1902677 (Refugee)

[2024] AATA 2751

1902677 (Refugee) [2024] AATA 2751 (18 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1902677

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Wayne Pennell

DATE:18 June 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 18 June 2024 at 2:18pm

CATCHWORDS

REFUGEE – Protection Visa – Indonesia – a failed businessman – owes debts to creditors – evidence is unreliable and lacks credibility – harm from the creditor in Indonesia – a significant delay – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65,424, 499

Migration Regulations 1994, Schedule 2

CASES

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

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 a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant the applicant a Protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]

   [1]The delegate’s decision of 30 January 2019.

2. The applicant, who is a citizen of Indonesia, applied for a Protection visa.[2] The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Indonesia, there was a real risk he would suffer significant harm, and his application was refused on the basis that he was not a refugee as defined by the Act[3] and therefore he was not a person in respect of whom Australia has protection obligations.[4]

   [2]The Department of Home Affairs received the applicant’s application on 19 March 2018.

   [3]Migration Act 1958 (Cth), s 5H.

   [4]Migration Act 1958 (Cth), s 36(2)(a), s 36(2)(aa).

3. The applicant filed an application (‘review application’) with the Tribunal to review the delegate’s decision.[5] He was not represented throughout the review process.

   [5]The Tribunal received the applicant’s review application on 6 February 2019.

4. On 1 May 2024, the Tribunal dispatched to the applicant’s email address a letter advising him that the Tribunal had considered all the material before it but was unable to make a favourable decision on that information alone. He was invited to attend a hearing in regard to his review application scheduled for 4 June 2024. Also included with that invitation was a ‘Response to hearing invitation’ template and he was asked to return the completed template to the Tribunal within seven days. He was also asked to provide all documents he intended to rely upon to support his application by 28 May 2024. He returned the completed hearing invitation template to the Tribunal on 21 May 2024, but did not provide any supporting documents, material or evidence.

5. The applicant appeared by video link at the time, date and place of the scheduled hearing and he was assisted throughout that process by an interpreter in both Indonesia and English languages. 

   CRITERIA FOR A PROTECTION VISA

6. The measures for a Protection visa are set out in the Act[6] and Schedule 2 to the Migration Regulations1994 (Cth). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[7] That is, the applicant 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.

   [6]Migration Act 1958 (Cth), s 36.

   [7]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).

7. The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[8]

   [8]Migration Act1958 (Cth), s 36(2)(a).

8. 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.[9] 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.[10]

   [9]Migration Act1958 (Cth), s 5H(1)(a).

   [10]Migration Act1958 (Cth), s 5H(1)(b).

9. The Act also provides that 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.[11] 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 the Act, which are extracted in the attachment to this decision.[12]

   [11]Migration Act 1958 (Cth), s 5J(1).

   [12]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.

10. If a person is found not to meet the refugee criterion in the Act,[13] that person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).[14] 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 expressly provided in the Act, which are extracted in the attachment to this decision.[15]

    [13]Migration Act 1958 (Cth), s 36(2)(a).

    [14]Migration Act 1958 (Cth), s 36(2)(aa).

    [15]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).

11. The Act makes provision for and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[16]

    [16]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).

12. Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[17]

    [17]Migration Act 1958 (Cth), s 36(2B).

    COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY

13. The applicant claims to be a citizen of Indonesia and provided a copy of his passport to the Department to authenticate this claim. The Tribunal accepts his identity and based on the evidence he provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Indonesia is his country of nationality and his receiving country for the purposes of the refugee and complementary protection assessments.[18]

    [18]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).

14. Based on the evidence, the Tribunal is satisfied the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that he is not excluded from Australia’s protection obligations.[19]

    [19]Migration Act 1958 (Cth), s 36(3).

    MANDATORY CONSIDERATIONS

15. In accordance with Ministerial Direction No. 84 made under the Act,[20] the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and the country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT Report’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    [20]Migration Act 1958 (Cth), s 499.

