1415783 (Refugee)

[2015] AATA 3321

1415783 (Refugee) [2015] AATA 3321 (10 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1415783

COUNTRY OF REFERENCE:                  Indonesia

MEMBER:Linda Symons

DATE:10 August 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 10 August 2015 at 4:03pm

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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant, who claims to be Stateless, is a minor and arrived in Australia by boat with her mother [in] June 2012. She was detained and subsequently issued with a Bridging visa [in] August 2013. Her Bridging visa expired [in] October 2013.

3. The second named applicant is the mother of the first named applicant. She arrived in Australia by boat [in] June 2012. She was detained and subsequently issued with a Bridging visa [in] August 2013. Her Bridging visa expired [in] October 2013.

4. The applicants applied to the Department of Immigration and Border Protection (the Department) for Protection visas [in] September 2013 and the Department refused to grant the visas [in] August 2014.

5. The applicants appeared before the Tribunal on 4 August 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

6. The applicants were represented in relation to the review by their registered migration agent.

7. The issues that arise on review are whether Australia has protection obligations to the applicant under the Refugees Convention or under the complementary protection criterion.

   RELEVANT LAW

8. 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

9. 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

10. 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

11. 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.

    Member of the same family unit

12. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a Protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include a member of the same family unit.

    CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

13. The first named applicant’s claims in his visa application are summarised as follows:

    ·His father is a Stateless [specific ethnic group] born in [Country 1]. His father is a practising Muslim. His father has never held citizenship in any country. His father left [Country 1] in 2000 and sought refuge in Malaysia where he lived and worked unlawfully. In June 2010, his father left Malaysia and travelled to Australia to seek asylum. In July 2011, his father was granted a Protection visa.

    ·In March 2006, his parents were married in Malaysia and lived together as unlawful residents. His mother is a citizen of Indonesia.

    ·He was born in Malaysia in November 2006. He is an ethnic [specific ethnic group] and a practising Muslim. He is not a citizen of Malaysia and has no lawful right to live in Malaysia.

    ·In June 2010, he travelled to Indonesia with his mother. His mother applied for Indonesian citizenship for him but was informed that he was not entitled to Indonesian citizenship. He was therefore not able to enrol in school.

    ·It is not possible for him to reside in [Country 1] as he would not be permitted to enter. If he did, he would be at risk of ongoing persecution by the [Country 1] authorities and anti-Muslim elements in [Country 1].

    ·He is claiming asylum on the grounds of his race, religion, nationality and membership of a particular social group being a failed asylum seeker returning to [Country 1] from a western country.

    ·The authorities in Indonesia and [Country 1] will not protect him.  

14. The second named applicant has not made any claims in her own right.

15. The applicants attended an interview with the Department [in] December 2013. During the interview, the second named applicant re-iterated and expanded on the claims made on behalf of the first named applicant. She also stated that shortly after her arrival in Indonesia in June 2010 she approached the Village Head and applied for Indonesian citizenship for the first named applicant. She stated that she was subsequently informed by the Village Head that because the first named applicant was born overseas, did not have an Indonesian Birth Certificate and his father was Stateless he could not be granted Indonesian citizenship.

16. The applicants have provided to the Tribunal a copy of the Department’s Decision Record dated [in] August 2012.

17. On 30 July 2015, the Tribunal received written submissions from the applicants’ migration agent. Enclosed with the submissions was an Australian Birth Certificate for the first named applicant’s [brother]. It indicates that he was born at [a] Hospital [in] May 2015. The submissions indicated that by virtue of s.12(1)(a) of the Australian Citizenship Act 2007 [the brother] is an Australian citizen by birth as he is born in Australia to a father who is an Australian permanent resident.

    Applicants’ identity and nationality

18. The first named applicant has consistently maintained his identity and that he is a Stateless [specific ethnic group] since his arrival at Christmas Island [in] June 2012. In support of these claims he has provided the Department with copies of his Malaysian Birth Certificate and an UNHCR Registration Card, a letter dated [in] October 2009 from UNHCR in relation to his parents and his father’s Australian Travel Document and Protection visa.

19. On the evidence before it, and in the absence of any evidence to the contrary, the Tribunal accepts that the first named applicant is who he claims to be for the purpose of this application. The Tribunal finds that his father was a Stateless [specific ethnic group] from [Country 1] but that he has been a permanent resident of Australia [since] July 2011.   

20. The second named applicant has consistently maintained her identity and that she is a citizen of Indonesia since her arrival at Christmas Island [in] June 2012. In support of these claims she has provided the Department with copies of her Indonesian Birth Certificate, Indonesian National ID card, Malaysian Marriage Certificate and a letter dated [in] October 2009 from UNHCR in Malaysia.

