2012702 (Refugee)

2012702 (Refugee) [2024] AATA 4281 (19 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2012702

COUNTRY OF REFERENCE: Indonesia
MEMBER:Sheridan Aster
DATE:19 July 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 July 2024 at 3:25pm
CATCHWORDS
REFUGEE – protection visa – Indonesia – fear of money lenders – criminal gangs – economic conditions – period of unlawful residence – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 July 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is [an age]-year-old man from Banjarmasin on the island of Borneo, Indonesia. The applicant arrived in Australia [in] December 2013 on a Subclass 600 Visitor visa. That visa expired [in] March 2014 and the applicant remained in Australia unlawfully until he applied for protection on 26 July 2018. The delegate considered the applicant’s claims for protection to be unsubstantiated and refused to grant the visa.
The issue for determination is whether, based on what is accepted of the claims made and arising on the evidence, the applicant is a person to whom Australia has protection obligations. This involves assessing the credibility of the factual basis for the claims and assessing what is accepted against the applicable legal framework.
CLAIMS AND EVIDENCE
On the application for protection form, the applicant claimed to have departed Indonesia because he distrusted the judiciary, law enforcement and Indonesian government. He described the living conditions as harsh and said he borrowed money from relatives to survive. The applicant claimed that he lived in mental distress and fear. Many people who borrowed money had been hit, injured, or killed. The applicant expressed fear that if he returned to Indonesia he would be caught by gangsters and he could be beaten, injured, or killed. The authorities would not assist because they are corrupt.
The applicant’s response to the question ‘did you move, or try to move, to another part of that country to seek safety?’ is difficult to decipher:
I did not try to move to another part of the country because this is a matter of my parents and that time I in Australia until now to continue my studying, so the cases happend when I already in Australia.
The applicant identified as of Javanese ethnicity and Sunni Muslim faith. He declared that he could read, write and speak Indonesian and English. He listed his mother, father, [sibling] and daughter as family who remained in Indonesia. The applicant listed some vocational education, but the subject area or qualification was not stated.
On 24 June 2020, the delegate requested the applicant provide further information in respect to the claims. No response was received. Ultimately, the delegate did not accept that the applicant had substantiated any of his claims for protection and refused to grant the visa.
The applicant applied to the Tribunal for merits review of that decision. A copy of the delegate’s decision was provided to the Tribunal with the application for review. No further documentary evidence was submitted.
On 3 June 2024, the Tribunal asked the applicant to complete a Pre-hearing information form requesting information about his availability and further information about his claims for protection. No response was received.
The applicant appeared before the Tribunal on 19 July 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’s evidence at the hearing will be discussed below where relevant.
CRITERIA FOR A PROTECTION VISA
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.
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.
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).
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.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
ANALYSIS AND FINDINGS
At the hearing, the applicant gave evidence that he completed the application for protection form with assistance from a friend. He told that person he borrowed money, and they drafted the remaining details and claims. The applicant said he was not in debt and did not borrow money from relatives.
The applicant gave evidence that he is married with [number] biological children and one adopted child. At the date of the hearing, the eldest child was between [age range] and already married. The [other] children were in their [age range] and attending university and the youngest was still in school. The family live in Java.
The applicant completed high school and commenced university but was unable to complete the course. Between [specified years] he ran a [product 1] business in Bali. He explained that the business was originally successful, but business took a turn. He was provided with an advance of material by a supplier named [Supplier 1] and had to repay a debt to the value of [amount] Rupiah (approximately $[amount] AUD). He struggled to make repayments once business died down. The applicant said that debt collectors would damage the store when he failed to make repayments.
The applicant said he travelled to Australia to earn money. He wanted to continue working in Australia until his children had all finished school. He was motivated to apply for the current visa in 2018 because his employer required paperwork in respect to his entitlement to work.
The applicant said he had since repaid [Supplier 1] and no longer had debt. He works on a [farm] in Australia and sends money to support his family and pay for his children’s education in Indonesia. He expressed no fear in respect to his safety or rights in Indonesia. I accept the applicant’s evidence at the hearing to be true.
Refugee criteria
The applicant did not claim that he would be persecuted in Indonesia because of his race, religion, nationality, membership of a particular social group or political opinion.
The applicant gave evidence that he previously held employment in Indonesia and now has the benefit of experience working in Australia. While it may be difficult to find employment with a comparable wage to what he earns in Australia if he returned to Indonesia, he would not be prevented from doing so for any discriminatory reason.
I find that the applicant does not face a real chance of serious harm, now and in the reasonably foreseeable future, for any reason outlined in s 5J(1) if he were returned to Indonesia. I therefore find that the applicant is not a refugee within the meaning of s.5H and does not fall within Australia’s protection obligations under s.36(2)(a).
Complementary protection
As previously outlined, in order to fall within Australia’s complementary protection obligations, there must be 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 the applicant will suffer significant harm: s.36(2)(aa). 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).
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.
On the facts, there is no suggestion that the applicant would be arbitrarily deprived of his life or that the death penalty would be carried out on him. These elements are therefore not relevant to the applicant’s claims.
The definitions of torture, cruel or inhuman treatment or punishment and degrading treatment or punishment in s.5(1) of the Act require an element of intent. There must be an act or omission by which severe pain or suffering, or extreme humiliation, ‘is intentionally inflicted on a person’. As discussed with the applicant at the hearing, in this case the element of intent is not present. The general socio-economic situation in Indonesia is not one that was intentionally designed by an individual or the state to cause significant harm to the applicant. There is no intent on behalf of Indonesian society or the authorities to prevent the applicant from gaining employment, housing or social services that are available to other citizens for himself or his family. While the applicant may not earn a wage comparable to that he would earn in Australia, he would not face extreme humiliation and he is not in a position of vulnerability vis-à-vis the State.
Cruel or inhuman treatment or punishment and degrading treatment or punishment does not include an act or omission that is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights. The Complementary Protection Guidelines provide some commentary on certain circumstances which will generally not be considered inconsistent with Article 7. These include general socio-economic conditions, breach of social and economic rights, absence or inadequacy of medical treatment or imposition of treatment without consent, where that treatment is a medical or therapeutic necessity.[1] This policy supports a finding that the applicant’s claims do not amount to significant harm.
[1] Department of Home Affairs, Complementary Protection Guidelines, sections 3.4.7.1 and 3.4.7.2, as re-issued 29 February 2020. The Guidelines state that it is possible that, in exceptional circumstances, a state may breach Article 7 if it takes deliberate action against a particular person or group which causes severe socio-economic deprivation through the denial of shelter, food or the most basic necessities of life. Treatment may be more likely to breach Article 7 where the persons affected are vulnerable and wholly dependent on the state for their wellbeing: at section 3.4.7.1. Likewise the Guidelines state that in cases involving medical harm or mistreatment or absence of care, non-refoulement obligations would only arise in very exceptional circumstances: at section 3.4.7.2.
For the reasons above, I find that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia there is a real risk that he will suffer significant harm: s.36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of 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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Sheridan Aster
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.
…

[2024] AATA 4281

19 July 2024

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

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