1826735 (Refugee)

Case [2024] AATA 2088

1826735 (Refugee) [2024] AATA 2088 (14 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1826735

COUNTRY OF REFERENCE:                   Republic of Indonesia

MEMBER:David James

DATE:14 February 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 14 February 2024 at 3:06pm

CATCHWORDS
REFUGEE – protection visa – Republic of Indonesia – no response to tribunal communication – threatened by men at café – men overheard applicant’s comment on noise – vague claims lacking in details – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 411(1)(c), 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
ABT16 v Minister for Home Affairs [2019] FCA 836
Anadaraj Subramaniam v MIMA (1998) VG310
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
SZRQA v MIBP [2013] FCA 962

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

  1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 September 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 the Republic of Indonesia (Indonesia), applied for the visa on 15 July 2018. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act and was therefore not satisfied that the applicant was a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Indonesia, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore, the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.

  3. The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the Tribunal) on 12 September 2018. The applicant provided a copy of the delegate’s decision with their application for review.

  4. As noted above, the applicant provided a copy of the delegate’s decision with their application for review. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicant a protection visa having considered the material before the delegate. The Tribunal is satisfied…

Continue reading 1826735 (Refugee)

Sign in free to access the full text

Details
AGLC
1826735 (Refugee) [2024] AATA 2088
Case
[2024] AATA 2088
Decision Date

CaseChat Overview and Summary

This matter concerned an application for a protection visa by an individual who claimed to fear persecution upon return to the Republic of Indonesia. The applicant alleged that after making a comment about noisy men in a café, he was confronted and threatened with violence. He further claimed a friend warned him that the men were looking for him to kill him, prompting his departure to Australia. The applicant did not report the incident to the police, believing they could not offer adequate protection, nor did he relocate within Indonesia due to time constraints. The Administrative Appeals Tribunal (AAT) reviewed the delegate's decision to refuse the visa.

The core legal issues before the Tribunal were whether the applicant possessed a well-founded fear of persecution for one of the prescribed reasons under the Migration Act 1958 (Cth) (the Act), and if not, whether there were substantial grounds to believe that, as a necessary and foreseeable consequence of removal to Indonesia, the applicant faced a real risk of suffering significant harm. The Tribunal considered documentary evidence, including the applicant's visa application, identity documents, and a pre-hearing information form. The Tribunal also noted that the applicant had not been offered an interview by the Department.

The Tribunal applied the "real risk" test for significant harm, which it equated to the "real chance" standard for assessing a well-founded fear of persecution. It also considered relevant Ministerial Directions, Refugee Law Guidelines, Complementary Protection Guidelines, and country information from the Department of Foreign Affairs and Trade. The Tribunal noted that it had communicated with the applicant regarding the preparation of his case and requested a pre-hearing information form, which the applicant completed and returned. The Tribunal subsequently invited the applicant to a hearing, advising that a decision might be made without further notice if he failed to attend. The Tribunal also rescheduled the hearing and sent an SMS reminder, which unfortunately failed to be delivered.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicant was returned to Indonesia they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Indonesia, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.Documentary evidence before the Tribunal The Tribunal has before it documents submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection, which includes (but is not limited to) the following documents, considered by the Tribunal:·Applicant’s protection visa application lodged on 15 July 2018 and the annexed copy of the applicant’s Indonesian passport’s bio data page and Indonesian Identity Card;·Applicant’s application for review of 12 September 2018, and the annexed decision record of 11 September 2018; ·Applicant’s ‘Pre-hearing information form’ forwarded to the Tribunal by email on 8 October 2023, in which he states as to his ‘Claims for protection’ that:I desperately need this protection because I feel no safer to live in my hometown. I will attach an evidence that relay to my application.and;·The administrative and movement records of the Department relating to the applicant.Claims for protection The applicant, in his protection visa application, made the following claims (as summarised) that:·On 3 May 2018, the applicant was drinking in a café in Lombok and a nearby group of men were drinking heavily and making a lot of noise. The applicant made some comments about the men making a lot of noise and that their behaviour was disturbing other people in the café;·One of the men overheard the applicant’s comments and together with his friends confronted the applicant indicating they were going to beat the applicant. The applicant then left the café and ran away;·The next day, a friend warned the applicant that the men from the café were looking for him and wanted to kill him. On hearing this, the applicant became scared and feared for his life, so he boarded a flight to Australia [in] May 2018;·The applicant fears returning to Lombok as he believes he will be killed by these men if he returns to Lombok;·The applicant did not seek help or report this incident to the police as he was afraid and wanted to quickly escape. He does not believe the police can protect him all the time; and·The applicant did not move to another part of the country because relocating would take a lot of preparation and he did not have enough time.Department interview The applicant was not offered an interview by the Department.Delegate’s decision The delegate’s decision of 11 September 2018 to refuse the protection visa was made on the information before the delegate. The delegate was not satisfied that the applicant’s fears of persecution were for any of the reasons provided in s 5J(1)(a) of the Act. Therefore, the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and therefore was not a refugee. The delegate also found with reference to the relevant DFAT country information that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant would suffer harm ‘significant harm’ as outlined in s 36(2B)(b) of the act. Therefore, the delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Indonesia, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.

