the applicant now or in the reasonably foreseeable future for the essential and significant reason of any ground in s 5J(1), arising from harm caused to her by her separation from her daughter if she was returned to Indonesia, for the purposes of s.36(2)(a) of the Act. Further, for the reasons outlined below the Tribunal finds that this does not give rise to a claim for complementary protection on the part of the applicant.
The Tribunal accepts that the applicant’s brother has suffered medical issues which require financial support from her family and that this may have limited the financial support they can provide to the applicant. However, the Tribunal finds on the evidence that the applicant has worked in Indonesia, including in one of her parent’s business and that given her work history and skills, including English language skills, she is likely to be able to find employment in Indonesia. Further, the Tribunal finds that she has family support in Indonesia to assist her in resettling in Indonesia. The Tribunal finds that the applicant would not face a real risk of serious or significant harm due to financial hardship on her return to Indonesia.
On the basis of this reasoning, the Tribunal finds that there is no real chance the applicant will be seriously harmed for reasons of her separation from her Australian citizen child for any other reason on her return to Indonesia now or in reasonably foreseeable future.

Complementary protection

The Tribunal notes that, if a person is found not to meet the refugee criterion in s.36(2)(a), they may nevertheless meet the criteria for the grant of a protection visa if there is a real risk that they will suffer significant harm: s.36(2)(aa) of the Act (‘the complementary protection criterion’). As discussed above in the assessment of the evidence, the Tribunal has found that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia, there is a real risk that she will suffer significant harm.

The Tribunal notes that the threshold for the real risk element in the complementary protection criterion at s.36(2)(aa) is the same as that for the real chance test in the refugee criterion at s.36(2)(a) of the Act.[7] That is, the Courts have held that the 'real risk' test imposes the same standard as the 'real chance' test applicable to the assessment of 'well-founded fear'. The Tribunal notes that the necessary and foreseeable consequence element at s.36(2)(aa) of the Act attaches to the risk of significant harm rather than the actual occurrence of significant harm.[8]
[7]MIAC V SZQRB (2013) 210 FCR 505.
[8]SZSKC v MIBP [2014] FCCA 938 (Judge Lloyde-Jones, 16 May 2014) at [71]-[73] and [84].
The Tribunal has carefully considered each of the integers of the applicant’s claims of fear of serious harm discussed above with respect to her claims for refugee protection in the context of the complementary protection criterion regarding the real risk of significant harm at s.36(2)(aa).
The Tribunal notes that, in SZRSN v MIAC (SZRSN), it was claimed significant harm would arise from separating the applicant from his Australian children. The Tribunal discussed the implications of this decision at the hearing.
The Federal Court (agreeing with the Federal Circuit Court) found in this case that harm arising from the act of removal itself will not meet the definitions of ‘significant harm’ in s.36(2A).[9]
[9] SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [48]-[49], upholding the reasoning at first instance SZRSN v MIAC [2013] FMCA 78 (Driver FM, 1 March 2013) at [61]-[65]. Similarly, in WZARI v MIMAC [2013] FCA 788 (Siopis J, 9 August 2013) at [31]-[32] the Court upheld the Tribunal finding that the applicant would not face ‘degrading treatment’ for the stress and pain of being separated from his family if he were returned to Fiji (special leave to appeal dismissed: WZARI v MIAC [2013] HCASL 201 (Kiefel and Keane JJ, 13 December 2013). In SZSNX v MIBP [2015] FCCA 2271 (Judge Driver, 30 September 2015) at [70]-[72], the Court applied SZRSN v MIAC [2013] FCA 751 in different factual circumstances, upholding the Tribunal’s findings that any psychological suffering the applicant may experience in being removed from Australia would not be intentionally inflicted or intended to subject him to further harm. See the Tribunal’s discussion of these issues in 1510675 (Refugee) [2018] AATA 1735 (13 April 2018).
The decision turned on the relationship between various aspects of complementary protection provisions. Firstly, the Court had regard to the reference in s.36(2)(aa) to Australia’s ‘protection obligations’ as referring to the obligation to afford protection to a non-citizen where the harm faced arises in the receiving country, rather than in the State where protection is sought.[10] Secondly, the Court reasoned that the qualifications in s.36(2B) expressly refer to harm ‘in a country’ which is necessarily the receiving country if the circumstances of s.36(2B)(a) (relocation) and s.36(2B)(b) (protection from an authority) are to have any application.[11]
[10] SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [48] and SZRSN v MIAC [2013] FMCA 78 (Driver FM, 1 March 2013) at [61]-[62].
[11] SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [48] and SZRSN v MIAC [2013] FMCA 78 (Driver FM, 1 March 2013) at [63].
Further, the Court noted the circularity in the operation of s.36(2)(aa) requires that the real risk of significant harm must arise ‘as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country’. The Court stated that the fact that the significant harm must be a consequence of removal strongly suggests that the removal itself cannot be the significant harm.[12]
[12] SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [48] and SZRSN v MIAC [2013] FMCA 78 (Driver FM, 1 March 2013) at [64]. The Federal Court also noted that being separated from one’s children is not an ‘act or omission’ as required by the relevant definitions of significant harm, but a consequence of an act. The relevant act is the act of removal from Australia: SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [47].
Lastly the Court in SZRSN had regard to the ‘intention’ requirements in the s.5(1) definition of ‘degrading treatment or punishment’. The Court reasoned that separation from family (in that case, children) is the consequence of removal, and a consequence cannot be said to have an ‘intention’, so the act of removal itself cannot be said to be perpetrated by the State with the intention to cause ‘extreme humiliation that is unreasonable’.[13]
[13] SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [48] and SZRSN v MIAC [2013] FMCA 78 (Driver FM, 1 March 2013) at [65].
As such it appears that although the risk of significant harm envisaged by s.36(2)(aa) must arise as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, s.36(2)(aa) will not be engaged by harm inflicted by the act of removal itself.[14]
[14] SZRSN was distinguished on its facts in MZAEN v MIBP [2016] FCCA 620 (Judge Riley, 24 March 2016), where a mother and her child claimed they would suffer significant harm as a result of being separated from one another in different receiving countries. The Federal Circuit Court commented in obiter that it may not be entirely correct that the consequences of the removal cannot be significant harm, given that the focus of s.36(2)(aa) is on the necessary and foreseeable consequences of the removal: at [49]-[50]. This aspect of MZAEN was followed in AUB16 v MIBP [2017] FCCA 2634 (Judge Riethmuller, 31 October 2017), a case involving a family unit consisting of two Malaysian citizens and two Nigerian citizens. However, neither judgment considered this issue in detail, nor the intention element of the definitions of ‘significant harm’. This question was considered in detail by the Tribunal in 1605592 (Refugee) [2017] AATA 914 (8 May 2017), with the Tribunal ultimately preferring the approach of SZRSN: at [154]-[155].
For the reasons set out above, whilst the Tribunal has accepted the applicant does not wish to be separated from her Australian citizen child, it does not accept that she would be significantly harmed on the basis of this. The Tribunal further finds, on the evidence and based on the findings above, that the applicant does not face a risk of significant harm for any other reason on return to Indonesia now or in the reasonably foreseeable future.
Noting the findings as detailed above, it follows that the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia, there is a real risk that the applicant will suffer significant harm for the purposes of s.36(2)(aa) of the Act.

