2306032 (Refugee)

[2023] AATA 3541

2306032 (Refugee) [2023] AATA 3541 (20 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Edith Kaufoou Tapueluelu (MARN: 1173837)

CASE NUMBER:  2306032

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Rachel Da Costa

DATE:20 July 2023

PLACE OF DECISION:  Sydney

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

Statement made on 20 July 2023 at 4:40pm

CATCHWORDS
REFUGEE – protection visa – Indonesia – application form does not articulate claims for protection – supporting documents have no relevance to claims for protection - relying on father’s claims for protection - not satisfied that applicant has a well-founded fear of persecution – not referred for Ministerial intervention – decision under review affirmed 

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 5K-LA, 36,65, 417, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33

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 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant was born in Australia [DOB], which makes him currently [age] years old. He claims to be a citizen of Indonesia.

3. The applicant applied for the visa on 27 June 2017. On 26 September 2022, the applicant’s father applied to have the applicant added to his protection visa application.

4. On 27 April 2023, 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.

5. According to information on the Department file, the applicant’s parents and three siblings applied for protection visas on 26 February 2016. In a letter to the Tribunal dated 1 May 2023, accompanying the applicant’s application for review, the applicant’s representative explained that the applicant’s parents and siblings are awaiting a decision by the Tribunal in case number 1716342 and that the applicant and his family will seek Ministerial Intervention under s 417 of the Act after the Tribunal makes its decision.

6. On 5 June 2023, the Tribunal (differently constituted) found that the applicant’s parents and siblings were not owed protection and affirmed the delegate’s decision not to grant those applicants protection visas (case number 1716342).

7. On 15 June 2023, the applicant’s representative wrote to the Tribunal and requested, on behalf of the applicant’s father, that the Tribunal make a decision in the applicant’s case as quickly as possible without waiting for a hearing as the applicant’s father is seeking Ministerial Intervention, having been referred by the Tribunal, and wishes to include the applicant in his Ministerial Intervention request.

8. Accordingly, given the applicant’s father has indicated on behalf of the applicant that the applicant consents to the Tribunal making a decision on the papers without taking further steps to allow him to appear, the Tribunal has proceeded to make its decision on the basis of the evidence before it.

   CLAIMS AND EVIDENCE

   Applicant’s claims for protection and evidence before the Department

9. According to the applicant’s protection visa application form, the applicant is not making his own claims for protection and no further details about the basis of the applicant’s claims for protection are provided in the form. The applicant’s protection visa application form states that the applicant is under the legal custody of his parents.

10. The Tribunal infers that the applicant is relying on his father’s claims for protection. A copy of the protection visa application form of the applicant’s father is on the Departmental file and sets out his claims for protection which relate to the fact that he has not been able to pay back the full amount of a loan he obtained to study in Australia and his fear that if he returns to Indonesia, his loan will be passed on to debt collectors who will torture him for repayment or the matter will be taken to court and he might be imprisoned and this will cause harm to him and his family.

11. The copies of the protection visa application forms of the applicant’s mother and siblings which are also on the Departmental file indicate that they are not making their own claims for protection.

12. As noted above, on 5 June 2023, the Tribunal (differently constituted) found that the applicant’s parents and siblings were not owed protection and referred their case to the Minister pursuant to s 417.

13. Documents on the Department file include the following (non-exhaustive):

    ·     copy of the bio-data page of the applicant’s Indonesian passport

    ·     copy of his New South Wales birth certificate;

    ·     birth certificates, other identity and education documents relating to the applicant’s family members;

    ·     receipts and bank statement in the name of the applicant’s father;

    ·     signed loan confirmation statement dated 10 November 2006 in Indonesian and English in the name of [Mr A] confirming he owes A$24,990.97 to [Mr B] and he will repay that loan within 21 months according to the attached repayment schedule;

    ·     other untranslated documents in the Indonesian language.

    Evidence before the Tribunal

14. The applicant has provided the following documents to the Tribunal in support of the application for review:

    ·     copy of the delegate’s decision made on 27 April 2023 in the applicant’s case;

    ·     letter dated 29 February 2008 on the letterhead of [Mr C] addressed to the Australian Department of Immigration and Citizenship stating that the [organisation 1] agrees to be fully responsible for the fees and living expenses and health cover of the students named in the attached list. The list includes the name of the applicant’s father,[Mr D].

    ·     letter dated 23 August 2014 on the letterhead of [Mr C]in the Indonesian language and English translation, addressed to [Mr D] stating that he owes a debt of AUD$24,990.97 which fell due in November 2008;

    ·     tax invoice/statement dated 9 September 2007;

    ·     Commonwealth Bank of Australia deposit receipts from 2008 to 2011;

    ·     pre-hearing information form in case number 1716342.

15. The applicant has not provided other evidence or written submissions in support of his case to the Tribunal.

    Nationality and identity

16. The applicant claims to be a citizen of Indonesia and has provided his original Indonesian passport and New South Wales birth certificate to the Department as evidence of his identity, nationality and citizenship. The delegate was satisfied that these documents are genuine and found that the applicant is a citizen of Indonesia. In the absence of evidence to the contrary, the Tribunal is satisfied that the applicant’s identity and nationality are as claimed and that Indonesia is his receiving country for the purposes of assessing his claims for protection.

17. Based on the material before it, including the applicant’s New South Wales birth certificate, the Tribunal is satisfied that the applicant is a member of the family unit of [Mr D] who is the first applicant in case number 1716342, as defined in Reg 1.12 of the Migration Regulations 1994 and is therefore also a member of the same family unit as defined in s 5(1) of the Act. The Tribunal finds that [Mr D]is the applicant’s father.

    CRITERIA FOR A PROTECTION VISA

18. 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.

19. 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.

20. 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).

21. 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.

22. 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

23. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Analysis, reasons and findings

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

25. As discussed above, the applicant’s father requested that the Tribunal make a decision on the applicant’s application for review as quickly as possible and without a hearing being conducted. Accordingly, the Tribunal has proceeded to make a decision based on the information before it.

26. The applicant’s protection visa application form does not articulate any claims for protection on behalf of the applicant. The documents provided by the applicant to the Tribunal are not accompanied by any explanation of their relevance to his claims for protection. Based on those documents, it appears that in 2008, [Mr D] accrued a debt to an organisation in Indonesia called [organisation 1]and in August 2014, that organisation wrote to [Mr D] telling him that he owed AUD$24,990.97. As set out above, in his protection visa application form, the applicant’s father claims that he owes a debt as a result of his studies and he is worried about his inability to pay off that debt and that he will suffer harm as a result if he returns to Indonesia due to the debt being collected.

27. The applicant has not provided evidence to indicate the current size of the debt his father claims to owe to [Mr C] or evidence that his father in fact still owes a debt at all. The applicant also has not provided any evidence to indicate that attempts have been made since the August 2014 letter to recover or follow up the debt. Based on the evidence before it, the Tribunal is not satisfied that the applicant’s father continues to owe a debt to [Mr C], or that the debt is in the amount claimed. Further, based on the evidence before it, the Tribunal is not satisfied that if the applicant’s father does still owe a debt, that repayment of the debt would be sought if he returned to Indonesia. Further, the Tribunal is not satisfied that if repayment of the debt is pursued, it would be done in such a way that the applicant’s father would suffer serious or significant harm as a result, or that the applicant personally would suffer serious or significant harm as a result of the claimed circumstances.

28. In light of this, the Tribunal is not satisfied of the applicant’s claims and does not accept them.

29. Taking into account the findings set out above and having considered the applicant’s claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to Indonesia now or in the foreseeable future that he faces a real chance of serious harm for any other reason set out in s 5J(1)(a) of the Act, or for any other reason.

30. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, it is not satisfied that the applicant meets the definition of refugee in s 5H(1). As the applicant does not meet the definition in s 5H(1), the Tribunal is not satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).

    Does the applicant meet the complementary protection criterion?

31. As the Tribunal has found that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, it has considered whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).

32. As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[1] for the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm for any reason.

    [1] MIAC v SZQRB [2013] FCAFC 33

33. Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia, there is a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

    Conclusion

34. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

35. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

36. 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).

    Request for referral to the Minister

37. The applicant’s father has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 417 of the Act, which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks it is in the public interest to do so.

38. The Tribunal has not been provided with any submissions as to why referral to the Minister would be appropriate in the applicant’s case, other than correspondence explaining that his family are pursuing such a request and wish to include the applicant. According to the email from the applicant’s representative, the applicant’s father’s case was referred to the Minister by the Tribunal on 9 June 2023.

39. Having considered the evidence and circumstances, the Tribunal has decided not to refer to the applicant’s case to the Minister pursuant to s 417, however the Tribunal notes that the applicant may still make a request to the Minister to exercise the Minister’s public interest powers without a referral from the Tribunal.

    DECISION

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

    Rachel Da Costa
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …