1415546 (Refugee)

[2016] AATA 3216

1415546 (Refugee) [2016] AATA 3216 (26 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1415546

COUNTRY OF REFERENCE:                  Indonesia

MEMBER:Linda Symons

DATE:26 January 2016

PLACE OF DECISION:  Sydney

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

Statement made on 26 January 2016 at 4:58pm

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

2. The applicant, who claims to be a citizen of Indonesia, first arrived in Australia [in] May 2003 as the holder of a [temporary] visa. [In] June 2003, she was granted a Bridging visa in association with her first application for a Protection visa. This visa expired [in] December 2003 and she thereafter remained in Australia as an unlawful non-citizen.

3. [In] May 2006, the applicant was located by officers from the Department of Immigration and Border Protection (the Department) and placed in immigration detention. [In] May 2006, she was granted a Bridging visa and released from detention. This visa expired [in] January 2010 and she thereafter remained in Australia as an unlawful non-citizen. [In]8 October 2013, the applicant was granted a further Bridging visa in association with her second application for a Protection visa.

4. The applicant lodged her first application for a Protection visa with the Department [in] June 2003. The Department refused to grant the visa [in] June 2003. On 21 July 2003, the applicant applied to the Tribunal for review of that decision. She failed to attend a hearing before the Tribunal (differently constituted) on 27 October 2003. On 20 November 2003, the Tribunal (differently constituted) affirmed the Department’s decision. [In] May 2006, the applicant applied to the Federal Magistrates Court (as it was then called) for judicial review of the Tribunal’s decision. [In] April 2007, the Federal Magistrates Court dismissed the application for judicial review. 

5. [In] May 2007, the applicant appealed to the Full Court of the Federal Court. [In] September 2007, the Full Court of the Federal Court dismissed the appeal. [In] October 2007, the applicant applied for special leave to appeal to the High Court. [In] April 2008, the High Court dismissed the application for special leave. [In] May 2008, the applicant lodged her first application for Ministerial intervention pursuant to s.417 of the Act. [In] February 2009, the application was found not to meet the guidelines for Ministerial intervention pursuant to s.417 of the Act.

6. [In] April 2009, the applicant sought Ministerial intervention pursuant to s.48B of the Act. [In] November 2009, the application was found not to meet Ministerial guidelines for Ministerial intervention pursuant to s.48B of the Act. [In] December 2009, the applicant made a second application for Ministerial intervention pursuant to s.417 of the Act.

7. The applicant lodged her second application for a Protection visa with the Department [in] October 2013, pursuant to SZGIZ v MIAC (2013) 212 FCR 235 (SZGIZ), and the Department refused to grant the visa [in] August 2014. On 16 September 2014, the applicant applied to the Tribunal for review of that decision.

8. The applicant appeared before the Tribunal on 24 July 2015 and 22 January 2016 to give evidence and present arguments. The Tribunal also heard evidence from the applicant’s husband,  [Mr A], on 22 January 2016. The Tribunal hearings were conducted with the assistance of an interpreter in the Indonesian and English languages.

9. The applicant was represented in relation to the review by her registered migration agent.

10. The issue that arises on review is whether Australia has protection obligations to the applicant under the complementary protection criterion.   

    RELEVANT LAW

11. The criteria for a Protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.

    Refugee criterion

12. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

    Complementary protection criterion

13. 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 a protection 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 the applicant 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’).

    Section 499 Ministerial Direction

14. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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.

    Further application for a Protection visa made before [May] 2014

15. Section 48A imposes a bar on a non-citizen making a further application for a Protection visa while in the migration zone in circumstances where the non-citizen has made an application for a Protection visa which has been refused. The Full Federal Court in SZGIZ has held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a Protection visa which duplicates an earlier unsuccessful application for a Protection visa, in the sense that both applications raise the same essential criterion for the grant of a Protection visa. The Federal Court in AMA15 v MIBP [2015] FCA 1424 (AMA15) upheld the Tribunal’s approach of considering only claims in relation to the complementary protection criterion in s.36(2)(aa), where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a). In light of these authorities, the Tribunal has considered the applicant’s claims only in relation to s.36(2)(aa).

    CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

    First application for a Protection visa lodged [in] June 2003

16. The applicant’s claims in her first application for a Protection visa lodged [in] June 2003 are summarised as follows:

    ·She left Indonesia because she could not stand to live there anymore. Since the incident in May 1998, she felt afraid to go almost anywhere without someone by her side and she felt stressed.