Summary

Taking the applicant’s claims at their highest the Tribunal finds that she has not established that she will be seriously or significantly harmed on return to Indonesia for any of the reasons claimed.

Conclusion

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).

Referral to the Minister

The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The applicant did not refer to any specific circumstances relevant to the exercise of Ministerial discretion but indicated that she wanted to be with her daughter and did not know what would happen to her if she were unable to remain in Australia.
The Tribunal notes that the applicant was the holder of a UK-820 partner visa at the time her daughter was born. Had the applicant been in Australia and had she been made aware of the consideration of her 801 visa by her ex-husband she may well have been able to provide information to satisfy the decision maker that she met the criteria for that visa notwithstanding the breakdown of her relationship. The Tribunal notes that specific provisions in the partner visa criteria are designed to deal with such circumstances where there is a child of the relationship. Further, the Tribunal notes the applicant currently has sole custody of her daughter and there is an order in place that her daughter not be removed from Australia. This raises the real risk that her daughter may be left without the care and protection of either parent if the applicant is removed from Australia.
It is not clear on the information before the Tribunal whether the applicant has exhausted the visa pathways in Australia which may be available to her as the custodial parent of an Australian citizen child. However, given the particular circumstances of the minor child, the fact she is currently prevented from exiting Australia without the consent of her non-custodial parent and the uncertainty regarding her care arrangements in the event that the applicant, her custodial parent, is forced to return to Indonesia, the Tribunal considers the applicant’s case should be referred to the Department.

The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) and will refer the matter to the Department.

DECISION

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

Simone Burford
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

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.
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.
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.
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.
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.
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

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.
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.
…