1820510 (Refugee) - [2024] AATA 4275

1820510 (Refugee) [2024] AATA 4275 (19 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Malintha Prakash De Mel (MARN: 1460644)
CASE NUMBER:  1820510
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Paul Noonan
DATE:19 July 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 19 July 2024 at 12:19pm

CATCHWORDS
REFUGEE – protection visa – Indonesia – written claims prepared by another person and acknowledged not to be correct – first applicant husband’s new claim of owing money to person affiliated with criminal gangs and with connections to authorities – factory fire of unknown cause – second applicant wife’s new claim of fear of harm from ex-partners and as Chinese Indonesian – unfavourable inference drawn – extended residence in another country without applying for protection there – no recent direct contact, threats or legal action – anonymous allegations not able to be tested and given no weight – combined hearing with review of one child’s separate decision – special needs of another Australian-born child (not an applicant) – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 423A
Migration Regulations 1994 (Cth), Schedule 2

CASES
Kavun v MIMA [2000] FCA 370
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Selvadurai v MIEA (1994) 34 ALD 347
Subramaniam v MIMA (1998) VG310 of 1997
Zhang v RRT [1997] FCA 423
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 11 July 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
[The applicants] claim to be citizens of Indonesia. In the original claim the applicant made claims for protection and the second named applicant relied on the claims of the applicant and did not make her own separate claims. They applied for the visas on 6 October 2017. The delegate refused to grant the visas on the basis that the Indonesian authorities can provide protection to them, should they require it, and as such there is no real chance of serious harm or real risk of significant harm to them for any reason claimed with respect to the applicant’s stated fear of persecution.
The applicants appeared before the Tribunal on 8 May 2024 and, in a continuation of the first hearing, on 13 June 2024 to give evidence and present arguments. In the first hearing the Tribunal received oral evidence from the applicants and their witnesses as follows: [Ms A] (the applicant’s child), [Mr B] (ex-employee of the applicant), [Ms C] (the second…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1820510 (Refugee)

Details

AGLC: 1820510 (Refugee) [2024] AATA 4275
Case: [2024] AATA 4275
Decision Date: 19 July 2024

CaseChat Overview and Summary

This matter concerned an application for review of a protection visa decision. The applicants, an Indonesian couple, sought protection in Australia. The primary decision-maker had refused their application, and they sought review of this decision.

The central legal issues before the Tribunal were whether the applicants met the criteria for a protection visa under the 'refugee' criterion or 'complementary protection' grounds. This involved assessing the credibility of new claims made by the first applicant, specifically concerning debts owed to individuals affiliated with criminal gangs and connections to authorities, and a factory fire of unknown cause. The Tribunal also considered the second applicant's claims of fear of harm from ex-partners and as a Chinese Indonesian, and whether an unfavourable inference should be drawn due to the applicants' extended residence in another country without seeking protection there, and the lack of recent direct contact, threats, or legal action.

The Tribunal drew an unfavourable inference regarding the credibility of the first applicant's new claims, pursuant to section 423A of the Act. This was because the applicant provided an unsatisfactory explanation for not raising these claims earlier. The Tribunal found that the applicant's explanation that a third party, Mr J, had prepared the original application with incorrect information was inconsistent and unconvincing. The Tribunal concluded that the applicant had likely completed the original application himself and had deliberately provided false claims, making his subsequent explanations for the new claims unsatisfactory. The Tribunal also noted that anonymous allegations submitted to the Tribunal were given no weight as they could not be tested.