    MATTERS LEADING UP TO THE REVIEW HEARING

16. The applicant arrived in Australia on [date] March 2013 subject to the conditions of a Tourist (subclass 676) visa (‘Tourist visa’) which ceased on [date] June 2013. He did not depart Australia and remained as an unlawful non-citizen until he was granted a Bridging visa in connection with his application for a Protection visa that he lodged with the Department on 19 March 2018, which is five years after he arrived.

17. For completeness, the details of his migration record held by the Department is:

1 March 2013	Granted a Tourist visa.
[date] March 2013	Arrived in Australia.
[date] June 2013	Tourist visa ceased. The applicant remained on-shore as an unlawful non-citizen for almost five years.
19 March 2018	Lodged an application for a Protection visa.
3 April 2018	Granted a Bridging (subclass 030) visa C. Valid until 20 June 2018.
20 June 2018	Granted a Bridging (subclass 030) visa C. Valid until 27 June 2018.
27 June 2018	Granted a Bridging (subclass 030) visa C. Remains current.

1. As it has been identified, notwithstanding that he failed to depart Australia when his Tourist visa ceased, he did not lodge his application for a Protection visa until five years after he arrived in Australia. The issue and the circumstances of the delay are discussed in greater detail later in these Reasons.  

2. Within that application, he claimed that he left Indonesia because of a “failed businessman, heavy pressure from debts” which he owes to creditors. He went on to claim that he had conflicts with local authorities for opposing policies and he will be missed treated and will be ignored if he returned to Indonesia. He said that he did not seek help within Indonesia because he has no family financial support, and he went on to claim that he would be treated as a spy who returned to Indonesia and put on a blacklist.

3. Those claims as they are displayed with his application are (emphasis in bold added):

76

Why did you leave that country/those countries?

·    Failed businessman, heavy pressure from debts.

·    Family opposed to Indonesian government. Because any conflict to creditors/and local authorities.

·    Government had been ignored. Mistreated becoming very difficult for normal living standard.

·    Difficult to seek employment then family became under hardship.

·    Conflict many occasions with local authorities because opposing policies.

77

What do you think will happen to you if you return to that country/those countries?

·    Will be hardly mistreated, will be ignored. Watched, even treat as “spy” to return mainland.

·    Will not be given any chances for job seeking.

78

Did you experience harm in that country(s)? [applicant ticked Yes]

As discussed in clause 76/77 above.

79

Did you seek help within the country(s)? [applicant ticked No]

No family financial support.

80

Did you move, or try to move, to another part of that country/those countries? [applicant ticked No]

No financials

81

Do you think you will be harmed or mistreated if you return to that country/those countries? [applicant ticked Yes]

·    Will be mistreated/ignored/put in blacklist as a citizen return.

·    Possibly treat as “spy”, as living abroad many years.

82

Do you think the authorities of that country/those countries can and will protect you if you go back? [applicant ticked No]

Mainland government will not protect citizen like myself living few years abroad to return, even under watchlist.

83

Do you think you would be able to relocate within that country/those countries to an area where you would not be harmed? [applicant ticked No]

·    With my situations back in the country, will not have any chance for any part of the country.

·    No financial supports

1. On 3 April 2018, the Department wrote to the applicant and acknowledged receiving his application. In that letter, he was reminded that as his application form stipulated, all claims, supporting documentation and evidence should have been provided when he lodged his application.

2. Subsequently, he was invited to attend an appointment with the Department scheduled for 19 June 2018. The purpose of that appointment was so that he could provide his personal identifying particulars. He was also prompted that he could take to that appointment any material or evidence to support his claims. Although he attended the appointment, he did not provide any additional information, evidence or material to the Department.

3. After assessing the applicant’s application and his claims, the delegate made a decision on 30 January 2019 to refuse his application and he was provided with a copy of the delegate’s decision record. Subsequent to that, on 6 February 2019 he lodged his review application with the Tribunal, and in doing so, he provided the Tribunal with a copy of the delegate’s decision record.

4. In acknowledging the receipt of his review application, the Tribunal wrote to him on 11 February 2019 advising that if he wished to provide any material or written arguments for the Tribunal’s consideration, then he should do so as soon as possible. Specifically, the Tribunal’s letter provided:

   It is important that you:

   ·    tell us immediately if you change your contact details (such as your residential address, mailing address, telephone number, fax number or email address). If you have a representative or authorised recipient, it is also important that you inform them of any change in your contact details. If you do not, you might not receive an invitation to a hearing or other important information and your case may be decided without further notice;

   ·    tell us immediately if your personal circumstances change and this is relevant to the review of the decision;

   ·    use your case number 1902677 when you contact us.

   If you wish to provide material or written arguments for us to consider, you should do so as soon as possible.

5. On 1 May 2024, the Tribunal sent an email to the applicant and enclosed an invitation for him to attend a hearing scheduled for 4 June 2024, commencing at 9:30am. He was asked to complete the ‘Response to hearing invitation’ template and return the template to the Tribunal within seven days. He returned the completed template on 21 May 2014.

6. On the morning of the scheduled hearing, the applicant appeared before the Tribunal. He was not represented. Throughout the process of the applicant’s Protection visa application and his review application, both the Department and the Tribunal provided him with opportunities to provide evidence, material or information to support his claims for a Protection visa. He never responded to those opportunities, and apart from his oral evidence at the review hearing, he has not provided any evidence or other document or information to support his application.

   REVIEW HEARING

   Applicant’s evidence at the hearing

7. The applicant is from Pontianak in Indonesia. He declared to the Tribunal that both of his parents arrived in Australia about 10 years ago with one of his brothers. His parents had Visitor visas and his brother had a Student visa. Both of his parents overstayed their visas. Although his father has continued to remain in Australia, his mother has since returned to Indonesia where she is currently living. When discussing his brother who arrived with his parents, the applicant said that for some reasons his brother, who was on a Student visa, was persuaded by others to travel to Victoria to work. Because his brother continued working in Victoria and did not return to Queensland to study, he has since been issued with a Bridging visa. He clarified with the Tribunal that his brother is also seeking a Protection visa.

8. When discussing his own personal circumstances, the applicant said that since 2006 he has been married and his wife lives in Indonesia with their two children. He also has another brother and his two sisters who all live in Indonesia. He said that he maintains contact with his family in Indonesia and he speaks to his wife and children each week on a video call.

9. In regard to his education, he said that in 2004 he completed his schooling. He was aged [age] at that time. After finishing school he worked in a shop [for] about three years. He then claimed that he operated his own business and worked for himself. He described the nature of his business as meeting with agents in the city and get food produce from those agents. He would then take that produce out to the country areas and on-sell that produce. He operated that business by himself until he started to have children. His children were born in [Year 1 and Year 2]. He went on to describe that some of his buyers (customers) would ask for credit and had difficulties in paying him for the goods. It all became too hard for him to run his business so he closed down the business in 2012. He was unemployed for several months before he travelled to Australia.

10. The Tribunal finds that his evidence about him working in a shop for three years and then starting his own business, as well as when he said his business started is inconsistent with the information he provided within his application for a Protection visa. His application does not mention anything about him working for a shop [for] about three years after he finished school, instead it suggests that he finished school in 2004 and he started his own business in 2005. His oral evidence was that operated that business by himself until he started to have children, and his children were born in [Year 1 and Year 2]. This is also inconsistent with his application where he said that he was self-employed until 2013.

11. He told the Tribunal that he travelled to Australia in March 2013 because he was deep in debt to the agents who had provided him with the produce for his business. The agents sent debt collectors to see him. He claimed that there had been a threat against him, and he was told “If you don’t repay your debt, you will be killed”. When asked why he had not included that specific threat in his application, he said that he thought that he had included this in his application but he must have forgot to include it as part of his claims.

