2014285 (Refugee)

2014285 (Refugee) [2024] AATA 3884 (21 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Alim Lim
CASE NUMBER:  2014285
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Rachel Da Costa
DATE:21 August 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 21 August 2024 at 10:03am
CATCHWORDS
REFUGEE – Protection Visa – Indonesia – loan sharks – absence of corroborative evidence to support his claims – Tribunal does not accept that the loan exists – delay in applying for protection in Australia – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 56, 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 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 16 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 is a citizen of Indonesia, applied for the visa on 7 September 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
Background
In his protection visa application form, the applicant provides the following relevant information. He is [age] years old and was born in[Bali], Indonesia. He is an Indonesian citizen and speaks, reads and writes Indonesian and English.
In Indonesia, he has his parents with whom he is in regular contact by phone. In Indonesia, he always lived at the same address [in] Bali. He completed school in Indonesia in June 2006. From July 2006 to August 2008, he worked as an [occupation] in Denpasar, Bali.
He last arrived in Australia in August 2008 as the holder of a Student visa. He travelled on his Indonesian passport.
Evidence before the Department
In his protection visa application form, the applicant makes the following claims for protection:
·     One day, he was hanging out with his friends at a club. A friend of his accidentally bumped into a lady while dancing;
·     A group of gangsters accosted them and started yelling at them and attacked them with kicks, punches, sticks and knives;
·     The gangsters had connections with prominent figures;
·     The group of friends were severely beaten and some were hospitalised;
·     The gangsters knew where the applicant lived and continued to beat and threaten him. Once they tried to drown him and they destroyed his house;
·     His friends and their families tried to report the gangsters to the authorities but nothing happened because the gangsters had connections
·     The applicant had to hide and not go out;
·     The gangsters will be able to find him wherever he goes in Indonesia;
·     His family decided to send him to Australia for a better life.
As set out in the delegate’s decision, the Department wrote to the applicant inviting him to comment on potentially adverse information which included why the applicant did not apply for a protection visa until he had already been in Australia for 10 years and until seven years after he last held a visa in Australia. The applicant did not respond to the Department’s letter.
The delegate’s decision
On 16 September 2020, the delegate made their decision. Based on the information before them, the delegate was not satisfied of the credibility of the applicant’s claims and found that the applicant is not a person in respect of whom Australia has protection obligations.
Evidence before the Tribunal
Application for review
The applicant applied to the Tribunal for a review of the delegate’s decision on 22 September 2024 and provided the Tribunal with a copy of the delegate’s decision.
Documents provided to the Tribunal
On 1 August 2024, the applicant’s representative provided the Tribunal with written submissions on behalf of the applicant. It is submitted that the applicant arrived in Australia in 2008 on a Student visa which expired in 2010, after which time he remained in Australia unlawfully until 2017. In 2018, the applicant became aware of the possibility of applying for a protection visa and lodged an application.
It is submitted that the basis for the applicant’s claim for protection is as follows:
·     The Indonesian authorities failed to adequately protect the applicant from violent debt collectors known as loan sharks;
·     The loan sharks targeted the applicant due to his inability to repay debts;
·     This led to a series of violent encounters that culminated in a brutal attack;
·     The loan sharks travelled to Sydney from Indonesia specifically to physically attack the applicant;
·     Their aggression was severe, resulting in the applicant being physically assaulted and losing most of his front teeth;
·     The assault caused the applicant physical and psychological pain;
·     The applicant fears returning to Indonesia because the authorities will not be able to protect him from the loan sharks.
The submissions refer to relevant law applying to the refugee and complementary protection criteria in the Act, as well as referring to an article and the current DFAT Country Information Report Indonesia[1] which refer to the problems some Indonesians experience when they borrow money from unlicensed lenders. It is submitted that the applicant cannot relocate within Indonesia because the loan sharks will be able to find him and he did not seek protection from the authorities due to a profound lack of confidence in the effectiveness of law enforcement.
