1815714 (Refugee)

[2024] AATA 1919

1815714 (Refugee) [2024] AATA 1919 (27 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1815714

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Alicia Bills

DATE:27 February 2024

PLACE OF DECISION:  Adelaide

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

Statement made on 27 February 2024 at 2:42pm

CATCHWORDS

REFUGEE – protection Visa – Indonesia – fears harm from loan sharks – had never been threatened or harmed by a drug pusher – held no fear of returning to Indonesia due to threats or harm from drug pushers – held no fear of returning to Indonesia due to threats or harm from drug pushers – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES

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 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 on 29 May 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Indonesia, applied for the visa on 13 March 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. The applicant appeared before the Tribunal on 21 February 2024 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. 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.

5. 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.

6. 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).

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. 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.

8. 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

9. 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

10. The issue in this case 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, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. A summary of the relevant law, mandatory considerations and an extract of key provisions of the Act is set out in the Attachment to this decision. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of nationality

11. The applicant travelled to Australia on an apparently genuine Indonesian passport, a copy of which is contained in the material before the Tribunal. The applicant has also produced a copy of his Indonesian citizen identity card. The applicant has at all times maintained that he is a citizen of Indonesia. The Tribunal is satisfied that the applicant is a national of Indonesia and has assessed his claims against Indonesia as his country of nationality and the receiving country.

    The applicant’s background and travel to Australia

12. The applicant is [age] years of age. He was born in [Area 1], Indonesia and lived in [Area 1] until he arrived in Australia on[date] March 2018. The applicant initially arrived in Australia on [a] visa and then on 13 March 2018 the applicant lodged an application for a protection visa. The applicant has remained in Australia since his arrival in March 2018.

    The applicant’s claims for protection

13. In his protection visa application form lodged on 13 March 2018 the applicant stated the following as his reasons for leaving Indonesia and claiming protection in Australia:

    That was afternoon and we have a very good times having coffe at one of the coffe shop in [Area 1] when we being approached by 5 mens. By sharp weapons in their hands. We know that they are no ordinary people. One of my friend has been slapped and punched because he tried to escape. Many passerby just watched us hopelessly because of the obvious weapons. We were taken to a quite place where no one could hear us. They asked us to do some work for them by selling delivering and collecting money. They are the drug pusher they threnen us to kill us if we tried to report to the police or any other authorities or kill our whole family. At first we said no, then we end up being beaten again and again until we said yes, then let us go that late afternoon and asked us to meet them again in two days time at the same place. But that day itself, after consulting this to the family, me and my friends run to Mataram and quickly escape ourself by airplane before they get to know our house and family. It is a hard decision to make but because of [Area 1] is well known with drugs robberies and killing we don't wait this to happen to us it is really hurt to be beaten especially when there is nothing that I can do more.

14. The applicant gave the following evidence at the hearing on 21 February 2024:    

    a.He grew up on the island of [Area 1], Indonesia. He was the eldest of four siblings. He completed primary school, but did not complete high school. On  or around the time the applicant was due to start high school his father passed away and there was no money to pay for him to attend high school, and further, he needed to work to support the family as it was expected that he would be the provider for the family.

    b.As a teenager and young adult, the applicant worked, but his employment was sporadic. There were gaps between jobs. He worked in [different fields].

    c.The applicant married his wife [in] 2015. Up until that point, the applicant had lived at home with his mother. After he was married the applicant and his wife rented a bedroom in another house. The applicant and his wife have two children together.

    d.Around the time the applicant was married, he became aware that his mother was buried under the weight of a loan from a loan shark. The loan was originally for 1,000,000 Indonesian Rupiah (at the date of the hearing equivalent to approximately 100 Australian Dollars). By the time the applicant became aware of the debt it was approximately 50,000,000 – 60,000,000 Indonesian Rupiah.

    e.The applicant came to Australia to find a way to repay the loan. The applicant considered he would be able to earn more income in Australia than he could earn in Indonesia. After the applicant came to Australia, his wife and children moved in with his mother.

    f.Since he has been in Australia, the applicant has been working in [South] Australia [working]. The applicant has used his income from employment to repay his mother’s loan shark loan. There is now no more loan and no more money owing to anyone.

    g.The applicant wants to stay in Australia so that he can provide a more decent life for his family and earn enough money for the long term so that there will never be money worries again.

15. The applicant further informed the Tribunal that a friend had assisted him to complete his protection visa application form. The applicant informed the Tribunal that ‘what my friend wrote for the reasons it was not correct.’ The Tribunal read the entirety of the statements made in the applicant’s protection visa application form regarding his claims for protection to the applicant. The applicant confirmed that none of the information contained in the statements was true. The applicant confirmed that he had never been threatened or harmed by a drug pusher and that he held no fear of returning to Indonesia due to threats or harm from drug pushers.

