1728596 (Refugee)

[2024] AATA 601

1728596 (Refugee) [2024] AATA 601 (4 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1728596

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Genevieve Hamilton

DATE:4 January 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 04 January 2024 at 2:00pm

CATCHWORDS
REFUGEE – protection visa – Indonesia – political opinion – attendance at demonstrations – arrest and detention – workplace corruption – credibility – inconsistent claims and evidence, and no supporting documentation – not member of any political organisation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1), 36(2)(a), (aa), (2B), 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 1 March 2017. The delegate refused to grant the visa on 1 November 2017.

3. The applicant appeared before the Tribunal on 1 December 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

   CRITERIA FOR A PROTECTION VISA

4. Under s 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.

5. The criteria for a protection visa are relevantly set out in s 36 of the Act.  An applicant must meet one of the alternative criteria in s 36(2). Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s 36(2)(a)), or on ‘complementary protection’ grounds (s 36(2)(aa)), or be a member of the same family unit as such a person.

   Refugee

6. Refugee is defined in the Act.  A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1). 

7. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country.

8. The criterion in s 5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also imposes an objective standard, that there be a real chance the person would be persecuted.  A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.

9. The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)).  The persecution must also involve systematic and discriminatory conduct.

10. A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA). 

11. A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s 5J(3)), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation). 

12. In determining whether the person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless they satisfy the Minister that they engaged in the conduct for a reason other than to strengthen their claim to be a refugee (s 5J(6)).

    Complementary Protection

13. If a person is found not to meet the refugee criterion, they may still be a person to whom Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm.  S 36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment.  “Real risk” has the same meaning as “real chance”: MIAC v SZQRB [2013] FCAFC 33.

14. Under s 36(2B) Australia does not have complementary protection obligations where:

    ·it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that they will suffer significant harm;

    ·the applicant could obtain protection from an authority of the country, such that there would not be a real risk that the non-citizen will suffer significant harm; or

    ·the risk is one faced by the population of the country generally and not by the applicant personally.

    Mandatory considerations

15. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CLAIMS AND EVIDENCE

16. In her protection visa application the applicant said she was born in Jakarta Indonesia in [Year] and is an Indonesian citizen.  She arrived in Australia in September 2016, from Indonesia, travelling on an Indonesian passport.  She said she finished university in October 2011 and from November 2011 until September 2106 she was [an Occupation] with [Employer 1]. 

17. The applicant said she left Indonesia because the police intended to arrest her because she attended demonstrations against government corruption in Jakarta.  In July 2015 she was arrested and detained for a week, and in June 2016 she was again arrested and detained for a week, due to attending such demonstrations.  The police side with the corrupt government.  She believed she would be arrested if she remained in Indonesia.  She could be at peace and save her life in Australia.  Corruption was all over Indonesia. 

18. At the hearing the applicant said her father is deceased and her two siblings work in [Work sector].  Her mother is retired from [Employer 2].  The applicant studied [Subject], graduated in [year] and then worked in a [workplace] [doing Job task 1].  She said she resigned in 2015 she and then came to Australia.  She was a student activist involved in demonstrations against government corruption.  She was arrested several times, so it become obvious she had to resign.  Corruption was very commonplace but her viewpoint was not shared in her workplace. 

19. The Tribunal put to the applicant that she had stated in her application that she worked at the [workplace] until September 2016.  The applicant said this was probably a mistake by her agent.  The Tribunal queried this response, as her application said she did not have any assistance.  The applicant said she did not know if they were a registered migration agent. 

20. The applicant said she worked at [Employer 2] herself for two years and she was so appalled by the corruption there that she went to work at the [workplace].  Asked how this matched up with the employment history described in her application, the applicant said she interned at [Employer 2] [doing job task 2].  Asked what corruption she observed the applicant said superior officials would generate meaningless work trips and other expenses just to use up their budget.  Asked if this was illegal, the applicant said in her opinion it was.  She had an uncle in [Employer 3] and her dissertation was about accountability. 

21. The Tribunal asked the applicant why she left Indonesia.  The applicant said she wanted a different job.  The Tribunal asked whether the applicant meant that she did not leave Indonesia because of politics.  The applicant said her employers did not know of her opinions.  The Tribunal asked the applicant what was the purpose of the trip?  The applicant said it was to apply for protection. 

22. The Tribunal asked the applicant if she was a member of any political organisation.  The applicant said she was not.  The Tribunal asked the applicant to describe the protests she claimed to have been involved in.  The applicant said she had been involved in many protests.  The Tribunal asked if the applicant could refer to any particular protests.  The applicant said she was detained and her family had to get her out.  She was not sure if this protest was reported in the media.  The Tribunal asked if she had any documents from the police station.  The applicant said it was a long time ago and she did not know if the documents still exist.  The Tribunal put to the applicant that a record from the police station would be important evidence of having been detained. 