12. He also told the Tribunal that initially he was able to repay a little bit of his debt, but the debt collector was not happy about his inability to pay, and that is when the debt collectors visited his house looking for him threat was made. He then claimed that this is when he, along with his wife and children went in hiding in a remote place outside Pontianak. He then said that his wife still lives in that remote place. When asked to describe what he meant by ‘remote place’. He then said that it was a house “in the countryside outside the city of Pontianak”, and he nominated that it was at a place called [Place 1].

1. At a subsequent time in the hearing the Tribunal went back through his evidence with him and clarified what he had earlier said about he and his wife and children escaping to a remote location of [Place 1]. His earlier evidence was that his wife and children still lived at that location. Noting that he had said in Part B of his application that his wife and children all lived at the same address as his parents in Pontianak, when asked again about their whereabouts and if they still lived at that remote location, he then said that his wife and children no longer lived there, they now live in a place in Pontianak. When asked about how long he lived at that remote location with his wife and children, he said that it was for about four months leading up until to the time that he travelled to Australia. He then said that when he came to Australia, his wife and children moved to live with her mother in Pontianak. Shortly afterwards his evidence changed and he said that his wife lived with her mother for ‘some time’ before her mother helped her buy her own home, and that is where she and the children have been living for the past four to six years.

2. The Tribunal then discussed with him the information he included in his application about his family. In Part B of his application, he said that his wife, his mother and his father all lived at the same address, however in his evidence he also said that his wife lived in her own home which was purchased for her by her own mother. When asked why he indicated that his wife’s address was living at his parents’ address, he said that he used his ‘mum address’.

3. He was then asked about his father. Within Part B of his application, he included information to suggested that at the time of making the applicant his father was living in Indonesia, when in fact this was incorrect. The applicant told the Tribunal that his father was still in Australia, and after he arrived about 10 years ago he has remained onshore. Adjacent to that incorrect information about his father in the application was an Indonesia phone number. When asked about that phone number, he said that the number belonged to his mother and he put that number against his father’s name. When asked why he had not placed the same phone number against his mother’s particulars in the application, he said that he ‘forgot’.

4. Subject to section 424AA of the Act, his father’s migration history was then outlined to him which showed that his father had been an unlawful non-citizen from 2011 through to June 2018 when he also made an application for a Protection visa. The applicant’s own application for a Protection visa was lodged three months earlier in March 2018. When it was suggested to the applicant that the reason he indicated that his father was living in Indonesia was because he knew that his father was in Australia, and that at the time of him (the applicant) lodging his application, he knew that his father was an unlawful non-citizen. It was also suggested to him that he inserted the incorrect address into his application to mislead the Department about his father’s whereabouts. His response to the Tribunal’s suggestions were that his English was very poor and he made an honest mistake by saying that his father was living in Indonesia. Having regard to his evidence that he had been in constant weekly contact with his family in Indonesia, the Tribunal does not accept that he was mistaken about his father being in Indonesia, and therefore, the Tribunal is satisfied (and so finds) that the applicant’s evidence was unreliable and he was not a credible witness.

5. Throughout the application process, both the Department and the Tribunal provided opportunities to the applicant for him to provide material, information or evidence to support his claims. The Tribunal has already identified the inconsistencies in his oral evidence, and that his evidence was inconsistent with his application, and that he has provided new evidence at the hearing which had not been provided to the Department prior to the making of the primary decision. His excuses for providing new evidence or new claims was that he forgot, or that his English was very poor. When considering his excuses, along with the provisions of section 423A of the Act, the Tribunal is not satisfied that his excuses are reasonable and an unfavourable inference is drawn as to the credibly of that evidence. Apart from his oral evidence at the hearing, which is inconsistent with his application, there is no evidence that he was threatened by anyone, or that he and his family relocated because of that threat. The Tribunal does not accept his evidence that he was threatened to be killed, or that he relocated with his family to a remote location in Indonesia because of that threat and is satisfied (and so finds) that his evidence is unreliable and lacks credibility.

