2015178 (Refugee)

[2024] AATA 4170

2015178 (Refugee) [2024] AATA 4170 (10 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2015178

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Khanh Hoang

DATE:10 October 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 October 2024 at 3:25pm

CATCHWORDS
REFUGEE – protection visa – Indonesia – worked for illegal money lending company – boyfriend took company’s money in her possession – threatened by boss – found after relocating – no response to hearing invitation or appearance at hearing – responsibility to specify particulars and provide evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65, 426A, 441A(5)
Migration Regulations 1994 (Cth), Schedule 2
Administrative Appeals Tribunal Act 1975 (Cth), Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 October 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Indonesia, applied for the visa on 6 March 2019. 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 under either the refugee criterion or complementary protection criterion.

3. On 17 June 2024 the Tribunal wrote to the applicant advising her that her application for review was being prepared to be given to a Member. The applicant was asked to fill out a ‘pre-hearing information’ form to assist the Tribunal to conduct the review. On 20 June 2024, the applicant responded and stated that she would require the assistance of an Indonesian interpreter should she be invited to a hearing.

4. On 10 September 2024, the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 2 October 2024. The invitation stated that if they did not attend the hearing, the Tribunal may make a decision on the case without further notice.

5. The applicant did not respond to the hearing invitation and did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. Having reviewed the Tribunal file, I am satisfied that the review applicant was properly invited to a hearing in accordance with s 441A(5) and the invitation has not been returned to sender. On the day of the hearing, the Tribunal called the applicant on two occasions but was unable to reach her. The applicant has not contacted the Tribunal to request a reschedule of the hearing or to otherwise provide an explanation for her non-attendance at the scheduled hearing.

6. In considering the exercise of my discretion under s 426A to dismiss the application or to make a decision on the review without taking any further action to enable the applicant to appear before the Tribunal, I have given weight to the fact that the applicant has recently engaged with the Tribunal through the ‘pre-hearing information’ form. There is nothing before me to suggest that the applicant did not receive the hearing invitation and was not aware of the hearing. As noted above, despite the Tribunal’s calls and message for the applicant, she has not further engaged with the Tribunal. In these circumstances, I consider that her inaction suggests she has disengaged from the review process.

7. In these circumstances, and for the reasons above, pursuant to s 426A of the Act, I have decided to make a decision on the review without taking any further action to enable the applicant to appear before the Tribunal. In doing so, I have also had regard to the objectives of the Tribunal, which among other things is to provide a review mechanism that is ‘fair, just, economical and quick’.[1]

   [1] Administrative Appeals Tribunal Act 1975 (Cth) s 2A.

8. The applicant was unrepresented in respect of the review.

9. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under either the refugee criterion or complementary protection criterion. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CRITERIA FOR A PROTECTION VISA

10. 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.

11. 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.

12. 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).

13. 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.

14. 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.

    Applicant’s identity and country of reference

15. Based on a copy of the applicant’s passport available on the Department’s file, I find that Indonesia is the applicant’s country of nationality and her receiving country for the purposes of refugee and complementary protection assessments.

    Mandatory considerations

16. 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

    Beofre the Department

17. In her protection visa application, the applicant made claims for protection that can be summarised as follows:

    ·she left her country because someone wanted to kill her;

    ·in April 2015, she had worked ‘on a illegals money lending company’ and her boss told her to go to a bank and withdraw USD 10,000 for a customer;

    ·she went to a bank and withdrew the money and afterwards she left the money with her boyfriend, who was in a car, to go to the toilet;

    ·her boyfriend took the money and ran away, and her boss blamed her for taking the money;

    ·her boss threatened that if she did not pay the money back, he will kill her;

    ·she was harmed in Indonesia because ‘they try to beating, burn my car, crash my house’;

    ·she tried reporting to the police, but they didn’t do anything to protect her, and her boss kept threatening her;

    ·she moved to another part of the country, but they still found her; and

    ·if she returns to Indonesia, her boss will threaten her and kill her.

18. On 31 August 2020, the Department wrote to the applicant pursuant to s 56 of the Act inviting her to provide further details of her protection claims. Among other things, the letter advised the applicant that her statement of claims lacked key details, dates and locations. The applicant did not respond to the Department’s s 56 letter.

19. The delegate found that the applicant’s claims were not credible. The delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under either the refugee criterion or complementary protection criterion. 

    Before the Tribunal

20. In her pre-hearing response form, the applicant provided the following information:

    For now I can’t go back to my home country because my debt is not paid off. I am a single parent I have to support my child and for now I still really need funds.

    FINDINGS AND REASONS

21. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

22. I have significant concerns about the applicant’s claims. The information provided by the applicant in her protection visa application and to the Tribunal lacks sufficient detail to enable me to be satisfied that she faces a real chance of serious harm for one or more of the reasons in s 5J(1)(a) in the reasonably foreseeable future, or that she faces a real risk of significant harm as set out in s 36(2A) if she were removed from Australia to Indonesia.

23. The applicant’s claims regarding the events of April 2015 lacks sufficient detail. For example, she has not detailed where in Indonesia the event took place and which bank she withdrew $10,000 USD from. She has not provided more detail about the nature of her employment. She has not provided details about who beat her, burned her car or crashed her house, and when this occurred.

24. She has not provided any information as to which police station she reported to and the reasons why the police did not protect her. While she claims to have moved to another part of the country to avoid harm, she did not specify where she moved to, or when, or how it was that ‘they’ still found her. Nor has she detailed whether she has had any contact with her boss since she left Indonesia and why he would still be interested in her now.

25. While the applicant claims that she cannot return now because ‘my debt is not paid off’, she has not provided any information as to whether she has paid money to her boss, how much she has paid, and what amount she still owes. She has not provided any information to support the claim that she has a child, or how this translates to a real chance of serious harm or real risk of significant harm to her.

26. Given the lack of information identified above, and without more, it is difficult to know what to make of the applicant’s assertions. I am not satisfied, on the evidence before me, that the applicant faces a real chance of any harm if she were to return to Indonesia in the reasonably foreseeable future. I am not satisfied that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. I find that the applicant is not a refugee under s 5H(1) and she is not a person in respect of whom Australia has protection obligations under s 36(2)(a).

27. Nor am I satisfied that the applicant faces a real risk of suffering ‘significant harm’ as a necessary and foreseeable consequence of being removed from Australia to Indonesia. As such, 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. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

28. 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

29. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Khanh Hoang
    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.

    …