N97/17598 [1998] RRTA 1297 (11 March 1998)

No issue arises in this case as to the validity of the application for review or as to the Tribunal's jurisdiction to review the delegate's decision.

A criterion for a protection visa is that at the time of the decision the Minister, or on review the Tribunal, is satisfied that the applicant is a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees: ss.5(1) and 36(2) of the Act. Australia is a party to the Refugees Convention and the Refugees Protocol and, generally speaking, has protection obligations to people who are refugees as defined in them.

Article 1A(2) of the Convention defines a refugee as any person who:

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; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

This definition contains four key elements. First, the applicant must be outside his or her country. Second, the applicant must fear persecution. Not every threat of harm or interference with a person's rights for a Convention reason constitutes "being persecuted". Mason CJ referred to persecution as requiring "some serious punishment or penalty or some significant detriment or disadvantage" (Chan Yee Kin v MIEA [1989] HCA 62; (1989) 169 CLR 379 at 388). Harm or threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group which is subjected to systematic harassment, amounts to persecution if done for a Convention reason. In appropriate cases it may include single acts of oppression, serious violations of human rights, and measures "in disregard" of human dignity. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors. Third, the reason for the persecution must be found in the singling out of one or more of the Convention reasons - race, religion, nationality, membership of a particular social group or political opinion. The phrase "for reasons of" serves to identify the motivation for the infliction of the persecution.

Fourth, the applicant's fear of persecution for a Convention reason must be a "well-founded" fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a "well-founded fear" of persecution under the Convention if they have genuine fear founded upon a "real chance" of persecution for a Convention stipulated reason. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. A "real chance" is one that is not remote or insubstantial or a far-fetched possibility.

Finally, the applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country. The object of the Convention is to provide refuge for those who, having lost the de jure or de facto protection of their governments, are unwilling to return to the countries of their nationality. It follows that whenever the protection of the country of nationality is available, and there is no ground based on well-founded fear for refusing it, the person concerned is not in need of international protection and is not a refugee. Whether an applicant satisfies the Convention definition is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

These principles were established by the High Court in Chan Yee Kin v MIEA [1989] HCA 62; (1989) 169 CLR 379, Applicant A & Anor v MIEA and Anor (1997) 142 ALR 331 at 354 and MIEA v Guo & Anor (1997) 144 ALR 567 at 575-6, and the Full Federal Court in Ram v MIEA & Anor [1995] FCA 1333; (1995) 57 FCR 565 at 568.

The Applicant's claims are set out in written submissions to the Department, an interview with an officer of the Department, written submissions to the Tribunal and oral evidence given to the Tribunal. They are as follows.

The Applicant, in a statement lodged in support of his application for a protection visa, said that he had come to Australia to seek protection from arrest by the military authorities. He said that as an ordinary Indonesian United Democratic Party (PDI) member he 'might have the same fate like the rest of the ordinary PDI members. As soon as he went back, he said, his safety could not be guaranteed, he could be killed because of his involvement in campaigns to boycott the 1997 elections and the re-election of President Suharto in 1998.

In support of his application for review the Applicant, in a statement lodged through his adviser in June 1997 on his behalf and on behalf of another applicant for review, said that his initial application had not included the full background to his case. He said that he participated in the '27 July 1996' riot at the PDI headquarters in Jakarta. During the riot, he said, he managed to escape unharmed. After the demonstration, he said, he and another man had discussed the situation in Indonesia. The only solution they could see, he said, was to try to convince people to boycott the 1997 elections. He said that they decided to produce leaflets. These leaflets contained strong criticism of the Suharto family. The Applicant had, he said, engaged a friend to print the leaflets and they were distributed by the applicants in various cities where he and his friend 'visited door to door'. He said that after the leaflets had been distributed many demonstrations occurred. The Applicant said that he and his friend were warned that the government was investigating the leaflets and, fearing for their lives, the applicant and the other man fled to Australia. If returned to Indonesia, he said, he and his friend would be identified, arrested and prosecuted.

The Applicant said that his fear was exacerbated because, just before leaving Indonesia, he and his friend visited a third friend in jail. This friend, detained because of his involvement in the 27 July incident, had been tortured during his imprisonment. If returned, he said, he would face a similar fate.

At the hearing in February 1998, the Applicant confirmed that all the material contained in the submission made by his adviser was correct. The Tribunal asked if that material could be summarised as follows:

- the Applicant had participated in the riot at the PDI headquarters in Jakarta;

- he and another man had discussed calling on people to boycott the forthcoming elections;

- a friend of the Applicant had arranged for leaflets to be printed;

- the Applicant and the other man had distributed the leaflets;

- they had become frightened that they might be reported to the Government for so doing;

- they discovered that the authorities were investigating the leaflets;

- they heard that the police were looking for "[deleted]";

- "[deleted]" is the nickname of the other man;

- they were afraid of being arrested and so they left Indonesia and travelled to Australia.

The Applicant said that this was an accurate summary.

The Tribunal asked the Applicant why he became involved in the 27 July demonstration. He said that he sympathised with the policies outlined by Mrs Megawati and that he idolised her. The Tribunal asked if that sympathy had led him to become a member of the PDI. The Applicant said that he had not been a member of the PDI, that and other statements in his original application were errors. The Applicant said that he had travelled to Jakarta to attend PDI rallies in the days leading up to the raid. He said that on 27 July, at about 1500 hours, he had joined a demonstration some distance from the PDI headquarters. The crowd were throwing stones and attacking buildings. The Applicant said that he had thrown a Molotov cocktail at a government building and some stones. Police had chased the crowd away. He said that he had escaped and returned to his town. He had no involvement with the police as a result of his participation in the disturbance.

The Applicant said that almost immediately after this he and the other man had discussed printing and distributing leaflets calling on people to boycott the elections. He said that he and the other man had written the text of the leaflets. There were two versions, one containing slogans saying "Do not believe the Government", "Do not participate in elections", and "Do not believe Suharto"; the other containing information about the corruption endemic in Indonesia. The Applicant said that his next door neighbour had a small printing business and he had produced 3,000 leaflets. The Tribunal asked how the leaflets were distributed. The Applicant said that about 700 were distributed 'house to house', the rest were distributed to people they knew in Universities. Of the 700 distributed house to house, the Applicant said that he distributed 200 or so in Jakarta and in his town. The Tribunal noted that Jakarta was a big city, how did the Applicant decide where to do the delivery. The Applicant said that he had delivered them to friends. The Tribunal noted that this was an altogether different thing. House to house delivery meant anyone could receive the leaflets. Giving them to friends meant only those reliable would receive them. The Tribunal asked who had received the leaflets at the Universities. The Applicant said that they were handed over to known activists. The Tribunal asked how he knew who the activists were. The Applicant said that everyone knew who the activists were as 'every campus has an officer for looking after such things'. The Tribunal asked if others were distributing such material. The Applicant said that these were, as far as he knew, the only such pamphlets being produced. He added that there were many demonstrations as a result of these pamphlets.

The Tribunal said that it understood from the statement that he and the other man had been warned that the authorities were after them. How had he heard? The Applicant said that he heard from friends at the printing company in his town. The owner and one other person had been detained. The Applicant added that these two people were still in detention. The Tribunal noted that according to the statement the police were searching for "[deleted]". The Applicant said that in fact the police were looking for both "[deleted]" and the Applicant. He said that he was told this by his mother because the day after the printer had been arrested the police had called at his home looking for him in connection with the leaflets. The Tribunal noted that this was a different version of events than that which was contained in the statement which he had just verified. The Applicant said that 'perhaps there was an error in the statement'. The Applicant added that the police had spoken to his mother subsequently. He said that he had gone into hiding and that he and the other man had decided to leave Indonesia.

The Tribunal sought clarification of the precise order of events leading up to their departure for Australia. The Applicant said that he participated in the demonstration in support of the PDI on 27 July 1996; he experienced no difficulties with the police as a consequence of that action; in July 1996 he and the other man discussed issuing leaflets; the pamphlets were printed; it took three months to deliver the pamphlets; the printer was arrested; the Applicant applied for a passport through the immigration office in his town; he applied for an Australian visa and in 1996 he arrived in Australia.

The Tribunal repeated this chronology to the Applicant to be sure it understood it correctly. The Applicant confirmed it to be correct. The Tribunal pointed out to the Applicant that the photocopy of the original passport contained in his departmental file showed clearly that his passport had been issued in an earlier month. The Applicant was adamant that this was not so. He said that in Indonesia such mistakes were common. His passport had been issued in the later month. The Tribunal said that it had difficulty accepting this claim. Even if it did, it appeared to the Tribunal that in that month he had claimed that he was being sought by the police. The advice contained in the DFAT Country Profile on Indonesia, issued in November 1994, that identification and security checks are carried out on people applying for passports and that police, military intelligence and prosecution authorities will be involved in checking and giving clearance before a passport is issued was put to the Applicant. He stated that no checks were conducted. He added that 'the authorities did not consider me a big fish' and so he was given a passport by his town's office because they were not worried about him.

The Applicant was also asked how it was that he had evaded the security checks at the airport on departure, given his claim that he was being sought by the police. The Applicant said that Indonesia did not have the means to conduct such a security check. The contrary advice from DFAT, cited above, that security checks are conducted at all major airports in Indonesia, was put to the Applicant. The Applicant repeated his claim.

The Tribunal asked the Applicant what would happen to him if he returned to Indonesia. He said that as soon as he got off the plane he would be arrested. The Tribunal asked how the Indonesian authorities would know who he was. He said that there might be an Indonesian spy in Australia who would inform them and he would be watched for. The Tribunal pointed out the inconsistency in this argument. If the Indonesian security system could not detect outgoing passengers, as he claimed, how could it detect incoming passengers. If he was to be believed about his arrest on return then he should have been arrested on departure. The Applicant said that the apparent discrepancy arose because only the local police were looking for him when he left. It would be different now. He was now regarded as a subversive.

The Applicant said that he had heard from his family that police were still looking for him. The Tribunal asked when the police last called on his house. He said that this had been earlier. The Tribunal asked for confirmation of those dates and they were repeated. The Tribunal put to the Applicant that according to his chronology he had heard that the police had begun looking for him only after his neighbour was arrested, in a later month. The Applicant became confused at this point, claiming that the hearing process was traumatic and that he might be making errors because of it. The Tribunal said that it understood that a hearing could be stressful but added that this inconsistency was not the only one, there was the question of the passport issue and of the additional information provided which had embellished the original statement. The Applicant said that if the Tribunal did not believe him it could contact Indonesian intelligence. He said that he could never go back to Indonesia because he would be detained as a subversive. He repeated his claim that the police had called on his mother looking for him but again became confused when the Tribunal reminded him that he had said earlier that the last contact his mother had with the police was before the alleged arrest of the printer.

The other man gave evidence on behalf of the Applicant. He stated that he and the Applicant had been involved in trying to tell people to boycott the elections. He added that the statement provided by their joint adviser was correct. He said that the pair had decided to leave Indonesia when he had heard that the police were searching for "[deleted]", the other man's nickname, and he had decided to contact the Applicant and they had agreed to go somewhere. He added that both had been involved in the activities on the leaflets.

Although it is generally the case that applicants who are otherwise credible and plausible should, unless there are good reasons otherwise, be given the benefit of the doubt, it is not the case that the evidence of the applicant should be believed by the Tribunal unless specifically disproved by the objective evidence before the Tribunal. Rather it is for the Tribunal to decide what facts it finds on consideration of all the evidence, subjective and objective. This requires the Tribunal to not only consider inconsistencies but also to determine what evidence it finds credible: Nicholson J. in Chen Xin He v Minister for Immigration and Ethnic Affairs, No. WAG 124 of 1994, 23 November 1995 (unreported), at p.11. The Tribunal is not required to accept uncritically any and all claims made by applicants: the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is well founded or that it is for the reason claimed. It is for the Applicant to persuade the reviewing decision-maker that all the statutory elements are made out (MIEA v Guo & Anor, (1997) 144 ALR 567 at 596).

