1710245 (Refugee)

1710245 (Refugee) [2021] AATA 1391 (2 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1710245
COUNTRY OF REFERENCE:                   Indonesia / Papua New Guinea
MEMBER:Sean Baker
DATE:2 March 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 2 March 2021 at 12:16pm:
CATCHWORDS
MIGRATION – cancellation – protection visa – Indonesia/Papua New Guinea – incorrect information in visa application – applicant’s and children’s names, places of birth and/or citizenship – applicant born to West Papuan parents in transit between West Papua and PNG – parents and applicant did not seek PNG citizenship – wife a PNG citizen and children notionally Indonesian citizens through father – Indonesian and PNG documents for parents, applicant, wife and children – discretion to cancel visa – consistent and plausible explanations for use of fraudulent documents and provision of incorrect information – country information about document fraud – increasing involvement in West Papua independence movement – country information about secessionist groups – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1), (2), 438
Migration Regulations 1994 (Cth), r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the delegate found the applicant had provided incorrect information and weighed the breach higher than factors in favour of the visa not being cancelled. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 10 February 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife, [Ms A], and [Mr B]. The Tribunal hearing was conducted with the assistance of interpreters in the Indonesian and English languages and, for [Ms A], in the Pidgin and English languages. The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Certificate
On file [Number] there is a certificate issued under s.438 of the Act. It is claimed that the information on the specified documents would be contrary to the public interest because they revealed internal Department processes, names of staff and the names of DFAT staff and processes.
I am not convinced that the information referred to does indeed form a basis of a public interest immunity claim by the Commonwealth in a judicial proceeding.
However, I have not found it necessary to consider because the information covered by the certificate is known to the applicant and his representative in the detail necessary, having been include din the s.107 notice. I therefore did not find it necessary to provide this information to the applicant and his representative.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 in the following respects:
The following information which was provided by the applicant on 25 October 2010 in his Form 866 application for a protection visa:
The name, and place of birth of his daughter (Question 9, Part B);
The name, and place of birth of his son (Question 11, Part B);
The applicant’s place of birth (question 8, Part C);
His citizenship at birth (Question 19 of Part C);
His current citizenship (Question 20 of part C);
His holding of any other citizenship or nationality of nay other country (Question 21 of part C);
His right to enter and reside, temporarily or permanently, in any other country (Question 22 of part C);
His statutory declaration in which he explained he had gained a false Papua New Guinea (PNG) passport to escape serious harm in West Papua, Indonesia, and that his date of birth on this passport is incorrect. He stated he was not a PNG citizen or national.
The applicant’s protection visa was granted to him on the basis of the information provided.
The applicant’s wife applied for visas for herself and their children. In this application she provided PNG birth certificates for herself, her husband, and the children.
These birth certificates indicated that:
the couple’s daughter had been born in Port Moresby, PNG and that her father and mother were Nationals of PNG;
The couple’s son had been born in [Town 1], East Sepik province, PNG and that his father and mother were Nationals of PNG;
The applicant had been born in [Town 2], Sanduan province, PNG and that his father and mother were Nationals of PNG.
The delegate decided that this information indicated the applicant was a National of PNG and was so when he lodged his protection application and is not a West Papuan Indonesian citizen.
On this basis the delegate found the applicant had provided incorrect information to the questions in his protection application as set out above. The delegate concluded that the applicant had not complied with s. 101(b) of the Act as it appeared he had provided incorrect information in his protection application.
The applicant provided a detailed statutory declaration to the Department with a number of attachments, a submission from his representative, and a letter of support from [Mr C], his [relative].
The main thrust of this information was that the birth certificates included false information and that it was not a complicated process to obtain these documents from PNG. He had realised it was wrong to provide his children’s traditional names in his protection application.
The delegate considered the response but concluded that the applicant had not provided a credible explanation of how he had obtained fraudulent PNG birth certificates and passports for himself and his family. The delegate found the applicant was not a national of West Papua, Indonesia, and was instead a national of PNG. As such, he should have been assessed for protection against PNG, not Indonesia.
