1803261 (Refugee)

[2023] AATA 4709

1803261 (Refugee) [2023] AATA 4709 (14 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1803261

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Rachel Da Costa

DATE:14 December 2023

PLACE OF DECISION:  Sydney

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

Statement made on 14 December 2023 at 1:53pm

CATCHWORDS
REFUGEE – protection visa – Indonesia – decision on the papers – bribery of government officers – demonstrations against government corruption – claims lack sufficient detail and substance – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), 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

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

2. The applicant, who is a citizen of Indonesia, applied for the visa on 20 September 2017. On 11 January 2018, the delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.

3. On 7 February 2018, the applicant lodged an application for review of the delegate’s decision with the Tribunal. He provided a copy of the delegate’s decision to the Tribunal.

4. On 5 October 2023, the Tribunal sent the applicant a pre-hearing information form to complete. The applicant returned a signed copy of the form by email to the Tribunal on 6 November 2023. In that form, he indicated that he does not want to have a hearing and he consents to the Tribunal making a decision on the papers without inviting him to a hearing for his case. In light of the applicant’s response, the Tribunal has proceeded to determine this matter on the basis of the evidence before it.

   CLAIMS AND EVIDENCE

   Background

5. In his protection visa application form Part C, the applicant provides the following information. He was born in [year] in Brebes, Indonesia. His parents are Indonesian citizens. He does not have the right to enter or reside in any other country. He speaks, reads and writes Indonesian and English. His religion is Islam. He married in 2007 in Indonesia. He has not listed any other family members in his application. In Indonesia, he always lived at the same address in [District 1], Brebes. In Indonesia, he ran his own restaurant. In Australia, he is unemployed. He completed Senior High School in Indonesia. He is not in contact with relatives outside Australia and he does not have any personal contacts in Australia. He arrived in Australia [in] May 2017, travelling on his Indonesian passport issued [in] 2016, as the holder of a Visitor visa.

   Evidence before the Department and the Tribunal

6. The applicant’s claims for protection are contained in his protection visa application form and he repeated his claims in the pre-hearing information form he returned to the Tribunal. He claims as follows:

   ·     He runs a small restaurant.

   ·     He has to bribe government officers. The corrupt officers can close his business for any reason or without a reason.

   ·     The government wants to arrest him because he attended demonstrations against government corruption in Brebes, Indonesia.

   ·     In September 2012, he was arrested and detained for three days because he attended demonstrations against government corruption in Brebes.

   ·     In January 2016, he was arrested and detained for two days for the same reason.

   ·     In January 2017, he attended a demonstration against government corruption in Brebes and escaped after he saw riot police come.

   ·     He left Indonesia to avoid being arrested by the Indonesian government.

   ·     He believes he will be arrested by the Indonesian government if he goes back to Indonesia.

   ·     He cannot relocate because the government wants to arrest him.

7. The applicant has not provided any other evidence in support of his claims.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The relevant law

8. 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.

9. 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.

10. 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).

11. 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.

12. 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

13. 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.

    Analysis, reasons and findings

14. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

15. The pre-hearing information form sent to the applicant explains that once an applicant’s case has been given to a member, the applicant may be invited to attend a hearing which is an opportunity for the applicant to give evidence and present arguments about the issues in their case. The form also explains to the applicant that they can choose not to have a hearing if they want the member to make a decision based on the information the applicant has already provided. The form goes on to explain that if the applicant chooses not to have a hearing, the Tribunal’s decision will be made on the information and evidence before it and the Tribunal may either “affirm” or “set aside” the decision under review. The form refers the applicant to a fact sheet which provides more information about this.

16. As discussed above, the applicant returned the pre-hearing information form to the Tribunal and indicated that he did not want to have a hearing and requested that the Tribunal make a decision on the papers without inviting him to a hearing. In light of this, like the delegate, the Tribunal only has the applicant’s written claims before it to consider. As the applicant declined the opportunity to have a hearing, the Tribunal has not had an opportunity to explore and test his claims with him.

17. In the Tribunal’s view, the applicant’s claims are lacking in sufficient detail and substance in a number of respects. For example, the applicant states in his protection visa application form that he runs a small restaurant. He has not provided any details such as where this restaurant is located, how long he has run it for, what kind of food it serves, whether he has any employees and the success or otherwise of the business. The applicant claims that he has to bribe government officers and they can close his business for any reason or without a reason. The applicant has not provided any detail about why he has to bribe government officers, when he has been approached by them, on how many occasions, what the officers have asked for, the nature of the bribes he has made, whether these officers have in fact closed his business and on how many occasions, and whether he has made any official complaints to relevant authorities about these alleged corrupt officers and what the response to that was. The applicant claims he attended demonstrations in Brebes against government corruption on at least three occasions, with the latest being in January 2017. He has not provided details of specifically where in Brebes these demonstrations took place, how many people attended, who organised the demonstrations or the nature of his participation in the demonstrations. The applicant claims he was arrested and detained twice due to his attendance at the demonstrations. He has not provided details of who arrested him, what he was doing that resulted in his arrest, who else was arrested, where he was detained, how he was treated during his detention, why he was released, any conditions attached to his release and any further consequences for himself, his family or his business as a result of his claimed arrests and detention. The applicant has not provided any evidence about whether he has been involved in any anti-corruption protests or other related activities since coming to Australia directed at the Indonesian government.

18. In light of this, based on the evidence before it, the Tribunal is not satisfied of the applicant’s claims. The Tribunal does not accept the applicant ran a small restaurant in Indonesia or that he had to bribe government officers. The Tribunal does not accept that the corrupt officers can close or did close his business for any reason or no reason. The Tribunal does not accept that the applicant attended any demonstrations against government corruption in Brebes, or that he was arrested and detained due to his attendance. It follows that the Tribunal does not accept that he escaped a demonstration he attended in January 2017 after he saw riot police come. As the Tribunal does not accept the applicant’s claims about participating in the demonstrations or being arrested and detained, it follows that the Tribunal does not accept that he left Indonesia to avoid being arrested by the government because of his participation in the demonstrations.

    Does the applicant meet the refugee criterion?  

19. The applicant claims that if he returns to Indonesia he will be arrested by the Indonesian government because he attended demonstrations against government corruption in Indonesia. In light of the Tribunal’s findings in paragraph 18 above that the applicant did not attend such demonstrations in Indonesia and was not arrested or detained, the Tribunal does not accept this. Therefore, the Tribunal finds the applicant would not face a real chance of serious harm arising from these circumstances if he returned to Indonesia in the reasonably foreseeable future.

20. The applicant has not raised any other claims for protection and the Tribunal does not consider that any other claims arise for its consideration based on the material before it.

21. Taking into account the findings set out above and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to Indonesia now or in the reasonably foreseeable future that he faces a real chance of serious harm because of his claimed protest activities or for any other reason set out in s 5J(1)(a) of the Act.

22. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, it is not satisfied that the applicant meets the definition of refugee in s 5H(1). As the applicant does not meet the definition in s 5H(1), the Tribunal is not satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).

    Does the applicant meet the complementary protection criterion?

23. As the Tribunal has found that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, it has considered whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).

24. As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[1] for the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm because of his claimed protest activities or for any other reason.

    [1] MIAC v SZQRB [2013] FCAFC 33

25. Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia, there is a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

    Conclusion

26. 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).

27. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

28. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

    DECISION

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

    Rachel Da Costa
    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.

    …