The Tribunal affirmed the decision under review, finding that the applicants had not established that Australia owed them protection obligations.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The delegate was satisfied that the applicants’ country of nationality is Indonesia, and the Tribunal is also satisfied that this is the case, on the basis of the biodata with respect to their Indonesian passports, copies of which are retained on the Department’s systems and file, and accordingly has assessed their claims with respect to Indonesia as the country of reference or receiving country for the purposes of this appeal.The applicants’ personal backgrounds and original claim forms The applicant disclosed in his application for protection that he was born in [Year]. The second named applicant was named as his partner. The applicant stated (and the second named applicant confirmed in her application) that the second named applicant was not raising claims separate to the applicant. The applicant declared that he did not have assistance in filling out his written claim for protection and that all written communication should be sent to himself. Both he and the second named applicant signed the application forms and dated them 5 October 2017. The applicant declared that he did not receive assistance from an interpreter in completing the form. The applicant stated that he was born in Jakarta, Indonesia. He stated that he speaks, reads and writes the Indonesian and English languages. His ethnic group is Chinese and his religion is Christian. He declared that he is married. He did not list any other family members residing either in Australia or overseas. He declared that he is not in contact with relatives outside of Australia. He declared that he has no other friends, family members or acquaintances in Australia. He declared that he entered Australia using a visitor visa. He declared that he visited [Country 1] between [Day] July 2017 and [Day] July 2017 for the purpose of visiting his boss. He stated that in Indonesia he had worked as a chief manager in a [business] in Jakarta between June 2002 and April 2017. Prior to that he had worked in [job task] roles as an administrator. He declared that he completed university studies in Jakarta in [Year]. The second named applicant disclosed that she was born in [Year] in Sulawesi Selatan, Indonesia. She stated that she speaks, reads and writes the Indonesian and English languages. Her ethnic group is Chinese and her religion is Christian. She did not list any other family members residing either in Australia or overseas. She declared that she is not in contact with relatives outside of Australia. She declared that she visited [Country 1] between [Day] July 2017 and [Day] July 2017 for the purpose of visiting her husband’s boss. She declared past work in administration in Indonesia. She declared that she was not making her own claims for protection. Documents submitted to the Tribunal The Tribunal notes that there have been several submissions made directly to the Tribunal with respect to the claimed activities of the applicants while they have been living in Australia. These submissions were made anonymously and claim that the applicants’ applications for protection are fraudulent and fake. The submissions generally purport to highlight country information without citations and to state that their claims have no basis in fact. The Tribunal advised the applicants of these submissions. The Tribunal also advised them that it would be placing no weight upon the submissions as it is not possible to ascertain how the informant gained their knowledge and whether they have a vested interest in making such allegations or not. Accordingly natural justice would not be served by affording the submissions any weight in such circumstances. CLAIMS FOR PROTECTION

Evidence

Evidence Before The Court

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 The issue in this case is whether the applicants are persons in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or are members of the same family unit as such a person and that person holds a protection visa of the same class. Country of nationality The delegate was satisfied that the applicants’ country of nationality is Indonesia, and the Tribunal is also satisfied that this is the case, on the basis of the biodata with respect to their Indonesian passports, copies of which are retained on the Department’s systems and file, and accordingly has assessed their claims with respect to Indonesia as the country of reference or receiving country for the purposes of this appeal.The applicants’ personal backgrounds and original claim forms The applicant disclosed in his application for protection that he was born in [Year]. The second named applicant was named as his partner. The applicant stated (and the second named applicant confirmed in her application) that the second named applicant was not raising claims separate to the applicant. The applicant declared that he did not have assistance in filling out his written claim for protection and that all written communication should be sent to himself. Both he and the second named applicant signed the application forms and dated them 5 October 2017. The applicant declared that he did not receive assistance from an interpreter in completing the form. The applicant stated that he was born in Jakarta, Indonesia. He stated that he speaks, reads and writes the Indonesian and English languages. His ethnic group is Chinese and his religion is Christian. He declared that he is married. He did not list any other family members residing either in Australia or overseas. He declared that he is not in contact with relatives outside of Australia. He declared that he has no other friends, family members or acquaintances in Australia. He declared that he entered Australia using a visitor visa. He declared that he visited [Country 1] between [Day] July 2017 and [Day] July 2017 for the purpose of visiting his boss. He stated that in Indonesia he had worked as a chief manager in a [business] in Jakarta between June 2002 and April 2017. Prior to that he had worked in [job task] roles as an administrator. He declared that he completed university studies in Jakarta in [Year]. The second named applicant disclosed that she was born in [Year] in Sulawesi Selatan, Indonesia. She stated that she speaks, reads and writes the Indonesian and English languages. Her ethnic group is Chinese and her religion is Christian. She did not list any other family members residing either in Australia or overseas. She declared that she is not in contact with relatives outside of Australia. She declared that she visited [Country 1] between [Day] July 2017 and [Day] July 2017 for the purpose of visiting her husband’s boss. She declared past work in administration in Indonesia. She declared that she was not making her own claims for protection. Documents submitted to the Tribunal

