2102263 (Refugee)
[2024] AATA 4444
•9 October 2024
2102263 (Refugee) [2024] AATA 4444 (9 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2102263
COUNTRY OF REFERENCE: Indonesia
MEMBER:Rupert Timms
DATE:9 October 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 9 October 2024 at 4:29 pm
CATCHWORDS
REFUGEE – Protection Visa – Indonesia – declined to attend hearing – applicant joined Chinese protection group – insufficient evidence – credibility concerns – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 56, 65, 411, 499
Migration Regulations 1994, 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 dependant.
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 18 February 2021 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 19 April 2019. The delegate refused to grant the visa on the basis that that he is not owed protection by Australia.
CRITERIA FOR A PROTECTION VISA
3. The main criteria for a protection visa are set out in s36 of the Act and Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s36(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.
4. 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.
5. 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: s5H(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: s5H(1)(b).
6. Under s5J(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 ss5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
7. If a person is found not to meet the refugee criterion in s36(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: s36(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 ss36(2A) and (2B), which are extracted in the attachment to this decision.
Section 5AAA of the Act
8. Pursuant to s5AAA of the Migration Act, it is for the review 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 the applicant in specifying, any particulars of the claim, nor does the Tribunal have any responsibility or obligation to establish or assist in establishing the claim.
9. The Tribunal has applied this provision when considering the applicant’s claims and evidence.
The applicant’s personal background
10. According to information contained in the applicant’s Departmental and Tribunal files, the applicant is a [age]-year-old unmarried male of Javanese ethnicity and Muslim religion. He was born in the East Javanese city of [City 1], where he lived until he arrived in Australia on [date] March 2019.
11. On 19 April 2019, soon after his arrival in Australia, the applicant lodged his application for a protection visa, and on 18 February 2021 the Department of Home Affairs refused his protection visa application. On 24 February 2021, the applicant applied to this Tribunal for review of that refusal decision.
12. On 17 July 2024, the Tribunal wrote to the applicant advising that it had considered all the papers relating to his application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled for 6 August 2024, and requested that he provide any further documentary evidence on which he wished to rely by 30 July 2024. The correspondence also requested that the applicant complete and return a ‘Response to hearing invitation form’ to confirm details related to the hearing, including whether he would take part in the hearing or whether he instead wished the Tribunal to make a decision on-the-papers without a hearing.
13. On 19 July 2024, the applicant returned to the Tribunal by email a completed ‘Response to hearing invitation form’. Among other questions, that form had asked whether the applicant would take part in the hearing scheduled for 6 August 2024, and it gave the applicant the following two alternate answer boxes to choose from in response: (i) a check box which stated “Yes”, and (ii) a check box which stated “No, I will not participate in the hearing, and consent to the Tribunal making a decision on the papers without taking further steps to allow me to appear”. In his response, the applicant checked the box which stated “No, I will not participate in the hearing, and consent to the Tribunal making a decision on the papers without taking further steps to allow me to appear”.
CONSIDERATION OF CLAIMS AND EVIDENCE
14. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or instead under the ‘complementary protection’ criterion, or is a member of the same family unit of such a person and that person holds a protection visa of the same class.
15. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s claims for protection
16. In his protection visa application, the applicant made claims for Australia’s protection which the Tribunal relevantly summarises as follows:
His situation at the time of leaving Indonesia
· he left Indonesia because in 1998 he had joined a Chinese protection group protecting all Chinese people in his state when an anti-Chinese incident happened in Indonesia.
· after that, the government started to search for the people who had joined that Chinese protection group, to send them to gaol for joining that group.
· he experienced harm in Indonesia. When he found out that the government was looking for members of that group, he ran away to another place.
· he was then always moving from place to place to seek safety, but the police had circulated his photograph everywhere, and everywhere he went he was seen and people reported this to police.
· he could not seek help after the harm because the government was involved and it wanted to send them to gaol.
If he is to return to Indonesia
· if he returns to Indonesia and they find him, they will send him to gaol and they will kill him. He will die in gaol.
· authorities will not protect him from the harm, because the government wants to send them to gaol.
· he cannot relocate to an area within Indonesia where he will be safe from harm because the police have circulated his photograph everywhere.
17. The delegate refused to grant the applicant a protection visa, not being satisfied about the credibility of the applicant’s claims, and finding that the applicant was not a person in respect of whom Australia has protection obligations as provided for in s36(2)(a) of the Act, or in s36(2)(aa) of the Act.
REASONS AND FINDINGS
18. The Tribunal accepts the applicant’s election of 19 July 2024, and the Tribunal finds that he has validly consented to the Tribunal making a decision on the information before it (ie ‘on-the-papers’) without taking further steps to allow him to appear before the Tribunal at a hearing. The Tribunal now proceeds with a decision on his review application on-the-papers without a hearing.
Country of nationality
19. The applicant travelled to Australia on an Indonesian passport, a copy of which is contained in his departmental file. In his protection visa application form he also declared that he is an Indonesian citizen, and that he does not hold citizenship or nationality of any other country.
20. The Tribunal finds that the applicant is an Indonesian citizen and only an Indonesian citizen, and it has assessed his protection claims against Indonesia as his country of nationality and his receiving country.
Claims of harm due to joining a Chinese-Indonesian protection group
21. The applicant has claimed to fear harm including being pursued and gaoled and killed, due to his having joined in 1998 a group which protected Chinese Indonesians and their property in East Java during the May 1998 Indonesian riots. He left Indonesia because the government had been searching for members of his group to put them in gaol, and prior to coming to Australia he had needed to move from place to place for his safety.
22. In support of the applicant’s claims, the applicant has provided to the Department of Home Affairs:
a [newspaper] article dated 16 May 1998, with English language translation. That article reported on a then-recently mass armed clash in the applicant’s city [between] rioters and people paid by ethnic Chinese to defend the property and even lives of those ethnic Chinese people. This armed clash occurred during the May 1998 Indonesian riots, and it resulted in two deaths and several injuries and destruction and damage to property. That article named the applicant as a group leader who had been involved in protecting the Chinese property, and it also stated that indigenous local rioters were looking for the applicant whom they held responsible, but that the applicant had managed to escape from them. It also stated that police were investigating.
a reference letter dated 5 December 2020 from a Mr [A], attesting that he was a friend of the applicant and that the applicant had lived with him at his residence [in] Jakarta for five consecutive years from 1998 to 2003. In this letter, Mr [A] stated that the applicant had lived with him to avoid a mob who had been pursuing the applicant since the 1998 incident where the applicant and his group members had committed acts of violence in defence of Chinese Indonesians.
a reference letter dated 7 December 2020 from a Mr [B], attesting that the applicant had stayed with him at his place [in] Indonesia from 2003 to 2010. It further attested that the applicant had been staying with him because he was being sought by families of the victims of the 1998 riots who did not accept the applicant and his group’s treatment of them at that time.
a reference letter dated 7 December 2020 from Mr [C], attesting that the applicant had stayed with him at his residence in [a] village in Bali in Indonesia from 2010 to 2019. It further attested that the applicant had been staying with him to avoid being searched for by the families of victims of physical clashes in [City 1] in 1998.
23. 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. 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: s5AAA. 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).
24. The Tribunal finds that the evidence before it is not sufficient to satisfy the Tribunal that the applicant faces a real chance of persecution in Indonesia in relation to his claimed fears of harm, or 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. This insufficiency includes insufficient evidence to satisfy the Tribunal of the genuineness of his stated fear of being harmed, and insufficient evidence to satisfy the Tribunal that the applicant currently genuinely fears being harmed more than five years after having departed Indonesia and applied for Australia’s protection, and over 26 years after his claimed involvement in the May 1998 riots which he claims led to his persecution.
25. This insufficiency also includes insufficiency of evidence to satisfy the Tribunal that there is a real chance or a real risk that he will experience harm now or in the reasonably foreseeable future, some 26 years after his claimed involvement in the May 1998 riots, if he must return to Indonesia. It also includes insufficiency of evidence to satisfy the Tribunal about the exact nature of any harm still being feared or faced by the applicant and whether it amounts to serious harm or significant harm for the purposes of the Act, and who he fears harm from.
26. This insufficiency of evidence is also in the context of potentially conflicting evidence supplied by the applicant. The Tribunal finds that this potentially conflicting evidence includes that in his written claims in his protection visa application form he stated that he feared persecution by the government and by police including being gaoled and dying in gaol, whereas his later-provided Kompas article and support letters from Mr [A] and Mr [B] and Mr [C] all refer to fear of persecution by a mob or by residents or by families of the victims of the 1998 riots.
27. In all the circumstances, the Tribunal is not satisfied on the information before it 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. Nor is the Tribunal 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.
28. 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 s36(2)(a) or s36(2)(aa) of the Act.
29. There is no suggestion that the applicant satisfies s36(2) on the basis of being a member of the same family unit as a person who satisfies s36(2)(a) or (aa) and who holds a protection visa. Accordingly, the Tribunal finds that the applicant does not satisfy the criterion in s36(2) of the Act.
DECISION
30. The Tribunal affirms the decision not to grant the applicant a protection visa.
Rupert Timms
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
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
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.
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.
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.
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.
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.
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
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.
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.
…
Protection visas – criteria provided for by this Act
…
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.
…
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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