1815768 (Refugee)

1815768 (Refugee) [2024] AATA 3253 (3 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1815768

COUNTRY OF REFERENCE: Indonesia
MEMBER:Michael Simmons
DATE:3 May 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 03 May 2024 at 4:06pm
CATCHWORDS
REFUGEE – protection visa – Indonesia – victim of money lender – business debts – fear of killing – physical violence – state protection – employment – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 May 2018 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 29 December 2016.
The applicant appeared before the Tribunal on 16 April 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
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
The issue in this case is whether the applicant faces a real chance of serious harm or a real risk of significant harm were he to return to Indonesia. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity and background
The applicant provided a copy of the biodata page of his Indonesian passport. He stated in his visa application that he is a citizen of Indonesia and in his application for review to the Tribunal he indicated his nationality Indonesian. I accept that the applicant is who he claims to be, and that he is a national of Indonesia. Indonesia is the receiving country for the purpose of this assessment.
Protection claims
Visa application
The applicant stated that he left Indonesia because he had a problem. He had a loan with a private finance company with his business partner. After a year they failed to make the required repayments. Members of the private finance company searched for the applicant and his business partner and attacked them. They told the applicant that they will get aggressive he cannot give them the money, and that they will kill him.
The applicant sent his family and his kid to his grandmother’s house to hide from these people. The applicant moved other places within Indonesia, but they we still able to catch him and did something bad to him. Once he “felt tired to be harmed” the applicant decided to run away and came to Australia.
The applicant did not seek help within Indonesia because he is worried about his family and himself. The members of the private finance company will become aggressive if they know that he sought help from anyone.
If he returns to Indonesia the applicant will be caught and harmed again like before. They will not stop until they get the full payment. Until now he cannot give them the full payment and that he run away from them will make them more upset. The applicant will also suffer if he goes back to Indonesia because he does not have a job and it will be hard for him.
The Indonesian authorities will not protect him because the people from the private finance company can still reach him as the police cannot protect him all the time and cannot stop the company harming him.
He cannot relocate within Indonesia because as long as he has the debt the members of the private finance company will still look for him and his business partner.
Tribunal Hearing
At the outset of the hearing the applicant indicated that there was nothing in the visa application he wished to change or update, and that as he can recall the information provided in it is complete and accurate.
The applicant told me that he is happy living in Australia and does not wish to return to Indonesia. He applied for the protection visa because he has a lot of debt and if he goes back the possibility he will not be able to pay it back is high. If he cannot repay the debt his parent’s house may be taken.
The debt arose because he tried a business selling [products 1] made by his mother. He rented a store but it did not go as he hoped. He forgets when it was that he rented the store. The [product 1] business is no longer operating as it is bankrupt. He cannot provide any documents relating to the business as it has been too long and he is unsure where they are.
The money for the [product 1] business was loaned from [Bank 1]. The loan documents are in his father’s name because his father is known in their area, and the bank would not agree to loan the applicant the money. The loan was for [amount] Rupiah. He only had a quick look at the loan agreement. His parent’s home was provided as collateral and may be auctioned by the lender if the loan is not repaid. There is about [amount] Rupiah outstanding on the loan, which the applicant thinks is around $[amount] AUD.
When asked what occurred that caused the applicant to come to Australia, he told me that he wanted to continue his study while he did freelance work to pay back the loan. But due to his economic situation he could not realise this plan and decided to focus on paying back the loan. He has been making repayments on the loan since he has been in Australia.
When I asked whether anything ever happened to the applicant of his family due to the debt, after a pause he stated that “the debt has to be paid so my parents house is not confiscated”. He confirmed that the house has not been confiscated. I asked whether the applicant or his family were ever threatened or harmed because of the debt. He said no.
During the hearing the applicant produced a photo of a bank receipt on mobile phone which he then emailed to the tribunal after the hearing. The receipt is dated 4 April 2024 and appears to show that a loan was issued to his father [in] June 2023. The applicant told me that because he could not pay the previous debit, he had to open a new loan and transfer the debt in 2023. He also submitted a copy of his birth certificate names to confirm his father’s name.
