2217033 (Refugee)
[2024] ARTA 704
•25 November 2024
2217033 (REFUGEE) [2024] ARTA 704 (25 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs
Tribunal Number: 2217033
Tribunal:General Member G Fitzgerald SC
Date:25 November 2024
Place:Melbourne
Decision:The Tribunal affirms the decisions under review.
Statement made on 25 November 2024 at 10:45am
CATCHWORDS
REFUGEE – protection visa – Indonesia – religion – Ahmadi Muslim – period of unlawful residence – attack on home – physical assault – killing of family members – delay in applying for protection – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 367A, 423, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
MZZJO v MIBP (2014) 239 FCR 436
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 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants claim to be citizens of Indonesia. They applied for the visas on 8 June 2018. The delegate refused to grant the visas on 9 November 2022.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The first applicant appeared before the Tribunal on 26 September 2024 to give evidence and present arguments. The second applicant is his young son, born in [year]. [1] He was briefly present at the start of the hearing with the first applicant’s wife (the mother of the second applicant), whom the first applicant had proposed to give evidence (but who did not ultimately give evidence, as explained below). The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.
[1]The first applicant produced to the Department a copy of the Australian birth certificate for his son with his wife, born in Australia on [date]. The Tribunal accepts this certificate.
His wife [2] also has a related case before the Tribunal. She is also an Indonesian protection visa applicant. Her visa refusal by the Department is under review by the Tribunal, constituted by the same member.
[2]The wife’s name is [name] and her Tribunal case number is 2008378. The applicant produced to the Tribunal at the hearing a copy of their Australian marriage certificate, showing that they married [in] June 2020. The Tribunal accepts this certificate.
For the reasons set out below, the Tribunal affirms the decision under review.
INTRODUCTION
Summary of protection claims by the applicants
During the course of the review, the first applicant made an independent claim for protection based on his membership in Indonesia of an Islamic sect known as Ahmadi [3] (the Ahmadi claim), as further set out below. He claims he was persecuted because of this faith in Indonesia and he fled to Australia for refuge.
[3]The name of this sect is also spelt as ’Ahmadiyya’, ‘Ahmadiyah’ and ‘Ahmadiyyah’. The Tribunal has adopted the simplest spelling used in the DFAT Country Information Report Indonesia dated 23 July 2023 (the DFAT Report) at [3.42 – 3.47]. The Tribunal notes that the first applicant’s own spelling of the name of the sect is the last mentioned one, referred to in his Departmental application, as set out below.
The second applicant did not make any separate or independent claims but relied on the claim of the first applicant.
The Ahmadi claim was initially set out in the Departmental application [4] and elaborated upon in a Department interview and at the hearing, as further set out below.
[4]Their Departmental protection visa application lodged on 8 June 2018 (Departmental application).
The first applicant also provided documents in support of the application to the Tribunal on 4 September 2024 before the hearing, at the hearing on 26 September 2024 and after the hearing on 7 October 2024.
Nationality, country of reference and receiving country
The Department conducted identity checks on the applicants and was satisfied as to the identity documents which they produced. The Tribunal accepts that the applicants are Indonesian citizens. Accordingly, Indonesia is the country of reference and receiving country for their application for a protection visa.
The applicants’ travel and immigration background
The applicants’ migration history in Australia is conveniently summarised in the table below, adapted from the Departmental decision:[5]
[5]Department’s letter dated 9 November 2022 refusing protection visas and accompanying Protection Visa Decision Record (the Departmental decision), at page 2 of the record.