Decision

Reasons for decision

As discussed at the first hearing, section 423A of the Act states as follows:How Tribunal is to deal with new claims or evidence(1) This section applies if, in relation to an application for review of a Part 7 - reviewable decision (the primary decision), the applicant:(a) raises a claim that was not raised before the primary decision was made; or(b) presents evidence in the application that was not presented before the primary decision was made.(2) In making a decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made. The applicant responded to concerns set out by the Tribunal with respect to this new claim that the original application was prepared by [Mr J] as his appointed immigration agent. The Tribunal notes that the applicant gave inconsistent answers with respect to the [Mr J]. He variously described [Mr J] as a scammer who made up the application and as a normal friend who he simply did not tell all his claims to. When asked where [Mr J] currently is, the applicant claimed that he is no longer in the country and he has no ability to contact him. He stated that he paid [Mr J] $2,000. He then claimed that he did not read back or check the accuracy of the claims made by [Mr J]. He just signed it without checking it. The Tribunal considers that the applicant has given an unsatisfactory answer as to why he did not provide accurate claims and then has introduced new claims not raised before the primary decision was made. This is because, if the applicant had fled Indonesia for fear of harm due to owing a large debt, the Tribunal would expect that he would have sought to make this clear in his claim for protection. Instead, he provided false and detailed claims specific to his own personal situation about fearing harm due to political and ethnic grounds. For instance, the original written claim mentions the destruction of his factory in Indonesia by fire. This is knowledge specific to the applicant and reflects that he was careful to include some detail accurately, for which he had some documentary and witness proof. Further, as noted, the application form states that he filled out the claim without assistance and that it was signed and dated by him. Unconvincingly the applicant was also unable to provide any details about [Mr J] and his claims about [Mr J]’s association with him were inconsistently given. Due to these considerations the Tribunal considers that the weight of the evidence reflects that the applicant completed the original claim form himself and without any assistance from [Mr J]. The applicant’s explanations as to why the claim to owe money to a person associated with criminal gangs was not made before the primary decision (being he relied on [Mr J] to complete the form and [Mr J] made incorrect claims on his behalf), is therefore, in the Tribunals view an unsatisfactory explanation.

Ratio Decidendi

Legal Principle Established

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 (DFAT) 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 applicants are persons in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or are members of the same family unit as such a person and that person holds a protection visa of the same class. Country of nationality The delegate was satisfied that the applicants’ country of nationality is Indonesia, and the Tribunal is also satisfied that this is the case, on the basis of the biodata with respect to their Indonesian passports, copies of which are retained on the Department’s systems and file, and accordingly has assessed their claims with respect to Indonesia as the country of reference or receiving country for the purposes of this appeal.The applicants’ personal backgrounds and original claim forms The applicant disclosed in his application for protection that he was born in [Year]. The second named applicant was named as his partner. The applicant stated (and the second named applicant confirmed in her application) that the second named applicant was not raising claims separate to the applicant. The applicant declared that he did not have assistance in filling out his written claim for protection and that all written communication should be sent to himself. Both he and the second named applicant signed the application forms and dated them 5 October 2017. The applicant declared that he did not receive assistance from an interpreter in completing the form. The applicant stated that he was born in Jakarta, Indonesia. He stated that he speaks, reads and writes the Indonesian and English languages. His ethnic group is Chinese and his religion is Christian. He declared that he is married. He did not list any other family members residing either in Australia or overseas. He declared that he is not in contact with relatives outside of Australia. He declared that he has no other friends, family members or acquaintances in Australia. He declared that he entered Australia using a visitor visa. He declared that he visited [Country 1] between [Day] July 2017 and [Day] July 2017 for the purpose of visiting his boss. He stated that in Indonesia he had worked as a chief manager in a [business] in Jakarta between June 2002 and April 2017. Prior to that he had worked in [job task] roles as an administrator. He declared that he completed university studies in Jakarta in [Year].