16. The applicant stated that he wanted to tell the truth at the hearing and he had not been aware of what was written in his protection visa application form. The applicant confirmed that he had no other claims for protection, that he was just concerned about work for him and his family.

17. The Tribunal questioned the applicant on whether he had any fears in relation to returning to Indonesia. The applicant stated that he wanted to renovate his mother’s house. The applicant confirmed that his concern was that if he was in Indonesia he could not earn as much income as he could in Australia because he is uneducated. The applicant confirmed that he wanted to stay in Australia to earn enough income to be able to renovate his mother’s house.

18. The Tribunal discussed with the applicant that the economic harm he feared by way of earning less income, did not appear to be harm directed at him for reasons of his race, religion, nationality, membership of a particular social group or political opinion. The applicant agreed.

19. The Tribunal discussed with the applicant the definition of significant harm as provided in s 36(2A) of the Act:

    (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.

20. The Tribunal observed that the harm feared by the applicant did not appear to amount to significant harm. The applicant agreed.

    Tribunal consideration

    Fear of harm from drug pusher

21. The Tribunal accepts the evidence of the applicant that the entirety of the claims made in the protection visa application form were not true. The Tribunal accepts that the claims made regarding the drug pusher were in fact fictitious claims created by the applicant’s friend.

22. As the Tribunal does not accept that the applicant was ever threatened or harmed by a drug pusher, the Tribunal is not satisfied that there is a real chance, if the applicant returned to Indonesia, now or in the reasonably foreseeable future, that the applicant would be harmed by a drug pusher. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in relation to this claim. Therefore the applicant does meet the definition of refugee for the purpose of s 36(2)(a) of the Act.

23. In considering whether the applicant meets the complementary protection criteria set out in s 36(2)(aa) of the Act, the Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country of Indonesia, there is a real risk he will suffer significant harm.

24. In MIAC v SZQRB[1], the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition. It follows that 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 the applicant will suffer significant harm from a drug pusher.

    Fear of harm from loan shark

    [1] [2013] FCAFC 33

25. The applicant gave evidence about a loan his mother had from a loan shark and his role in the family as a provider. The applicant did not give any evidence that himself or his mother had ever been threatened or harmed by the loan shark. The applicant’s evidence was the loan shark debt increased over time and that was the reason he came to Australia, to find a way to repay the loan. The applicant’s evidence was that he had now repaid the loan in full. I accept the applicant’s evidence in relation to the loan shark debt.

26. I accept that the applicant’s limited education and his limited English are the reasons why he did not provide this information in the material before the delegate.

27. As the loan shark debt has now been paid in full, and noting that the applicant’s mother, not the applicant, owed the debt, the Tribunal is not satisfied that there is a real chance, if the applicant returned to Indonesia, now or in the reasonably foreseeable future, the applicant would face any harm from the loan shark. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in relation to this claim. Therefore the applicant does meet the definition of refugee for the purpose of s 36(2)(a) of the Act.

28. For the same reasons, 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 the applicant will suffer significant harm from the loan shark.

    Fear of economic harm

29. The Tribunal accepts that the applicant did not complete high school. The Tribunal accepts that the applicant’s level of education restricts his employment opportunities and earning capacity. The Tribunal accepts that the applicant’s earning capacity is higher in Australia than it is in Indonesia and allows him to support himself here as well as sending money back to Indonesia to support his family.

30. However, the Tribunal is not satisfied that any harm faced by the applicant by way of economic difficulties arise from his race, religion, nationality, political opinion or membership of a particular social group. As such, the applicant does not have a well-founded fear of persecution in relation to this claim. Therefore the applicant does not meet the definition of refugee for the purposes of section 36(2)(a) of the Act.

31. ‘Significant harm’ is exhaustively defined in s 36(2A) of the Act. There is no evidence that the applicant would be tortured or subject to the death penalty if returned to Indonesia. The definitions of arbitrary deprivation of life; cruel or inhuman treatment or punishment and degrading treatment or punishment each require the harm or punishment be intentionally inflicted on a person. The Tribunal is not satisfied that the economic harm feared by the applicant would arise from the intentional or deliberate act or omission of a third person or persons such as could constitute arbitrary deprivation of life, cruel or inhuman treatment or punishment, or degrading treatment or punishment.

32. For these reasons the Tribunal does not accept that the economic harm the applicant fears falls within the definition of ‘significant harm’ in s 36(2A) of the Act. It follows that the Tribunal does not accept there to be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Indonesia.

    Conclusion

33. 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).

34. 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).

35. 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

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

    Alicia Bills
    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.

    …