2014159 (Refugee)

2014159 (Refugee) [2024] AATA 3774 (6 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2014159

COUNTRY OF REFERENCE: Indonesia
MEMBER:Michael Simmons
DATE:6 August 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 August 2024 at 11:37am
CATCHWORDS
REFUGEE – protection visa – Indonesia – particular social group – victim of loan sharks – threats from debt collectors – physical assault – fear of black magic – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 September 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Indonesia, applied for the visa on 11 July 2018.
The applicant appeared before the Tribunal on 1 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.
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.
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a 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 the applicant in specifying, any particulars of their claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant faces a real chance of serious harm or a real risk of significant harm were he to return to Indonesia. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity and background
The applicant claims he is a citizen of Indonesia and that he originates from the village of [Village 1] in northern Bali. He has provided a copy of his Indonesian passport which supports his claimed identity. I accept that the applicant is who he claims to be, and that he is a national of Indonesia. Indonesia is the receiving country for the purpose of this assessment.
Protection claims
In the visa application, claims were presented pertaining to the applicant lending money from a loan shark. He stated that when his business failed he could not afford to repay the debt. He was beaten and harmed a number of times by a debt collector. The Indonesian authorities would not assist him and he cannot relocate within Indonesia as the loan shark will search for him. He decided to leave his country.
During the Tribunal hearing, the applicant told me he took out the loan to fund [a] farm in his village. However, the crop failed and he could not repay the debt. He added that the loan was for around 1 million rupiah, which he thinks was worth around $100’000. He obtained this loan in 2014. He has not had any contact with the loan shark since 2014. He has no documentation relating to this loan as it was a cash transaction.
The applicant also raised a new claim at the Tribunal hearing. He indicated that he is fearful of people in his village using black magic against him.
Consideration
The applicant confirmed to me at the outset that he prepared his visa application himself, that he was aware of its contents, and that he considered it to be complete and accurate.
Loan shark
The applicant’s oral evidence on key matters differed to the details set out in the visa application. He confirmed to me a number of times that he was never physically harmed in connection with the loan at any point, and that he only received verbal threats. When I noted that he wrote in his application he was beaten by the debt collector every time they came to ask for the money, he replied “they wanted to hit me but I ran away”. I pointed out that was not what was written in his application and asked him to explain this variation in his evidence. He responded, “maybe that was my mistake”. I have difficulty accepting that he would be mistaken about whether or not he endured multiple instances of assault as suggested in the visa application.
The applicant also indicated that his mother and siblings have not had any problems with the loan shark, because they told the debtor that they do not know anything about the loan. When I asked whether they were ever threatened or harmed by the loan shark, the applicant replied that “they have never said”. When I asked if he was worried about the safety of his family he responded that when he asked them how they are they indicated they are all fine. I noted the visa application states that the loan shark threatened the applicant and his family. He responded that maybe his family hid this from him and did not tell him. When I asked why that would be, he replied they are worried about him in Australia. I do not accept this contention that his family did not divulge being threatened to him, given it was the applicant himself who asserted that his family were threatened in the visa application. The applicant’s evidence on this point is not persuasive.
In the visa application, the applicant offered very few details in respect of the loan. He did not mention the amount, when it was taken out, or why it was taken out. When pressed during the hearing he provided this information. In the application he simply states that the loan was for a business which failed without any further elaboration. There is no suggestion in the application, such as in the section detailing his past employment, that he was ever a business owner. I note that he told me the loan was taken out to fund [a] farm on his family’s land in their village in 2014. I noted there is no mention of this [farm] in the application. Moreover, the applicant told me that from 2011 until coming to Australia in 2015 he was working at a [business 1] in [Town 1]. I noted that the farm was in his village in Northern Bali, a long way from the [business 1]. I asked how he was able to live and work in [Town 1] while also running [a] farm in his family village. He then told me that his mother was operating the farm. Given that, I asked why the loan shark would not pursue his mother to recover the debt. He replied that he was the one who took out the loan.
The applicant told me that the loan sharks have not contacted him since 2014. He indicated that he obtained his passport in [2015] in order to come to Australia to avoid the risk of harm from them. I noted that the applicant waited around 5 months after the issuance of his passport to depart Indonesia which was not suggestive of his claim to fear harm at this time. He claims that he was waiting to receive his Australian tourist visa.