To the Tribunal the applicant provided a detailed statutory declaration. In this he declares, and provides further evidence, that his daughter was born in Port Moresby PNG and her name is [Name 1] and that his son, [Name 2], was born in [Town 1], PNG. He states that he believes that his children’s nationality is Indonesian, as he is the head of the family and his nationality is Indonesian. He indicates his remorse for stating that they were born in West Papua and explains that he was worried that if he said PNG his application would not be accepted. He maintains that the birth certificates for him, and his children, contain false information.
He explains in more detail where he believes he was born, which is more correctly ‘the bush’, somewhere between [West Papua] and PNG. He states that his nationality is correct, he was born to West Papuan parents. He states that he does not hold PNG or any other citizenship. He was never given the opportunity to become a PNG citizen, nor does he have the right to enter and reside in PNG or any other third country.
He explains that he had to obtain birth certificates with false information so he could obtain passports for him and his family. He notes again that his date of birth is [Date 1], not [Date 2]. His parents never became PNG citizens.
He then sets out in some detail his life – he was born as his parents fled to PNG. He declares he is unsure if he was born in West Papua or in PNG. He grew up in the West Irian Refugee Camp on Manus Island. He and his family and all the others in the camp spoke Bahasa, not Pidgin. He gives the history of his family. He notes the documents provided to the Department that showed his father’s occupation as a teacher in West Papua.
The applicant attaches the PNG Aliens identification cards held by his mother and father when they entered PNG in approximately 1973.
After some schooling the applicant worked briefly in Port Moresby and then went to West Papua to see his family in around September 1994. Around this time he also contacted his [relative], [Mr C], in [Country]. The applicant was shocked by what he saw in West Papua. The applicant notes that his [relative] [Mr C] was instrumental in forming the West Papua independence movement, the Operasi Papua Merdeka (OPM) [details deleted]. [Mr C] began to send letters to the applicant to send on to people in West Papua. At this time the applicant was working for [Company] in Port Moresby. He became committed to the West Papua struggle for independence from Indonesia and increasingly involved in it.
He met his wife on one of his trips back to visit his mother on Manus Island.
In 1999 his boss at [Company] wanted to send him to Australia for training. [Pastor F] helped him to get a Papua New Guinea passport so he could go to Australia. He filled in the form to apply for a passport and [Pastor F] witnessed it as a church minister. At that time they didn’t need to provide much supporting documents when applying for a passport as long as you had a church minister sign it and provide some form of ID. From memory he used his company ID and a copy of his bank statement.
He was married to his wife in a cultural ceremony in 2000 and their daughter was born the following year in Port Moresby.
When an opportunity came up to work for [Company] in [Town 1] the applicant took it. They moved there in July 2002 and the applicant became more involved in West Papuan politics, frequently crossing the border and assisting refugees who would cross the border into PNG. The applicant refers to a West Papua National Liberation Army letter from this time. Around 2003/2004, the applicant’s family accompanied him to West Papua, as the attached photos demonstrate, and around this time the applicant met [Mr B], a West Papuan academic who was granted protection in Australia after being imprisoned by Indonesia. At this time the applicant became more prominent in the independence movement. He describes political events and actions that he took part in in West Papua at this time.
The applicant attached his 2005 Indonesian ID card and [Bank] account.
In 2006 his mother died and they buried her. He notes that her death certificate states she lived in the West Irian camp. Photographs of the funeral also show the applicant with the coffin and the West Papuan flag draped on her coffin.
The applicant includes copies of the Indonesian ID cards of relatives the applcaitn has remitted money to in West Papua.
He includes links to numerous Indonesian media articles which name him or include photographs of him.
The applicant provided details of rallies, protests, conferences and interviews in Australia which he organised, spoke at, or attended, from 2010 until this year.
