N95/09125 [1997] RRTA 1190 (7 April 1997)

Catchwords: Political opinion - Well founded fear - Harassment

This is the review of decisions taken by a delegate of the Minister for Immigration and Ethnic Affairs (the delegate) on or about September 1995 to refuse to grant the applicants protection visas.

In March 1995, the first named applicant (the principal applicant) applied to the Department of Immigration and Ethnic Affairs (now the Department of Immigration and Multicultural Affairs) (the Department) for the grant of protection visas for herself and the other four applicants. Only the principal applicant claimed to fear persecution in Indonesia. The other four applicants, who are her three daughters and one of her three sons did not claim to fear persecution themselves.

In a letter dated September 1995, the delegate notified the principal applicant of the decision to refuse her application for a protection visa on the ground that she did not meet an essential criterion for the grant of such a visa. The delegate signed his reasons for decision but did not date the document. The approximate date of the decisions must be deduced from the date of the letter notifying the applicants of the decisions.

The delegate notified the other applicants that they also had been refused protection visas. He informed them that, although they were members of the family unit of the principal applicant, they had been refused protection visas because she had been refused a protection visa. In September 1995, the applicants applied to the Tribunal for review of the delegate's decisions.

This is the second time the principal applicant has made a refugee related application. In

July 1995, the Tribunal affirmed a decision, taken by a delegate of the Minister in February 1994, to refuse to recognise her, her husband and her eldest son as refugees (see: Tribunal decision No. N94/03108). The application reviewed by the Tribunal in July 1995 was lodged with the Department by the principal applicant's husband. He also nominated her and their children as applicants.

The four children who are included in the application now under review were not in the Australian migration zone when their father lodged his application. Therefore, he could not make valid applications for refugee status for them (see: decision No. N94/03108, p3). They all entered the migration zone in December 1994. They were present in the migration zone when the principal applicant lodged her application for a protection visa in March 1995. The principal applicant has, therefore, made valid applications to include them in her application for a protection visa.

The principal applicant did not nominate her husband or that son for inclusion in the application for a protection visa that is now under review. Her third son has remained in Indonesia. She did not nominate him for inclusion in her application for a protection visa. The Tribunal does not, therefore, have jurisdiction to examine the status of her husband or either of these sons. However, the claims of the principal applicant rely largely upon the experiences of her husband in Indonesia. His experiences must be considered when determining whether she meets the criteria for a protection visa.

The principal applicant was born in 1949 in West Sumatra in Indonesia. The other four applicants were born in Java at various times between 1974 and 1984. They all travelled to Australia on Indonesian passports that the Indonesian authorities in Jakarta issued to them. The Indonesian authorities issued the principal applicant's passport in 1993 and the children's passports in 1994. They have remained in this country since they arrived here at various times 1994.

In March 1995, the solicitor and migration agent, who has helped the principal applicant at all relevant times, stated she had instructed him that she relied upon the information in her husband's application for refugee status to prove she would be eligible for a protection visa. The Tribunal summarised and commented on that information in decision No. N94/03108. The Tribunal stated:

The Applicant said that he used to have a business up to approximately two years before he came to Australia. Around the time of the Indonesian elections in 1992 he said that he was accused of (details deleted under s.431, Migration Act 1958). The Applicant stated that he had not done that of which he was accused. Uniformed and plainclothes police would come to his shop and ask (details deleted under s.431, Migration Act 1958) and accuse him of (details deleted under s.431, Migration Act 1958). The climate of harassment and intimidation continued until it was climaxed by his discovery of bullet holes in his shop when he went to open it in the morning. He estimated there were probably four bullet holes which had damaged the door of the shop and broken some glass.

The harassment continued with people coming to his home and intimidating his wife. The Applicant started to consider formulating a plan to leave Indonesia. He said that he sold (details deleted under s.431, Migration Act 1958) and with the money he paid an agent to obtain his passport. Two weeks later his passport was ready and he immediately, through the help of a friend, obtained a visa within 48 hours. Shortly afterwards he left for Australia. The Applicant confirmed the timing inherent in the above account when it was put to him.