I noted that the applicant arrived in May 2015 but did not apply for a protection visa until July 2018, and asked why, if he feared for his safety at that time, did he wait so long to do so. He suggested he did not know about protection visas at this time and that he found out about protection visas on social media about 6 months to a year before he applied. He also told me he was living in [Town 2] working on farms for around 3 years before he submitted his protection visa application. I put to him many people from Indonesia and Malaysia have been working in [Town 2] in recent years who have pending protection visa applications, and that given this I may have difficulty accepting he was unaware of protection visas for so long.
I queried why, even if the applicant was unaware of protection visas initially, would he not have explored his visa options much sooner if he was worried of for his safety should he be forced to return to Indonesia. He indicated that he had no friends at that time and did not know how to use technology. I noted that he told me earlier he became aware of protection visas via social media, which suggests he does have some abilities with technology.
The applicant has provided imprecise and shifting details in respect of the loan and the problems he claims stems from it. He has provided conflicting information about whether he was ever physically harmed and whether his family were ever threatened. He also offered an unpersuasive explanation for why he waited over three years after coming to Australia to apply for a protection visa despite claiming to fear harm in Indonesia at that time. In its entirety I did not regard his evidence on this subject to be persuasive. I do not accept that the applicant ever took out a loan with a loan shark, or that he or his family were ever threatened or harmed as a result.
Black magic
During the hearing the applicant stated that the thing he is most scared of is black magic. He told me that there is still black magic in his village, and that he believes it. If someone does not like him they may use black magic against him. He does not know if that has happened. He suggested that his father, who is deceased, may have been struck with black magic but he has not detailed information on this. I asked why, if the risk of black magic persists in his village, this is not mentioned at all in his visa application. The applicant stated that he was not thinking of it until recently.
When I noted that his mother and siblings continue to live in their village despite the risk of black magic the applicant replied that they are not scared. He then suggested that his [specified siblings] do not live in his village. I put to him that at the start of the hearing he confirmed that all of his siblings were living in his village. He replied that they are from his village, [Village 1], but not all of his siblings currently live there.
As the applicant indicated people who do not like him may use black magic against him, I sought to establish the possible identities and motivations of the individuals he may face this threat from. The applicant offered imprecise and unpersuasive answers to my questioning on this subject. When asked who may use magic against him, he replied “all my old enemies”. I asked if there was anyone he knows specifically who does not like him or whether he was speculating that this a simply a possibility. He replied that he had a fight with someone in the past. I noted that presumably this fight occurred when he was still living in Bali, and he agreed. I asked him why, if this person had such a grievance with him and he was fearful they may pursue him because of it, he would not mention this in his protection visa application. He indicated that was a mistake and he was not thinking about it then. I put to him that the fact he was not thinking of this issue at that time may suggest to me that he did not fear being harmed for this reason were he to return to his village.
I am not satisfied that the applicant is sincerely fearful of being harmed via black magic in Indonesia in the foreseeable future. He has provided very vague and unpersuasive details regarding this claim. He also did not provide a cogent explanation for why he waited so long to present this claim. If he genuinely feared he may be harmed by someone who he previously quarrelled with in his village in Indonesia, I do not accept that he would have failed to raise this claim in his protection visa application. I do not consider the applicant’s claimed fear from black magic in his village is credible.
Conclusions
The applicant confirmed that we had discussed all the reasons he fears returning to Indonesia and that he provided all the information he wanted me to know in relation to this assessment.
I have not accepted that any of the applicant’s protection claims are credible. For the reasons set out above, I do not accept that the applicant ever took out a loan with a loan shark or that he was ever threatened or harmed as a result. I do not accept that he sincerely fears he may be targeted with black magic by people from his village.
I am not satisfied that the applicant has a well-founded fear of persecution any s.5J(1)(a) reason. I am not satisfied that the applicant faces a real chance of serious harm in the reasonably foreseeable future for any reason were he to return to Indonesia. The applicant is not a refugee per s.5H.
A ‘real risk’ and ‘real chance’ involve the same standard.[1] For the reasons set out above the applicant also does not face a real risk of any harm, including treatment amounting to significant harm in Indonesia in the reasonably foreseeable future. I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.
[1] MIAC v SZQRB (2013) 210 FCR 505.
I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or 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.
Michael Simmons
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 3774

6 August 2024

Key Legal Topics

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

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