6. Within the protection claims made by the applicant in his application, he said that he left Indonesia because he was a failed businessman and he had been under heavy pressure because of his debts. He went on to claim that his family were opposed to the Indonesian government. When asked to explain that claim, he said that what he meant was that because he had no money, he could not oppose the creditors because they had plenty of money and they had government backing. When he was threatened by the debt collectors, he did not make a complaint to the Indonesian authorities because it was pointless because someone with no money like him would not be entertained by the police in taking a complaint from him.

7. When asked to explain that he meant by his comment that because he had no money it was difficult for him to find employment, he said that because he had debts that he had not repaid, this also made it difficult for him to find employment. When asked what he meant by his claim that he had on many occasions had a conflict with local authorities because of his opposing policies, he said that there was a difference in the preference given by the local authorities to those with money to those without money like himself. The Tribunal is satisfied (and so finds) that this claim and the evidence he gave about that claim are vague in so far as he does not identify who the creditors were or who or what political connection they allegedly had which would have made it difficult for him to make a complaint to the authorities. Although the Tribunal does accept that the available country information provides that corruption from petty day-to-day issues to examples of large-scale corruption within Indonesia is a longstanding issue, there has been no evidence provided by the applicant to support his claims about corruption.

8. When responding to the question about what did he think would happen to him if he returned to Indonesia, he claimed in his application that he would be harshly mistreated, and would be ignored. He also said that he would be watched, even treat as “spy” and would not have a chance to be employed. When asked about those comments in his application, he said that if he returned the creditors would look for him and make sure that he paid his debt, and he is sure that he will be mistreated and the creditor would make it difficult for him to find a job until he paid his debts.

9. In regard to him actually experiencing harm from the creditor in Indonesia, he outlined in his application that he had not experienced harm. When consideration is given to whether he could relocate to another part of Indonesia for his own safety, he confirmed in his oral evidence with the Tribunal that his application indicated that he did not try to relocate because he did not have the finances to do that. However, as it has already been identified in these Reasons, his oral evidence was that he and his wife did relocate with their children for their own safety to a remote area where they lived for four months. Although this evidence is inconsistent with the claims he expressed in his application, he also said that he did not encounter the debt collectors at that new location. The Tribunal also notes that it was not the applicant’s evidence or his claim that the debt collector continuously looked for him by seeking out his wife and his children, or indeed members of his own family or members of this wife’s family since he has been in Australia.     

10. Within his application the applicant was asked to respond to a question relating to whether he thought he would be harmed or mistreated if he returned to Indonesia. His response was that he would be harmed or mistreated, and he said that he would be ignored or put on a blacklist as a citizen who returned from being overseas for many years and possibly treated as a spy. Subject to section 424AA of the Act, details extracted from the DFAT Country Information Report on Indonesia were outlined to the applicant. That is, a failed asylum seeker is unlikely to be held or questioned by authorities and DFAT is not aware of any examples of this occurring. Although being allowed the opportunity to respond or make comment to that information, the applicant chose not to respond. When considering the country information, the Tribunal is satisfied that greater weight should be placed upon that country information as opposed to the applicant’s uncorroborated evidence and the Tribunal does not accept his claim that he will be mistreated and treated as a spy or a failed refugee if he returned to Indonesia.

    DELAY IN LODGING APPLICATION

11. When considering the applicant’s delay in lodging his application, the Tribunal is aware that a delay in applying for protection should not be the sole reason for doubting an applicant’s claims. There should be other reasons to support a finding that an applicant’s claims are not credible, and the significance of any delay will depend upon the particular circumstances surrounding the delay and the reasons given for the delay.[21]

    [21]Selvadurai v Minister for Immigration and Ethnic Affairs (1994) ALD 346: Anandaraj Subramanian v Minister for Immigration and Multicultural Affairs, unreported, Federal Court of Australia, Carr J, 10 March 1998.

12. The Tribunal was aware of certain information relating to the applicant’s migration history within the Department’s file, and because he was appearing before the Tribunal by way of an invitation,[22] his migration history was particularised to him subject to the provisions of section 424AA of the Act.

    [22]Migration Act 1958 (Cth), s 425.