23. The Tribunal asked the applicant why she was detained.  The applicant said “all of us” were detained.  Asked how she knew about demonstrations she said she was a member of the Anti-Corruption Movement.  The Tribunal noted that the applicant had previously stated that she was not a member of any political organisation.  The applicant said she thought the Tribunal was referring to a political party.  The Tribunal observed that there did not appear to be any published references to the Anti-Corruption Movement in Indonesia. The applicant said it was a long time ago.  The Tribunal asked if the applicant had any correspondence from the Movement.  The applicant said she only received information by SMS.  The Tribunal asked if she had friends in the Movement.  The applicant said some of her classmates were still involved, she herself had not been a formal member.  The Tribunal asked if anything had happened to any of her friends who were involved.  The applicant said they stopped their involvement due to fear.

24. Asked what exactly the demonstrations were about, the applicant said Government Departments had to submit their budgets to Parliament every year but they cannot be verified.  The Tribunal asked if there were any other types of corruption that people might demonstrate against.  The applicant repeated that money was being diverted from programs.  The Tribunal observed that other types of corruption might be more controversial, and that the applicant did not seem to be aware of broader categories of corruption.  The applicant had no comment on this.  She said the government does not help the people who suffer daily and the police are corrupt too. 

25. The Tribunal put to the applicant that it may not be satisfied that she faced a real chance of serious harm.  The applicant maintained that she was afraid of the police who misuse their authority against people like her on any pretext. 

    FINDINGS AND REASONS

26. Based on the information in her application, the Tribunal find that the applicant’s country of nationality is Indonesia. 

27. The applicant claimed she was at risk of harm due to her political opinion.  She did not make any other refugee claims. 

28. The applicant claimed that she had been a student activist and was opposed to corruption.  However, what she identified as corruption was public servants spending money on travel and transport for purposes not, in her opinion, meaningfully related to work and thereby diverting money that should be spent on other things, in order to use up their budgets.  This is a very limited understanding of corruption.  If the applicant was involved in campaigning against corruption the Tribunal would expect her to have a broader concept of serious, publicly contested cases of government corruption such as bribery and inflated contracts. 

29. The applicant claimed she was involved in an organisation called the Anti-Corruption Movement.  The applicant’s evidence about being involved in a political organisation was inconsistent in ways that affected its credibility.  The Tribunal did not ask the applicant whether she had been involved in a political party, but whether she had been involved in a political organisation.  This clearly encompassed what she referred to as the Anti-Corruption Movement, as she formally named it.  She also gave inconsistent answers as to whether she was a member of this group, first saying that she was, and then saying she was not a formal member.  The Tribunal could find no evidence of the existence of the organisation the applicant named.  Moreover, the applicant had no evidence of her involvement with it.  She also gave inconsistent evidence about her classmates’ involvement, first saying that they were still involved, but then saying they had ceased because of fear. 

30. The Tribunal does not accept that the applicant was ever an activist or that she was involved in an anti-corruption organisation. 

31. The applicant claimed to have been in demonstrations.  She said that they were focused on budget accountability as previously described.  The Tribunal is not satisfied that commonplace administrative minutiae such as the justification for travel expenses were the subject of public demonstrations.  The Tribunal does not accept that the applicant has been involved in demonstrations. 

32. As the Tribunal has not accepted that the applicant was involved in anti-corruption campaigning or in demonstrations, the Tribunal does not accept that the applicant has been detained twice or several times in connection with such demonstrations.    

33. The applicant claimed that she had to leave her employment because of her political opinion.  But her protection visa application states clearly that she was working in a named [workplace] until September 2016.  Her contention that this was a mistake made by someone else was not persuasive: September 2016 happens to be the same time the applicant came to Australia.  The Tribunal does not accept that the applicant left her employment except in September 2016 to come to Australia.

34. The Tribunal is not satisfied that the applicant faces a real chance of serious harm due to her political opinion.  As she did not make any other refugee claims, the Tribunal does not accept that the applicant faces a real chance of serious harm for any of the reasons specified in s 5J(1).  The applicant therefore does not have a well-founded fear of persecution as required by s.5J(1).  The Tribunal finds that the applicant is not a refugee as defined in s.5H(1). 

35. With regard to complementary protection, as the Tribunal has not accepted the factual basis of the applicant’s claims, the Tribunal is not satisfied that the applicant faces a real risk of arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment, in connection with those claims.  The applicant expressed a general fear of police misusing their authority.  However the Tribunal is not satisfied that the chance of this happening to the applicant any more than speculative.     

36. Accordingly, the Tribunal is not satisfied there are substantial grounds to believe that the applicant faces a real risk of significant harm as defined in s 36(2A) on return to Indonesia.

    CONCLUSION

37. 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) or s 36(2)(aa).

38. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa.

39. Accordingly, the applicant does not satisfy the criterion in s 36(2).

    DECISION

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

    Genevieve Hamilton
    Member