[1] 24 July 2023 (DFAT Report)
On the day of the hearing, the applicant provided the Tribunal with a copy of an undated close-up photograph of his face in which he is smiling and appears to be missing his four upper front teeth.
After the Tribunal hearing, on 8 August 2024, the applicant provided a copy of a document which he states is evidence of him transferring money to Indonesia in repayment of his debt. The details of this document is considered further below.
The hearing
The applicant appeared before the Tribunal on 6 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.
The applicant was represented in relation to the review and his representative attended the hearing. The Tribunal is satisfied that the applicant had the opportunity to participate in the hearing in a meaningful way.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Analysis, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In the Tribunal hearing, the Tribunal discussed with the applicant his family, education and employment background, his migration and visa history, his life in Australia and the reasons he claims to fear returning to Indonesia.
It is the responsibility of the applicant to specify all particulars of his 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.[2] Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant.[3] In this case, the applicant has had the benefit of his lawyer’s representation and advice prior to, during, and after the Tribunal hearing. He has had the opportunity to present his claims and evidence as he saw fit and it is the Tribunal’s role to decide whether his claims have been made out based on the evidence presented. As discussed below, the Tribunal has concerns about the lack of independent corroborative evidence to support aspects of the applicant’s claims in circumstances where it would expect some corroborative evidence to be available. The Tribunal also has concerns about the credibility of aspects of the applicant’s claims. For the reasons explained below, based on the evidence before it the Tribunal is not satisfied of the applicant’s claims for protection.
The applicant’s protection visa application form
[2] s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510.
[3] MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70; Migration and Refugee Division Guidelines on the Assessment of Credibility July 2015.
In the Tribunal hearing, the applicant gave evidence that his friend from [Country 1] called [Mr A] helped him to fill out his protection visa application form. The applicant said he told [Mr A] the reasons he fears returning to Indonesia but he doesn’t know what [Mr A] wrote in the form. After the applicant signed the application form, [Mr A] said he wrote something that would enable the applicant not to be sent back to Indonesia. The applicant signed the form despite not being sure whether it contained the information he had given [Mr A] “because he did not know what he was supposed to do”. Later in the hearing, the Tribunal summarised for the applicant the claims for protection contained in his protection visa application form (as set out in paragraph 6 above) and asked him whether they were true. He said they were not. He said he was just told to sign the form. He said he told [Mr A] he was scared to go back to Bali because he had a debt and was hit when he was in Australia.
The Tribunal accepts the applicant’s evidence that the written claims for protection in his protection visa application form are not true and so the Tribunal will not consider these claims further. However, the Tribunal put to the applicant its concern that he made a protection visa application despite not being sure at the time whether the information included in his form was true, and he then told the Tribunal a new and different story in the hearing. The Tribunal put to him that this potentially undermined his credibility and might lead the Tribunal to find he is a person who is prepared to provide untrue information in order to obtain a migration outcome. The applicant responded that the information he gave [Mr A] is different from what [Mr A] wrote down and what he told the Tribunal in the hearing is true. Given the Tribunal’s other concerns about aspects of the applicant’s claims and evidence discussed below, the applicant’s explanation does not fully assuage the Tribunal’s concerns.
The applicant’s new claims
In the Tribunal hearing, the applicant gave evidence about his background. He said that until he came to Australia, he always lived with his parents in Bali. After finishing school he helped his parents on the family farm and spent time with friends. He came to Australia in 2008 on a Student visa to study. He started his studies but did not complete them because he didn’t have the financial support from his parents to pay the fees. His visa expired in 2010 and he remained in Australia unlawfully. During this time, he did some work and spent time with friends. He did not return to Indonesia because he was worried about disappointing his parents as they had supported him. The Tribunal is prepared to accept this evidence.
