2013434 (Refugee) - [2024] AATA 3857

2013434 (Refugee) [2024] AATA 3857 (18 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2013434
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Christine Cody
DATE:18 August 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 August 2024 at 11:36am
CATCHWORDS
REFUGEE – protection visa – Indonesia – non-appearance before the Tribunal – application dismissed – application for reinstatement – religion – Hindu – target of forced conversion – insufficient information before the Tribunal – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 425, 426A, 441A
Migration Regulations 1994 (Cth), Schedule 2
CASES
BZADA v MIC and RRT [2013] FCA 1062
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 August 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant claims to be a citizen of Indonesia. He departed legally from Indonesia [in] December 2017, arrived in Australia [in] December 2017[1] holding a Visitor visa. He applied for the protection visa on 12 January 2018.
[1] In the application form the date of arrival was referred to as [date] December 2018; this appears to be an error because in all other places in his application form he states that he was in Indonesia until December 2017 and since that time he has been in Australia. The Tribunal accepts that he meant to state the date of arrival as [date] December 2017.
Relevant law is set out in Annexure A.
Claims made to the Department
The applicant provided his protection visa application form, and some of the pages of his passport issued [in] 2015 (valid [until] 2020), and the bio page of his passport issued [in] 2020, valid [until] 2025.
According to the protection visa application form, the applicant was born in Indonesia and he is [age] years of age. His ethnicity is Indonesian, and his religion is Hindu. He speaks, reads and writes in Indonesian. He was educated, completing high school, in Bali. He married in 2009.
He lived at a single address all of his life in Bali, until he left Indonesia in December 2017. His wife and [children] still live at the same address.
He has not travelled to any other country.
He sets out his employment history as follows:
· July 2002-July 2007: [Occupation 1] in a [business] in Bali
· August 2007-June 2014: self employed as a [Occupation 2] in Bali

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading 2013434 (Refugee)

Details

AGLC: 2013434 (Refugee) [2024] AATA 3857
Case: [2024] AATA 3857
Decision Date: 18 August 2024

CaseChat Overview and Summary

This matter concerned an application for a protection visa by an Indonesian national. The applicant claimed to fear persecution in Indonesia due to his Hindu religion, alleging he was targeted for forced conversion by Muslims and had been threatened with death. The Administrative Appeals Tribunal (AAT) reviewed the delegate's decision to refuse the visa.

The primary legal issues before the AAT were whether the applicant met the criteria for a protection visa under section 36(2) of the Migration Act 1958 (Cth), specifically whether he was a refugee due to a well-founded fear of persecution, or alternatively, whether Australia had protection obligations under the complementary protection criterion. A key procedural issue was the applicant's failure to attend a scheduled hearing before the Tribunal and his lack of explanation for this non-attendance.

The Tribunal affirmed the delegate's decision to refuse the visa. The AAT reasoned that the applicant had failed to provide sufficient information or evidence to substantiate his claims of persecution. Despite multiple opportunities, the applicant did not respond to requests for further details regarding the alleged harm, including evidence of reporting the incidents to authorities or attempts to relocate within Indonesia. The Tribunal noted that it is the applicant's responsibility to present their case and provide supporting evidence, and a decision-maker is not obliged to construct the case for the applicant. Furthermore, the Tribunal found no country information to support the claim that Hindus in Bali, a province with a Hindu majority, were targets of forced conversion by Muslims. The applicant's failure to attend the hearing, without providing any reason or seeking a postponement, meant the Tribunal could not test his claims and was unable to reach the requisite level of satisfaction required to grant a protection visa.

Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The applicant did not seek a postponement of the rescheduled hearing, he did not specify what documents he sought to produce nor did he say why he had not produced them to date. The applicant did not respond to the hearing invitation and did not appear before the Tribunal on the day and at the scheduled time and place of the hearing. There is also no record of the applicant contacting the Tribunal by any other means at the scheduled time, or before or after, to explain why he did not attend the hearing. The applicant had been asked to provide his telephone number to the Tribunal but had not responded to this request. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing on 15 August 2024 and the invitation has not been returned to sender. He has not provided any reason for his non-attendance. In these circumstances, and pursuant to s 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.CONSIDERATION OF CLAIMS AND EVIDENCECountry of reference The applicant produced his passport to the Department, and the Department accepted that he was a citizen and national of Indonesia and assessed his claims against Indonesia. The Tribunal is prepared to accept, for the purposes of this decision, that the applicant is a national of Indonesia, and that the appropriate country of reference for the assessment of the refugee claims, and the receiving country for the purposes of the complementary protection claims, is Indonesia.Satisfaction of claims The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to 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. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169–70). In the circumstances where an applicant does not attend a hearing to which he is invited, the Tribunal also notes the decision of the Federal Court in BZADA v MIC and RRT [2013] FCA 1062, where Rangiah J held at [21]:As his Honour correctly found, the Tribunal was unable to reach the requisite level of satisfaction to grant the applicant a visa given his failure to attend the hearing and the Tribunal’s inability to test and examine his claims in evidence. The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.

Decision

Reasons for decision

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.Christine CodyMemberANNEXURE A - 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

Ratio Decidendi

Legal Principle Established

His claims are summarised below:· He left Indonesia to avoid a risk of being harmed because of his religion. Muslims want to control Indonesia. He was harmed by Muslims when they knew his religion.· One day in mid-June 2017 he was stopped by several Muslims in front of his home and they started to beat him after he refused to change his religion to Muslim. They even threatened to kill him and he was very scared and he believes that he will be harmed if he returns to Indonesia. · He did not seek help because he did not know who can help him.· He did not try to relocate because there is no safe place for him in Indonesia.· He cannot seek help because no one helped him previously when he was harmed by Muslims. · He would not be able to relocate within Indonesia because Muslims are the largest religious group in Indonesia. Consideration by the Department The delegate noted that the applicant had had numerous opportunities to provide details of his case but he did not do so:The applicant has been given the opportunity to specify the particulars of their claims for protection. The application form they completed advised them that they should provide all of their claims for protection and documentation or other evidence to support their claims with their application and that a decision could be made without giving them an opportunity to provide further information.On 8 February 2018, the applicant was sent an acknowledgement of valid application letter which advised that they could provide any additional information that they would like to be considered. This letter advised the applicant that the decision on their application could be made without another opportunity to present any further information at an interview.On 2 July 2020, the applicant was sent a Request for Further Information letter. This letter informed the applicant that a decision on their application could be made without the Department taking any further action to obtain that information.On 14 July 2020 the applicant submitted a Form 1022 – Notification of changes in circumstances, along with a digital scan of a newly issued Indonesian passport. The applicant provided no responses to the request made to him on 2 July 2020[2]. [2] Source: delegate’s decision record provided to the Tribunal by the applicant The delegate’s decision record contained reasons for the refusal of the application: In a letter dated 2 July 2020 the applicant was asked to provide additional detail and evidence about the harm he claimed occurred to him in Indonesia, including any evidence that he approached the police.As of the time of decision the applicant has not responded to this request.The lack of a response to this letter to address these issues suggests that the applicant’s situation is not as described in their application. This raises concerns that these claims are not credible.The applicant has provided no further detail or documentary evidence of the harm or threats made against him. The lack of supporting evidence and detailed information about the applicant’s claims raises concerns that the claims have been fabricated or embellished in order to enhance his claims for protection.Despite thorough searches of country information I have found no information indicating that Hindus living in Bali, a province with a Hindu majority of over 80%, have been the target of forced conversion from Muslims. The applicant has provided no country information indicating that forced conversions occur in Bali. Given the prevalence of country information relating to inter-religious conflict in Indonesia, I would expect that if forced conversions of Hindus to Islam did occur, that this would be reported upon…..