    ·Prior to the incident in May 1998, she witnessed and experienced unjust treatment by the “native Indonesians” towards the Chinese. Since she was young her parents received unjust treatment from “native people” and the local government. Her parents had to pay a lot of money to renew their ID once the officer knew they are Chinese. They always asked for more money because they thought the Chinese were richer and more successful that the “natives”.

    ·She knew that the ID for Chinese Indonesians was different because there was some kind of code which she believes is an act of discrimination by the Indonesian government. She received unjust treatment. It cost her more to renew her passport.

    ·She experienced difficulty with Muslims who went to their homes during the festive season asking for money. They usually said they represented certain organizations and needed money for the less fortunate. She did not like being “pushed” to donate money. If they refused to donate money they were afraid they would be assaulted. She stated that on one occasion she refused to donate money and the man yelled at her and came back for the next couple of days. He accused her of not being a generous person and told her she should be ashamed of her religion for not teaching her to be generous. He accused her of being a stingy woman like other Chinese.

    ·She decided to leave Indonesia and come to Australia because she would like to live in a country that appreciates people no matter what their background or religion. She hoped to find a peaceful life and better future here.

    ·She fears that if she returns to Indonesia the “natives’ would take advantage of the minorities and a similar incident to what happened in May 1998 may happen again. There are many uneducated people in Indonesia. They blame minorities like the Chinese for their bad situation.

    ·There are elections in Indonesia in the following year. There are usually confrontations between party members in the street.

    ·The Indonesian authorities discriminate against the Chinese because most of them request money before considering helping them. Normally they take their reports and nothing is done about it.  

17. The applicant provided the Department with a copy of her Indonesian passport. She did not provide any further evidence.

    Second application for a Protection visa lodged [in] October 2013

18. The applicant’s claims in her second application for a Protection visa lodged [in] October 2013 are summarised as follows:

    ·She is a Chinese and a Christian from Indonesia. Because of her ethnic background and religion she faced harm and harassment in Indonesia.

    ·Islamic fundamentalism is growing in Indonesia and Al Qaeda has greater influence in Indonesia. She will face a real risk of harm including torture, degrading, cruel and inhuman treatment due to her ethnic background and religious beliefs.

    ·She fears she will not be able to obtain State protection. Even if she moves to other parts of Indonesia she will continue to face harm due to growing Islamic fundamentalism and hatred towards Chinese.

19. [In] July 2014, the applicant’s migration agent provided the Department with a written statement dated [in] June 2014 from the applicant. Her statement is summarised as follows:

    ·Since she was young she was treated unfairly by people in her community because they thought she was of Chinese descent.

    ·She was not able to attend High School because her father passed away and her mother could not afford the tuition fees to send her to a private Christian school. She was enrolled in a public school.

    ·At the public school she was mocked and bullied and isolated by other students. She was forced to learn Islam and Arabic. There were no Christian religious classes available. She was traumatised and felt scared to go to school. She was forced to quit school.

    ·She had difficulty finding a job after leaving school. She got a job in a [shop]. At the shop she met her boyfriend and they moved in together. They had a child and a small [shop].

    ·In May 1998, there were riots across Indonesia especially in Jakarta. The people who started the riots called themselves “People Defender”. They were against President Soeharto and his government and wanted a revolution and a new government. What they did was to torture Chinese people like her. They robbed, raped, damaged houses and set shops that belonged to “non-Indonesian natives” on fire.

    ·She had to pay a weekly sum of money to a group of “native Indonesians” to guard her shop which was in front of her house. The group went to all the shops in her neighbourhood, attacked the shop owners and damaged the shops including her shop. They attacked her partner and she had to take him to hospital. She still feels frightened when she thinks of what happened.

    ·She and her children used to go to Church by public transport every Sunday. On one occasion, the bus they were on was stopped by a group of people who had knives. They abused them with rude words and forced them to get off the bus. They asked the driver not to take Chinese passengers and told them they were supposed to return to China.

    ·As the situation worsened they could not attend Church. Once a week she and some of her friends would gather at each other’s homes to follow their religious practises. One evening they heard a loud knocking on the door. They saw a group of angry people standing outside. When they did not answer the door, the door was broken down and they entered the house. They damaged the furniture, abused them and attacked her friend. They told them they did not want them to gather together again.

    ·Her family faced financial hardship after they lost their [shop]. Her husband could not find another job and they did not have the money to open another [shop]. Her husband became aggressive and short tempered. He started to beat her when he became angry. Her children were frightened and cried. Her husband started abusing and beating her and her children almost daily.

    ·She ran away on one occasion and lived with a friend for a few weeks. This friend suggested she go overseas to escape from her husband. She applied for an Australian visa. Her husband found her and asked her to return home because the children missed her. She refused but he dragged her into the car and drove home. When they got home he beat her. He tried to hit her in the head with a [tool] but her two sons stopped him from doing so.

    ·Her friend informed her that her Australian visa had been granted. She made plans to leave. She told her children she needed to leave before her husband beat her to death. A few weeks later she left for Australia and never returned.

20. The applicant did not provide the Department with any supporting evidence. She attended an interview with the Department [in] July 2014. During the interview she re-iterated and expanded on her claims.

21. The applicant has provided the Tribunal with copies of her Marriage Certificate and current Indonesian passport. Her Marriage Certificate indicates that she was married to [Mr A] [in] October 2014.

    Refugees Convention

22. Pursuant to the decision of the Full Court of the Federal Court in SZGI Z  and the Federal Court in AMA 15, an applicant who had previously applied for and been refused a Protection visa on the basis of one of the criteria was enabled to make a further application for a Protection visa on the basis of one of the other criteria. Thus an applicant who had previously been refused a Protection visa on the basis of the Refugees Convention (s.36(2)(a) of the Act) was able to apply for a Protection visa on the basis of complementary protection (s.36(2)(aa) of the Act).

23. The applicant was previously refused a Protection visa [in] June 2003 on the basis of the Refugees Convention. [In] October 2013, the applicant lodged a second application for a Protection visa. Applying the reasoning in SZGIZ and AMA 15  the Tribunal finds that it does not have the power to consider the applicant's claims under the Refugee Convention criterion in s.36(2)(a) of the Act and has proceeded on the basis that it can only consider his claims under the complementary protection provisions in s.36(2)(aa) of the Act.

    Are there substantial grounds for believing that, as a necessary and foreseeable     consequence of the applicant being removed from Australia, there is a real risk that      she will suffer significant harm

24. The applicant gave evidence to the Tribunal on 24 July 2015 in relation to her claims. The Tribunal found some aspects of her evidence to be unconvincing and other aspects of her evidence to be inconsistent and contradictory. The Tribunal formed the view that she had embellished some of her claims and fabricated others.

25. The Tribunal discussed with the applicant her first application for a Protection visa lodged [in] June 2003. She stated that she had a different migration agent at the time and spoke to his personal assistant in relation to the preparation of her visa application. She initially gave evidence that she told her migration agent’s personal assistant her story, the personal assistant wrote down some notes and then made up some stories. When asked which of her claims were made up, she was unable to identify them. She eventually stated that her migration agent’s personal assistant did not write down all of her claims.

26. The applicant’s claims in her first application for a Protection visa were contained in a written statement dated [in] June 2003. When asked who prepared that written statement, she initially responded that she wrote it in Indonesian and the daughter of a friend translated it into English. The Tribunal raised as an issue with the applicant the fact that her claims in her first application for a Protection visa were written by her and not her migration agent’s personal assistant as claimed earlier and that her failure to mention her claims in relation to what happened to her during the riots in 1998, Christianity and domestic violence raises concerns in relation to the credibility of these claims. 

27. The applicant responded that when she first applied for protection she did not know what she should write in her visa application. She stated that she told her story to her migration agent’s personal assistant. She stated that she did not write down anything about domestic violence because she did not think it was relevant. She stated that she did not understand the law. She stated that she was embarrassed to mention that she was beaten up by her former partner. She stated that she told her migration agent’s personal assistant the outline of her story and trusted her to prepare the documents.

28. When asked whether she provided her migration agent’s personal assistant with the statement dated [in] June 2003 (which she had earlier claimed she wrote in Indonesian and her friend’s daughter translated in English), the applicant responded that she did not prepare the statement dated [in] June 2003. She stated that she prepared a statement in relation to her second application for a Protection visa. She stated that what her migration agent’s personal assistant wrote was very short. When shown the 2 page statement dated [in] June 2003 again, she responded that she did not write that statement.

29. The Tribunal informed the applicant that it had difficulty accepting that her migration agent’s personal assistant omitted some of her claims in her first application for a Protection visa because the personal assistant is a Muslim. The Tribunal noted that, if that was the case, it would expect her to leave out all of her claims in relation to Muslims and not just mention some but not others. She responded that when she saw that her migration agent’s personal assistant is a Muslim she could not say bad things about Muslims in front of her. She stated that she only mentioned the outline of what happened to her and did not mention what her former partner did to her. When the Tribunal noted that she did tell her migration agent’s personal assistant about things Muslims did to her because they were mentioned in her first application for a Protection visa, she responded that she only did so briefly and could not go into the details. She stated that she only mentioned the differences and could not say more because the personal assistant is a Muslim.  

1. These inconsistencies and contradictions in the applicant’s evidence raise concerns in relation to her credibility and the veracity of her claims. The Tribunal is of the view that if the applicant wrote out her statement of claims for her first application for a Protection visa, as she initially claimed, she would have given the reasons why she fears returning to Indonesia including fearing domestic violence from her former partner and fearing harm because she is a Christian. The Tribunal is of the view that her failure to do so is significant. Alternatively, if the statement of claims for her first application for a Protection visa was prepared by her migration agent’s personal assistant on her instructions, as she subsequently claimed, the Tribunal finds it implausible that she did not disclose all her claims because the personal assistant is a Muslim when the statement makes some claims in relation to Muslims harassing her for money but makes no mention of what happened to her during the riots in May 1998 or in relation to her being a Christian. The applicant was represented by a migration agent at the time and the Tribunal would expect the migration agent to have identified those issues as important and relevant claims and mentioned them in her first application for a Protection visa had she mentioned them.

2. The Tribunal discussed with the applicant her second application for a Protection visa lodged [in] October 2013. She stated that her current migration agent prepared her visa application based on her instructions. She stated that her instructions were true and correct and she was satisfied that her second application for a Protection visa was accurate and complete. However, during the course of the hearing, the applicant made new claims that were not made in either of her visa applications. The new claims were that during the riots in 1998 her house was looted and she was beaten up.

3. When the Tribunal raised this as an issue, the applicant responded that she did claim in her visa application that her shop and her house were looted. The Tribunal read out to her the claim “they attacked the shop owners and damaged the shops, including my [shop]” and noted that she did not mention her house being looted. She responded that in Indonesia it is common to have a [shop] in your front yard. She stated that they messed up her [shop] and then went into her house as well. She stated that she only wrote down the “big outline” and it was impossible for her to write down that after they took the things from her [shop] they went into her house. She stated that her [shop] and house are in the same building.

4. The Tribunal noted that in her second visa application the applicant stated that her former partner was attacked and she rushed him to hospital but made no mention that she was attacked or beaten. She responded that there were many people attacking her former partner and she got hit accidently. When the Tribunal noted that her being hit accidently was very different from her being beaten up as she claimed earlier, she made no response. This raises further concerns in relation to the applicant’s credibility and the veracity of her claims.    

5. The Tribunal discussed with the applicant country information on the current situation in Indonesia in relation to ethnic Chinese Indonesians. The Tribunal noted that according to the Country Report on Indonesia prepared by the Department of Foreign Affairs and Trade (DFAT) [1] there are 2.8 million ethnic Chinese living in Indonesia. During the Suharto era a range of policies restricted the rights of ethnic Chinese Indonesians but since 1998 the most discriminatory anti-Chinese aspects of Indonesian public policy have been dismantled, the Constitution no longer differentiates between ethnic Chinese and indigenous Indonesians and Chinese Indonesians are no longer prevented from holding public office. In November 2014 an ethnic Chinese Christian (Ahok) was appointed as the governor of Jakarta. DFAT assesses that Chinese Indonesians are at low risk of official discrimination although memories of the 1998 crisis have resulted in continued anxiety amongst some members of the Chinese community.

   [1] DFAT Country Report on Indonesia, 8 June 2015.

6. The applicant responded that that is on the surface. She stated that if you look closely there is still a lot of discrimination between ethnic Chinese and indigenous Indonesians. She stated that they do not know what could happen outside government circles. She stated that what happened in 1998 could happen again.

7. The Tribunal discussed with the applicant her claims in relation to being a Christian. She gave evidence in relation to her practise of Christianity in Indonesia and in Australia. When asked whether she had any concerns in relation to her religious practises if she returned to Indonesia, she responded “yes, perhaps.” She stated that she is still traumatised by what she experienced. She stated that she thinks Indonesia is still unsafe for Christians and they could be subjected to violence like what happened the other day. When asked what happened the other day, she responded that she read about an incident in Irian Jaya in the newspaper. When asked about the incident she stated that there was some information warning Christians to be careful and asking them to remove Christian stickers from their cars for safety reasons. When asked if this is what she meant by the “recent incident”, she responded yes.

8. The Tribunal discussed with the applicant country information on the current situation in Indonesia in relation to Christians. The Tribunal noted that according to the Country Report on Indonesia prepared by DFAT[2] 10% of the population of Indonesia is Christian. The Indonesian Constitution provides for the freedom to choose, believe, practice and worship a religion of choice. Indonesia officially recognises six religions: (Sunni) Islam; Roman Catholicism; Protestantism; Buddhism; Hinduism; and Confucianism. DFAT assesses that Christians in Indonesia are generally at a low risk of official discrimination and violence and are generally able to practice their faith without interference owing to their officially recognised status. That said, DFAT observes that incidents of religious intolerance appear to be on the rise in Indonesia and members of Christian minorities can face a higher risk of societal discrimination and violence in regions where hard-line Muslim organisations are influential. DFAT assesses such incidents occur relatively infrequently in Indonesia.

   [2] Ibid.

9. The applicant responded that in reality a Church was burnt down not long ago. When asked if she knew where and when that happened, she responded that it was before the Presidential election and she could not remember where or when it happened.

10. The Tribunal discussed with the applicant her claims in relation to domestic violence at the hands of her former partner. She gave evidence that he threatened her that if he saw her again he would kill her. When asked when he made that threat, she responded often. She stated that he often hit her and knew that she was going to run away. She stated that he threatened her that if she ran away he would look for her and would find her and kill her. When asked if he made these threats while she was living with him, she answered yes. When asked why he would threaten to kill her if he saw her again when they were living together, she responded that she meant that if she ran away. She stated that he threatened her to stop her from running away.

11. The applicant gave evidence that her former partner was first violent towards her after the riots in 1998 and was often violent thereafter. She stated that the last time he was violent towards her was 3 days before she left Indonesia. She stated that she suffered injuries but did not seek medical treatment because she was ashamed. She stated that she never reported him to the Police. She stated that her mother reported her former partner to the Police twice in 2000 but they said it is a family matter and should be resolved within the family. She stated that her former partner did not beat their children.  

12. The applicant was interviewed by the Department [in[ July 2014. During that interview, she stated that she reported her former partner’s domestic violence to the Police but they did not act on it. This is not consistent with her evidence to the Tribunal and raises concerns in relation to her credibility and the credibility of her claims. When the Tribunal put this information to the applicant, pursuant to s.424AA of the Act, she responded that during the interview with the Department she was not asked who reported her former partner to the Police. She stated that the truth is that her mother reported him to the Police.

13. The applicant gave evidence to the Tribunal that she has had no contact with her former partner since she came to Australia in 2003. She stated that their last contact was in May 2003. She stated that she maintains contact with her sons two or three times a month. She stated that she does not know where her former partner lives. She stated that her sons have contact with their father. She stated that she is unaware of whether her former partner is in a new relationship.

14. The Tribunal raised as an issue with the applicant the significant time that has lapsed since she last had contact with her former partner and noted that it had difficulty accepting that he would have any interest in her now. The Tribunal noted that it has been 12 years since she last had any contact with him and for all she knows he could have re-married, have a family and be living somewhere happily. She responded that she does not know whether or not he has re-married. She stated that he still has a grudge against her and blames for losing everything. When asked how she knows he still bears a grudge against her if she has not had contact with him for 12 years, she responded that she knows him.

15. At the second hearing on 22 January 2016, the applicant gave evidence that there were no changes in her circumstances since the last hearing and there was nothing further she wished to say.

16. The applicant’s witness, [Mr A], gave evidence that he is the applicant’s husband and they were married [in] October 2014. He stated that he is an Australian citizen. He stated that they have no children. He stated that he supports the applicant and would like her to stay in Australia with him. He stated that if she is unsuccessful in her application for a Protection visa he is prepared to sponsor her for a Partner visa. He stated that if she returns to Indonesia he will continue to support her. 

17. The applicant’s migration agent made oral submissions that the applicant had integrated into the Australian community and requested the Tribunal to consider her compassionate and compelling reasons to remain in Australia. When the Tribunal noted that this submission was not relevant to the criterion for complementary protection, he requested that the Tribunal consider referring her case to the Minister pursuant to s.417 of the Act.

    Findings

18. Having considered all the applicant’s claims and the evidence, the Tribunal is of the view that the applicant is not a witness of truth and that she embellished some of her claims and fabricated others for the purpose of obtaining a Protection visa. The Tribunal finds that the applicant is not a reliable or credible witness.

19. The Tribunal accepts that the applicant was subjected to some discrimination at school when she was a child because of her Chinese ethnicity and Christian religion. The Tribunal accepts that there were no Christian religious classes in the public school she attended after her father’s death. The Tribunal does not accept that she was forced to study Islam and Arabic. The Tribunal does not accept that she was mocked, bullied and isolated by other students, was traumatised and forced to leave school for these reasons.

20. The Tribunal accepts that the applicant was subjected to some discrimination as an adult because of her Chinese ethnicity and Christian religion but does not accept that she was unable to find employment for these reasons. The Tribunal accepts that during the festive season some Muslims asked her for donations to help the poor and when she once refused to give them money a man yelled at her and accused her of not being generous. The Tribunal does not accept that these incidents amounted to significant harm.

21. The Tribunal accepts that during the May 1998 riots the applicant and her former partner’s shop was vandalised and her former partner was attacked. The Tribunal does not accept that the applicant was attacked or beaten. The Tribunal accepts that during this time the applicant was on a bus which was stopped by a gang who were rude to the passengers of Chinese ethnicity, told them to return to China, ordered them off the bus and told the driver not to take Chinese passengers.

22. The Tribunal accepts that during the political upheaval in Indonesia in 1998 the applicant did not attend Church and instead gathered at friends’ homes. The Tribunal does not accept that on one such occasion her friend’s house was broken into, vandalised, her friend was attacked and they were warned not to gather together. The Tribunal notes that, following the riots in May 1998, the applicant continued to live in Indonesia until 2003 without any further incidents.

23. Whilst the country information indicates that Islamic fundamentalism appears to be growing in Indonesia and incidents of religious intolerance appear to be on the rise, the country information indicates that such incidents occur relatively infrequently and Christian minorities are at a higher risk in regions where hard-line Muslim organisations are influential.[3] In this case, the applicant is from the Jakarta area and it is most likely that she will return to that area.

    [3] Ibid.

24. The Tribunal accepts that the applicant has a subjective fear that incidents, such as those that occurred in May 1998, could occur again in the future. However, in view of the current country information from DFAT referred to above, the Tribunal is not satisfied that this is a well-founded fear.

25. The Tribunal accepts that after the applicant’s former partner lost his shop he could not find another job. The Tribunal accepts that he became short tempered and aggressive towards her. The Tribunal does not accept that he abused and beat her and their children almost daily. The Tribunal does not accept that the applicant or, alternatively, her mother reported him to the Police. The Tribunal does not accept that he threatened the applicant that if he saw her again he would kill her. The Tribunal does not accept that he has a grudge against her. The Tribunal accepts that the applicant has had no contact with him since 2003.

26. In view of the significant amount of time that has lapsed since the applicant last saw her former partner, the fact that they have not had any contact for over 12 years and the fact that the applicant is now married, the Tribunal is not satisfied that there is a real risk that the applicant’s former partner would harm her if she returns to Indonesia now or in the reasonably foreseeable future.

27. The Tribunal has considered the submissions made by the applicant’s migration agent. The Tribunal finds his submission in relation to compassionate and compelling circumstances to be irrelevant to the complementary protection criterion.

28. The Tribunal has considered the policy guidelines prepared by the Department and the country information assessments prepared by DFAT to the extent that they are relevant to the decision under consideration.

29. Having considered all of the applicant’s claims, individually and cumulatively, the Tribunal is not satisfied that there is a real risk that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on her, she will be subjected to cruel or inhuman treatment or punishment or she will be subjected to degrading treatment or punishment if she returns to Indonesia now or in the reasonably foreseeable future.    

30. Accordingly, 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 she will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act. 

31. The Tribunal has considered the request made by the applicant’s migration agent to refer this case to the Minister of Immigration and Border Control for Ministerial intervention under s.417 of the Act and does not propose to do so. The Tribunal notes that the applicant is able to apply for a Partner visa and that her husband has given evidence that he is prepared to sponsor her for that visa. The Tribunal notes that he has also given evidence that he would continue to support the applicant if she has to return to Indonesia.

    CONCLUSION

32. The Tribunal finds that the applicant does not satisfy the criteria in s.36(2)(aa) of the Act.

33. There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or s.36(2)(aa) of the Act and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.

    DECISION

34. The Tribunal affirms the decision not to grant the applicant a Protection visa.

Linda Symons
         Member