The applicant gave evidence that he applied for a protection visa because he borrowed money from an Indonesian loan shark through a friend of his. The applicant claimed in the hearing that:
·     In 2017, he borrowed Rp 300 million from a loan shark called [Mr B], who is Indonesian;[4]
·     The applicant arranged this loan through an Indonesian friend in Australia called [Mr C]. [Mr C] went back to Indonesia and brought the cash back with him to Australia;
·     The applicant borrowed the money to cover his living expenses in Australia because he was an unlawful non-citizen and it was hard to find work;
·     In August 2017, someone connected to [Mr B] came to Australia and one night when the applicant was walking home in [Suburb 1], Sydney, this person approached him with [Mr C], demanded money in repayment of the debt and when the applicant said he did not have any money, this person punched him and knocked out his teeth;
·     The applicant did not report this incident to the police or seek medical or dental treatment because his status in Australia was illegal;
·     In 2018, he found out through a [friend] that he could apply for a protection visa. This friend told the applicant if he applied for a protection visa he can stay in Australia. That is all the friend told him and this was the first time the applicant found out about applying for a protection visa;
·     Last month, because the applicant had not made a repayment, people connected to the loan shark came to his parents’ house in Bali to look for him and to see if he had returned to Bali;
·     The applicant fears returning to Indonesia because he has not yet paid off his debt;
·     He worries that if he returns to Indonesia he will be beaten and killed because he hasn’t paid his debt.
[4] At 2017 exchange rates, this would make the loan in the order of AUD$30,000 Indonesian Rupiah to Australian Dollar Exchange Rate Chart | Xe (accessed 13 August 2024)
In the hearing, the Tribunal explored aspects of the applicant’s story with him in detail. The applicant gave evidence that he has no evidence of the loan. It is not documented. He said the interest rate is 10% per month and the length of the loan is until it is paid off, which the Tribunal confirmed with him means it does not have an end point by which it is to be paid off.
The loan was arranged through the applicant’s friend [Mr C], who knows [Mr B]. The Tribunal expressed its doubts about why a loan shark, which is a business, would loan the applicant such a large amount of money when the applicant was living in a foreign country, did not have a job, and without doing any checks on his ability to repay the loan. The applicant responded that the loan shark did not know he didn’t have a job. The applicant just asked to borrow the money. He speculated that maybe the loan shark thought he had a job in Australia. He said that in the first two months after receiving the loan he paid money so the loan shark believed him and [Mr C] told them that he worked, and this is why they gave him so much money. [Mr C] returned to Indonesia in 2018 which is the last time the applicant saw him.
The applicant initially claimed he had not made any repayments of the loan because at the time he did not have work. He then said he has paid off a little bit of the loan, and then claimed he has repaid about half the loan so he now owes about Rp150 million (around AUD $16,000). He has not made regular repayments because his work has not been reliable and he has to pay for rent and food and his father is unwell so he is paying medical bills. The last repayment he made was three or four months ago. The applicant gave evidence that in Australia, he has worked on farms and he is currently working part time, [helping] a friend.
The applicant has no independent evidence of the loan, nor the amount he claims to still owe on the loan, nor that he has made repayments of around Rp150 million. He said that he makes repayments through a friend called [Mr D], who is also from Bali. He gives [Mr D] cash and [Mr D] transfers the money to Indonesia. The Tribunal asked the applicant whether [Mr D] would confirm his story if the Tribunal spoke to [Mr D]. The applicant said he did not know. He said [Mr D] knows about the loan shark debt but not about the 2017 assault (referred to below).
During the hearing, the applicant claimed that he had evidence on his phone of having made funds transfers which he had not provided to the Tribunal and so the Tribunal gave him the opportunity to provide this evidence. After the hearing, the applicant provided what appear to be screenshots of two funds transfers. These screenshots are undated so it is not clear to the Tribunal when the transfers were made. One transfer is for the equivalent in Indonesian rupiah of AUD$99.99 and the other for the equivalent of AUD$198.99. The sender is named as “[name]” and the receiver is named as “[name]” in Indonesia.