21. The Tribunal finds that the second named applicant is who she claims to be for the purpose of this application. The Tribunal finds that she is a citizen of Indonesia and that she is outside her country of nationality. There is no evidence before the Tribunal to suggest that she has a right to enter and reside in any country other than her country of nationality.

22. On the evidence before it, the Tribunal accepts that the second named applicant is the mother of the first named applicant and a member of the same family unit. The Tribunal finds that the second named applicant is a member of the same family unit as the first named applicant.

23. In assessing the first named applicant’s claim that he is a Stateless [specific ethnic group], the Tribunal notes that the first named applicant was not born in [Country 1], has never lived in [Country 1] and has no right to enter or reside in [Country 1]. The Tribunal accepts that he is unable to obtain [Country 1] citizenship through his father. Therefore, the Tribunal finds that the first named applicant is not a citizen of [Country 1].

24. The first named applicant was born in Malaysia on [date]. The evidence given by the second named applicant, on his behalf, is that he lived in Malaysia until August 2008 when he and the second named applicant travelled to Indonesia to visit his maternal grandparents. They then returned to Malaysia in October 2008 and continued to live there.

25. [In] June 2010, the second named applicant gave birth to a daughter, [named]. One month later the first named applicant’s father travelled to Australia to seek asylum. The first named applicant, his sister and the second named applicant then travelled to Indonesia. The first named applicant’s sister passed away in October 2011 from an unknown illness. He and the second named applicant continued to live in Indonesia until [in] June 2012 when they departed Indonesia for Australia.

26. Neither of the first named applicant’s parents are citizens or permanent residents of Malaysia. The evidence is that they were both living in Malaysia unlawfully at the time of his birth. The issue of Malaysian citizenship is governed by the Constitution. Research conducted by the Immigration and Refugee Board of Canada in 2007 indicates the following in relation to Malaysian citizenship:

    A child born in Malaysia does not automatically obtain Malaysian citizenship (ibid.).   Children born in wedlock to two Malaysian citizens are Malaysian citizens regardless                   of the country of their birth (US Mar. 2001, 126; Malaysia 31 Aug. 1957, Art. 14 and   Part II Art. 1). Children born in wedlock, in Malaysia, of a Malaysian mother and   foreign father are also Malaysian citizens, as are children born out of wedlock, in   Malaysia, of a Malaysian mother (US Mar. 2001, 126; Malaysia 31 Aug. 1957, Art. 14   and Part II Art. 1). However, children born in wedlock abroad to a Malaysian mother               and a foreign father are considered to have received the father's citizenship (US Mar.                   2001, 126; Malaysia 31 Aug. 1957, Art. 14 and Part II Art. 1). Children born out of               wedlock, abroad, to a Malaysian mother are not considered citizens, but may enter   Malaysia with permanent resident status, with the mother, and may apply for   citizenship (US Mar. 2001, 126). Women married to Malaysian citizens may apply for                   citizenship after two years of residence in Malaysia (Malaysia 31 Aug. 1957, Arts. 14-                   22).[1]

    [1] Canada: Immigration and Refugee Board of Canada, Malaysia: Citizenship laws, including methods by which a person may obtain citizenship; whether dual citizenship is recognized and if so, how it is acquired; process for renouncing citizenship and related documentation; grounds for revoking citizenship, 16 November 2007, MYS102621.E. (>

    In view of the above, the Tribunal is not satisfied that the first named applicant is entitled to Malaysian citizenship. The Tribunal finds that he is not a citizen of Malaysia and has no lawful right to enter and reside in Malaysia.

27. The issue of Indonesian citizenship is governed by the Law of the Republic of Indonesia Number 12, Year 2006 on Citizenship of the Republic of Indonesia. Articles 4 and 5 of this Act state as follows:

    Article 4

    A Citizen of the Republic of Indonesia is:

    (1). All persons whom by law and/or based on agreements between the Government of the Republic of Indonesia and other countries prior to the application of this Decree have already become Citizens of the Republic of Indonesia;

    (2). Children born through legal wedlock from an Indonesian father and mother;

    (3). Children born through legal wedlock from an Indonesian father and an alien mother;

    (4). Children born through legal wedlock from an alien father and an Indonesian mother;

    (5). Children born through legal wedlock from an Indonesian mother and a stateless father or whose country does not provide automatic citizenship to their offspring;

    (6). Children born within 300 (three hundred) days after the father has passed away, under legal wedlock, and whose father is an Indonesian citizen;

    (7). Children born out of legal wedlock from an Indonesian mother;

    (8). Children born out of legal wedlock from an alien mother who is claimed by the Indonesian father as his natural child and such claim is declared before the child reaches the age of 18 (eighteen) or before the child has married;

    (9). Children born in Indonesian territory whose parents are of undetermined citizenship at the time of the child’s birth;

    (10). Children newly born and found in Indonesian territory and whose parents are undetermined;

    (11). Children born in Indonesian territory whom at the time of birth both parents were stateless or whose whereabouts are undetermined;

    (12). Children born outside the Republic of Indonesia from an Indonesian father and mother whom due to law prevailing in the country of birth automatically provides citizenship to the child;

    (13). Children born from a father and mother who was granted citizenship and died before the parents had sworn their allegiance.

    Article 5

    a. Children of Indonesian Citizens born out of legal wedlock, under the age of 18 (eighteen) and are unmarried who are not legally adopted by their alien father continues to be considered as a Citizen of the Republic of Indonesia.

    b. Indonesian citizen children under the age of 5 (five) who are legally adopted by foreign citizens through legal proceedings continues to be considered as Citizens of the Rep. of Indonesia.[2]

    [2] Law of the Republic of Indonesia Number 12, Year 2006 on Citizenship of the Republic of Indonesia. (>

    Article 4(5) provides that children born through legal wedlock from an Indonesian mother and a Stateless father or whose country does not provide automatic citizenship to their offspring is a citizen of Indonesia. The first named applicant’s parents were married in a religious ceremony in Malaysia [in] March 2006. The applicants have provided the Department with a copy of a Marriage Certificate issued by [a community organisation in] Malaysia. 

28. In submissions to the Tribunal dated 28 July 2015, the applicants’ migration agent submitted that the first named applicant’s parents’ marriage in Malaysia was a religious marriage and not a formal registered marriage which is legally recognized under Indonesian law. They submitted that under Indonesian law Indonesian citizens who marry abroad have to have their marriages recognised by registering the marriage with the Indonesian Consulate in the relevant country where the marriage took place and reporting it to the Office of Religious Affairs if it was a religious Muslim ceremony. They submitted that after this registration process the couple are issued with official evidence of marriage which verifies the authenticity of the marriage and makes it legal. 

29. The applicants’ migration agent submitted that the first named applicant’s parents did not go through this process and therefore do not have a legally recognized marriage in Indonesia. They submitted that the first named applicant is therefore not able to satisfy the criteria in Article 4(e) (sic). They submitted that even if the first named applicant could be considered to be an Indonesian citizen by any other provision in Article 4, the procedure for being recognised as an Indonesian citizen when outside the country is not stipulated in the 2006 law or the accompanying regulations. They submitted that the first named applicant would not be able to obtain a travel document to be able to return to Indonesia and apply for Indonesian citizenship there.

30. The applicants’ migration agent submitted that considering the failed attempts at obtaining Indonesian citizenship for the first named applicant and the uncertainty surrounding how he can obtain Indonesian citizenship one could conclude that he has less than what could be considered a right to enter and reside in Indonesia as a citizen as he has no clear opportunity to avail himself of that right. They submitted that the applicant has taken all possible steps to avail the first named applicant of his “assumed right” to enter and reside in Indonesia. The Tribunal has considered these submissions and rejects them for the following reasons.

31. The second named applicant gave evidence to the Tribunal, on behalf of the first named applicant, that she and the first named applicant’s father were married in a religious ceremony in Malaysia. She gave evidence that she did not register her marriage with the Indonesian Embassy in Malaysia because she was living there unlawfully at the time and was afraid that the Police would arrest her. She gave evidence that she did not register her marriage with the Office of Religious Affairs because she was not aware that she was required to do so.

32. The Tribunal accepts that the first named applicant’s parents’ marriage is not registered under Indonesian law and is not recognised as a legal marriage. The Tribunal finds that his parents are not legally married.

33. Article 4(7) of Act Number 12, Year 2006 on Citizenship of the Republic of Indonesia provides that children born out of legal wedlock from an Indonesian mother are citizens of Indonesia. Article 5(a) of this Act provides that children of Indonesian citizens born out of legal wedlock, under the age of 18 (eighteen) and are unmarried who are not legally adopted by their alien father continue to be considered as a citizen of the Republic of Indonesia. The first named applicant’s mother is an Indonesian citizen. He was born out of legal wedlock from an Indonesian mother. He therefore meets the requirements of Article 4(7) of Act Number 12, Year 2006 on Citizenship of the Republic of Indonesia. He is under the age of 18 years, is unmarried and is not legally adopted by his father. He therefore meets the requirements of Article 5(a) of Act Number 12, Year 2006 on Citizenship of the Republic of Indonesia.

1. The Tribunal discussed with the second named applicant the provisions of Articles 4 and 5 of the Law of the Republic of Indonesia Number 12, Year 2006 on Citizenship of the Republic of Indonesia and country information in relation to UNHCR commending the efforts made by the Indonesian government to address and reduce the problem of Statelessness. In a regional UNHCR conference on Statelessness a representative from Indonesia’s Ministry of Justice and Human Rights spoke about reforms to Indonesia’s nationality laws with the aim of preventing Statelessness particularly among children of mixed marriages.[3]

   [3] AICH-UNHCR Report of the Regional Workshop on Statelessness and the Rights of Women and Children, Manila, Philippines. 18 to 19 November 2011. (

2. In view of this information, the Tribunal does not accept the submission that the Indonesian government does not have processes in place to enable Indonesian citizens born overseas to obtain a passport or travel document from an Indonesian Embassy overseas. The Tribunal does not accept that the first named applicant is unable to obtain an Indonesian passport or travel document from the Indonesian Embassy in Australia.

3. In view of the above, the Tribunal does not accept that the first named applicant is Stateless. The Tribunal finds that he is a citizen of Indonesia and will assess his claims against Indonesia. The Tribunal finds that he is outside his country of nationality. There is no evidence before the Tribunal to suggest that he has a right to enter and reside in any country other than his country of nationality.  

   Does Australia have protection obligations to the applicants under the Refugees Convention?

4. The first named applicant’s claims in relation to Indonesia are summarised as follows:

   ·As a non-citizen living in Indonesia he would not be able to enrol in school or obtain employment when he is older. He would therefore not be able to support himself and would be unable to subsist.

   ·It is not possible for him to live in Indonesia lawfully. As a non-citizen living in Indonesia he would live at constant risk of detention and/or deportation if he came to the attention of the Indonesian authorities.

   ·If he attempted to return to Indonesia he would not be recognised as a citizen. He would be stopped at the border, arrested and detained by the Indonesian authorities.

   ·If he is forced to return to Indonesia he would be harmed/mistreated on the basis of his nationality because he would not be recognised as an Indonesian national. The authorities in Indonesia would not protect him.

5. These claims made on behalf of the first named applicant are on the basis that he is not a citizen of Indonesia and would have to enter and reside in Indonesia unlawfully. As the Tribunal has found that the first named applicant is an Indonesian citizen, the Tribunal rejects the entirety of the first named applicant’s material claims. The Tribunal finds that the first named applicant would have the rights of an Indonesian citizen to enter and reside in Indonesia, enrol in school, obtain employment to support himself, obtain State protection and enjoy the other rights and privileges of Indonesian citizenship. 

6. Having considered all of the first named applicant’s claims, individually and cumulatively, the Tribunal finds that there is no real chance that the first named applicant would be at risk of persecution on the grounds of nationality, membership of a particular social group or any other Refugee Convention reason if he returns to Indonesia now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the first named applicant does not have a well-founded fear of persecution for a Refugee Convention reason. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.  

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

8. The Tribunal has considered the first named applicant’s claims under complementary protection.

9. In view of the above findings, and for the reasons given above, the Tribunal is not satisfied that there is a real risk that the first named applicant would suffer significant harm for the reasons claimed. 

10. Having considered all of the first named applicant’s claims, individually and cumulatively, the Tribunal is not satisfied, for the reasons given above, that the first named applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Indonesia now or in the reasonably foreseeable future.    

11. Accordingly, the Tribunal is not satisfied that that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the first named applicant being removed from Australia to Indonesia, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the first named applicant does not satisfy the criterion in s.36(2)(aa) of the Act. 

    CONCLUSION

12. The Tribunal finds that the first named applicant does not satisfy the criteria in s.36(2)(a) or s.36(2)(aa) of the Act.

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

14. As the first named applicant does not satisfy the criteria in s.36(2)(a) or s.36(2)(aa) of the Act and does not  hold a Protection visa, the second named applicant is unable to satisfy the criteria in s.36(2)(b) or s.36(2)(c) of the Act. Accordingly, the second named applicant does not satisfy the criteria in s.36(2) of the Act.

    DECISION

15. The Tribunal affirms the decision not to grant the applicants Protection visas.

Linda Symons

         

Member