13. That migration history showed that he arrived in Australia on [date] March 2013 subject to the provisions of a Tourist visa. That visa was valid for three months and his authority to remain in Australia was due to cease on[date] June 2013. When the Tourist visa expired, the applicant did not depart Australia and remained onshore as an unlawful noncitizen. It would not be until a further five years had passed before he lodged his application for a Protection visa on 19 March 2018. To be precise, his application was lodged with the Department five years and one week after he had arrived in Australia.

14. When carefully assessing the available material before the Tribunal, it is noted that the applicant has never taken the opportunity to explain in his Protection visa application, or in any material provided to the Tribunal why there was such a delay between his arrival in Australia and the making of his application. Nor has it been explained by him in his oral evidence at the hearing.

15. When offered the opportunity by the Tribunal to discuss that delay, he said the significant delay between his arrival in Australia to when he lodged his application was because he had been told by his friends that because he did not have a visa to stay in Australia, he could be arrested and sent home because he was unlawful in the country. He also claimed that he was not aware that a Protection visa application could be made.

16. When he was asked how he survived in Australia during the period when he did not have a visa to work, he said that when he arrived in March 2018 he did look for employment but got very little work. He stayed with his mother and younger sibling and they supported him. He went on to say that for a period of time his brother, his mother and father were unlawful non-citizens at the same time.

17. When carefully considering his evidence that all of his family members who were in Australia at that same time were unlawful non-citizens, the Tribunal does not accept that it was a plausible explanation that he would have been unaware that he could apply for a Protection visa, and the Tribunal is satisfied that his evidence in that regard was unreliable and without any credibility.     

18. In respect to any consideration given by the Tribunal about that delay, guidance is found by the determinations reached in Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997 (‘Subramaniam‘) where the Court held that even a three-month delay in lodging a Protection visa application is a legitimate matter to consider when assessing the genuineness or depth of an applicant’s fear of persecution. Therefore, when careful consideration is given to the delay of five years between the applicant’s arrival in Australia to when he made his application for a Protection visa, the Tribunal is satisfied (and so finds) that under the circumstances relating to the features of this case, that delay is a significant delay.

19. Careful examination of the applicant’s claims for protection revolve and when assessing the genuineness or depth of his fear of persecution should he return to Indonesia against all the known facts of this matter, including the significant delay, the Tribunal is satisfied (and so finds) that the significant delay can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm because a significant delay is not behaviour indicative of someone who fears for their physical safety.[23]

    [23] ZHANG SU RONG V REFUGEE REVIEW TRIBUNAL AND ANOR [1997] FCA 423; KAVAN V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS [2000] FCA 370, [22].

    CONCLUSION AND REFUGEE FINDINGS

20. The very nature of a review hearing is that the hearing is conducted from the beginning (anew) and the Tribunal is to review the material, information and evidence made available, and give a fresh consideration to all of that material, information and evidence and to make its own assessment and determination as to whether the applicant meets the criteria for the granting of a Protection visa. The Act provides that when the Tribunal is considering this matter, although it is not bound by technicalities, legal forms or rules of evidence; it must act according to substantial justice and the merits of the applicant’s case.[24]

    [24]Migration Act 1958 (Cth), s 420.

21. By its very character, a review hearing is also inquisitorial in nature, and although the Tribunal can seek out evidence it considers is required in order to reach a determination in this matter, the Tribunal is under no obligation to seek out evidence to support the applicant’s claims, even though it is entitled to do so.[25]

    [25]Migration Act 1958 (Cth), s 5AAA; ABT16 v Minister for Home Affairs [2019] FCA 836, [28].

22. There is no requirement placed upon the Tribunal to make the applicant’s case for him. It is his responsibility to specify all particulars of his claims to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish his claims. There is no obligation or responsibility on the Tribunal’s part to specify, or assist in specifying any particulars of his claims, or to establish or assist in establishing his claims,[26] nor is it required to accept uncritically any of the allegations he makes.[27]

    [26]Migration Act 1958 (Cth), s 5AAA.

    [27]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.