Date Event details 12 September 2014 Business Visitor Stream (FA-600) visa application lodged by the first applicant; purpose of visit is to participate in [an international event] to be held in [city] [in] September 2014 in capacity as [role]
17 September 2014 FA-600 visa application refused; criteria not met
22 September 2014 FA-600 visa application lodged by the first applicant; proposed travel to attend [the international event] as [role]
22 September 2014 Entertainment (GE-420) visa application lodged by the first applicant; Indonesian Embassy Australia named as sponsor; invitation extended to members of [group] to [participate] in the [related] events
24 September 2014 The first applicant was granted a GE-420 visa; valid to 2 October 2014
25 September 2014 FA-600 visa application refused; criteria not met
[September] 2014 The first applicant arrived in Australia on GE-420 visa
2 October 2014
GE-420 visa ceased; the first applicant was unlawful in Australia
8 June 2018 Permanent Protection (XA 866) visa (PV) application lodged by the first applicant; associated Bridging visas (WC-030) approved
29 November 2021 PV interview conducted by the Department (Department interview)
27 June 2022 Details of the second applicant provided and added to PV application as dependant applicant / child
As set out in the table above, the first applicant’s entertainment visa expired on 2 October 2014 and he became unlawful. He remained in Australia as an unlawful non-citizen until he was granted a bridging visa on 8 June 2018, after lodging the protection visa application under review. His protection application was refused by the Department on 9 November 2022.
At the hearing, the first applicant was examined on the details in this table. He confirmed them. He said he helped with [his role] for the [international] event.
He has not travelled to any other countries.
The applicant’s personal background
This background is based on the first applicant’s evidence at the hearing and his Departmental application.
The applicant is in his [age range].
Background in Indonesia
He was born in [specified year] in Banyuwangi in East Java in Indonesia. He lived mainly in and around Banyuwangi until he left that country in 2014.
While he was in Indonesia, he lived or was based in a village on the outskirts of Banyuwangi. This is where he grew up. He is an only child. He claims his father died in February 2011. He did not know if his mother was still alive.
He had a wife and children while he was in Indonesia. He could not say when they got married. At one stage he thought it was in about 1999, when he was about [age] years of age. He said he had [number] children with his Indonesian wife but he could not say when they were born. He thought the eldest might be about [age] years old now. He separated from this family about a month or so before he came to Australia [for the event] in September 2014 set out above.
He has not had any contact with his Indonesian wife or children, or with his mother, since at least when he came to Australia in September 2014.
He attended high school until he was about [age] years old, completing [grade] of high school. He said it was a non-denominational school and private. There were Muslims and Christians among the other students.
After school, he helped his mother and father with casual farm labouring work until he became an adult. He then worked in a succession of various casual jobs which were manual and unskilled, including farm labouring, and being an assistant to [an occupation 1]. He did not have a full-time job in Indonesia.
He is of Javanese ethnicity and says he is Muslim but claims he follows the Ahmadi version of that faith.
Background in Australia
The first applicant has only lived in [Suburb 1] while he has been in Australia.
When he first arrived in 2014 until 2018, he worked (unlawfully) at farms around Melbourne casually for cash to support himself (he was unlawful after the expiry of his entertainment visa in October 2014).
After applying for the protection visa, his bridging visa conditions did not permit him to work until 28 February 2020. After he got work rights in February 2020, he began working in factories.
The first applicant married his wife in a suburb of Melbourne in May 2020. They met in about 2015 and became a couple in about 2018. They have had a son in Australia, who is the second applicant. [6]
[6]A copy of his son’s birth certificate was provided to the Department. It names the first applicant and his wife as the parents and recites the details of their marriage. The applicant provided the originals of his marriage certificates at the hearing, which were copied. The Tribunal accepts these certificates.
His religious practice in Australia is that he observes his five daily prayers and normally attends a mosque every Friday in [Suburb 2]. He said this mosque is attended by many different Muslims from various countries. He said that he had not told anyone in Australia that he was a follower of the Ahmadi sect, because nobody had asked him about it.
He said he would not force or compel his wife and son to follow the Ahmadi sect.
He confirmed that his faith was a private and personal matter to him. He did not want to publicise it and wanted to keep it secret, even in Australia. He agreed it was fair to say that he had never been interested in converting people to his sect: it was a matter for different people to make up their own minds.
He was not involved with any political parties or activities in Australia.
