1800607 (Refugee)

1800607 (Refugee) [2024] AATA 4361 (6 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1800607

COUNTRY OF REFERENCE: Indonesia
MEMBER:Mary-Ann Cooper
DATE:6 September 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 September 2024 at 9:59am
CATCHWORDS
REFUGEE – protection visa – Indonesia – fraudulently altered passport – bogus document – identity details – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 91WA, 424, 438, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
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 on 15 December 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Indonesia, applied for the visa on 28 November 2016. The delegate refused to grant the visa on the basis that the applicant did not satisfy the criterion in s 36(2)(a) of the Act and she was not a person in respect of whom Australia had protection obligations as outlined in s 36(2)(aa).
The applicant appeared before the Tribunal on 30 May 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.
The applicant was represented in relation to the review, however her agent’s registration was cancelled some time prior to the hearing and he did not appear.
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 (Cth) (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 themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
A threshold issue for determination arises in this review, specifically whether the grant of the applicant’s visa is prevented by the operation of s 91WA of the Act. In particular, whether she has provided a bogus document as evidence of her identity, nationality or citizenship and, if so, whether she has a reasonable explanation for providing it.
If not so prevented, then the issue for the Tribunal is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
Section 5H(1) of the Act refers to a person being a refugee if he or she is outside their country ‘of nationality’. The complementary protection provisions, at s 36(2)(aa), refer to a person being removed to a ‘receiving country’, which is defined at s 5(1) as a country of which the applicant is a national, to be determined solely by reference to the law of the country.
The applicant has provided the Tribunal a Victorian driver’s licence as evidence of her identity, her passport having been seized by the Department on the basis of findings by its Documents Examination Unit that it had been fraudulently altered.[1] This issue is discussed further below.
[1] The delegate’s decision, as the applicant provided to the Tribunal, recorded this finding.
The applicant has at all times stated that she is a citizen of Indonesia and she has been assessed on that basis by the Department, notwithstanding the concerns regarding the legitimacy of the passport she presented.
Therefore, the Tribunal, to the extent it might be relevant to its decision, accepts she is a citizen of Indonesia and if necessary her protection claims will be assessed against Indonesia as the country of reference and ‘receiving country’ respectively.
APPLICANT’S CLAIMS AND EVIDENCE
Evidence before the Department
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision record, a copy of which the applicant provided with her application for review.
Among other things, the delegate recorded that the Department’s Document Examination Unit examined the applicant’s passport and determined it had been fraudulently altered. Departmental records showed that another person with the same name and date of birth visited Australia numerous times using the same passport with the same number. The applicant had told the Department that she ‘did not know if her passport was real as she paid [a large amount] rupiah to a person she met on a bus to provide a passport and visa to Australia’. The delegate did not accept the applicant’s true identity to be ‘[the applicant’s name]’ but was satisfied she was Indonesian as she flew to Australia on a direct flight from Jakarta and spoke Indonesian. Nevertheless, the delegate assessed the applicant’s substantive claims and determined that she did not meet the criteria for a protection visa either under the refugee or complementary protection grounds.
Evidence before the Tribunal
Non-disclosure certificate
Another issue which arises for consideration in this application is the effect of a certificate on the applicant’s Department file [number], purporting to restrict the disclosure of specified information in it under s 438 of the Act. The certificate states that the disclosure of the information would be contrary to the public interest, ‘because it contains information relating to risk management … including information of a confidential nature regarding departmental systems and procedures, including information that should not be common or public knowledge, where the release of such information would impact the effective operation of the department’.
The Tribunal provided a copy of the notice to the applicant at the hearing and gave her time to examine it. It advised that it considered the certificate valid. The applicant did not object to the Tribunal’s determination and had no queries concerning it.
The Tribunal advised her that it would not be disclosing the material covered by the notice but it noted that she knew the gist of the information anyway as the delegate’s decision, as provided to the Tribunal by the applicant, revealed it. Specifically, the decision recorded that another person with the applicant’s name and the same passport number travelled to Australia on that passport on numerous occasions. On examination, the Department’s Document Examination Unit found it to have been fraudulently altered. The Tribunal also noted that the information covered by the s 438 certificate had also been effectively disclosed to the applicant in several written communications from the Department (on its file). These communications variously comprised requests that she provide documentary evidence of her identity, nationality and citizenship, requests to attend interviews and to provide explanations (under s 91W(1) of the Act) and the Department’s ultimate notification of seizure of the passport [in] May 2017.
The Tribunal then formally put the gist of the information covered by the s 438 certificate to the applicant under s 424AA of the Act. In relation to the provision of the passport,[2] the Tribunal said that the information was relevant because it might lead it to doubt the credibility of her evidence and to conclude that the applicant had provided a bogus document, as identified under s 5(1) of the Act, as evidence of her identity, nationality or citizenship and, if so, subject to a reasonable explanation from her, it may lead the Tribunal to conclude that s 91WA of the Act applied. The Tribunal explained that this section mandates that the Minister must refuse to grant a protection visa to an applicant who provides a bogus document. The Tribunal asked her if she understood the information and advised her she could respond at the hearing or at a later time. The applicant said she understood and elected to respond at the hearing.
[2] The Tribunal also put the movement records of the passport holder to the applicant under s 424AA as they were inconsistent with her oral and written evidence of the dates and number of occasions she had visited Australia.
The applicant responded that she could ‘guarantee’ that the passport belonged to her. She said she purchased it through an agent, it was her photograph and she had no idea who had taken her identity and photo. She claimed the photograph was taken in the ‘immigration office’ but when pressed was unable to explain what she meant by this or where this office was located. She then said the agent had arranged it for her. She had paid him/her to take care of it all for her and she did not know what had happened. The Tribunal observed that this was not consistent with what she told the Department, that is, as recorded in the delegate’s decision, she said she had paid someone she met on a bus to provide the passport and the visa. She then said that she knew a person on the bus and she had told the person her problems and that she desperately wanted to leave Indonesia. She claimed this unidentified person had said she knew someone who would help her and take care of everything. She claimed she trusted that person, the agent, and paid them [a large amount] rupiah for the documents. She could not remember the name of the agent to whom she was referred. At all times, she maintained that the passport belonged to her.
When asked if she had anything else to say, she responded that she currently had a partner in Australia and wanted to marry him but she needed a passport and she wanted the matter settled.
ASSESSMENT
Is the grant of the visa prevented by s 91WA?
The Tribunal has considered whether the applicant’s visa application is required to be refused under s 91WA of the Act on the basis that she provided, or caused to be provided, a bogus document as evidence of her identity, nationality or citizenship.
Section 65(1) of the Act states that the Minister (or the Tribunal on review) must refuse to grant a visa, among other things, if the grant is precluded by s 91WA of the Act (attached to this decision). Section 91WA(1) of the Act requires the Minister to refuse to grant a protection visa to an applicant who provides, or causes to be provided, a bogus document as evidence of their identity, nationality or citizenship, or if the Minister is satisfied the applicant has destroyed or disposed, or caused the destruction or disposal, of documentary evidence of their identity, nationality or citizenship. If the applicant has a reasonable explanation for the provision, destruction or disposal and either provides relevant documentary evidence or has taken reasonable steps to provide such evidence (s 91WA(2)), the requirement that the Minister must refuse to grant a protection visa in circumstances contemplated by s 91WA(1) of the Act will not apply.
Did the applicant provide, or cause to be provided, a bogus document as evidence of her identity, nationality or citizenship?
The Tribunal is satisfied, and it does not understand the applicant to dispute, that she provided Indonesian National Passport [number] in the name of [the applicant’s name] to the Department on 31 March 2017 as evidence of her identity, nationality or citizenship.[3]
[3] Departmental file [number], folio 50
Given this, and information in the delegate’s decision, the Tribunal has considered whether that passport is a ‘bogus document’ within the meaning of that term in s 5(1) of the Act.
Section 5(1) of the Act defines ‘bogus document’ as a document the Minister reasonably suspects is a document that:
·     purports to have been, but was not, issued in respect of the person; or
·     is counterfeit or has been altered by a person who does not have authority to do so; or
·     was obtained because of a false or misleading statement, whether or not made knowingly.
On the basis of the findings of the Department’s Document Examination Unit that it had been fraudulently altered, the Tribunal is satisfied that the passport the applicant provided to the Department as evidence of her identity was altered by a person who did/does not have the authority to do so and is therefore a ‘bogus document’ within the meaning of s 5(1) of the Act.
Does the applicant have a reasonable explanation for providing the bogus document?
As noted above, and as recorded in the delegate’s decision, the applicant said she ‘did not know if her passport was real as she paid [a large amount] rupiah to a person she met on a bus to provide a passport and visa to Australia’. At the hearing, as also noted above, her initial explanation differed. When the Tribunal apprised her of her explanation to the Department, she modified her response to acknowledge she met a person she knew on the bus who had arranged the documents for her. The Tribunal finds the applicant’s various and shifting explanations unpersuasive and lacking credibility. It attaches greater weight to the authoritative findings of the Department’s Document Examination Unit, and consequently is not satisfied that the applicant’s explanation for providing the bogus document, Indonesian National Passport [number], is reasonable.
Accordingly, the Tribunal finds that the applicant has provided a bogus document to the Department as evidence of her identity. It is not satisfied that she has a reasonable explanation for providing the bogus document.
It follows that the Tribunal is satisfied that s 91WA of the Act applies to the applicant and that grant of a protection visa must be refused.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Mary-Ann Cooper
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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
…
91W Evidence of identity and bogus documents
(1)The Minister or an officer may, either orally or in writing, request an applicant for a protection visa to produce, for inspection by the Minister or the officer, documentary evidence of the applicant’s identity, nationality or citizenship.
(2)The Minister must refuse to grant the protection visa to the applicant if:
(a)the applicant has been given a request under subsection (1); and
(b)the applicant refuses or fails to comply with the request, or produces a bogus document in response to the request; and
(c)the applicant does not have a reasonable explanation for refusing or failing to comply with the request, or for producing the bogus document; and
(d)when the request was made, the applicant was given a warning, either orally or in writing, that the Minister cannot grant the protection visa to the applicant if the applicant:
(i)refuses or fails to comply with the request; or
(ii)produces a bogus document in response to the request.
(3)Subsection (2) does not apply if the Minister is satisfied that the applicant:
(a)has a reasonable explanation for refusing or failing to comply with the request or producing the bogus document; and
(b)either:
(i)produces documentary evidence of his or her identity, nationality or citizenship; or
(ii)has taken reasonable steps to produce such evidence.
(4)For the purposes of this section, a person produces a document if the person produces, gives, presents or provides the document or causes the document to be produced, given, presented or provided.
91WA Providing bogus documents or destroying identity documents
(1)The Minister must refuse to grant a protection visa to an applicant for a protection visa if:
(a)the applicant provides a bogus document as evidence of the applicant’s identity, nationality or citizenship; or
(b)the Minister is satisfied that the applicant:
(i)has destroyed or disposed of documentary evidence of the applicant’s identity, nationality or citizenship; or
(ii)has caused such documentary evidence to be destroyed or disposed of.
(2)Subsection (1) does not apply if the Minister is satisfied that the applicant:
(a)has a reasonable explanation for providing the bogus document or for the destruction or disposal of the documentary evidence; and
(b)either:
(i)provides documentary evidence of his or her identity, nationality or citizenship; or
(ii)has taken reasonable steps to provide such evidence.
(3)For the purposes of this section, a person provides a document if the person provides, gives or presents the document or causes the document to be provided, given or presented.

[2024] AATA 4361

6 September 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Natural Justice