2014449 (Refugee)

2014449 (Refugee) [2024] AATA 3924 (23 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2014449

COUNTRY OF REFERENCE: Indonesia
MEMBER:Catherine Wall
DATE:23 July 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 July 2024 at 11:11am
CATCHWORDS
REFUGEE – protection visa – Indonesia – religion – free thinker – threats from religious extremists – fear of killing – mental health issues – Islamic Defenders Front – delay in applying for protection – state 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
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Guo v MIEA (1996) 64 FCR 151
Kopalapillai v MIMA (1998) 86 FCR 547
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347 at 348
Subramanian V MIMA (1998) FCA
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 15 September 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is [an age] year old citizen of Indonesia. He arrived in Australia [in] March 2017 and applied for the visa on 16 August 2018. The delegate refused to grant the visa on the basis that the applicant is not owed protection by Australia. The applicant sought review of that decision on 25 September 2020.
The applicant appeared before the Tribunal on 18 July 2024 to give evidence and present arguments. He was not represented in relation to the review. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.
CLAIMS AND EVIDENCE
A summary of the applicant’s claims as detailed in his protection visa application are as follows:
He was born a Muslim but considers himself a free thinker who wants to live in a world with lots of different religions and cultures. Religious extremists do not allow him to voice his opinion and people misunderstand his situation as a free thinker.
He has been threatened by religious extremists and he felt insecure everywhere he went and whatever he did. People condemned, accused, threatened and slandered him.
They chased him out, burnt his property and said they will kill him. He cannot live in peace cannot live as a normal person. It was hard to survive as people started to avoid him. He was forced to separate from his family and had mental illness.
His car was burned in front of his house, he was separated from his parents. He is treated like a criminal and denied his rights as they consider he has committed heresy, People believe he is insulting other people’s beliefs.
Evidence at hearing
The applicant was asked about his background in Indonesia. He said that he was born in central Java where his parents and [sibling] reside. He is a practising Muslim. He married in 2005 and has [children] aged [specified ages] years. His wife and children live with his parents in law.
He said that he came to Australia to get away from religious extremists who had threatened him. These extremists were members of the Islamic Defenders Front (FPI). He said that about 20 members of the FPI came to his house in December 2016 and threatened to kill him. He said that the FPI engage in practices he believes are wrong, such as asking people for money which they say are donations for jihad. If people refuse to donate the FPI tells them they are sinful and they will go to hell. The applicant said that he told people not to give money to the FPI and this is why they threatened him. When asked how long he had been speaking against the FPI prior to their visit to his house, he said it had been about 5 months.
I asked the applicant to detail what happened when the FPI came to his house. He said that they told him not to interfere and not to influence people. He did not know the identity of any of the people in the group. His wife was at home at the time. He said that he ran away as soon as they left and he stayed at a friend’s home in Kediri for about 3 months before travelling to Australia. He wife stayed in their home for 3-4 days then moved to her parents’ home.
I asked the applicant if this was the only occasion on which he was threatened. He said this only happened once. He said that he was never harmed. I asked him if he had felt safe living in Indonesia before the FPI came to his house to threaten him. He said that he had felt safe prior to the day they threatened him.
When asked why he chose to move to Australia, he said that he heard that it was a safe country. Since arriving in Australia he has [worked]. He maintains contact with his wife, children and parents. He feels safe in Australia. The extremists have not attempted to contact his wife or his parents since he left Indonesia.
The applicant claims that he cannot return to Indonesia because the threats are still present. When asked how he knows this, he said that the FPI has been disbanded by the government however the members continue to move about in secret. Their goal is to establish Indonesia as a Islamic country.
I asked the applicant if he had tried to relocate in Indonesia and whether he had reported the threats to the police. He said that he does not believe in the police as they are corrupt, He cannot relocate because the extremists are widespread.
I referred to the applicant’s visa application in which he claimed that his property was burnt, as he had not mentioned this in his oral evidence. He said that the FPI burned his car which was outside his house. This happened a few hours after the threats, after he had run away.
I advised the applicant that I had concerns with aspects of his evidence and I would discuss those with him and give him the opportunity to respond.
Firstly, I asked him why, given his evidence that he sought safety in Australia, he waited nearly 18 months after arriving in Australia to lodge a protection visa application. He said that he did not know anything about protection visas at that time. I advised the applicant that this may cast doubt on his claim that he feared harm in Indonesia upon return to Indonesia.
Secondly, I suggested that the extremists may no longer be interested in him, given that he was only threatened once and that 6 years have passed. He said that they might be worried that he will speak out against them again.
Thirdly, I expressed doubt about his claim that his cannot seek police protection. As the FPI has been disbanded because it is considered a terrorist organisation, it appears that the police would be willing to take action against any activity by its members. He said perhaps, but the group works in secret.
The delegate’s decision, which the applicant provided to the Tribunal in support of his review application, states that the applicant was granted a visitor visa on 29 September 2016, and that he arrived in Australia [in] March 2017. I asked the applicant why he had applied for the visa prior to 29 September 2016, when his evidence was that he felt safe in Indonesia until the IPB threatened him in December 2016. He said that he felt like they might threaten him ‘so he started making preparations for a visa’.
CRITERIA FOR OR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
ASSESSMENT OF CLAIMS AND EVIDENCE
Under s 5AAA of the Act, it is the responsibility of the non-citizen to specify all particulars of his or her claim for protection, 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 of the Act; Abebe v Commonwealth of Australia.[1]
Identity
[1] (1999) 197 CLR 510.
The applicant’s nationality is not an issue. He travelled to Australia on a valid Indonesian passport and has consistently stated in documentation that he is a national of Indonesia. The delegate did not indicate any concerns about the applicant’s identity or nationality. Therefore, I am satisfied the applicant is a national of Indonesia and I have assessed him claims against Indonesia as his receiving country.
Credibility
The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility.[2] It is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[3]
[2] Guo v MIEA (1996) 64 FCR 151, per Foster J at 194 (Full Federal Court).
[3] (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547
The mere fact that a person claims to fear 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, the fact 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 of the statutory elements are made out.
I found the applicant’s claims to be extremely vague. His evidence is that he is a practising Muslim and a free thinker who opposes the actions of the FPI. Yet when asked exactly which FPI beliefs or practises he found problematic, he only referred to the way they pressure people for money. He claims that he had encouraged others not to give money to the FPI for about 5 months before he was threatened and he was only threatened on one occasion. I do not accept that the applicant would leave his family and his country after being threatened on one occasion. He had various options available to him: he could have ceased speaking out against the FPI; he could have reported the threats to the police; or he could have relocated. I do not find plausible his claim that he was threatened once and immediately left his wife and children to stay with a friend in Kediri.
I give significant weight to the fact that the applicant applied for a visitor visa to Australia several months before he claims he was threatened by the FPI. I find his explanation, that he was making preparations in case he was threatened, is inconsistent with his earlier evidence that he felt safe in Indonesia prior to being threatened in December 2016. I this leads me to find that the applicant’s intention to travel to Australia was not related to any threats by the FPI or anyone else.
I find that the delay in seeking protection further adds to the credibility concerns I have with the applicant’s evidence. I have had regard to Justice Carr’s findings in Subramanian V MIMA[4] that a delay in claiming refugee status is a legitimate matter which the Tribunal is entitled to take into account when assessing the genuineness or at least the depth of an applicant’s fear of persecution. I do not accept the applicant’s explanation that he did not know about protection visa options. If he was seeking safety in Australia as he has claimed, I reasonably expect that he would have made inquiries on arrival about his visa options. I find that the delay in seeking protection is inconsistent with the applicant’s claim that he was facing harm in Indonesia from religious extremists.
[4] Subramanian V MIMA (1998) FCA. See also Selvadurai V MIEA & ANOR (1994) 34 ALD 346 at 349
When asked why he fears harm if he returns to Indonesia, the applicant’s response was extremely vague. He said that the extremists might think that he will try to influence others again. If the applicant genuinely fears harm upon return, I reasonably expect that he would be more definite about who might harm him and what they might do to him.
While I acknowledge the difficulties for applicants who are not represented, it is ultimately up to the applicant to provide sufficient evidence to establish his claim. In this case I find that the applicant’s vague account of being threatened by the FPI is not reliable and lacks plausibility.
On the evidence before me I make the following findings:
I do not accept that the applicant spoke out against the FPI in Indonesia.
I do not accept that the FPI went to his house and threatened him and burnt his car.
I do not accept that the applicant came to Australia to escape harm from the FPI.
I do not accept that the applicant will be threatened or harmed by the FPI if he returns to Indonesia.
As I do not accept the applicant’s claim that he was threatened by the FPI, I do not accept that there is a real chance that the applicant will face serious harm from the FPI or from any other persons upon return to Indonesia.
At no stage did the applicant advance any other reason in his claims that he is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims to be considered.
Having considered the applicant’s circumstances individually and cumulatively I do not accept that there is a real chance he will face serious harm if he returns to Indonesia now or in the foreseeable future. Accordingly, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant meet the complementary protection criteria?
I have considered whether 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 of any kind.
For the reasons given, I do not find the applicant’s claims to be credible. I do not accept that the applicant was threatened by the FPI or that they burned his car. Accordingly, I do not accept that there is a real risk that the applicant will suffer significant harm from the FPI or from any other persons if he is returned to Indonesia.
Considering the applicant’s circumstances and having regard to the findings of fact set out above, I find that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Indonesia, there is a real risk that the applicant will suffer significant harm, as set out in s.36(2A).
Accordingly, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
CONCLUSIONS
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.
Catherine Wall
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 3924

23 July 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice