1803194 (Refugee)

1803194 (Refugee) [2024] AATA 1380 (15 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1803194
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Jessica Edis
DATE:15 April 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 April 2024 at 10:30am
CATCHWORDS
REFUGEE – Protection Visa – Indonesia – religion – Shia Muslim – came to Australia to pursue work opportunities – did not experience harm in home country – not satisfied the applicant has a real chance of suffering serious or significant harm – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
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 and Border Protection on 29 January 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND TO THE REVIEW
The applicant travelled from [Indonesia] to Perth, Australia on [date] November 2016 on an Indonesian passport. She entered on a Subclass 600 visitor visa.
She completed and signed an application for a Permanent Protection (Class XA) (Subclass 866) visa on 14 March 2017. The application was received by the Department on 17 March 2017 and acknowledged as valid on 24 March 2017.
On the visa application form, the applicant stated that her ‘Reasons for claiming protection’ related to religious persecution. She claimed to be a Shia Muslim, who was the target of Sunni Muslim extremists. She also claimed that some of her family members had been killed by the Front Pembela Islam organisation, including her brother.
The applicant was offered an interview by the Department in relation to the visa application, but she did not attend; she said that she was unwell.
On 29 January 2018, the delegate refused to grant the visa on the basis that the applicant did not meet the visa criteria. On 7 February 2018 she lodged an application for a review of the delegate’s decision with the Tribunal.
The applicant was invited to a Tribunal hearing to give evidence and present arguments in support of her case. She attended the hearing on 9 April 2024. She was unrepresented. There were no witnesses.
The hearing was conducted with the assistance of an Indonesian interpreter.
A basic overview of the protection visa criteria was explained to the applicant at the outset of the hearing. These criteria are summarised below.
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).[1]
[1] A full extract of the summarised relevant legislative provisions is attached to this decision.
The applicant must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she must be:
·a person in respect of whom Australia has protection obligations either:
ounder the ‘refugee’ criterion; or
oon other ‘complementary protection’ grounds; or
·a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
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) of the Act.
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.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of the visa if there are 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) of the Act.
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).
Mandatory considerations
Section 499 of the Act empowers the Minister to give directions to a person or body having functions or powers under the Act about the performance of those functions or the exercise of those powers. Relevantly, Ministerial Direction No.84 (MD 84), made under s 499 of the Act, concerns the consideration of protection visa applications.
In accordance with MD 84, I am required to take account of the ‘Refugee Law Guidelines’ and the ‘Complementary Protection Guidelines’, prepared by the Department. I am also required to consider country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidently, the key issue in this case is whether the applicant meets the visa criteria set out in s 36(2) of the Act, which I have summarised above. In determining this issue, I have considered the following information provided by the applicant:
·her oral evidence at the hearing on 9 April 2024;
·the protection visa application form; and
·her Indonesian passport.
I have also taken account of the DFAT Country Information Report Indonesia dated 24 July 2023 (the 2023 DFAT Report).
Country of nationality
The applicant claims to be a citizen of Indonesia. She provided a copy of her passport to the Department together with the visa application form and it was accepted as valid. She also presented her original passport to the Tribunal on the day of the hearing.
I find that the applicant is an Indonesian citizen as claimed. She is to be assessed against Indonesia as the country of nationality and the receiving country, for the purposes of the Act.
The applicant’s personal background
I discussed the applicant’s personal circumstances and background with her during the hearing. She told me she was born in Lhokseumawe, Aceh in [year] and she is Muslim.
The applicant is a widow; her husband passed away in 2007. Her parents are deceased too. She has no children.
She has one brother and one sister. Each of them is married with 3 children; they remain in Indonesia.
The applicant completed her schooling and a university degree in Aceh. She has a long employment history in various roles and in various locations. She worked in [various sectors]; she also ran her own [business] for at least 6 years before it was forced to close due to a downturn in business.
I accept the applicant’s evidence about her personal, family and work background.
The applicant’s decision to travel to Australia
I asked the applicant about her decision to travel to Australia in late 2016. She explained that she needed to find work after her [business] had gone “bankrupt”. She was initially going to return to [Country 1] – where she had been employed previously for a number of years – but she had a friend invite her to travel to Australia, so she decided to come here instead. They used an agent to book the flights but arranged their own visitor visas.
I asked the applicant if she owed anyone money at around this time. She said that she did not. However, she borrowed a total of around AUD3,000 from a friend and one of her siblings to fund the travel to Australia, so she was indebted to them when she left.
The applicant was forthright in telling me that her intention was to find work in Australia, which she did. She flew to the regional town of [Town 1] within a few days of arriving, to take up a fruit picking job on a farm. The farm was run by a [certain] person.
While working on the farm, the applicant asked others about how to arrange “papers” to stay on in Australia. A protection visa application was recommended to her.
I accept the applicant’s evidence about how and why she left Indonesia, and what she did when she arrived in Australia.
The lodgement of a protection visa application