Consideration
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
The applicant confirmed that the only reason he fears returning to Indonesia is due to his outstanding debt. Various details in the visa application differed to those provided by the applicant to me verbally when discussing his difficulties in Indonesia. I raised these with him for his comment. Overall, I did not find his evidence and his responses to the discrepancies within it, to be persuasive and for the following reasons I do not accept he is in debt.
I put to him that in the visa application he stated that when he did not make the loan repayments he and his business partner were attacked, and that when he became tired of being harmed he decided to run away to Australia. However during the hearing he told me he was never physically harmed. He replied that there were no threats. I asked him why he stated he was harmed in his application when during the hearing he told me he was not. After a pause, he said “there wasn’t”. I repeated my question. He said there was no physical harm only verbal, and that these were verbal threats to confiscate his parents home. I asked him why he said he was attacked and he replied “there was no attack”.
He then told me that he did not read the visa application in detail before he signed and submitted it. He told me that at the beginning of the hearing that his [Nationality 1] friend, ‘[Friend A]’, had listened to the his account and prepared the visa application form on his behalf. Given the importance of the application I asked him why he would not read it in detail or satisfy himself that it was accurate before submitting it. He replied “that was wrong”.
I put to him that I was concerned that his visa application did not mention his parents’ home being collateral for the loan, did not mention what kind of business he was operating, did not mention who he was operating the business with, and did not provide any details about when the loan was taken out, for how much and from whom. I noted the application only states he took money from a private finance company but in the hearing he told me it was a particular bank. I asked him if he had any comments on these matters and he indicated that he did not.
I noted that he stated in the application he moved to many different places to get away from the people who were attacking him, but he had told me in the hearing that he only ever lived in one location in Indonesia. I invited him to comment on this but he declined to do so.
I asked the applicant if he were to return to Indonesia tomorrow whether he believes anyone may seek to threaten or harm him for any reason. He replied “no”.
He confirmed that he had told me everything he wished to in relation to his visa application. He affirmed his only reason for wishing to stay in Australia was to repay the debt.
Given the considerable variation in the applicant’s evidence and his unpersuasive responses when these were put to him for comment, I am not prepared to accept any aspect of his narrative relating to his claimed business debts and associated problems. I do not accept that the applicant had a failed [product 1] business for which he holds a loan that he has been unable to service. I do not accept his parents’ house was provided as collateral for any such loan. I do not accept that he was ever threatened or harmed while in Indonesia due to being unable to repay a loan. I am prepared to accept on the face of the bank document that a loan was issued to the applicant’s father in 2023, however I do not accept that the applicant has any responsibility for this debt.
The applicant stated in his application that going back to Indonesia would be hard as he does not have a job there. When I asked him how he would support himself were he to return to Indonesia, he told me he had not thought about it. I note that he holds a [Qualification 1] obtained in Indonesia, and he told me he has previously worked [in related fields] in Indonesia. He has also undertaken various roles while in Australia, including farm work and cleaning. When I asked how his parents support themselves, he told me that they are a [specified occupations], and they receive [support] from their [employer]. Considering the applicant’s education and employment history, and his parent’s position within their community, I am not satisfied that were he to return to Indonesia he would be unable to earn a living or that he would experience economic hardship that would threaten his capacity to subsist.
I am not satisfied on the evidence before me, that the applicant faces a real chance of serious harm in the reasonably foreseeable future for any reason were he to return to Indonesia, including in connection with any business debts (which I do not accept he has) or his future job prospects. He does not have a well-founded fear of persecution for any s.5J(1)(a) reason.
As a ‘real risk’ and ‘real chance’ involve the same standard.[1] For the reasons set out above the applicant also does not face a real risk of any harm including treatment amounting to significant harm were he to return to Indonesia. I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.
[1] MIAC v SZQRB (2013) 210 FCR 505.
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s.36(2)(aa).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Michael Simmons
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 3253

3 May 2024

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