THE APPLICANTS’ CLAIMS FOR PROTECTION
Claims initially in the Departmental application in June 2018 - Version 1 of the claim
The first applicant’s written protection claims in the Departmental application were that he fled to Australia in September 2014 because he was attacked, severely beaten (almost to death), his house wrecked and property damaged because of his Ahmadi faith in Indonesia. This attack was by a mob in his village in Banyuwangi in May 2014 (Version 1 of the claim).
Version 1 of the claim was as follows: [7]
Why did you leave that country? Provide specific details
I'm leaving Indonesia because of lndonesia muslim couldnt accepting freedom of religion. My religion is muslim ahmadiyyah, and based on mostly muslim, we are astray muslim thus we are allowed to be slaughtered. Ahmadiyyah has long history of persecution on anywhere of the country. Every week on my house, i always do sholat group for our sect, we always do it quietly to not raising any hatred among our neighbourhood. But after they found out that we are Ahmadiyyah, they start to make violence act against us. On May 2014, when we doing our sholat group, they come to my house, they burn our motorcycle and bike, and start hitting us violently. They yelling Allah name and they said that Allah will grant them heaven if they successfully kill us. Lucky for us, the RT (neighbourhood) leader come, and stop the massacre. After that lot of us traumatized, and i move to my friend house since my house wrecked down by the mass. After couple months, i heard many news that many ofus being persecuted, and i decided that Indonesia couldnt accept different things, so i decided to run away
Radicalism and close minded always be cancer in Indonesia, they just blindly follow what being told. For many radical and close minded people, killing in the name of Allah will grant heaven for them. As for proof, many terrorism act done in Indonesia, and a lot of violence act against different religion such as Christian, Sunda Wiwitan and Ahmadiyyah happened in lndonesia.
….
Did you experience harm in that country? Yes
Give details (including the harm you experienced, the person/people responsible for the harm and why they harmed you)
They wrecked down my house and beat me severally to almost death
[7]Departmental application, Part C, pages 36 and 37, questions 89 and 91 shown in normal font, with his answers reproduced as written in italics.
He said at the hearing that Version 1 of the claim was false, apart from his membership of the sect. There had been no mob attack on his home, property or him in the village in May 2014. He was not doing the sholat (prayer) group for this sect. He said all this had been made up by the [Nationality 1] man who completed the form for him. The man was called [name], whom he paid AU$1,000 to do so. He did not check the application before it was lodged.
There were several other errors and omissions in the Departmental application. [8]
The Department interview in November 2021 – Version 2 of the claim
[8]The errors and omissions in his Departmental application, Part C, include: he could not speak, read and write English as his second language (page 20, question 29); his entire family in Indonesia were omitted (page 22, question 42); his work and employment details in Indonesia were false – he did not own a grocery shop and work as a motorcycle dealer between 1993 and 2014 (page 33, question 84); he did not complete high school in 1993 (page 34, question 85); it falsely stated he had not received assistance to complete the application (page 41, question 101).
He was interviewed by the Department in November 2021. During that interview, he said that he came to Australia in September 2014 because a mob of hundreds of people had attacked him and his father, as well as 20 or so other Ahmadi, because of their faith in Banyuwangi in mid-2013. He said that his father had been beaten to death by the mob ‘on the spot’. He could not help him because there were so many attackers. He escaped the mob and fled to other parts of Indonesia, because he could not return home. [9] He also said that his grandparents had been killed because of their Ahmadi faith, but not on this occasion. [10] The Tribunal will refer to this as the ‘Version 2 of the claim’.
[9]Department letter dated 9 November 2022 refusing protection visa and accompanying Protection Visa Decision Record (Department decision), at pages 6 and 7 of the record; Department interview audio recording (Department interview), at 31.13 to 45.31.
[10]Department interview, at 31.13 to 32.09.
It should be emphasised that Version 2 of the claim materially modifies Version 1 of the claim, by changing the date of the alleged attack and adding his father as a fatal victim of the attack. It also adds his grandparents as past victims of (unexplained) religious violence.
At the hearing, the applicant explained that he had been advised by someone that he should stick to his protection reasons in his Departmental application or it might cause him problems with his application. This might explain the overlap in the versions as to the location of the attack, but he did add his father’s death and the date was changed to about a year earlier.
