1820182 (Refugee)

[2024] AATA 1959

1820182 (Refugee) [2024] AATA 1959 (6 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1820182

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Jennifer Ermert

DATE:6 May 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 06 May 2024 at 3:42pm

CATCHWORDS

REFUGEE – Protection Visa – Indonesia – state of economy in Indonesia – applicant has not experienced any harm previously in Indonesia – not satisfied the applicant has a well-founded fear of serious harm – decision under review affirmed

LEGISLATION

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

Migration Regulations 1994, Schedule 2

CASES

Chan Yee Kin v MIEA (1989) 169 CLR 379
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 10 July 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 9 October 2017. 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 and does not meet s 36(2) of the Act. 

3. The applicant, who is self-represented, appeared before the Tribunal on 2 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

1. 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.

2. 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.

3. 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).

4. 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.

5. 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

1. 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 (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether or not the applicant is a person in respect of whom Australia has protection obligations either because he is a refugee or a person who meets the complementary protection criterion, or because he is a member of the same family unit as such a person and that person holds a protection visa of the same class as applied for by the applicant. 

Identity and country of nationality

1. The applicant has provided a certified copy of the biodata page of an Indonesian passport issued in his name to the Department in connection with his protection visa application.  In the absence of evidence suggesting that the document is a bogus document as defined in s 5(1) of the Act, the Department has accepted the applicant’s identity and accepted that he is a citizen of Indonesia as claimed.

2. The Tribunal has considered the certified copy of the biodata page of the above Indonesian passport in the applicant’s departmental file.  The Tribunal has also considered the original of the above Indonesian passport (now expired) as well as the original of the applicant’s new Indonesian passport, both of which were sighted at the hearing and scanned copies of which were provided to the Tribunal. 

3. Having regard to the above and in the absence of evidence that the applicant is not the person he claimed to be, the Tribunal also accepts the applicant’s identity and accepts the applicant is a citizen of Indonesia.  The Tribunal finds Indonesia is the applicant’s country of nationality for the purposes of s 36(2)(a) and s 36(2)(aa) of the Act. 

Personal background and immigration history

1. The applicant is a [age]-year-old man from East Java, Indonesia.  He is married with a [age]-year-old son and a [age]-year-old daughter.  His whole family is in Indonesia and he communicates with them about once a week using WhatsApp.

2. After completing his high school education, the applicant found work as a [occupation] and used the income from that to help his parents and later, to support his family.  The applicant supplemented income from welding with small-scale subsistence farming on the land next to his house to help make ends meet.

3. [In] July 2017, the applicant arrived in Australia on a Class FA Subclass 600 Visitor’s visa.  Since then, he has worked on various farms, and has not departed Australia.  On 9 October 2017, the applicant lodged his application for the grant of a protection visa.

4. The Tribunal accepts each of the matters outlined above to be true.

Protection claims

1. The applicant’s protection visa application, which the applicant stated he completed with the assistance of another person, included the following claims:

   ·He came to Australia because he needed a lot of money to support his wife’s health and medical costs.

   ·Due to the state of economy in Indonesia, it was difficult for him to find reasonable work and most companies required experienced workers.

   ·He could not expect help from the authorities because the situation is the same everywhere and the authorities do not intervene in personal matters. 

   ·He has not experienced any harm and does not believe he would be mistreated on return to Indonesia.

2. At the hearing, the applicant gave evidence that reflected his claims in the protection visa application. The applicant claimed his wife first became sick around 2013 and was subsequently diagnosed with cancer.  The applicant was unable to explain the nature of his wife’s cancer, but claimed she suffered debilitating pain in the abdominal area which saw her hospitalised for a week at [a] Hospital in [Java], followed by weekly check-ups and treatment as an outpatient. The applicant claimed his wife was prescribed pills and capsules for her cancer and to manage her pain, but was otherwise unable to describe exactly what the medications were.  The applicant claimed the treatment continues to this date.

3. The applicant gave further evidence that although his wife’s cancer is not terminal and can be treated once and for all by surgery, his wife has refused to have it due to her fears that things could go wrong and that she might die on the operating table, and because they did not have the money for it anyway.  As a result, his wife can only be treated as an outpatient on an ongoing basis, although the hospital visits have now reduced from weekly to once every month or two.   

4. The Tribunal discussed with the applicant the reasons for and the circumstances leading to his arrival in Australia.  The applicant gave evidence he has not experienced any harm previously in Indonesia, but he came to Australia because the bank was chasing him for repayment of the IDR 300 million he borrowed to finance his wife’s medical treatments.  The applicant claims the bank loan has since been fully repaid, although he still owes IDR 300 million to his uncle who he also borrowed money from.  The applicant claimed he repaid his uncle whenever he could, sometimes IDR 10 million sometimes IDR 5 million, and that his uncle would remind him to repay the outstanding amount during their approximately once yearly contact.  When pressed, the applicant stated the reminders from his uncle about repaying the outstanding amount have been just that and were not demanding or threatening. 

5. In response to the Tribunal’s question with respect to whether there is anything that would cause him to fear returning to Indonesia, the applicant claimed he does not fear being harmed by anyone per se, but he is fearful that he would not be able to find work and would not be able to have enough money to pay for his wife’s cancer treatments whilst they are still ongoing.  When invited to comment on the Tribunal’s observation that his claims do not prima facie appear to support a finding that he meets the definition of ‘refugee’ or engages Australia’s protection obligations under complementary protection, the applicant did not provide any nor make any further submissions.

6. Subsequent to the hearing, the applicant provided a copy of a document dated 4 March 2024 on [a] Hospital letterhead to the Tribunal which purports to be an itemised invoice or receipt of his wife’s prescription medications.  On 9 April 2024, the Tribunal requested the applicant to submit a translated copy of the document as well as any evidence that demonstrates his relationship to his wife, such as a marriage certificate.  No response has been received from the applicant to date.

7. Having considered the evidence the applicant provided at the hearing, the Tribunal accepts all of the claims that he has made with respect to his wife’s illness and the reason he came to Australia.  Whilst the Tribunal would have benefited from a translated copy of the itemised hospital invoice or receipt and evidence of his married relationship to verify his claims, the Tribunal does not find the absence of this evidence sufficient to undermine his credibility.  The Tribunal therefore proceeds on the basis that the copy of the itemised invoice or receipt on [a] Hospital letterhead is indeed for his wife’s prescription medication for her cancer treatment.

REASONS FOR THE TRIBUNAL’S DECISION

1. For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed because the applicant does not meet any of the criteria in s 36(2) for the grant of a protection visa.

Assessment of refugee status

1. To be eligible for the grant of a protection visa on the basis of satisfying the refugee criterion in s 36(2)(a), the applicant must show he has a well-founded fear of persecution in Indonesia, and owing to that fear, is unable or unwilling to avail himself of the protection of Indonesia. This requires an assessment of whether there is a real chance that the applicant would be persecuted because of his race, religion, nationality, membership of a particular social group or political opinion.

2. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.

3. Given the applicant has stated that he did not suffer harm in the past in Indonesia and that he does not fear future harm from anyone per se after paying off the bank loan, the Tribunal finds there is not a real chance that the applicant would be harmed if he returned to Indonesia, now or in the reasonably foreseeable future.  Whilst the applicant still owes money to his uncle, there is no suggestion that his uncle poses any kind of threat to the applicant on the basis of his evidence.

4. Insofar as the applicant fears he might not be able to find a job that allows him to earn enough money to pay for his wife’s ongoing cancer treatment, the Tribunal accepts this might well be the case and it is likely that he would not earn as much money for doing equivalent work in Indonesia.  However, there is nothing, and the applicant has not provide any evidence, which suggests he would be at risk of being denied the opportunity for work of any kind in Indonesia.

5. As the Tribunal finds there is not a real chance that the applicant would suffer harm if he returned to Indonesia, whether now or in the reasonably foreseeable future, the Tribunal finds he does not satisfy the refugee criterion in s 36(2)(a) of the Act.

Complementary protection assessment

1. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered whether the applicant’s circumstances are such as to give the Tribunal substantial grounds to believe that there is a real risk that the applicant would suffer significant harm as a necessary and foreseeable consequence of his removal from Australia to Indonesia. 

2. In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test as it applies to complementary protection imposes the same standard as the ‘real chance’ test applicable to the assessment of the refugee criterion in s 36(2)(a).

3. For the same reasons that the Tribunal does not accept there is a real chance that the applicant would be harmed in the reasonably foreseeable future if he returned to Indonesia, the Tribunal does not accept there are substantial grounds for it to believe that if the applicant was removed from Australia to Indonesia, there is a real risk that he would suffer significant harm as a necessary and foreseeable consequence of that removal. 

4. Therefore, the Tribunal finds the applicant is not a person in respect of whom Australia has protection obligations on the basis of the complementary protection criterion under s 36(2)(aa) of the Act.

Other criteria – member of family unit

1. Finally, there is no evidence before the Tribunal to suggest that the applicant is a member of the same family unit as another person who satisfies s 36(2)(a) or (aa) and who holds a protection visa of the same class as that applied for by the applicant. Therefore, the Tribunal finds that the applicant does not satisfy s 36(2)(b) or (c) of the Act. 

DECISION

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

Jennifer Ermert

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.

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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.

…