I asked the applicant to tell me about how she came to lodge a protection visa application. As noted above, it was suggested to her as a means of being able to remain in Australia and continue to work. She recounted that there was a group of about 10 farm workers who completed their respective forms at the same time, and they followed their “friend’s” instructions. The applicant paid the friend AUD250 for their help.
I gave the applicant a copy of the visa application form signed and dated 14 March 2017 to review during the Tribunal hearing. She confirmed her handwriting on the form, and her signature. However, she was very candid in telling me that the form contained incorrect information and she was “stupid” for having followed the instructions of the friend who was telling everyone what to write. She told me that she “went along with it” but that she feels bad for having lied and doing the wrong thing.
We went through the form together and clarified that, among other matters, the details concerning the applicant’s marital status, address history, employment history and travel history were either incorrect or incomplete or both.
Significantly, the applicant told me that I could not rely on any of the information under the section ‘Reasons for claiming protection’. Her friend had “put the story together” and the claims were not true. She said that she had sworn on the Koran before giving evidence at the hearing and now she had to tell me the truth.
I accept the applicant’s evidence about the circumstances in which she lodged the protection visa application that is the subject of this case, including that the claims are made up.
The applicant’s current situation and why she doesn’t want to return to Indonesia
The applicant has not left Australia since late 2016. She has mostly worked on farms and lived in regional Western Australia. She is currently taking a “break”; her last job finished at the end of 2023. She is presently staying with a [friend].
The applicant told me that she paid back the AUD3,000 that she had borrowed before departing Indonesia. She has also used her earnings to purchase her deceased parents’ family home in Lhokseumawe, which she said “wasn’t expensive” and involved a transaction with her siblings. Additionally, she has accumulated around AUD30,000 in savings.
I invited the applicant to address me about any reasons why she does not wish to return to Indonesia. She replied that she has a dream to be able to learn English here in Australia, and she has not realised that dream yet. She wants to do a course of study in the English language. I asked if she had tried to study English during her last 6 years. She said that she had not, because she didn’t have the money yet; she needed to pay off her debt and buy the house in Aceh first.
The applicant also told me that she is unsure of the “regulations” in Indonesia and whether there would be any adverse consequences for having sought asylum here in Australia. So, she is worried about that. She otherwise said she could not say, and did not know, what else she might be afraid of.
I accept the applicant’s evidence about her current situation and why she is reluctant to return to Indonesia at this time.
Country information
The applicant has not provided me with, nor has she sought to rely on, any specific ‘country information’ in relation to her case. However, I have considered the 2023 DFAT Report, as required by MD 84. It contains the following information at [5.21]:
A failed asylum seeker is unlikely to be held or questioned by authorities and DFAT is not aware of any examples of this occurring.
Protection visa criteria
I now consider the visa criteria under s 36(2) of the Act as they apply to the applicant’s case.
Section 36(2)(a): Refugee criterion
Based on the evidence, I am not satisfied that the applicant is a refugee. That is because she does not have a well-founded fear of persecution per s 5H(1)(a) of the Act.
I expressly find that when the applicant left Indonesia in November 2016, and when she lodged the visa application, she did so with the sole intention of securing paid employment in Australia. At that time, her [business] in Indonesia had recently failed, and she was looking for work. She was not fearful of anything or anyone in Indonesia. The claims made on the protection visa application form were entirely concocted.
I also find the applicant’s personal circumstances have significantly improved since she has been living and working in Australia. She has acquired her parents’ house in her hometown in Aceh, she is debt-free, and she has AUD30,000 in the bank.
The applicant raised concerns about possible adverse treatment in Indonesia as a failed asylum seeker. However, I accept the information in the 2023 DFAT Report (cited above) and find any such concern to be baseless.
As a result of these matters, I am not satisfied that, if the applicant were returned to Indonesia, there would be a real chance that she would suffer serious harm of any kind.
It follows that I determine the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Section 36(2)(aa): Complementary protection
In order to be entitled to complementary protection, there must be 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 term significant harm is defined at s 36(2A) to mean certain types of harm, specifically:
(a)arbitrary deprivation of life;
(b)the death penalty;
(c)torture;
(d)cruel or inhuman treatment or punishment; and
(e)degrading treatment or punishment.
Based on the evidence and my findings, I am not satisfied that there is a real risk that the applicant will suffer any form of significant harm per the legal definition upon return to Indonesia.
The applicant was not fearful of suffering from harm in Indonesia at the time she left. She came to Australia to pursue work opportunities so as to improve her financial position. She succeeded in that regard and, if she returns to Indonesia, her situation is better than it was previously.
For the avoidance of doubt, I reiterate my finding that the applicant will not suffer any harm in Indonesia if she returns as an individual who has unsuccessfully sought asylum in Australia. The country information is to the effect that it is a ‘non-issue’.
It follows that I determine the applicant is not entitled to complementary protection under s 36(2)(aa) of the Act.
MEMBER OF A FAMILY UNIT
The applicant has not claimed that she is a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act, and who holds a protection visa.
In any event, I determine that she does not meet the visa criteria on this basis either.
CONCLUSIONS
I conclude that the applicant is not eligible for a protection visa.
Accordingly, I affirm the Department’s decision not to grant the protection visa to the applicant.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Jessica Edis
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.
…

[2024] AATA 1380

15 April 2024

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Immigration

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Statutory Interpretation

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