The Tribunal asked the applicant whether he had experienced any problems in connection with the loan. He said there was one incident. In August 2017, he was living in [Suburb 1]. One night he was walking home from work and he met [Mr C] who was with a person the applicant did not know. This person asked the applicant for money because he had not repaid his debt. The applicant said he did not have any money and suggested the person could kill him if he wanted to because he doesn’t have money. The person punched him in the teeth. The applicant claims this person was a friend of [Mr B] who came to Australia looking for him via [Mr C]. The applicant says he has no evidence to prove that this event took place. He did not report the incident to the police and he did not seek medical or dental treatment because he was afraid due to his illegal status. He also did not take any photos because he was scared. The applicant said that the photograph he provided to the Tribunal of him missing teeth was taken one month ago. In 2023, he had dental treatment after he had saved up to get false teeth.

The applicant also claims that a person called [Mr E], who is connected to [Mr B], went to his father’s house in Bali last month because the applicant had not made a loan repayment last month. The applicant said the reason for the visit was that the loan shark people wanted his father to know that if the applicant came back to Bali they would be demanding money from the applicant. At another point in the hearing, the applicant said that his parents don’t know about his problem with the loan shark and all [Mr E] did was ask his father about the applicant’s whereabouts. His family has not had any other problems in Bali.
The Tribunal asked the applicant why he didn’t apply for a protection visa until more than one year after the assault in [Suburb 1] took place given he feared returning to Indonesia. The applicant responded that it wasn’t until later that he first heard about a protection visa from his friend. If he had known earlier, he would have applied. The Tribunal expressed doubt about why he didn’t make inquiries himself earlier and pointed out that he had some knowledge of the Australian migration system given he had come to Australia as a student and was aware by the time of the 2017 assault that his status in Australia was illegal and had been for some time. The applicant responded that he did not know about a protection visa and he didn’t have many friends and reiterated that he only found out in 2018 from his friend, so that is when he applied.
The applicant gave evidence that he wants to stay in Australia for a couple more years to pay off his debt and then he intends to return to Indonesia and live with his parents. The Tribunal put to him that if it accepted his story, it might find he could return to Indonesia and keep working and simply pay the debt off more slowly, given his evidence that the loan has no end point. The Tribunal put to the applicant that provided he was repaying the debt the loan shark would have no reason to harm him. The applicant agreed but said he does not want to do that because he wouldn’t be able to earn as much money in Indonesia and so paying off the debt could take a long time.
Towards the end of the hearing, the Tribunal asked the applicant’s representative whether he wished to make any submissions on the applicant’s behalf or whether there were any issues the Tribunal should cover in the hearing which it had not already. The representative asked the Tribunal to discuss the issue of relocation within Indonesia with the applicant, which it did. The Tribunal also gave the applicant several opportunities during, at the end of, the hearing to raise any other relevant matters which had not already been discussed.
As discussed with the applicant in the hearing, the Tribunal has a number of concerns about the claims for protection he articulated in the Tribunal hearing. As an overarching concern, the Tribunal put to the applicant its concern about the absence of corroborative evidence to support his claims and that it might have difficulty believing parts of his story. The applicant declined to respond. The Tribunal’s concerns are set out below.
First, the absence of independent corroborative evidence about the existence and terms of the loan is a concern for the Tribunal. While the Tribunal accepts that for various reasons it is not always possible or practicable for an applicant to have documents to support their claims for protection,[5] the applicant’s evidence in this case is that the loan is undocumented and it has no defined term or end point. While the Tribunal would not expect a loan such as that which the applicant claims to have taken out to be documented to the same extent as a loan from a bank or other registered financial institution, the Tribunal would expect that for a loan for the equivalent of around AUD$30,000 there would be some kind of basic documentation to prove the loan’s existence and terms, or perhaps a repayment schedule. The lack of corroborative evidence (other than the money transfers, which are dealt with below) about the existence of the loan, its terms and duration, raises a concern for the Tribunal about whether the loan truly exists. Further, the applicant has not provided evidence from witnesses who might be able to support his claim. For example, having mentioned [Mr D] and their knowledge of the loan and assisting with repayments, neither the applicant nor his representative requested that the Tribunal attempt to contact [Mr D] and nor did the applicant or his representative offer to provide a written statement from [Mr D] after the hearing (or, indeed, prior) to support the applicant’s claims despite the Tribunal expressing concern about the lack of corroborative evidence. As discussed above, it is the applicant’s responsibility to provide evidence to establish his claim and he has had the benefit of legal representation in relation to his review. In the circumstances, the Tribunal infers that [Mr D]’s evidence would not have assisted the applicant in establishing his claim, and the absence of corroborative evidence adds to the Tribunal’s doubts about the credibility of his claim.