Decision

Reasons for decision

The applicant was not offered an interview by the Department.Delegate’s decision The delegate’s decision of 11 September 2018 to refuse the protection visa was made on the information before the delegate. The delegate was not satisfied that the applicant’s fears of persecution were for any of the reasons provided in s 5J(1)(a) of the Act. Therefore, the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and therefore was not a refugee. The delegate also found with reference to the relevant DFAT country information that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant would suffer harm ‘significant harm’ as outlined in s 36(2B)(b) of the act. Therefore, the delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Indonesia, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act. On 5 October 2023, the Tribunal wrote to the applicant indicating to him, that his file was being prepared to be given to a Tribunal Member. This correspondence also requested the applicant complete and return to the Tribunal a ‘Pre-hearing information form’. On 8 October, the applicant responded to the Tribunal by email, attaching his completed ‘Pre-hearing information form’, the contents of which is outlined above, at paragraph 16. Invitation to attend a hearing On 11 January 2024, the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 14 February 2024 at 9:30 am. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to their application, but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice. On 5 February 2024, the Tribunal wrote to the applicant and informed him, that the Presiding Senior Member was no longer able to conduct his hearing at 9:30 am on the scheduled hearing date (14 February 2024). The applicant was advised that his review hearing at the Brisbane Registry on the same date, 14 February 2024, would now commence at 1:30pm. On 7 February 2024, the Tribunal sent a SMS Hearing Reminder to the applicant’s mobile telephone [number](the mobile number which the applicant had provided on his application for review form). The message read:Reminder – Your AAT hearing is on 14/02/24. Please check the hearing invitation to confirm details. If you have not replied to your hearing invitation, please do so immediately. Please do not reply to this number. Any questions, call 1800 228 333.That same day, the Tribunal was informed that the ‘delivery of SMS hearing reminder failed’.

Ratio Decidendi

Legal Principle Established

Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. 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: MIAC v SZQRB (2013) 210 FCR 505.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 (the Department), 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 EVIDENCEIssues The issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicant was returned to Indonesia they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Indonesia, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.Documentary evidence before the Tribunal The Tribunal has before it documents submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection, which includes (but is not limited to) the following documents, considered by the Tribunal:·Applicant’s protection visa application lodged on 15 July 2018 and the annexed copy of the applicant’s Indonesian passport’s bio data page and Indonesian Identity Card;·Applicant’s application for review of 12 September 2018, and the annexed decision record of 11 September 2018; ·Applicant’s ‘Pre-hearing information form’ forwarded to the Tribunal by email on 8 October 2023, in which he states as to his ‘Claims for protection’ that:I desperately need this protection because I feel no safer to live in my hometown. I will attach an evidence that relay to my application.and;·The administrative and movement records of the Department relating to the applicant.Claims for protection The applicant, in his protection visa application, made the following claims (as summarised) that:·On 3 May 2018, the applicant was drinking in a café in Lombok and a nearby group of men were drinking heavily and making a lot of noise. The applicant made some comments about the men making a lot of noise and that their behaviour was disturbing other people in the café;·One of the men overheard the applicant’s comments and together with his friends confronted the applicant indicating they were going to beat the applicant. The applicant then left the café and ran away;·The next day, a friend warned the applicant that the men from the café were looking for him and wanted to kill him. On hearing this, the applicant became scared and feared for his life, so he boarded a flight to Australia [in] May 2018;·The applicant fears returning to Lombok as he believes he will be killed by these men if he returns to Lombok;·The applicant did not seek help or report this incident to the police as he was afraid and wanted to quickly escape. He does not believe the police can protect him all the time; and·The applicant did not move to another part of the country because relocating would take a lot of preparation and he did not have enough time.Department interview