SZJFR v Minister for Immigration - [2007] FMCA 1209

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJFR & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1209

MIGRATION – RRT decision – Indonesian with Acehnese ethnicity – Tribunal’s assessment of political changes in Aceh – finding that applicant now free to express political opinions supporting independence – addressed the applicant’s fears concerning ethnicity – no failure to consider an integer in refugee claims – application dismissed.

Migration Act 1958 (Cth), ss.36(2), 474, 476

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1

WAEE v Minister for Immigration (2003) 75 ALD 630

First Applicant:

SZJFR

Second Applicant:

SZJFS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2290 of 2006

Judgment of:

Smith FM

Hearing date:

16 July 2007

Delivered at:

Sydney

Delivered on:

16 July 2007

REPRESENTATION

Counsel for the Applicants:

Mr M Seymour

Solicitors for the Applicants:

Allens Arthur Robinson

Counsel for the First Respondent:

Ms L Clegg

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The applicants must pay the first respondent’s costs as agreed or as assessed in accordance with Federal Court Rules O.62. Pursuant to r.21.02(2)(c), refer those costs for taxation under O.62.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2290 of 2006

SZJFR

First Applicant

SZJFS

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 17 August 2006, which has been set down for a final hearing under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in relation to a decision of the Refugee Review Tribunal (“the Tribunal”) dated 14 July 2006 and handed down on 20 July 2006. The Tribunal affirmed a decision of a delegate made on 13 August 2005, refusing to grant a protection visa to the applicants. The applicants are a husband and wife, but the wife made no separate claims for protection. As did the Tribunal, I shall refer to the applicant husband as "the applicant".
The Court's jurisdiction under s.476 is “the same original jurisdiction in relation to migration decisions as the High Court has under 75(v) of the Constitution”, but its powers are confined by s.474(1), so that I do not have power to set aside the Tribunal's decision and send the matter back to the Tribunal, unless I am satisfied that the Tribunal's decision was affected by jurisdictional error. I do not have power myself to decide whether the applicants are at risk of persecution for a Convention reason if they were to return to the applicant husband's home province of Indonesia, Aceh.
The applicant’s counsel argued that jurisdictional error occurred in the present case, due to a failure by the Tribunal to address a significant element in the applicant’s claims to come within the definition of “refugee” adopted by s.36(2) of the Migration Act from the Refugees Convention. In particular, it is argued that the Tribunal did not examine a claim that the applicant would be at risk in Indonesia merely as a person of Acehnese ethnicity, and that this claim required consideration by the Tribunal separately from an examination of the applicant’s concerns as an actual or imputed supporter of the Acehnese independence movement. To understand counsel’s submissions, it is necessary for me to set out extensive parts of the applicant’s evidence to the Tribunal and from a submission made by his advisor, so as to examine how his refugee claims were presented.
The applicant was born in Aceh, and was in business there for some 10 years until 1995. In a statement given to the Tribunal, he referred to the situation in Aceh while he lived there:
3.In 1989. Aceh was placed under the Indonesian military dictatorship, this was referred to as DOM. Since this time people in Aceh were kidnapped and murdered and experienced other cruelties. If they (the military government) suspected that someone is a member of Gerakan Aceh Merdeka (GAM) which is the Aceh independence movement, they will capture and torture that person without investigating this.
4.During this time, Aceh was also subject to a curfew was for 12 hours each day (from 6pm till 6am). Whoever was found during that time would be shot without regard to whether they were male or female.
5.If groups of males were found, they would be captured because they would be suspected to be GAM members. Men between the age of 18 years old and 40 years old were forced to be involved with the Indonesian security forces Citizen Training to prevent these men forming groups to cause uprising. The Indonesian security forces use these recruits in the frontline when there is an uprising between the military and GAM.
6.At night, the military held operations to visit the homes in Aceh and capture people whom they suspected to be involved with GAM. Most of these suspects were killed and the corpses were heaped on the side of the road. But as the military were not able to distinguish the difference between GAM members and normal citizens, many of those whom were killed or suffered were not GAM. So people in Aceh did not need even to be involved in GAM to be suspected by the military to be GAM. And those who assist GAM even with just giving a GAM person a cigarette would be punished and the punishment will be death.
The applicant said that he made donations to GAM. He also referred to receiving the attention of the Indonesian security forces:
14I felt I wanted to help because we are all Acehnese, and I believed in Aceh independence from Indonesia. I was never forced to provide this money, I did it because I wanted to support GAM.
…
18.The Indonesian security forces started coming to my (business) a bit later after I had started giving money to GAM, but about the same time, so this would probably sometime in 1993 as well.
19.Because I had a (business) the Indonesian security forces believed we had lots of money, and so they would come and ask for money. The military police came every day to my (business). And they also asked for money, this was for their own person. Often two people would come and people might come twice in a day. They would hassle me.
20.They would accuse me and say “Oh you are one of the GAM” even though I never admitted giving money to GAM, but they would always threaten this.
21.The Indonesian security forces also forced my friends to give money, and if they did not give them money they would burn their rice mill. They would use all sorts of tactics, they would threaten us that they would think that we would be giving money to GAM, or that they would burn down the (business).
22.I would give the Indonesian security forces money when they came. A few times, perhaps two or three times, I did not give the Indonesian security forces money when they came, and on those occasions we were not allowed to operate the (business). On those occasions what happened was that I would refuse to give the money and they would leave, then they would return and bring their friends with them. When they first came they would wear normal clothing not uniforms then when they returned with more people, they would all be in uniform. Then the group would close the (business). They would not allow my staff to work. They would take me to a certain place and talk to me. They would threaten that they not only had the power to close the (business) down they could burn it down. Sometimes they would stay at the (business) for up to 2-3 hours. The next day I would open the (business) again, but I felt very scared because I was worried they would come back again.
23.Quite often the Indonesian security forces would come to my (business) and ask for money, and I would say “I can’t give you money I do not know whom you are, you could be GAM” and then they would go and get their friends, and they would say we are from the Indonesian security forces, they would force us to give them money. Then I would give them money.
The applicant claimed that in May 1995 he was told that “lots of military police” had surrounded his business. He said that he became scared, did not return, and went straight into hiding. He eventually sought refuge in Malaysia. In Malaysia, he married a Malaysian national, and they have a son. He and his wife had businesses, being a shop and a restaurant, and he acquired Malaysian permanent residency.
He said in his statement to the Tribunal that in about 2001 he and some fellow Acehnese commenced to collect donations for sending back to Aceh to needy villages. He claimed that these activities gave rise in 2003 to difficulties. He said “suspicious people” started asking questions about the money being collected and suggesting that it was “helping GAM”. These people were suspected of being Indonesian spies, and the collections were stopped.
In November 2003 a group of people came to his shop when he was not there and threatened his staff, alleging “You are using this money for the benefit of GAM against the Indonesian government”. He said that he did not dare return to his shop. His wife also told him that there had been visitors to her restaurant who alleged that “Your husband is an activist against the Indonesian government”. He then went into hiding for six months, and did not communicate with his wife. He lived elsewhere in Malaysia until obtaining a renewed Indonesian passport and a visa to come to Australia.
He and his wife arrived in April 2005. His application for a protection visa was then lodged on 27 May 2005. The original visa application was completed in a very cursory fashion, and a delegate refused the application for reasons which it is unnecessary to explore.
Before the Tribunal, the applicant obtained the assistance of the Refugee Advice and Case Work Service, which presented the full statement to which I have referred above, and several lengthy submissions.
In a submission dated 24 November 2005, the applicant's adviser summarised the applicant's claims at the commencement of the submission:
We reiterate the applicant's claims, which in essence, are that he fears he would be persecuted in Indonesia because:
(1)he is Acehnese;
(2)he is a Gerakan Aceh Merdeka (GAM) supporter/will be imputed to be a GAM supporter.
The submission continued by referring to the applicant's history, which I have sketched above. The submission then made a general submission:
We submit that the chance that (the applicant) would suffer harm amounting to persecution in Aceh, for one or more of the above reasons, is real. While in Aceh the applicant experienced threatened physical harm, official extortion, and lived in a state of fear of arbitrary arrest or imprisonment by the Indonesian security forces. His commitment to both supporting GAM and Acehnese people living under military rule continued when he fled to Malaysia, and he found himself again in a situation of threat by the Indonesian security forces being the intelligence section in Malaysia where he was required to flee for his safety. Since the time the applicant left Aceh there have been many changes including the imposition of a state of emergency, a major military offensive by the Indonesian military and a tsunami. The activity of military intelligence outside of Aceh and Indonesia in Malaysia supports his fear that he would not be safe anywhere in Indonesia. Further, the applicant’s consistent expression of his political support of GAM and of people in Aceh means that he will continue to face a real chance of harm on the basis of his beliefs. In addition, several factors make it unreasonable for the applicant to relocate to another part of Indonesia. The applicant’s Acehnese ethnicity, his link with GAM, his lack of familial and other support including money, friends and contact. Further, we submit that the psychological impact and trauma that the applicant would experience should he be forced to relocate to areas where he fears harm must be taken into account. We note that the extent of this fear in Malaysia, that is outside Indonesia, was such that the applicant lived in hiding from November 2003 to April 2005, separated from his spouse and child, with little even telephone contact with his family.
For these reasons we submit that (the applicant) is owed protection obligations under the Refugees Convention. We provide below further comments, analysis and information to support our submissions.
This submission was then elaborated under a series of headings, of which the first was "Fears relating to Acehnese ethnicity". The submission there referred to decisions taken by the Refugee Review Tribunal in 2004 and 2005, in which findings had been made which included: “the civilian members of Aceh face risk of abuses by the Indonesian security forces due to an imputed suspicion by the forces that all Acehnese are GAM supporters”, and “all Acehnese are suspected of being supporters of GAM and opposed to the Indonesian authorities”. There was also reference to a previous decision of the Tribunal which found that “relocation to Jakarta would not be a reasonable option for Acehnese people”, because “Acehnese people living in other provinces in Indonesia face considerable problems, including monitoring, surveillance, harassment and arrest”.
The submission also made reference to inadequacies in the human rights situation generally in Indonesia, and it was submitted:
We submit that these comments and country information referred to, apply to the applicant because he is an ethnic Acehnese, has a record of suspected / real GAM involvement, has spent considerable time outside Indonesia in Malaysia, and would not have appropriate identity documentation on return. Because of this there is a real chance that in Aceh the applicant could be subjected to interrogation, detention and serious harm, simply due to his Acehnese ethnicity.
The adviser's submission then, under the heading “Fears relating to the applicant's real and suspected GAM involvement” continued:
Beyond the applicant’s ethnicity, the applicant fears harm on the basis of his actual support for GAM and his imputed support for GAM. The applicant did provide financial support to GAM in both Aceh and Malaysia, due to his belief in the struggle for Aceh to seek independence from Indonesia. In addition, he founded, with others, “Aceh Economy” in Malaysia to support people in Aceh. This involvement with GAM preceded the applicant fleeing Aceh, as the Indonesian security forces surrounded the applicant’s (business), complete with military trucks, in what the applicant feared was an operation to arrest and imprison him, and would result in a “death penalty”. He received frequent threats from the Indonesian security forces who would threaten that they believed the applicant was GAM, and that they could burn his (business)down. This incident and the ongoing threats show that the Indonesian security forces were suspicious of the applicant and believed him to be GAM, and were ready to arrest and harm him. He only avoided this harm through immediately going into hiding and then leaving Aceh.
Country information notes that since May 2003 when the TNI launched a major military offensive in Aceh the Indonesian authorities have been monitoring, harassing and arresting Acehnese people throughout Indonesia (including Jakarta). Despite recent attempts and some indications of success in negotiating a peace deal between GAM militants and the TNI, there remains a climate of fear for all Acehnese people throughout Indonesia. Country information has reported that all Acehnese people are suspected of being GAM members and / or supporters and are therefore subject to detention, interrogation and torture, and imprisonment or death. This is especially the case if a person has a record of past involvement such as the applicant. We note that the recent Peace Agreement in Aceh could suggest that this situation has now changed for Acehnese people, and those imputed with GAM membership and support. We submit that it is far too early to make a decision with any confidence that peace has arrived in Aceh. We will discuss this in detail below.
The submission then, over many pages, addressed the situation since 15 August 2005, when a memorandum of understanding was signed between the government of the Republic of Indonesia and the Free Aceh Movement (GAM) in Helsinki. It was submitted that the “peace agreement” did not establish that there no longer existed a “real chance of harm” for Acehnese people. Extensive references to country information were made in support of that contention.
Reference was also made by the applicant’s adviser to material pre‑dating the peace agreement, which referred to the situation of people returning to Aceh from Malaysia and other places. The submission was as follows:
Dangers for Acehnese returning to Aceh from abroad
In 2004 Human Rights Watch reported the disappearance and killing of Acehnese returned to Indonesia from Malaysia. Testimony from individuals who have returned to Aceh from Malaysia and others demonstrates that those who leave Aceh are more likely to be suspected as members of GAM by the military upon their return. Asylum seekers who are returned to Aceh face a high risk of abusive punishment on account of their initial flight to Malaysia, and some are very fearful that they would suffer persecution if forced to return. In addition, Acehnese who have been living in Malaysia since before martial law was declared faced the possibility of serious reprisals upon return. This is the situation facing the applicant who fled Aceh in 1995. The applicant has an Indonesian passport which was issued in Kuala Lumpur, Malaysia. On page 23 of the applicant’s passport, it is clear that this passport was issued from a prior passport which was issued in Langsa, Indonesia in 1995. These passport details alone will expose the applicant to serious harm on return to Indonesia. Simply fleeing from Indonesia brings suspicion of being a GAM member or supporter.
There is no reason to consider that the situation of Acehnese asylum seekers being forced to return to Indonesia from Malaysia would be any different from that of Acehnese asylum seekers being forced to return from Australia. The Refugee Review Tribunal has, in another matter before it, recognised that an extended stay in Australia “would attract attention” leading deportees to be “singled out and detained”.
The adviser's submission also addressed the situation of the applicant in relation to relocation within Indonesia, and submitted that “Relocation would not be a reasonable option because of the extent of monitoring of Acehnese outside of Aceh would expose them to further danger and harassment”. Further reference was made to an earlier Tribunal decision and the country information on which it was based.
At the end of the submission, further reference was made to the applicant's ethnicity, including, for example, in the submission:
"Further, apart from being of Acehnese ethnicity, the applicant is then an Acehnese activist, who has been targeted for arrest in Malaysia by the Indonesian security forces, and will continue his activism wherever he is located".
The applicant attended a hearing held by the Tribunal on 29 November 2005, and further written submissions were made by his advisor after the hearing, including further submissions in response to letters sent by the Tribunal raising the current country situation.
The single ground of review in the amended application to this Court, which is relied upon today, is:
1.The Decision is void for jurisdictional error in that the Tribunal failed to address and make findings about a substantial claim out forward by the Applicants.
Particulars
(a)The First Applicant submitted a claim to the Tribunal, inter alia, that he feared persecution in Indonesia because of his ethnicity as Acehnese.
(b)The Tribunal did not make findings or address in part or at all the Applicant’s claim that he feared persecution because of his ethnicity as Acehnese.
(c)The Tribunal had a duty to consider all substantial claims put forward by the Applicant and failed to do so.

In short, the ground relies upon familiar principles, which were summarised in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [63]:
It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be “subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected”: Applicant WAEE (at [47]). But as the Full Court said in WAEE (at [45]):
If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by s 414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal’s published reasons for decision.
In the present case, the Tribunal's reasons show meticulous attention to the material before the Tribunal. It was conceded by counsel for the applicant that the Tribunal identified, in its recitation of the material before it, those parts of it which I have extracted above, in which reference was made by the applicant and his adviser to his Acehnese ethnicity. For example, the Tribunal summarised the part of the adviser's submission, which referred to this:
The fact of the applicant’s Aceh ethnicity: the adviser refers to several RRT decisions (dated July 2004 and June 2005) in which the relevant Member was satisfied that the Indonesian authorities suspected all Acehnese of being GAM supporters and opposed to the Indonesian authorities, and (critically for this decision) that this fact alone gives rise to a real chance of abuses should such people return to Indonesia. The adviser summarises the relevance of this to the applicant’s circumstances thus: ‘he is an ethnic Acehnese, has a record of suspected/real GAM involvement, has spent considerable time outside Indonesia in Malaysia, and would not have appropriate documentation on return. Because of this there is a real chance that in Aceh the applicant would be subjected to interrogation, detention and serious harm, simply due to his Acehnese ethnicity.’ She adds that the applicant did in fact provide support to GAM in both Indonesia and Malaysia (the latter in form of funds as well as co-founding Aceh Economy).
The Tribunal's description of the hearing also recorded references by the applicant to his identity as an Acehnese person, for example:
Also in response to the adviser’s suggestion, the Tribunal asked if there were any reasons why the applicant – if it were unsafe in Sigli – could not live elsewhere in Indonesia. The applicant said that Acehnese would face the same problems anywhere in Indonesia, due to people’s presumption that Acehnese were GAM supporters. He said he would face language and discrimination problems in other parts of the country. The Tribunal noted country information regarding relocation within Indonesian for Acehnese was not entirely clear – generally, it was considered safe for them to do so, although there were reports of them being monitored and treated with suspicion, particularly if there were an actual connection with GAM. The Tribunal noted that the applicant husband was well-documented and was in Malaysia for a very clear reason – family – which could reduce his risks significantly..
At the start of its discussion of the applicant's claims under the heading, “Findings and reasons”, the Tribunal made a clear finding “The Tribunal also accepts that the applicant husband has Acehnese ethnicity”. The Tribunal then referred to that ethnicity in its summary of his claims:
Essentially, it is the applicant’s claim that he fears persecution in Aceh at the hands of Indonesian security forces, for reason of his actual and imputed support for Acehnese independence. He claims to have fled Indonesia in September 1995, after providing financial support to GAM and having local Indonesian security forces turn on him when he failed to meet their extortion demands. In Malaysia, the applicant husband claimed to have continued making regular payments to GAM and, from 2001, to have been one of four founders of a charity collecting monies for underprivileged persons in Aceh. The charity grew and began to attract warnings from persons believed to be Indonesian intelligence agents. In November 2003, these people accused the applicant husband of being a GAM supporter, and he went into hiding in various parts of Malaysia until his departure for Australia in April 2005. He fears detention, interrogation and consequent persecution, as an Acehnese and actual or suspected GAM supporter, if he returns to Indonesia. It is his claim that he cannot obtain protection in Malaysia, because of that country’s policy towards Acehnese. It is also his claim that it is unsafe and unreasonable for him to relocate anywhere in Indonesia, because of the treatment he will receive as an Acehnese.
Counsel for the applicant acknowledged that the Tribunal did make these references to the applicant's claim based on ethnicity, but contended that in its subsequent discussion the Tribunal did not identify and address separately whether the applicant would be at risk merely by reason of his ethnicity if he returned to Aceh or anywhere else in Indonesia. He submitted that nowhere was the applicant's claim about his ethnicity separately addressed. He invited the Court to draw the inference that it was not actually considered, which is permitted under Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87] – [97].
In particular, it was submitted that the Court should draw the inference from the Tribunal’s statement of reasons suggested in applicant WAEE v Minister for Immigration (2003) 75 ALD 630 at [47]:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
I have considered these contentions, but, in my opinion, the Tribunal's reasoning shows clearly that it sufficiently understood how the applicant's Acehnese ethnicity related to his fear of persecution, and did address that fear, fully and sufficiently.
In my opinion, the claims as presented to the Tribunal did not suggest a risk of persecution merely as an Acehnese ethnic, which arose separately from a perception by Indonesian authorities that people with that ethnicity were supporters of independence for Aceh, and were therefore liable to be suspected as supporters of its insurgency movement GAM. It was, in my opinion, appropriate and sufficient for the Tribunal to address the applicant's risk of future persecution by reference to the applicant's history of persecution by reason of actual or perceived political opinions as a supporter of independent Aceh, and for the Tribunal to assess the risk that he would face if he returned by reference to political developments in relation to Aceh and the changed political situation of Acehnese people generally in Indonesia. The Tribunal did fully address the applicant’s claims from these perspectives.
It first addressed his past experiences. After making a finding that “The Tribunal accepts that the applicant, as an Acehnese, supports independence or autonomy, and that Indonesian authorities will presume that he does”. The Tribunal essentially accepted his history accounting for his departure from Indonesia in 1995, although it did not accept that he was of interest to Indonesian authorities beyond the location of his residence and business. In particular, the Tribunal thought that his obtaining a genuine Indonesian passport in his own name suggested that he was not of adverse interest to the Indonesian authorities in other parts of Aceh at that time. The Tribunal said: “It accepts, however, that the mere fact of being Acehnese was, at that time, sufficient legitimate motivation for a person in his position to seek to leave Indonesia”.
The Tribunal then addressed the applicant's history while residing in Malaysia. It noted that the applicant, on arrival, had registered with the Indonesian Embassy. This, in combination with the fact that the applicant later acquired a renewed Indonesian passport in 2005, led the Tribunal to conclude:
That he was not of adverse interest to the Indonesian authorities at that time, for reasons of suspected or actual GAM support, and that he did not, therefore, have to go into hiding and ultimately depart Malaysia for this or any reason that is relevant to his refugee claims vis‑a‑vis Indonesia.
Therefore, although the Tribunal accepted the applicant's history of collecting charitable funds for a period in Malaysia, it considered that much of his evidence was "exaggerated and embellished" in relation to the incidents claimed to have occurred in Malaysia.
Notwithstanding its finding that the applicant in 2005 was not of adverse interest to the Indonesian authorities, the Tribunal addressed the possibility that the applicant had been harassed by people in Malaysia. It discussed this possibility in the following passage:
This does not, without more, permit the Tribunal to dismiss all of the applicant’s claims with respect to the events of November 2003 and its aftermath. It casts grave doubt on the veracity of his account, but leaves open the possibility that unknown persons called on his shop and that of his wife, accusing him of supporting GAM. The Tribunal accepts, notwithstanding serious doubts, that such visits did take place. However, it does not attach to these visits the meaning invited by the applicant. It notes the applicant’s insistence that these people were Indonesian spies, based on the rumours circulating amongst the Acehnese community; his view that they were readily recognisable by their accents; and his belief that the Malaysian authorities either failed to detect these people or tolerated them. The Tribunal is unable to determine with confidence the exact identity of these people. It cannot rule out that they were individual Indonesians seeking to intimidate and possibly extort Acehnese business people in Aceh. Nor can it rule out that they were other people exploiting the Acehnese community’s vulnerability in late 2003.
The applicant told the Tribunal that he never contacted the police, but went instead into a long period of hiding. It was his claim that the police were unlikely to protect him from Indonesian spies, given their emphasis on bilateral relations. However, the Tribunal finds that the applicant husband, a permanent resident of Malaysia, or his wife, a Malaysian national, would have had every reason to seek police protection if there had been serious threats from unwelcome visitors with (as the applicant husband claimed) Indonesian accents. They had no outstanding problems with the police and, even if they had low expectations of receiving a response (whether for reasons of competence or, as claimed, for political reasons), the Tribunal does not see why that acted as a deterrent in contacting them. The Tribunal finds unconvincing, and does not accept, the proposition that the applicant husband saw as a more attractive alternative a prolonged period in hiding, and that the applicant wife also did not seek assistance.
These considerations lead the Tribunal to conclude that, although the applicant was absent from Kuala Lumpur for some period (as several relatives were willing to testify), the duration and nature of this were considerably exaggerated, and the reasons were unrelated to his current claims that Indonesian spies had marked him out for his work with Aceh Economy. These findings reinforce the Tribunal’s conclusion above that, as of January 2005, the applicant was not a person of interest to the Indonesian authorities in Kuala Lumpur for reason of any political opinion, actual or imputed.
The Tribunal rejects the applicant’s attempts to equate his situation – a fully documented permanent resident of Malaysia, with a valid Indonesian passport in his own name, a family and a business – to that of genuine undocumented Acehnese refugees at risk of deportation to Indonesia. The Tribunal accepts that the applicant was apprehensive about the future for Acehnese generally in Indonesia, and believed that there were Indonesian spies in Malaysia. However, it is not satisfied that in his particular circumstances these fears relate to a well-founded fear of persecution for Convention reasons.
Counsel for the applicant referred to the Tribunal's finding in the above passage “It cannot rule out that there were individual Indonesians seeking to intimidate and possibly extort Acehnese business people in Aceh” as evidence that the applicant had made, and that the Tribunal had made a finding which supported, a claim to fear future persecution for reasons purely of ethnicity unrelated to actual or perceived political opinion.
However, I do not consider that this can be concluded. I am inclined to think that the Tribunal's reference to “Acehnese business people in Aceh” contains, in fact, a slip and that the Tribunal intended to refer to “Acehnese business people in Malaysia”, such as the applicant had been at the time when he claimed to have received threatening visitors. In any event, the incidents to which the Tribunal refers were incidents in which the applicant was threatened with being accused of being a GAM supporter, and I do not read the Tribunal as making a finding which concerned a separate claim unrelated to the applicant’s fears that he would be persecuted for actual or imputed political opinions. As I have explained above, I do not think there was material before the Tribunal which separately raised a claim based upon ethnicity unrelated to imputed political opinion.
At the end of the passage which I have quoted above, the Tribunal showed that it understood the applicant's apprehension as being “about the future for Acehnese generally in Indonesia”. In my opinion, this reflected a proper understanding of the applicant's claims and his fears. They were inseparable from the fears of all Acehnese people at the hands of the Indonesian authorities, arising from their imputed support for an independence movement, and from the official and unofficial Indonesian oppression which they had suffered as a result.
The Tribunal then addressed those fears under the heading “Prospective harm”, and arrived at the following conclusions:
It is the Tribunal’s task to assess whether the applicant has a well-founded fear of persecution, now and in the reasonably foreseeable future, taking into account all of his personal circumstances as well as country information. The Tribunal accepts that there is uncertainty about the peace accord’s durability, and that, despite its promise thus far, Aceh’s past record sounds a note of caution. However, it is clear that former GAM combatants and members are returning to the region now. The Tribunal accepts that the applicant has a pro-independence political opinion, and that he will be perceived by many as having had some association with GAM due to the circumstances of his departure from Indonesia. However, the Tribunal finds that he is certainly not now regarded by the Indonesian authorities as having a significant adverse political opinion. The Tribunal also finds that he will not be viewed by others – such as local authorities – as being anything more than a GAM sympathizer, like the majority of his community. The Tribunal is not satisfied that the applicant’s past experiences – his past payment of GAM dues, his contacts with GAM people while traveling to Malaysia or his involvement in Aceh Economy – establish him as anything more than a GAM sympathizer. The Tribunal concludes that the applicant is not a GAM combatant or member, actual or imputed, and will not be perceived as such. Indeed, his profile - as a regular Indonesian passport holder, with a regular family and business life – is in stark contrast to that of many current returnees to Aceh. The absence of reported abuses of such persons, in circumstances where irregularities would be widely reported, suggests that the risks for a person such as the applicant are remote and insubstantial.
The Tribunal accepted above that the applicant has a political opinion in favour of Acehnese independence, although he is not politically active. It is satisfied that the mere possession of such an opinion is shared with the majority of Acehnese, and therefore unexceptional. It is also satisfied, taking into account the current political situation where debate on the form and content of self-government lies at the heart of political debate, that he will be free to express his political opinion without fear of persecution.
Regarding both the applicant’s identity as a GAM supporter and his pro-Acehnese independence political opinion, and taking into account all the available country information (including that in the submission of 13 July 2006), the Tribunal is also satisfied that there is no real chance that he will be subject to Convention-related persecution in the reasonably foreseeable future. The Tribunal acknowledges that there is no ‘guarantee’ with respect to the peace accord. However, it finds that neither the applicant’s profile nor the extent of his political engagement are such that there is a real chance that he would be targeted – even if the peace accord were in fact to collapse and if, in the wake of such a collapse, TNI or other Indonesian security forces were to turn on former GAM militants and activists.
The Tribunal has also considered the possibility that localized conditions may vary from those reported across the province as a whole. Relevant here is that the applicant’s family remains in Sigli. While it is difficult to draw conclusions from the very limited information available, there is nothing to suggest anything inherent in his family’s background or business interests that would bring him to the adverse attention of local authorities. The Tribunal is also not satisfied that the circumstances of his departure from Sigli in 1995 would be of any continuing relevance, given that (a) any local corrupt personnel who were there then and are still there would obviously have suffered no ill consequences from his absence, and would therefore not have any grudges to bear; and (b) the (business) continues to operate, under his brother’s management. In this regard, the Tribunal noted the applicant’s claimed long period of minimal contact with his family. The Tribunal attributes this in large part to poor infrastructure, and also the applicant’s caution and uncertainty about local security conditions. It is not satisfied that these form the basis for any current well-founded fear of persecution.

In my opinion, the Tribunal's findings that Acehnese people living in Aceh no longer suffered a well‑founded fear of persecution, even where they actually expressed political opinion in favour of Acehnese independence, fully answered the fears which the applicant had presented to the Tribunal. I therefore do not accept that the ground argued before me has been made out. In the language of WAEE, the Tribunal’s conclusions on the applicant’s claims which referred to his Acehnese ethnicity, were “subsumed” by its findings in relation to the changed political circumstances of Acehnese people in Indonesia.
The Tribunal's subsequent reasoning addressed further aspects of the applicant's claims, including whether he was at risk by reason of his residence in Malaysia or in Australia, and the significance of his psychological apprehensions about returning to Aceh. The Tribunal also noted that it had not decided the applicant's entitlement to a refugee visa by reference to his rights of permanent residence in Malaysia nor upon questions of relocation within Indonesia. The Tribunal's reasoning in these respects was not the subject of attack in the proceeding before me.
For the above reasons, and notwithstanding the submissions ably presented by counsel for the applicant, I am not persuaded that the Tribunal's decision is affected by jurisdictional error. It is, therefore, a privative clause decision, and I must dismiss the application.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 30 July 2007