[5] [196] and [197]
Secondly, the Tribunal finds the applicant’s evidence that while in Australia he arranged the cash loan through his friend [Mr C], from a loan shark in Indonesia, for what is a substantial amount of money to assist with his cost of living in Australia and the loan shark did not make any inquiries with the applicant about his ability to repay the loan or seek some kind of guarantee or collateral, difficult to accept. Further, the applicant’s evidence that in the first two months after receiving the loan he made repayments which is part of the reason the loan shark loaned him so much money, does not make sense as an explanation as the money had already been loaned. The applicant’s speculation that perhaps the loan shark thought he had a job in Australia and [Mr C] told the loan shark the applicant worked does not allay the Tribunal’s concerns about the credibility of his claim.
Thirdly, while the applicant has provided documentary evidence after the hearing of two money transfers to Indonesia, there is nothing on the face of these documents to tie the money transfers to the applicant or to support the existence of the loan. The documents show the transfers are made by a person called [Mr D], whom the Tribunal is prepared to accept is the applicant’s friend, [Mr D]. The recipient is shown as a person called [Mr C]. This is a different name from the name the applicant gave for the loan shark, which is [Mr B]. The applicant has not provided an explanation of who [Mr C] is and that person’s connection (if any) to [Mr B]. Further, the applicant claims he has repaid around Rp150 million, or half the loan amount, but he has not provided evidence of any other funds transfers to support this. The Tribunal explained to the applicant in the hearing that it would consider the information he provided after the hearing about the funds transfers and what it might show. The cover letter from the applicant’s representative attaching the screenshots of the transfer documents says the documents are “evidence of transfer money to Indonesia” and does not provide further detail or explanation. Even if the Tribunal accepts that [Mr D] has transferred money to Indonesia for the applicant and the screenshots are evidence of this, the documents show two transfers being made on unknown dates and the applicant has not explained who the named recipient of the funds is and how that person relates to the applicant’s claims, if at all. In the circumstances, the Tribunal is not satisfied that these documents are evidence of the applicant repaying his claimed loan to the loan shark.
Fourthly, the applicant claims that in August 2017, a person connected with [Mr B] travelled to Australia to threaten him about his failure to make loan repayments and this person punched him in the face and knocked out his front teeth. The applicant confirmed he has no independent evidence that this event occurred, such as a police report or medical or dental records or photographs from the time. The Tribunal has considered the applicant’s explanation that he was too scared to report the incident because of his illegal status in Australia but combined with the Tribunal’s other concerns about the applicant’s claims discussed in these reasons, this explanation does not overcome the Tribunal’s concerns. The Tribunal finds the applicant’s evidence that he was too scared to take photographs of his injuries at the time difficult to accept. The Tribunal accepts, based on its own observations, that the applicant is missing his upper front teeth and he has false teeth, but the lack of independent evidence about when and how the applicant came to be missing his teeth is a concern for the Tribunal. Further, in his written submissions, the applicant claims that the incident when his teeth were knocked out was the culmination of a series of violent encounters, but in the Tribunal hearing he gave evidence that this was the only violent incident he experienced. This difference in his evidence raises a further concern for the Tribunal about the credibility of his claims.
Fifthly, and related to the Tribunal’s concern discussed above, the Tribunal finds it difficult to believe that a few months after the applicant claims to have borrowed the money from the loan shark (given he claims to have borrowed the money in 2017 and the assault in [Suburb 1] occurred in August 2017), the loan shark would spend money to send someone from Indonesia to Sydney specifically to physically assault the applicant for his failure to repay the debt, which apparently has no end point, and then not make further threats against the applicant, despite the fact that the applicant claims his repayments have been irregular, until last month when someone visited the home of the applicant’s father in Bali. Further, the applicant changed his evidence in the hearing about this visit, first saying the person who visited his father’s home wanted his father to know he owed money and the loan shark would be demanding repayment from the applicant if he returned to Bali, but later saying the person simply asked about the applicant’s whereabouts. This change in the applicant’s evidence raises a further concern for the Tribunal about the credibility of his claims.
Sixthly, the Tribunal’s concerns about the credibility of aspects of the applicant’s claims are strengthened by his delay of more than one year before applying for a protection visa after the claimed August 2017 assault. The Tribunal has difficulty accepting the applicant’s explanation for this delay given his knowledge of Australia’s migration system and the fact that he knew he was an unlawful non-citizen and had been for a considerable period of time.
Findings
For the reasons explained above, based on all the evidence before it, the Tribunal is not satisfied of the applicant’s claims.
The Tribunal does not accept that in 2017, or at any other time, the applicant borrowed Rp 300 million from a loan shark in Indonesia called [Mr B]. As the Tribunal does not accept this, it follows that it does not accept the rest of the applicant’s claims which flow from this, including that the applicant owes any money to a loan shark in Indonesia. The Tribunal does not accept that the applicant arranged the loan through an Indonesian friend in Australia called [Mr C], or that [Mr C] brought the cash back with him to Australia for the applicant. The Tribunal does not accept that in August 2017, someone connected to [Mr B] came to Australia for the purpose of physically assaulting the applicant, or that this person physically assaulted the applicant, because the applicant had not made repayments on the loan, or that this claimed assault is how the applicant lost his front teeth. The Tribunal does not accept that this assault was the culmination of a series of violent incidents. As the Tribunal does not accept that the loan exists, the Tribunal does not accept that someone connected to the loan shark visited the home of the applicant’s father in Bali last month to inquire about the applicant’s whereabouts or to warn the applicant’s father that if the applicant returned to Bali they would be demanding money from him. As the Tribunal does not accept that the loan exists, the Tribunal accepts that the applicant’s family do not know about the loan and have not had problems. The Tribunal is prepared to accept that a friend has helped the applicant transfer money to Indonesia twice, but it does not accept that those funds transfers are repayments of the loan.
Does the applicant meet the refugee criterion?
In his written submissions and the Tribunal hearing, the applicant claims that he fears returning to Indonesia because he has not paid off his debt to a loan shark and he fears being harmed as a result. As set out above, the Tribunal does not accept that the applicant borrowed money from a loan shark or that he has a debt to a loan shark and therefore the Tribunal does not accept the applicant’s claim about why he fears returning to Indonesia. In the hearing, the Tribunal asked the applicant whether he feared returning to Indonesia for any other reason and he said he did not. The Tribunal accepts this. Therefore, the Tribunal finds that if the applicant returned to Indonesia in the reasonably foreseeable future he would not face a real chance of serious harm for any reason.
The Tribunal has considered the applicant’s written submissions and country information referred to in those submissions, but as the Tribunal does not accept the applicant’s claims for the reasons explained above, it finds the submissions and country information are not relevant.
Taking into account the findings set out above and the country information referred to in this decision, and having considered the applicant’s claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to Indonesia now or in the reasonably foreseeable future that he faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason.
Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, it is not satisfied that the applicant meets the definition of refugee in s 5H(1). As the applicant does not meet the definition in s 5H(1), the Tribunal is not satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant meet the complementary protection criterion?
As the Tribunal has found that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, it has considered whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[6] for the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm for any reason. Therefore, the Tribunal is not satisfied that there are 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. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
[6] MIAC v SZQRB [2013] FCAFC 33
Conclusion
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 s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under 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.
Rachel Da Costa
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 3884

21 August 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction