1834828 (Refugee)

[2024] AATA 2119

1834828 (Refugee) [2024] AATA 2119 (11 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1834828

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Paul White

DATE:11 June 2024

PLACE OF DECISION:  Sydney

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

Statement made on 11 June 2024 at 1:52pm

CATCHWORDS
REFUGEE – protection visa – Indonesia – political opinion – attended demonstrations during return visits – arrested and detained – information copied from friend’s application and claim discontinued at hearing – economic conditions and capacity to subsist – age, health, education and work record – long residence on variety of visas – birth of grandchild – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5J(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2

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

2. The applicant is aged [Age]. He is a citizen of Indonesia. He was born in [Town] [a] town on Flores Island, Indonesia. His mother and some siblings still reside on Flores. The applicant is married and has two children; a son aged [Age] and a daughter aged [Age]. The applicant’s wife and daughter now live in Denpasar on Bali and are supported by the applicant. His son lives in Australia. The applicant said he considers Bali, rather than Flores, home.

3. The Tribunal has been provided with a copy of the applicant’s application for a protection visa dated 29 May 2018 (PV application). The applicant was not invited to attend an interview with the delegate. The delegate refused to grant the visa on the basis that she was not satisfied there is a real chance of persecution for one or more reasons mentioned in s 5J(1)(a) of the Act or that there are substantial grounds for believing the applicant faces a real risk of significant harm.

4. The applicant appeared before the Tribunal on 21 May 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages. The applicant was not represented at the hearing. The applicant gave evidence about his background, his migration history, and his claims for protection.

   Background

5. The applicant worked as [an occupation 1]. He has been employed in several jobs in Australia since 2006. He worked as [an occupation 2] and then [an occupation 2] supervisor in Bali ([Years]- 2002; 2002-06 & 2010-13). He now lives with his son and daughter in law who married in Bali several years ago. He is not currently employed but cares for his [Age] grand[child] while the parent’s work. His son is employed by [Employer] and supports his father’s daily needs.

   Movement record

6. The applicant first arrived in Australia in 2006. He has entered Australia on 7 occasions on a variety of visas over the years. The applicant’s immigration history is set out in the delegates decision. The applicant explained at hearing he previously encountered some difficulty because of the cancelation of his sponsorship for employment but has not otherwise encountered difficulty.  His last arrival in Australia was [in] October 2017. He has a diploma in [Subject] from Australia.

   Claims to the Department

7. In the PV application, the applicant claimed that he returned to Indonesia from Australia in November 2014 and attended a demonstration. He claimed he was arrested and detained by police for two days. He claimed that in mid-April 2017 he attended another anti-government demonstration related corruption and unfair elections. He claimed he was arrested and detained for three days.  He claimed he attended another demonstration in mid-October 2017 and riot police attended but he escaped. He said he fears he will be arrested by government officials if he returns to Indonesia because he attended demonstrations relating to corruption and unfair elections.

   Tribunal hearing

8. At the Tribunal hearing I asked the applicant what difficulty he might expect if he went back to Indonesia within the next couple of months. The applicant said the problem is economic. He said there was no other reason that he could not return to Indonesia. He said it was a coincidence that he was in Australia when his son had a child, so he wanted to stay. He assists his son and daughter in law with the care of their child, his grand[child]. He said he heard he could apply for a visa that might enable him to stay here permanently so he applied for a protection visa. He said he was in Australia for economic reasons. He said if he could stay a little longer, he can continue to assist his son and his son’s wife while their child is young.

9. I asked the applicant whether he was aware of what was in this PV application. The applicant said he put in the PV application, and he was aware of what it said. He said the detail was a copy of a friend’s application. The applicant said he had not been involved in demonstrations, detained, or arrested in Indonesia.

10. The applicant said he was not involved in any politics in Indonesia or Australia. He was not really updated on political matters so was not sure if the new Indonesian government worked well. He said he had little knowledge of political matters.

11. The applicant said he was in touch with his family in Bali regularly. He said spoke to his wife about the protection visa application. She told him that he should answer honestly at the Tribunal hearing, and he has done so. The applicant said he is in fine health.

    RELEVANT LAW

12. 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.

13. 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.

14. 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).

15. 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.

16. 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

17. 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

18. The applicant was born in [Town] on Flores Island, Indonesia and is a citizen of Indonesia. He provided a copy of his passport which was issued [in] 2018. He has consistently claimed that he is of Indonesia nationality, he spoke Bahasa Indonesian fluently and he is familiar with the geography and culture of Bali and Flores. I am satisfied that the applicant is a citizen of Indonesia and that Indonesia is the receiving country for the purpose of s.36(2)(aa) of the Act.

19. The issue in this case is whether there is a real chance that the applicant will face persecution in Indonesia for one or more of the reasons covered in 5 J(1)(a) of the Act or a real risk that he will suffer significant harm if removed from Australia to Indonesia. The applicant initially claimed he has a fear of persecution by reason of his political opinion or his imputed political opinion. For the following reasons, I have concluded that the decision under review should be affirmed.

20. I found the applicant a credible witness.  I accept the information he clarified at the hearing in full.

21. Based on the applicant’s evidence at hearing I find he was not involved demonstrations and he was never arrested or detained in Indonesia. I find he was not involved in any events of a political nature in Indonesia or in Australia that would give rise to a claim based on his political opinion or imputed political opinion. I therefore find he faces no real chance of serious harm and that he would not be persecuted by the authorities for reason of his political opinion. He has raised no other grounds that would bring him under 5J(1)(a) and none are apparent from his claims. In view of the above, I am not satisfied that the applicant faces a real chance of serious harm should he return to Indonesia in the reasonably foreseeable future. It follows that I am not satisfied that the applicant has a well-founded fear of being persecuted within the meaning of the Act.

22. I accept that the applicant prefers to remain in Australia for as long as he is permitted where he likes the lifestyle and can be close to his son, daughter-in-law, and young grandchild. I accept his reasons for not wanting to return to Indonesia are economic. However, I find that based on his personal circumstances, good work record, work experience and previous earning capacity, education standards, age, and good health that he would be able to subsist in Indonesia. He has family support in Bali, which he considers home rather than Flores. I do not accept that the applicant faces a real risk of significant economic hardship that threatens his capacity to subsist, nor do I accept that he faces a real risk of being denied the capacity to earn a livelihood where the denial threatens his capacity to subsist. I find the applicant will be able to support himself financially if returned to Indonesia. As such, I am not satisfied the applicant faces a real risk of significant harm now or in the reasonably foreseeable future should he return to Indonesia.

23. 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).

24. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa). I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

25. There is no suggestion that the applicant satisfies s 36(2) based on 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

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

    Paul White
    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.

    …