Also provided were:
A Support Letter from [Mr B] dated 1 February 2021, [Organisation 1] [Official 1];
A Support Letter from [Mr G] dated 30 January 2021, [Official 2] of [Organisation 2]; and
A Support Letter from [Mr C] dated 29 January 2017, [Official] of OPM
At the hearing I questioned the applicant closely about his life in West Papua and PNG.
I asked the applicant if, during their lives on Manus, his father and mother had gone through the process to be naturalised PNG citizens. He said that never during their stay on Manus had immigration or police officers come to them to start the process for naturalisation. Nor had he gone through this process. He said that when he went to Port Moresby he stayed with their pastor, and was able to get work through this connection. He explained how he was able to acquire a passport with the help of his pastor and his boss. He confirmed that his children were born in PNG. He explained his gradual involvement in the politics of West Papua.
The applicant described how he was able to acquire his Indonesian identity cards through his relatives. He said it was important to have one to show to convince them they were locals, otherwise there would be an investigation.
He described the process he went through to gain the birth certificates for him and his children. He explained that just before this he became more active in the struggle for West Papua and the government put him under surveillance. He started to believe it was much safer to try and leave the country. When he filled out the application to acquire that birth certificate at the birth registry office, they did not demand any other documents to prove all the information that he wrote in the application, they just processed it and send it to issue. During that application process, as there was an urgency, when he filled out the information about his father and mother in that form it was incorrect.
I spoke with [Ms A]. She provided information consistent with her husband’s evidence. She confirmed she was a national of PNG. I asked if she had ever tried to gain citizenship for her husband and she said he had not wanted it, he spent year in PNG and nothing came of it so he didn’t apply.
[Mr B] gave evidence. He said that he had known the applicant since 2004, and he knew him as a West Papuan national. He said he knew the applicant’s [relative] and mother. He said the applicant is the [relative] of [Mr C]. He described in some detail the activities the applicant had undertaken when he had lived in [Town 1]. He said that he had understood that PNG was not safe for the applicant or his family. [Mr B] said he himself had been offered the opportunity to remain in PNG but had known it was not safe. He said that he and the applicant and others had only come here because West Papua is not independent, when it becomes independence they will go home.
I note that on the 2010 Department file there is another Indonesian identity card issued in May 2009 to the applicant, the original having been sighted but not retained by a Department officer in October 2010. This card has the same identity and birth details as the 2005 card provided to the Tribunal.
Consideration
I have carefully considered the material on which the cancellation was based. This is, largely, the three birth certificates, as well as the evidence that the applicant has held two PNG passports.
This is, prima facie, strong evidence that the applicant is a national of PNG.
But there is strong documentary evidence of the applicant’s claimed West Papuan Indonesian nationality – perhaps the strongest is his ongoing, well documented commitment to West Papuan independence, both during his time in PNG and in Australia. This is recognised by Australian and international leaders of the West Papuan independence movement. It is demonstrated in his organisation of events in Australia and PNG and West Papua, his media appearances, and the letters of support from West Papua leaders.
Connected to this is his well-documented familial connection to [Mr C], including letters on many dates from [Mr C].[1]
[1] [Source deleted]
The applicant has held two Indonesian identity cards, in 2005 and 2009. I accept these to be genuine, gained in the manner described by the applicant, and note that the 2009 card was accepted by a Department officer. He has provided the Aliens cards of his parents, again I accept these as genuine documents.
He has provided a full and detailed account of his life, and explained that neither he nor his parents had any opportunity to seek naturalisation in PNG. After PNG gained independence from Australia in 1975, a person who has resided continuously in the country for eight years and two months may seek citizenship by naturalisation, and this may include dependent children.[2] It is clear that his parents were unable to do so from the refugee camp where his mother remained until her death in 2006. The applicant could have done himself after he became and adult and lived in Port Moresby and [Town 1] but I accept that he was not aware and also may not have wished to renounce his West Papua nationality/identity – until the law changed in 2016, he would have had to have renounced all other citizenship to become a PNG national.
[2] Immigration and Citizenship Authority PNG, Application for Citizenship by Naturalization, Application for Citizenship by Naturalization - ICA
I accept that the applicant’s parents were born in West Papua and fled to PNG in 1973, being issued with the Aliens cards provided. I accept that they settled in the West Irian Refugee Camp on Manus Island and remained there until they passed away. I accept that they were not ever visited by immigration or police officers and did not go through the process required to become naturalised PNG citizens. I accept that the applicant was born at some point as the family travelled to PNG.
I have further considered the birth certificates. DFAT notes in their most recent report on Papua New Guinea:
Document fraud occurs frequently in PNG, particularly in relation to documents of identity. It is reportedly very easy to obtain birth certificates in any name. DFAT is aware of cases where grandparents’ names have been placed on birth certificates rather than parents’ names. Fraudulent supporting documents, including fake bank certificates and letters of invitation, can also be readily obtained. It is reportedly not uncommon in cases of visa non-compliance for people to reapply under a new identity. DFAT is aware of cases in which people have obtained multiple passports in different names at the same time.[3]
[3] DFAT Country Information Report Papua New Guinea, 10 February 2017, 5.36.
There are numerous press reports of corruption in the PNG passport and immigration system.[4] More generally corruption is widely acknowledged to be endemic.
[4] See McLeod, S., “Report outlines corruption in PNG immigration system”, The World Today, 13 November 2003, The World Today - Report outlines corruption in PNG immigration system (abc.net.au); RNZ News, “Rogue officials suspected of producing fake PNG passports”, RNZ, 4 May 2020, Rogue officials suspected of producing fake PNG passports | RNZ News
The claims of the applicant therefore that he acquired the birth certificates and the passports through the provision of false information appears therefore to be entirely plausible.

When looked at in totality it appears to me that there is a great weight of evidence to suggest that what the applicant has claimed in relation to his nationality is correct. The Indonesian identity cards, the Aliens cards of his parents, his mother’s death certificate all indicate that the applicant and his parents had a continuing connection to West Papua. His continued advocacy and his accepted familial relationship with [Mr C] provide further demonstration of this. The applicant has given consistent and plausible explanations for why neither his parents nor he were able to willing to acquire PNG citizenship, which I accept.
The evidence relied on in the s.107 notice is also not as strong as it first appears, given the country information set out below.
I find therefore that I accept that the applicant is a national of Indonesia and no other country. I find that despite his long residence in PNG he did not become a citizen. I find that at the time he applied for his protection visa he did not have the right to enter and reside in PNG – whilst he may have been able to gain citizenship, either through marriage or because of his long residence there, I accept he did not take the steps necessary to acquire it, and he has no other right or permission that I am aware of to enter and remain in PNG or anywhere else. I accept that the two PNG passports he has held were obtained on the basis of false information, namely his false PNG citizenship and false PNG birth certificate. I accept that his date of birth is [Date 1].
Therefore, having weighed the information set out in the s.107 notice, and the information provided by the applicant to the Department and to the Tribunal, I find there is insufficient information for me to be satisfied that the applicant provided incorrect information in relation to his place of birth (question 8, Part C); his citizenship at birth (Question 19 of Part C); his current citizenship (Question 20 of part C); his holding of any other citizenship or nationality of any other country (Question 21 of part C); his right to enter and reside, temporarily or permanently, in any other country (Question 22 of part C); and his statutory declaration in which he explained he had gained a false Papua New Guinea (PNG) passport to escape serious harm in West Papua, Indonesia, and that his date of birth on this passport is incorrect. He stated he was not a PNG citizen or national.
However, as conceded by the applicant at hearing, and in his statutory declaration, the applicant did provide incorrect information in the application form about the name, and place of birth of his daughter (Question 9, Part B); and the name, and place of birth of his son (Question 11, Part B);
Therefore, in relation to these two questions the applicant has conceded there is a ground for cancellation, as he has provided incorrect answers to these questions: s.101(b).
For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice in relation to these two questions.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
the correct information
The correct information is that the applicant’s daughter was born in Port Moresby, PNG and her name is [Name 1] and that his son, [Name 2], was born in [Town 1], PNG. The applicant conceded this information to the Tribunal.
As above, I have found that the other questions set out in the s.107 notice were answered correctly.
Given that he conceded the incorrect information, and that I have found the other information to be correct, I give this factor no weight towards the visa being cancelled.
the content of the genuine document (if any)
Not relevant in this case.
whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
It has at all times been conceded by the applicant that the birth certificates of himself and his children were not correct, and that he had held and travelled on two PNG passport obtained with false information, in part the false birth certificates.
As above, I have not accepted the further matters set out in the s.107 notice.
The protection decision was based on the applicant’s Indonesian nationality and his political opinion in favour of West Papuan independence. As above, I accept that the applicant is a national of Indonesia. I accept that he has engaged in political activities in favour of West Papuan independence since his time in [Town 1] in PNG, West Papua, and since his arrival, in Australia. The evidence before me clearly establishes that the applicant has been an active member of the West Papuan independence movement.
Therefore, I find that the decision to grant the applicant protection was not based upon the incorrect information and I give this factor no weight towards the visa being cancelled.
the circumstances in which the non-compliance occurred
I accept on the applicant’s evidence that he was fearful and apprehensive when seeking protection, that he had been told by members of the community not to mention any connection to PNG. I accept that he did not wish to implicate his family.
Whilst I have taken these matters into account, the integrity of the visa system relies on applicants providing complete and truthful information. I give this factor a little weight towards cancellation.
the present circumstances of the visa holder
The applicant is employed [at] [Employer], having sought and been granted a variation to his bridging visa in order to work. On being cancelled he informed his supervisor that he could not continue working. When he was unable to work he found it hard to survive. The family have had support from the ASRC. The applicant has continued his political activism.
The applicant, if his visa was reinstated, would continue to work in the [work] sector, significant work that is greatly needed and appreciated. He would continue his political activism. He would be able to support his family including his son who is in school and his daughter who lives at home and has only casual employment. The applicant wishes to visit his elderly [relative] in [Country].
The present circumstances of the applicant have been made extremely difficult by the cancellation. The cancellation has affected the entire family. Reinstatement would allow the applicant to continue his employment in an essential industry and support his family. In my view this is a further factor that weighs against the cancellation. I give this factor some weight towards the visa not being cancelled.
the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The applicant has sought to comply with the requirements of the Subdivision. He responded to the s.107 notice, he has engaged fully with the Department and the Tribunal. He has provided detailed information and evidence to substantiate his claims. I give this factor some weight towards the visa not being cancelled.
any other instances of non-compliance by the visa holder known to the Minister
There are none known.
the time that has elapsed since the non-compliance
The non-compliance occurred some ten years ago. In that time the applicant, his wife and children have been engaged in the Australian community and made their lives here. I give this some weight towards the visa not being cancelled.
any breaches of the law since the non-compliance and the seriousness of those breaches
There are none known.
any contribution made by the holder to the community.
The applicant has made significant contributions to the West Papuan community in Australia and internationally, as attested in the support letters provided. Contribution to west Papuan community. I have also been provided with a great deal of photographic and media evidence of his involvement. The applicant is also the treasurer of the West Papuan community, reporting and assisting as well in fundraising to support [Mr B] when he goes overseas.
In addition, the applicant works in the [work] sector, assisting [specified people] with [activities]. His wife also works in the [work] sector. He has assisted [specified people] throughout the COVID-19 pandemic.
The applicant has also volunteered with [Organisation 3] and preparing food for the homeless on Christmas day.
The applicant displays admirable qualities of wanting to assist and care for the vulnerable in Australian society, as well as his political activism. I give this factor some weight towards the visa not being cancelled.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
whether there would be consequential cancellations under s.140.
Not relevant in this case.
if there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa. (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)
I have had regard to the situation of the applicant’s children. At [Age] and [Age], they are now young adults, but still dependent on their parents. They have spent a significant part of their lives living in Australia and it is clearly in their best interests to remain in Australia. Because their father is partly responsible for their support, it would help the children to have their father remain in Australia.
The children’s interests would clearly be affected by the cancellation of their father’s visa. I give this consideration some weight in favour of the visa not being cancelled.
whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
As above I have found that the applicant is a national of Indonesia, and that he is not a citizen, nor does he have a right to enter and reside in PNG or any other country.
I have therefore assessed the applicant as being returned to Indonesia if his visa were to be cancelled. In considering non refoulement I am conscious of guidance from the Courts and have taken into account that removal is a mandated legal consequence in a case such as this where an applicant’s protection visa has been cancelled.
The most recent DFAT report indicates that secessionist groups operating in Papua are highly scrutinised by security forces, that there is a significant police nad military presence in the Papua provinces, and that NGOs allege unlawful killings of protestors, and in a ‘March 2016 report from a Komnas HAM commissioner, Natalius Pigai, found at least 700 cases of ‘arrests, mistreatments and killings’ in the Papua provinces involving security personnel since December 2014.‘[5] According to Amnesty International Indonesia, “69 cases of unlawful killing by security forces in Papua resulted in 95 deaths between January 2010 and February 2018. Fifteen of those cases related to policing of public demonstrations and 9 related to an attempt to arrest a suspect.”[6] DFAT also reports that:
Individuals engaging in separatist activities can be charged with ‘rebellion’ or ‘treason’ under Article 106 of the Criminal Code, which may carry a life prison sentence. Government Regulation 77/2007 on ‘Regional Symbols’ bans the display of separatist symbols, and specifically lists the flags used by separatist movements in Aceh, South Maluku and the Papua provinces.[7]
[5] DFAT Country Information Report Indonesia, 25 January 2019, 3.79.
[6] DFAT Country Information Report Indonesia, 25 January 2019, 3.80.
[7] DFAT Country Information Report Indonesia, 25 January 2019, 3.73.
Concerningly, DFAT also assesses that allegations of torture by security forces in Indonesia are credible.[8]
[8] DFAT Country Information Report Indonesia, 25 January 2019, 4.11.
Freedom House reports that “Deadly confrontations between security forces and protesters are common in Papua and West Papua,..”[9]
[9] Freedom House, Freedom in the World 2018 - Indonesia, 1 August 2018, available at: [accessed 2 March 2021]
I have taken into account that the applicant is recognised as an advocate for West Papuan secession by the Indonesian media, according to the copious news reports that name him, that he has continued his advocacy in Australia, and that he is a familial relation of [Mr C], one of the founders of the OPM. I assess that if he were returned to Indonesia he would face, at a minimum, questioning and continuous monitoring by the Indonesian security forces. There is the very real potential for him to be charged with rebellion or treason for his activities in West Papua and in Australia. There is the very real potential for him to suffer torture at the hands of local security forces. I find that these actions would amount to serious harm, would be for the essential and significant reason of his political opinion, and despite being enforcement of a law of general application, such laws as rebellion and treason are, by their nature, applied with discriminatory intent. The applicant’s return to Indonesia would, in my assessment, be in breach of Australia’s non-refoulment obligations under the Convention Relating to the Status of Refugees (1951) and the Protocol relating to the Status of Refugees (1967), the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the International Covenant on Civil and Political Rights.
The return would also potentially be in breach of family unity obligations under the International Covenant on Civil and Political Rights.
I give this factor significant weight towards the visa not being cancelled.
whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.
If the applicant’s visa remained cancelled, his bridging visa would cease and he would spend some time in detention. Whilst this is the intended function of the Act, because of the potential non-refoulement addressed above, there is a high likelihood of the applicant remaining in detention for an indefinite period. This would have a deleterious effect upon the applicant and his family. I give this factor some weight towards the visa not being cancelled.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
This has largely been dealt with above.
Conclusions
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Sean Baker
Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2021] AATA 1391

2 March 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

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Appeal