Evidence provided to the Tribunal relating to claims before the hearing
In his response dated 31 August 2024 (but received on 4 September 2024) to the Tribunal’s hearing invitation, the applicant:
a.provided a stamped statement dated 12 August 2024 from three individuals in Indonesia (the 2024 statement), which stated that the ‘local government is aware of the incident that happened to Brother [the applicant’s name] which is actually to be used as evidence at the trial’;
b.requested the Tribunal to take evidence from his wife who would give evidence that the first applicant had told her about his problem with his father when she first met him in Australia in 2015.
Claims at the hearing – Version 3 of the claim
At the outset of the hearing, the first applicant said he wanted his wife to give oral evidence. The Tribunal asked what her evidence would be about, as it had confirmed with him that she did not know him in Indonesia. She could not give any direct and first-hand evidence about the first applicant’s claims. She said she could testify that her husband had told her about his Ahmadi problems in Indonesia. The Tribunal said he could just tell it what the problems were. They then accepted that there was no need or point to her giving evidence.
At the hearing (despite the claims in Versions 1 and 2 of the claim), the first applicant said that he and his father did not suffer any harm or mistreatment in their village because of their following of the Ahmadi sect.
He claimed to have suffered past harm or mistreatment in Indonesia because of his faith, which led him to come to Australia, due to an alleged incident in West Java. He said that he attended a meeting with his father in Banten in February 2011, at the other end of Java, about 1,180 kilometres away from his home in Banyuwangi (the Banten incident). He said the meeting was organised by a man called [Leader A] who he said was the religious leader of the Ahmadis in Banten. His father said that they should attend this meeting, even though it was on the other side of Java, and they were of modest means. His father did not explain why they should attend but he agreed, despite having a wife and children in Banyuwangi. Ultimately, he claimed, he and his father and about 25 other followers of the Ahmad met in Banten. They met there in a house which was surrounded by a mob. At first there about 500 people in the mob, later there were over a thousand. They wanted the Ahmadis to stop having a meeting and to come out. They were armed and angry. At some point – it was unclear when – the first applicant somehow ran away and escaped unharmed. He left his father in the house. The mob attacked and killed several of the sect members and injured many others. A small contingent of police who were present were unable to stop the mob. His father was badly injured and later died that night in hospital. The applicant then ran away. He eventually went to [Town 1] in East Java for a month before returning to Banyuwangi in about March 2011. His mother did not know that her husband was dead. He told her. He did not leave Banyuwangi and Indonesia until September 2014, when he went to Australia on the cultural visa. The Tribunal will refer to this as the ‘Version 3 of the claim’
The first applicant confirmed at the hearing that he did not suffer any other harm or mistreatment in Indonesia before he left for Australia. He just lived in the village with his mother and his Indonesian family, getting work where he could and sometimes being away from the village for that work. The other villagers did not react to his father’s death. He thought they suspected something but they did not say anything to him.
He also claimed that the media covered the Banten incident but his father had not been named as a victim, because the authorities did not care about Ahmadis. He did not have a death certificate for his father. He said the authorities did not contact him about his father’s death. He thought some people had been prosecuted and convicted over the deaths, but they had got light sentences.
The Tribunal explained to the first applicant that it was a serious matter to accept his account of the Banten incident and the death of his father as a result of this, without further evidence or corroboration. It gave him two weeks (until 10 October 2024) to provide any further evidence about this incident or his application.
As a result, the first applicant filed on 7 October 2024 some Indonesian articles which he obtained online, together with uncertified English translations of some of them (the Indonesian articles). Assuming the English translations are accurate, they referred to an incident in February 2011 in Banten where there was violence between residents of a village in that area and members of a local Ahmadi congregation, in which three people died and six people were injured. One of the articles referred to the Ahmadi ‘preacher [Leader A]’ being evacuated from the area before the attack. Another article referred to the trial of one of the alleged village attackers of the Ahmadis in May 2011 for assault and destruction. Another article referred to 12 attackers receiving ‘light sentences’ for their crimes in July 2011, ranging from 3 to 6 months in prison.
The first applicant did not claim that his father was named in the Indonesian articles as a victim, nor can the Tribunal find any such reference. The first applicant has not produced to the Tribunal any written or independent evidence as to his father’s death, or his death as a result of the Banten incident.
He was asked about the 2024 Statement. He said they were Banyuwangi locals and elders. He did not know them. He asked them for the statement. According to him, the statement had been written in Indonesian and translated by Google into English. He asked them to say specifically that they were aware of his situation. The Tribunal noted that it did not say anything, except they were aware of some unspecified incident. The first applicant did not seek to call them as witnesses. The Tribunal does not give the statement any weight.
It should be emphasised that Version 3 of the claim materially differs from Versions 1 and 2 of the claim, by changing the date, location and circumstances of the alleged attack including his father as a fatal victim of the attack (unlike Version 1) and omitting his grandparents’ deaths due to other religious violence (unlike Version 2). These are not small differences, but material and substantial. The death of one’s father in a violent attack is not something one would be expected to get significant details wrong or confused; like where, when and how it happened. Version 3 of the claim is an entirely different narrative to the other versions. The allegation that he was attacked and his father was killed by a mob due to religious violence in 2011 in Banten (Version 3) is inconsistent with and substantially different from allegations that he was attacked and his father was killed by a mob due to religious violence in 2013 or 2014 in Banyuwangi.
At the hearing, when asked about the different versions of the claim given to the Department and to the Tribunal, the applicant explained that had decided that he should now tell the truth, despite the earlier advice he had been given.
Was the first applicant and is he still an adherent of the Ahmadi faith?
He was asked initially at the hearing about his Ahmadi faith. He said his father became a follower of the Ahmaddiyah sect in about 2000 or 2001. He said his father thought that it was a more peaceful and tolerant version of Islam. He said a few years later, in about [year], his father talked to him about this sect and told him he should consider it because it was good and peaceful. He was then about 28 years old. He said he then became a follower.
He was asked to explain what the beliefs and practices of the sect were. He said they believed in peace and tolerance: it was a more tolerant and less critical form of Islam. He talked about following the teachings of the founder Mirza Ghulam Ahmad, from India. [11] He could not explain what those teachings were, except to say that Sunni Muslims said that they were heretics because his sect believed that Ahmad was the last prophet, whereas Sunni Muslims believe that Mohammed was the last prophet. He said Ahmadis basically were taught to be nice and kind to everyone and to live a life of peace. That was the only difference he could point to between Sunni Muslims and Ahmadi. Both say their five daily prayers, observe the six pillars of Islam and regard the Koran as a holy book. In his home village there was a mosque, which was attended by all Muslims, including he and his father. He could not point to any practice, text, ceremony or ritual which his sect followed but which the majority Sunni Muslims did not.
[11]See the DFAT Report, [3.42]: ‘Ahmadis believe that their 19th century founder succeeded the Prophet Muhammad as the embodiment of the spirit of the Prophet incarnate. This belief differs from conventional Islamic doctrine, which does not allow for the possibility of a prophet after Muhammad. Ahmadis self-identify as Muslims but are targeted by some Sunni Muslims in many parts of the world, including Indonesia, for perceived blasphemy.’
He said he was not involved in any activities with this sect in the village. He did not lead prayers for it or do anything else. He said he and his father were the only ones in the village who followed it. They kept quiet about it and did not publicise it because they did not want to get into trouble. He said he and his father did not suffer any harm or mistreatment in the village because of their following of this sect.
He later said that in about 2001, an Islamic authority in Indonesia (the MUI) issued a fatwa against the Ahmadi sect. In about 2005, according to him, the President of Indonesia and madrassas also prohibited the sect. It is curious that, according to him, his father began following this sect, at about the time or shortly before a fatwa was issued against followers of the sect and they both continued with it despite the prohibitions. The Indonesian articles also referred to the expulsion of Ahmadi families from the province in which Banten was located since 2001, the issue of an anti-Ahmadi fatwa in 2005 by the Indonesian Ulema Council and the issue of a joint decree at an unspecified time by three Ministers of the Yudhoyono government prohibiting the activities of the Ahmadi congregation.
The Department delegate did not believe that he was an Ahmadi. She did not think he was a credible witness noting:
When the applicant was asked how the religion started and where it was from, the applicant stated that his father should know about it, he just followed his dad and that he was too young. [He told the Tribunal he was 28 years old when he became a follower] …. When asked to explain how he, the applicant, saw the difference between the Ahmadi and Sunni religions the applicant stated ‘as for me, all religions are practically the same, you got to be a nice person, do know wrong but some people say that my religion is misleading, how is it misleading they are praying to god!’ …. The applicant was asked if the Ahmadi faith had a Caliph, in response the applicant stated ‘what is that?’ When the interviewing officer stated that a Caliph is someone who commands a Caliphate, the applicant responded ‘oh, it’s like a leader, is that what you say?’ … When it was put to the applicant that there were concerns about his lack of knowledge of the Ahmadi faith, the applicant stated ‘yes, that’s true because it has been passed down through the older generation. I found that the applicant was not able to provide any evidence or details of substance about the Ahmadi religion that would be expected of someone who is of the Ahmadi faith. … I am not satisfied that the applicant is unable to return to Indonesia because of his Ahmadi faith, I am also not satisfied that this claim is credible and I reject this claim in full. [12]
[12]Department decision, at page 7 of the record.
The Tribunal noted at the hearing that the Department had not believed he was an Ahmadi because he could not explain much about the faith. He accepted this. The Tribunal expressed a similar concern at the hearing about his lack of knowledge of the faith, its beliefs and practices. He said something to the effect that he had always known things about the religion.
The applicant was asked if he feared any harm or mistreatment if he returned to Indonesia in the foreseeable future. He claimed that he would be forbidden to follow his Ahmaddiyah faith throughout Indonesia and ‘they would like to kill us’.
Other claims
He confirmed at the hearing that he had no other claims for protection in Australia, apart from those based on his Ahmadi faith as set out above.
The Tribunal’s own review of the material before it does not disclose any other claim open to the applicant which clearly emerges from or on the material before it.
CONSIDERATION OF CLAIMS AND EVIDENCE
Credibility principles
When assessing claims, the Tribunal must make findings of fact. In doing so, it has had regard to the difficulties faced by refugee applicants. On the other hand, the Tribunal is not required to make out the applicant’s case. It is the responsibility of the applicant to provide enough evidence to establish the claim to be a person in respect of whom Australia has protection obligations. 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. [13] Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. [14]
[13]Section 5AAA of the Act.
[14]MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169–70.
Further, section 367A of the Act [15] provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence was not presented before the primary decision was made
[15]Formerly, s 423A of the Act.
The first applicant’s credibility and findings
The applicants’ only protection claim is the Ahmadi claim.
The Tribunal does not accept that the Ahmadi claim is credible and reliable. The first applicant has given three different versions of the critical incident which led to him seeking protection in Australia. He told the Department his father died in 2013 after an attack by a mob in Banyuwangi; he told the Tribunal it happened in 2011 in Banten by a mob there; in the Departmental application, it was a mob attack in Banyuwangi in 2014. Based on the striking and material inconsistencies between the different versions of the claim, it cannot rely on his evidence, which is not independently corroborated. It does not accept that the first applicant was attacked or harmed in the past in Indonesia as a result of his Ahmadi faith. The Tribunal does not accept that any of the events in the different versions of the claim affecting him or his father occurred as claimed. It accepts, based on the Indonesian articles and information in the DFAT Report about other violent incidents against Ahmadi followers in Indonesia,[16] that a fatal attack did take place in Banten in 2011 where religious opponents killed and injured Ahmadi followers: however, it does not accept that the first applicant or his father were present, victims of this attack or in any way adversely affected by it. It does not accept that his father was killed because of this faith, in Banten or Banyuwangi.
[16]DFAT Report, [3.44 – 3.45]. The report also noted that ‘Incidents of violence have occurred in the recent past, but these are not day-to-day experiences for most Ahmadis.’: DFAT Report, [3.47].
It was also implausible to the Tribunal that his father would decide to follow this faith at a time when it was being condemned by Muslim authorities, and incredible that his father would uproot himself and the first applicant to the other side of Java, when they had modest means, to attend a risky event in Banten.
The Tribunal also does not accept that he was in Indonesia or is now a genuine follower of Ahmadi. He had only the barest understanding of what was involved with this faith. [17] He could not explain how it was different from the Sunni Muslim faith, in terms of rites, ceremonies, texts, practices or beliefs. He had only the barest understanding that it involved following the teachings of Ahmadi but could not say what those teachings were, except that Sunni Muslims said Ahmad regarded himself as a prophet. It is also significant that at the hearing he did not claim that he or his father were harmed for these beliefs by his fellow villagers. The Tribunal is not satisfied that he was ever an Ahmadi, or that he is now.
[17]The Tribunal was not conducting itself as an arbiter of doctrine in its enquiries about this at the hearing but rather questioning him on these matters in aid of assessing his credibility and reliability: MZZJO v MIBP (2014) 239 FCR 436 at [47].
There were also material delays by the first applicant. Firstly, according to Version 3 of the claim, his father was killed in Banten in 2011 but he just lived quietly in his village until September 2014 when he came to Australia for the [international event]. Secondly, he arrived in Australia in September 2014 on the entertainment visa and became an unlawful overstay upon that expiring in October 2014; but he did not apply for protection until June 2018. These delays are not consistent with a genuine fear of persecution, to wait so long to leave and later to bring a protection application.
Further, Version 3 of the claim involved the presenting of new evidence about his protection claims which was not presented before the primary decision (where just Versions 1 and 2 were presented). The applicant’s explanation for not presenting this earlier was, in substance, that he had been advised to stick to his earlier version before the Department and had decided now to tell the truth to the Tribunal. The Tribunal is satisfied that the applicant does not have a reasonable explanation why Version 3 of the claim was not presented before the primary decision was made. Accordingly, s 367A also applies in this case, to require the Tribunal to draw an inference unfavourable to the credibility of Version 3 of the claim.
For the above reasons, the Tribunal did not find the applicant to be a credible and reliable witness about this claim. The Tribunal does not accept that the applicant was or is a follower of Ahmadi and that the incidents claimed in the different versions of the claim occurred. It rejects the Ahmadi claim in its entirety, as not being credible and reliable.
REASONS
Criteria for 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). 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.
Issues
The issues in this review are whether:
a.there is a real chance that, if the applicant returns to Indonesia, he will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act; and, if not,
b.there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Indonesia, there is a real risk that he will suffer significant harm for the purpose of s 36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Assessment of refugee criterion
The Tribunal has rejected the Ahmadi claim. It follows that it is not satisfied that the first applicant has a well-founded fear of persecution because of this claim in the foreseeable future if he returned to Indonesia.
Accordingly, the Tribunal is not satisfied that the first applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Assessment of complementary protection criterion
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal must consider the alternative criterion in s 36(2)(aa): namely, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Indonesia, there is a real risk she would suffer significant harm, as exhaustively defined in s 36(2A) of the Act.
The Tribunal has rejected the Ahmadi claim. It follows that it is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Indonesia, there is a real risk the first applicant would suffer significant harm as a result of the claim.
Accordingly, the Tribunal is not satisfied that the first applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Assessment of family member
The Tribunal has decided in his wife’s review that is not satisfied that she is a person in respect of whom Australia has protection obligations under s 36(2)(a) or (aa). Accordingly, there is no suggestion that the applicants satisfy 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.
Conclusion
For the above reasons, the Tribunal is not satisfied that Australia has protection obligations in respect of the applicants pursuant to s 36(2) of the Act. Accordingly, the Tribunal has concluded that the decisions under review should be affirmed.
DECISION
The Tribunal affirms the decisions under review.
Date of hearing: 26 September 2024
Date of last submissions: 7 October 2024
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.
…
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