It was also stated in Chan (per McHugh at 428) that under the 1951 Convention "It was unlikely...that a State party was expected to grant refugee status to a person whose account, although plausible and coherent, was inconsistent with the State's understanding of conditions in his or her country of nationality."

The Tribunal found the Applicant to be an unsatisfactory, contradictory witness who lacked credibility. It notes that his original application contained no reference to his key claim, the alleged distribution of leaflets, and that his second statement, lodged through an adviser, contained no reference to the alleged arrest and detention of the printer of the leaflets. It further notes the difficulty the Applicant had in reconciling his chronology of events with the issue of his passport some two months before the alleged arrest of the printer. The Tribunal also regarded as questionable his contradictory account of how he had discovered that police were looking for him and does not accept that his confusion was solely caused by the stressful experience of a hearing.

The Tribunal accepts for the purposes of this decision, despite the somewhat vague nature of his evidence, that the Applicant may have been at the demonstration on 27 July 1996 in which government buildings were attacked. It notes that the Applicant makes no claim that the police were looking for him as a result and that, by his own admission, he lived in Bogor, at his place of residence, for some months after the demonstration. He has made no claims and produced no evidence to suggest that the Indonesian authorities had any interest in his whereabouts as a result of his involvement in this affair. The Tribunal is not satisfied that the Applicant has suffered any persecution as a consequence of his limited involvement in the events of 27 July 1996.

The Tribunal notes that the Applicant is not claiming that he suffered any actual harm while in Indonesia. The Tribunal accepts that the Applicant may have been aware that leaflets calling for a boycott of the Indonesian elections were being distributed and that he may have been involved, in some minor way, in their distribution. The Tribunal notes that the Applicant has speculated that he may have been harmed if he had been arrested because of his involvement in printing and distributing leaflets. The Tribunal further notes that the Applicant claims to have arranged the printing of the leaflets and that at interview, but not on any earlier occasion, he further claimed that the man who did the printing is still being detained by the Indonesian authorities. The Tribunal accepts that if the claims made by the Applicant were genuine he may well have expected to be of interest to the authorities. Yet by his own contradictory evidence he claims to have been able to bypass or evade security checks known to be carried out before a passport is issued and then to depart Indonesia through a major airport. The Tribunal notes that, obliquely, the Applicant has acknowledged at the hearing the capacity of the Indonesian authorities to monitor the movements of those of interest to them through international airports as it is this capacity he fears would result in his arrest on his return. The Tribunal considers that the Applicant cannot have it both ways. If the Indonesian security forces have the capacity to monitor known arrivals it follows that they also have the capacity and the will to monitor departures. The Tribunal rejects as fanciful the Applicant's suggestion at the hearing that an Indonesian spy in Australia may have informed on him. In any event, the Tribunal finds that the Applicant has embellished his role in distributing the pamphlets and indeed the effect that the pamphlets had. He claimed in his statement and at the hearing to have distributed the pamphlets house to house or door to door. Under questioning he admitted that this was not the case. He had circulated his leaflets to friends and to others who he knew to share his views. His claim that this action sparked the wave of protests aimed at boycotting the Indonesian elections is, in the Tribunal view, simply not credible. All of this leads the Tribunal not to accept the Applicant's claims about his role in writing, printing, and distributing the leaflets or his claim that his neighbour was arrested or detained or his claim that police were searching for him.

The Tribunal is not satisfied, on the evidence before it, that the Applicant has a well founded fear of persecution for a Convention reason should he return to Indonesia in the reasonably near future.

Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.