This timing conflicts with that given by the Applicant in his interview with the Delegate. There he said that he sold the business at the end of 1992 and remained unemployed until his departure for Australia. This conflict was put to the Applicant and he amended his account to say that he sold his business in or about 1992 and remained unemployed until he left for Australia.

In his interview with the Delegate the Applicant said that the police visited him in both his shop and his home. The last visit was in August 1992 shortly after the election and prior to his sale of the shop. The police at one stage put something in writing connecting him with (details deleted under s.431, Migration Act 1958) and asked him to sign it but he refused. The incident with the bullet holes was related as being one shot which damaged some glass.

The Applicant's wife on the same topics said that her husband had been accused by the police of (details deleted under s.431, Migration Act 1958). The first accusation was some two months before the elections in May 1992. The police used to come looking for him at their home but her husband used to evade them and live elsewhere in Jakarta for one or two days. The police were never able to catch him. The police told her that her husband would be prosecuted if and when they caught up with him. The damage caused by the shooting incident consisted of one bullet hole and a damaged glass display case.

There are inconsistencies between the Applicant's evidence at the hearing, his wife's evidence and the Applicant's account to the Delegate. Many inconsistencies as to dates and timing can be explained on the fallibility of human memory and the Tribunal makes no issue of the discrepancies in dates in the accounts above.

However, the difference in the Applicant's account of his contact with the police and his wife's account of the same thing is a serious problem. The Applicant gave an account to the Delegate and to the Tribunal which has as its central theme the harassment of the Applicant by the police and the resulting fear of the Applicant. The wife of the Applicant directly contradicted this account saying that the police were unable to find the Applicant because he took successful measures to evade them.

The evidence of the Applicant's wife is that the police would prosecute the Applicant if and when they caught him. They never did for the Applicant managed to evade the police for over a year. During that year the Applicant sold his business and obtained a passport in his own name. He then left Indonesia without any difficulty.

The delegate interviewed the principal applicant in July 1995. She told the delegate that one of her sons has remained in Indonesia. She testified in a hearing in April 1997 that he is living in (details deleted under s.431, Migration Act 1958) with one of her husband's relatives.

The principal applicant told the delegate that a police officer twice came to see her at her home after her husband came to Australia in June 1993. She said the first of these visits took place in about August 1993. She said the second visit took a place in about October the same year. The principal applicant told the delegate that, although the man who went to her house in August 1993 was not wearing a uniform, she had seen him in uniform at other times. The principal applicant testified to the Tribunal that the first visit to her home took place in about September 1993. She repeated her evidence that the second visit took place in October 1993. She testified that neighbours had told her about seeing other men near her home about six times after her husband came to Australia. She testified she was absent from the house at the times of all but the first visit. She testified that he questioned only once about her husband. This was during the visit in September 1993.

The principal applicant testified that the police officer merely asked where her husband was. She testified he did not threaten her in any way. She testified that all these visits had been to the house where she had lived with her husband and family before he came to Australia. She testified that she had lived in this house with her husband and children for about ten years. She continued to live in the same house until she left Indonesia for Australia in January 1994. The principal applicant testified that she had given that address to the Indonesian authorities when she applied for her passport. The authorities endorsed that address in her passport as her residential address. She testified that, when she came to Australia in January 1994, she had left her children with her elder sister who then lived in Jakarta near that address.

She testified that she paid an agent about 200,000 rupiahs for help to obtain her passport. She testified that the exchange rate was then about 1500 rupiahs to the Australian dollar. She, therefore, paid about $Aust. 130 for her passport and the agent's help.

The applicants complied with the requirements of the Migration Act 1958 (the Act) and Migration Regulations (the Regulations) for making valid applications for review when they applied for review. Therefore, the Tribunal has jurisdiction to review the decisions of the delegate and must review those decisions under s.414 of the Act.

The criteria for the grant of a protection visa are set out in s.36 of the Act and Part 866 of Schedule 2 to the Regulations. A criterion the principal applicant must meet at the time of the decision by the Tribunal is that she '... is a person to whom Australia has protection obligations under the Refugees Convention' (clause 866.221 of Schedule 2 of the Regulations). Australia has protection obligations under that Convention to 'refugees' as defined in article 1A. If the principal applicant meets that requirement, the other four applicants might also be entitled to protection visas as members of her family unit.