23. The mere fact that the applicant claims he has a fear of persecution for a particular reason does not establish either the genuineness of his asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because he claims that he will face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to significant harm. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out.

24. The definition of a refugee as provided within section 5H(1) of the Act explains that a refugee is a person who is outside their country of nationality or former habitual residence and is unable or unwilling to avail themselves of the protection of their country of nationality or to return to their country of former habitual residence due to a well-founded fear of persecution. The term ‘well-founded fear of persecution’ is defined in section 5J of the Act, and includes a requirement in section 5J(1)(a) of the Act that the person fears being persecuted for reasons

25. The issue in this matter is whether there are substantial grounds for believing that, as a foreseeable consequence of the applicant being removed to Indonesia, there exists a real risk that he will suffer significant harm or there is a real chance he would suffer serious harm on the grounds of him being threatened by debt collectors because he owed money to creditors, and that he would be considered a spy and a failed asylum seeker.

26. The applicant has been given opportunities by both the Department and the Tribunal to provide all of the details of his protection claims, and the initial Protection visa application form that he completed informed him that he should provide all of his claims for protection and all documentation or other evidence to support his claims. On 3 April 2018, the Department sent a letter to the applicant and acknowledged receiving his valid application. At that point he was told that he could provide additional information relating his claims, and he was advised how he go about providing that to the Department. The Tribunal is satisfied (and so finds) that there is nothing within the material before the Tribunal that shows that he ever provided any material, information or evidence to the Department to support or validate his claims.

27. When he filed his review application with the Tribunal, the Tribunal wrote to him on 11 February 2019 and he was told that if he wished to provide material or written arguments for the Tribunal to consider, then he should do so as soon as possible. Likewise to the above finding, there is nothing within the material before the Tribunal that shows that he ever provided any material, information or evidence to the Tribunal to support or validate his claims.

28. The claims he relies upon specifically relate to his allegation that he was threatened by what he referred to debt collectors, or someone who he owed money to, and he would be treated as a spy or a failed asylum seeker. Being threatened because of a business debt, and a claim that he would be treated as a ‘spy’ because he had spent a considerable amount of time out of Indonesia and was a failed asylum seeker do not fall within the ambit of the ‘persecution’ as defined in section 5J(1)(a) of the Act in that he has a well-founded fear of being persecuted because of his race, religion, nationality, membership of a particular social group or political opinion.

29. Therefore, after careful consideration of all the material available, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution as he does not fear that if he returns to Indonesia he will be persecuted for reasons prescribed in section 5J(1)(a) of the Act. The Tribunal is not satisfied that he is a refugee as defined in section 5H(1) of the Act and accordingly, the Tribunal finds that he is not a person in respect of whom Australia has protection obligations as provided for in section 36(2)(a) of the Act.

    COMPLEMENTARY PROTECTION CONSIDERATIONS

1. Having already concluded that the applicant does not meet the refugee criterion as provided by the Act,[28] the Tribunal has given careful consideration to the alternative criterion.[29] In considering the alternative criterion, an assessment was undertaken as to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Indonesia, there is a real risk that he will suffer significant harm as it is defined in the Act.[30]

   [28]Migration Act 1958 (Cth), s 36(2)(a).

   [29]Migration Act 1958 (Cth), s 36(2)(aa).

   [30]Migration Act 1958 (Cth), s 36(2A).

2. Significant harm is defined within section 36(2A) of the Act as the person will be arbitrarily deprived of his or her life; the death penalty will be carried out on the person; the person will be subjected to torture; the person will be subjected to cruel or inhuman treatment or punishment; or the person will be subjected to degrading treatment or punishment.

3. The Tribunal’s observations of the applicant’s claims are that the real risk he claims is the likelihood of him being harmed by a debt collector, or more so, someone who he owed money to, and that he would be treated as a ‘spy’ because he had spent a considerable amount of time out of Indonesia and was a failed asylum seeker

4. Section 36(2)(aa) of the Act provides that the relevant risk threshold in assessing complementary protection is that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia, there is a real risk that he will suffer significant harm if returned to Indonesia. The Courts have adopted the principle that the test for ‘real risk’ imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[31]

   [31]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.

5. Real chance was also discussed in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and the High Court said the expression ‘a real chance’ clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring.[32] The question of ‘real chance’ is the test to be applied on an application for a Protection visa under the Act when considering whether the applicant has a well-founded fear that they will face persecution for a Convention reason if returned to their country of nationality.[33] A person’s fear of persecution must be well-founded on the basis that there is a real chance that they will be persecuted if they return to their country of nationality. A real chance is one that is not remote, regardless of whether it is less or more than fifty per cent.[34]

   [32]Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 citing Boughey v The Queen (1986) 161 CLR 10, 21.

   [33]Migration Act 1958 (Cth), s 36(2)(a); Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 citing Regina v Home Secretary; Ex parte Sivakumaran (1988) AC 958.

   [34]Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.

6. When carefully assessing the claims made by the applicant, the Tribunal is not satisfied the harm the applicant fears could constitute either of the forms of significant harm as defined in section 36(2A) of the Act. The applicant has not claimed that he will be arbitrarily deprived of his life, or claimed that the death penalty will be carried out on him or that he will be subjected to torture. Nor is there any information before the Tribunal to indicate that he would suffer any of these forms of ‘significant harm’ in section 36(2A)(a)-(c) of the Act if he returned to Indonesia.

7. The Tribunal has also carefully considered whether the harm he claimed he feared could constitutes either of the other forms of significant harm in section 36(2A)(d)-(e) of the Act, that is ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’. Both of these forms of significant harm are defined in section 5(1) of the Act and require the act or omission of the perpetrator to inflict the requisite level of pain or suffering (for cruel or inhuman treatment or punishment) or to cause extreme humiliation (for degrading treatment or punishment) and be intentional.

8. The ordinary meaning of intention implies a plan or aim and the High Court found that intention requires a perpetrator to have an ‘actual, subjective, state of mind’.[35] When carefully considering the inconsistencies between the applicant’s oral evidence and his application, along with the vagueness of his claims and the lack of any tangible or probative evidence about him operating a business and owing money to creditors, the Tribunal is not satisfied that there is any actual perpetrator that would have an actual, subjective, state of mind. Therefore, the Tribunal finds that his claims about that business are not credible or reliable and the Tribunal is also satisfied (and so finds) that there were significant inconsistencies between his initial Protection visa application and the evidence he gave about this matter, as well as there being identifiable inconsistencies within his oral evidence which were purposely engineered or designed to achieve a specific outcome in regard to his refugee status.

   [35]SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34, [27].

9. Therefore, after having considered all of the applicant’s claims, individually and cumulatively, along with the evidence, the Tribunal does not accept that if he returns to Indonesia now or in the reasonably foreseeable future he will be arbitrarily deprived of life, the death penalty will be carried out on him, or he will be subjected to torture or to cruel or inhuman treatment or punishment, and nor will he be subjected to degrading treatment or punishment.

   CONCLUSION: REFUGEE CRITERION

10. Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds that there is not a real chance he will be persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group in Indonesia. The Tribunal finds that his fear of persecution is not well-founded as required by section 5J of the Act and, therefore, he is not a refugee within the meaning of section 5H of the Act.

    CONCLUSION: COMPLEMENTARY PROTECTION CRITERION

11. Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Indonesia, he will be exposed to a real risk of suffering significant harm.

    OVERALL CONCLUSION

12. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a) of the Act.

13. Having concluded that the applicant does not meet the refugee criterion in section 36(2)(a) of the Act, the Tribunal has considered the alternative criterion and the Tribunal is not satisfied that he is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.

14. There is no suggestion that the applicant satisfies section 36(2) of the Act based on being a member of the same family unit as a person who satisfies section 36(2)(a) or section 36(2)(aa) of the Act and who holds a Protection visa. Accordingly, he does not satisfy the criteria in section 36(2) of the Act.

    DECISION

15. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Wayne Pennell
    Senior 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.

    …