The relevant part of the definition in article 1A of the Refugees Convention states:

... the term "refugee" shall apply to any person who:

(2) owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country;

This definition establishes four requirements that the principal applicant must meet if she is to be recognised as a refugee. First, she must be outside her country of nationality. Secondly, she must fear harm for one or more of the five Convention reasons of her race, religion, nationality, membership of a particular social group or political opinion. Thirdly, her fear of harm must be well-founded. Fourthly, she must be unable or, because of that well-founded fear, unwilling to avail herself of the protection of her country of nationality.

The principal applicant's status must be determined upon the facts at the date when a decision is made (Minister for Immigration, Local Government and Ethnic Affairs and the Refugee Review Tribunal v Mohinder Singh, Federal Court of Australia, unreported,

24 January 1997, per Black CJ, Lee, von Doussa, Sundberg and Mansfield JJ). The Court commented that 'in selecting the latter date, it must not be thought that the decision-maker, in determining whether a well-founded fear exists, looks exclusively at the facts that exist at that date'. Thus, the circumstances when she left her country are ordinarily the starting point in ascertaining her status.

'Persecution' involves serious harm directed against the applicant as an individual or as a member of a group because of her race, religion, nationality, particular social group or political opinion. 'As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is "being persecuted" for the purposes of the Convention' (Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 380 (Chan's case), McHugh J, 429-430; see also Mason CJ, 388).

The principal applicant will have 'well-founded fear of persecution' if she actually fears persecution and there is a 'real chance' of persecution occurring (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Others, [1996] HCA 6; (1996) 136 ALR 481, 484). A 'real chance' is one that is 'substantial' (Chan's case, Mason CJ, 389) or is not 'remote or insubstantial' (Toohey J, 407) or is not 'a far-fetched possibility' (McHugh J, 429).

I find that the applicants are of Indonesia. Their births in Indonesia and the actions of the authorities in that country, when they issued Indonesian passports to them, lead to presumptions that Indonesia regards them as nationals (Nationality and Statelessness in International Law, P Weis, Sijthoff & Noordhoff, Alphen aan den Rijn, The Netherlands, second edition, 1979 (Weis), at 213 and 223). There is no evidence to rebut that presumption.

This application may be decided by assuming that the reasons the Indonesian authorities might harm the principal applicant are connected with her actual or imputed political opinion. The Tribunal may make this assumption because of her evidence that all her difficulties in Indonesia arose out of suspicions that her husband had (details deleted under s.431, Migration Act 1958) . I am, therefore, assuming that the evidence proves a connection between any harm she might suffer and the Convention reason of her political opinion. Once I have made that assumption, I may turn to the question whether the evidence shows there is a real chance she will suffer serious harm. That question brings me to consider the significance of how the authorities treated her, her husband and children before they left Indonesia for Australia.

In considering the significance of the treatment they received, I do not accept the truth and accuracy of all their evidence. I think there are serious doubts about the truth of much of their evidence. But, if I assume all their evidence is truthful and accurate, I can say what would be the most favourable findings open to the Tribunal. If the principal applicant is not a refugee on the assumption of such findings, she could not be a refugee on the more limited findings that the evidence actually supports. The most favourable findings open to the Tribunal without assessing the evidence are set out in the following paragraph.

They ran a business in Jakarta for about four years until the second half of 1992. In about April 1992, the authorities accused her husband of (details deleted under s.431, Migration Act 1958) . Uniformed and plain clothed police went to the business premises and their home several times asking her husband about his activities. Individuals, whom they never identified, once shot at the business premises during the night in about August 1992. She continued to live in the house that had been the family home for about ten years until she left Indonesia for Australia in January 1994. A person, who was probably a police officer in plainclothes, spoke to her once about her husband at the family home in September 1993. He asked where her husband was. He did not threaten the principal applicant in any way. Neighbours saw someone, who might have been the same police officer, near the family home about five other times. The person who spoke with the principal applicant in September 1993 did not threaten her in any way. The principal applicant applied for a passport in 1993. It was issued in 1993. The principal applicant had no difficulty obtaining her passport. She paid about $Aust. 130 for the passport fee and the help of an agent. The principal applicant gave the Indonesian authorities her residential address when she applied for that passport.

In these circumstances, the Tribunal can only conclude that there is no real chance the principal applicant would be harmed by the Indonesian authorities. The chance of her suffering harm for reason of actual or imputed political opinion is insubstantial, remote and a far-fetched possibility.

The incident that the principal applicant has claimed caused trouble for her and her husband took place in April 1992. The last time she or her husband suffered any serious harm was in about August 1992 when shots were fired at their business premises. She attributed that incident to the suspicions about her husband. However, the evidence does not show that the incident was connected in any way with the suspicions about him. There is no evidence to show that this incident was deliberate or intended to harm them. The incident occurred at night and the culprits were never found. The significance of this incident can, therefore, be assessed only by considering the other evidence about how the authorities treated the principal applicant and her husband.

This evidence shows that her husband lived in Indonesia for about ten months after the unknown individuals fired the shots at the business premises. During that time he was free of all harm and threats of harm by the authorities. All they did was to question him some times about suspected political activities. He and the principal applicant and their children were all issued with passports to permit at them to travel to Australia. The principal applicant gave the authorities the precise address at which she had lived for about ten years when she applied for her passport. The care taken by the authorities to endorse that address into her passport leads to a reasonable inference that her husband and children provided the same information. I do not think this evidence leads to a reasonable inference that the culprits in the shooting were police officers or other governmental officials. If police officers or other governmental officials were responsible for this incident, their other conduct in dealing with the principal applicant's husband is inexplicable.

In those circumstances, the Tribunal may infer that the incident was not the responsibility of the police or other governmental officials. The evidence does not permit the Tribunal to draw inferences about who might have been responsible or why the incident took place. However, it is enough that the Tribunal can infer police or other governmental officials did not intend to threaten or actually harm the principal applicant or her husband.

The fact that the authorities permitted the principal applicant's husband to leave Indonesia in June 1993 becomes significant once the Tribunal can conclude that the authorities did no more than question him about suspicions that he might have been politically active. The authorities permitted him to leave the country some fifteen months after the suspicions arose against him. This shows that by June 1993 the authorities must have resolved any suspicions they might have held about him. It shows that the authorities no longer had any reason to harm him.

The fact that the principal applicant was not harmed or threatened with harm during the six months after the husband left Indonesia is even more significant. During that time, she lived in the house that had been the family home for about ten years. The police must have known where she was living because she testified that they had come to that house to question her husband. If there were any possibility that the police did not know where to find her, that possibility disappeared in September 1993 when a man she thought was a police officer came to the house once to ask about her husband. It disappeared completely in 1993 when she applied for her passport.

The evidence, therefore, proves that the principal applicant lived in Indonesia for about two years after the incident in April 1992 without suffering any harm from the authorities. The evidence also proves that her children lived with their aunt near their former home for nearly twelve months longer. Neither their mother nor they suffered any harm from the authorities during all the periods that they lived in Jakarta after April 1992.

When this evidence is considered item by item and cumulatively, it proves that the authorities in Indonesia never gave any indication of a wish to harm the principal applicant, her husband or her children on account of suspicions that he had published anti-governmental material before they left Indonesia. There is no evidence to show that the authorities might have changed their attitude to any member of the family since June 1993. The evidence, therefore, proves that the chance of the principal applicant suffering harm in Indonesia for reason of actual or imputed political opinion is insubstantial, remote and a far-fetched possibility.

For these reasons I am satisfied that there is no real chance of the principal applicant being harmed in Indonesia for a Convention reason. Her fear of harm in Indonesia is not well-founded. The Tribunal finds, therefore, that the applicant is not a refugee. Since the applicant is not a refugee within the meaning of the Refugees Convention, she does not satisfy the criterion for the grant of a protection visa that she is a person to whom Australia has protection obligations under that Convention.

Since the principal applicant does not satisfy the criteria for the grant of a protection visa, none of her children is eligible for a protection visa as a member of her family unit.