1415850 (Refugee)

[2016] AATA 3384

1415850 (Refugee) [2016] AATA 3384 (25 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1415850

COUNTRY OF REFERENCE:                  Indonesia

MEMBER:Linda Symons

DATE:25 February 2016

PLACE OF DECISION:  Sydney

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

Statement made on 25 February 2016 at 4:13pm

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 a citizen of Indonesia, first arrived in Australia [in] April 1999 as the holder of a [temporary] visa which was valid until [a date in] May 1999. [In] May 1999, he was granted a Bridging visa in association with his first application for a Protection visa. He was subsequently granted a further [number of] Bridging visas including [a number] on departure grounds. He remained in Australia as an unlawful non-citizen at various times including from [October] 2000 to [August] 2001, [January] 2002 and [January] 2009 and [August] 2011 and [January] 2013. His last Bridging visa was granted [in] April 2014.

3. The second named applicant, who claims to be a citizen of Indonesia, first arrived in Australia [in] October 1998 as the holder of a [temporary] visa. Between [October] 1998 and   [August] 2008 she departed and returned to Australia on [number of] occasions. [In] November 2008, she was granted a Bridging visa in association with her application for a [permanent] visa. She was thereafter granted [number of] Bridging visas. She remained in Australia as an unlawful non-citizen at various times including from [April] 2010 to [July] 2010, [July] 2010 to [September] 2010 and [August] 2011 to [November] 2012. Her last Bridging visa was granted [in] April 2014.

4. The first named applicant lodged his first application for a Protection visa with the Department of Immigration and Border Control (the Department) [in] May 1999. The Department refused to grant the application [in] August 1999 and he lodged an application with the Tribunal seeking review of that decision. On 28 September 2000, the Tribunal (differently constituted) affirmed the decision of the Department. [In] July 2001, he lodged a request for Ministerial intervention pursuant to s.417 of the Act and [in]December 2001 this request was declined.  

5. The first and second named applicants got married [in] December 2007. [In] November 2008, the second named applicant lodged an application for a [permanent]  visa including the first named applicant as a dependent. [In] February 2010, the Department refused to grant this application. On 12 May 2010, she lodged an application for review with the Migration Review Tribunal and on 6 July 2010 the Migration Review Tribunal found that it had no jurisdiction to hear the application. [In] July 2010, the second named applicant lodged a request for Ministerial intervention pursuant to s.351 of the Act and [in] July 2010 this request was declined.

6. [In] August 2010, the second named applicant lodged her first application for Protection visas including the first named applicant as a dependent. [In] November 2010, the Department refused to grant this application and she lodged an application with the Tribunal seeking review of that decision. On 24 June 2011, the Tribunal (differently constituted) affirmed the decision of the Department. She lodged an application for judicial review with the Federal Circuit Court. This application was dismissed [in] December 2011. [In] December 2012, the first named applicant lodged a second request for Ministerial intervention pursuant to s.417 of the Act. [In] December 2013, this request was declined.

7. [In] January 2014, the applicants lodged a further application for Protection visas with the Department pursuant to SZGIZ v MIAC (2013) 212 FCR 235 (SZGIZ). [In] August 2014, the Department refused to grant the application for Protection visas. On 23 September 2014, they applied to the Tribunal for review of this decision.

8. The applicants appeared before the Tribunal on 18 August 2015 and 29 January 2016 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Indonesian and English languages.

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

   RELEVANT LAW

10. 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

11. 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

12. 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

13. 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  –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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Member of the same family unit

14. 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 spouse.

    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

16. The first named applicant’s claims in his first application for a Protection visa lodged [in] May 1999 are summarised as follows:

    ·During the riots on 13 May 1998, his house was nearly burnt down. His neighbour’s house was looted and burnt.

    ·After 13 May 1998, Chinese Indonesians dare not do business as they are afraid that “native” Indonesians will destroy their businesses again. They try to escape because “native” Indonesians will destroy their lives and opportunities.

    ·He fears that if he returns to Indonesia “native” Indonesians will harm, mistreat and destroy them. They are jealous because Chinese Indonesians make better livings as they are in business.

    ·The Indonesian authorities will not protect them. The riots in May 1998 were organized by powerful Generals for the purpose of scapegoating the Chinese Indonesians.

17. In his first application for review to the Tribunal lodged in September 1999, the first named applicant made a statement that there were demonstrations in Indonesia which could lead to civil war because of the upheaval in East Timor. He claimed that he feared that the “native” Indonesians may attack the Chinese Indonesians and loot and plunder. The first named applicant failed to attend the hearing on 8 September 2000 before the Tribunal and the decision of the Department was affirmed on 28 September 2000.

18. The second named applicant’s claims in her first application for a Protection visa lodged [in] August 2010 are summarised as follows:

    ·If she returns to Indonesia she will suffer because of her husband’s life and his fear would prevent him from leading a normal life in Indonesia. She fears returning to Indonesia because of her husband history.

    ·Her husband would suffer depression because of the wounds of the past continue to hurt him.

    ·She would not be able to find a job in Indonesia and earn a living.

    ·She and her husband do not have any property or other assets in Indonesia and they will suffer if they return to Indonesia.

    ·The economy in Indonesia is not good and being away for a long time would prevent her and her husband from obtaining employment and peace of mind. They would not be able to start a family or raise a family because of financial problems and fear of the future.

19. The second named applicant attended an interview with the Department [in] November 2010. During that interview, she re-iterated and expanded on her claims.

20. The first named applicant’s claims in his second application for a Protection visa lodged [in] January 2014 are summarised as follows:

    ·He is a Christian and of Chinese ethnicity. He belongs to a minority community.

    ·Al Qaeda and Islamic extremists have established their presence and network in Indonesia and it has become a hub of Islamic extremist activities. Christians are considered as sin and they are targeted.

    ·Native Indonesians consider ethnic Chinese as their enemies. He fears he will be targeted because of his religion and ethnicity.

    ·He fears that native Indonesians will perceive him to be a person with wealth due to his long stay in Australia.

    ·He will not get protection because of the influence of Islamic extremists and he will continue to face this harm even if he relocates to other parts of Indonesia.  

21. The second named applicant’s claims in her second application for a Protection visa lodged [in] January 2014 are summarised as follows:

    ·She is a Christian.

    ·She belongs to a Chinese minority community.

    ·She is a female from a minority Chinese community.

    ·Islamic extremists have established their presence and network in Indonesia. Christians are considered as sin.

    ·She fears she will not get State protection because of the influence of Islamic extremists and fears she will continue to face even if she relocates to other parts of Indonesia. 

    ·She will not get protection because of the influence of Islamic extremists and she will continue to face this harm even if she relocates to other parts of Indonesia.   

22. The applicants provided the Department with a letter of support dated [in] July 2014 from [Church 1].

23. The applicants were interviewed by the Department [in] August 2014. Following the interview, the applicants lodged with the Department a Statutory Declaration by the first named applicant dated [in] August 2014, a copy of their Marriage Certificate, a Report dated [in] November 2012 from [Dr A], Consultant Psychiatrist, in relation to the first named applicant, with a letter of support dated [in] December 2012 from [Church 1] provided in support of their application for Ministerial intervention pursuant to s.417 of the Act, a letter dated [in] December 2012 from [Dr B] in relation to the first named applicant, country information on Indonesia from Human Rights Watch and Amnesty International and documents in Indonesian without English translations.

24. The applicants have provided to the Tribunal a copy of the Department’s Decision Record dated [in] August 2014 and copies of their passports. At the hearing on 18 August 2015, the applicants provided the Tribunal with a copy of the first named applicant’s second request for Ministerial intervention pursuant to s.417 of the Act. Included with this request were a number of letters of support from [Church 1] and members of that Church.

    Findings in relation to the Refugees Convention

25. Pursuant to the decision of the Full Court of the Federal Court in SZGIZ, and the Federal Court in AMA15 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).

26. The first named applicant was previously refused a Protection visa [in] August 1999 and the second named applicant was previously refused a Protection visa [in] November 2010   on the basis of the Refugees Convention. [In] January 2014, the applicants lodged a second application for Protection visas. Applying the reasoning in SZGIZ, and AMA15  the Tribunal finds that it does not have the power to consider the applicants’ 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 their 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 applicants being removed from Australia, there is a real risk that       they will suffer significant harm

27. The Tribunal finds that the applicants are citizens of Indonesia, based on their passports which are before the Tribunal, and will assess their claims on this basis. The Tribunal finds that the applicants are outside their country of nationality. There is no evidence before the Tribunal to suggest that they have a right to enter and reside in any country other than their country of nationality. The Tribunal finds that the first and second named applicants are husband and wife.

    First named applicant         

28. In assessing the first named applicant’s claims, the Tribunal has had regard to his mental health issues. He provided the Department with a letter dated [in] December 2012 from [Dr B]. In his letter [Dr B] states that the first named applicant had been a patient of his for the previous 7 years and never discussed any mental health related issues until he requested a referral to see a psychiatrist [in] October 2012. He stated that he was diagnosed by the psychiatrist as having anxiety and depressive symptoms reactive to his current stressful circumstances. He stated that his main current concern was the prospect of being deported to Indonesia. He stated that looking back at his previous clinical presentations there appeared to be cases of psychosomatic presentations. There were symptoms of chest, abdominal and cranial in nature where investigations could not identify the causes. He stated that he has grave concerns for his well-being if he gets deported.

29. The Report from [Dr A], Consultant Psychiatrist, dated [in] November 2012, stated that the first named applicant presents with anxiety and depressive symptoms that appear to be reactive to his current stressful circumstances. He stated that he described a disruptive early childhood and being subjected to threatening and traumatic circumstances in his adult life that probably increases his propensity to develop psychiatric symptoms in face of adverse life situations. He stated that he was reluctant to have follow-up appointments for financial reasons but agreed to arrange an appointment in the future if necessary.

30. The first named applicant has not provided the Tribunal with any current medical or Psychiatric Reports. When asked if he had seen a mental health professional since 2012, he responded that he would have to spend a lot of money to do so. He stated that he made an appointment to see a psychologist in [a suburb] in 2013 but never actually saw him because he was always busy. He stated that he shares his thoughts and feelings with his friends at Church.

31. The Tribunal had the benefit of speaking to the first named applicant during two hearings. He was able to answer all questions asked of him appropriately and did not appear to have any difficulties doing so. The Tribunal is satisfied that he was able to participate in the hearings and the review process in a meaningful way.

32. The Tribunal discussed with the first named applicant his background, his family, why he left Indonesia and why he fears returning to Indonesia. The Tribunal found him to generally be a witness of truth.

33. The first named applicant gave evidence that both his applications for Protection visas were prepared by his migration agents on his instructions which were true and correct. He stated that he was satisfied that both his applications for Protection visas are accurate.

    Chinese ethnicity

34. The Tribunal discussed with the first named applicant his claims in relation to his Chinese ethnicity. He stated that when he was at school he was bullied. When asked if he kept in touch with his school mates after he left school, he responded no. He stated that when he went to University a lot of the students were Chinese.

35. When asked what happened to him during the riots in 1998, the first named applicant responded that there was a riot in May 1998. He stated that he was at work and needed to go home. He stated that he and a friend, who often went home with him, were on a motor cycle when they were stopped by rioters. He stated that he fell off his motor cycle onto his arm and hurt his arm. He stated that his friend helped him up and protected him. He stated that they got back on the motor cycle and left. He stated that they were chased but got away. He stated that if he had not done so he would have died there.

1. When asked if he was involved in any other incidents, the first named applicant stated that there was another riot between Muslims and Christians in November 1998. He stated that he was visiting his girlfriend at her home. He stated that he witnessed Muslims killing Christians. He stated that after the May 1998 riots he was afraid to leave his house. He stated that he knew if he went out he would experience the same thing. When asked if he had any other problems, he answered no. He stated that the problem is between Muslims and Chinese and Christians. He stated that every time something happens they become the scapegoats.

2. The Tribunal noted that these incidents occurred in 1998 and that a lot of time has passed since then. When asked why it is a problem for him now, he responded that he is worried because Chinese and Christians still face problems in Indonesia. When asked his reasons for not wanting to return to Indonesia, he responded that he is traumatised. He stated that when he was young he lived in a Muslim environment and was bullied at school. He stated that he was a victim during the riots in 1998. He stated that he wanted to forget his problems and leave them all behind. He stated that he does not want to live in Indonesia anymore. When asked what he fears would happen if he returns to Indonesia, he stated that he is scared of his environment, the people who bullied him and the people in the riots who tried to kill him. When asked whether he had any other reasons why he fears returning to Indonesia, he responded that he is afraid because he experienced the riots and does not want to go back to that same situation.

3. The Tribunal discussed with the applicants country information on the current situation in Indonesia in relation to ethnic Chinese Indonesians. The Tribunal discussed with them the following information from the Country Report on Indonesia prepared by 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 and the Constitution no longer differentiates between ethnic Chinese and indigenous Indonesians. Chinese New Year is now celebrated as a national public holiday and Chinese cultural performances and language are encouraged.

   The democratisation of Indonesia has also led to a more even distribution of wealth          across a greater number of sectors in society, thereby reducing some of the            economic profile once held by Chinese Indonesians. However, Chinese Indonesians           are still disproportionally influential in the business sector.

   Chinese Indonesians are no longer prevented from holding public office but are still          largely under-represented in government. 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.     Persistent historical bias against Chinese Indonesians may amount to occasional            cases of prejudice resulting in a low level of societal discrimination.

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

4. The first named applicant responded that he thinks those things are for people at the top not at the bottom. He stated that it does not apply to people like him. He stated that he would still face discrimination in Indonesia. He stated that the Indonesian government gives this information to the world to “show the best side of Indonesia.” When the Tribunal informed him that this assessment was made by the Australian DFAT based on information gathered from a number of different sources, he responded that it only applies to people at the top. He stated that people with low education do not listen to what the government says and do what they want to do.

5. The DFAT Country Report on Indonesia indicates the following in relation to the situation in the Papuan provinces:

   Indonesia’s Papua provinces (consisting of both Papua Province and West Papua   Province) have been the site of a low-intensity insurgency since the 1960s, led   largely by the armed pro-independence organisation ‘Organisasi Papua Merdeka’ or   the ‘Free Papua Movement’. The end of Suharto’s New Order era in 1998 and the              dual processes of democratisation and decentralisation that followed resulted in a             major shift in the Indonesian Government’s approach to Papua with successive post-               1998 governments focused increasingly on accelerating development in the region.

   The 2001 law on Special Autonomy sought to grant Papua with a range of formal   political, economic and cultural rights. A key feature of Special Autonomy was the   provision of additional funds by the central government to the Papua provinces to   facilitate development. Between 2010 and 2014, the Special Unit for the Acceleration   of Development in Papua and West Papua aimed to improve the development of   basic education and health services in isolated areas across 18 districts in Papua   and three districts in West Papua. Despite this, Papua continues to rate lowest in   Indonesia on a range of indicators, including education and health.

   Papuan civil society is generally underdeveloped and Papuan employment in the   public or private sector is generally low. However, elected ethnic Papuans now lead   all Papuan provinces and districts, and are well represented in regional legislatures.   There is currently one Papuan in cabinet. There are ongoing disputes between the   provincial and central governments about the extent to which Special Autonomy has   been – or can be – implemented; provincial governments in Papua continue to test   the limits of Special Autonomy and lobby for increased rights.

   Papua became increasingly stable under former President Yudhoyono’s term, with   reductions in severe human rights violations owing to improvements in military and   police discipline in their management of civil disorder. A shift in central government   policy from a security to a prosperity (development-led) approach has led to gradual   improvements in human rights and overall security.[2]

   [2] Ibid.

6. The Tribunal has had regard to the country information provided by the applicants.  

7. The Tribunal has had regard to policy guidelines prepared by the Department and country information assessments prepared by DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   Findings

8. Having considered the claims and the evidence, the Tribunal accepts that the first named applicant is of Chinese ethnicity. The Tribunal accepts that he was bullied at school. The Tribunal accepts that in May 1998 he was stopped by rioters in the street when on his way home but managed to get away on his motor cycle. The Tribunal accepts that his neighbour’s house was burned and looted in May 1998. The Tribunal accepts that in November 1998 he was at his girlfriend’s house and witnessed a violent clash in the street between Muslims and Christians. The Tribunal does not accept that since 13 May 1998 Chinese Indonesians have not dared to do business as they are afraid that indigenous Indonesians will destroy their businesses. The country information indicates that Chinese Indonesians are still disproportionally influential in the business sector.[3]

   [3] Ibid.

9. In view of the country information referred to in paragraph 38 above, the Tribunal does not accept that “demonstrations in Indonesia which could lead to civil war because of the upheaval in East Timor” may result in Indonesians of Chinese ethnicity being attacked and subjected to looting and plunder.

10. The Tribunal accepts that the first named applicant was traumatised by the riots in Indonesia in 1998. The Tribunal accepts that he does not wish to return to Indonesia and would prefer to live in Australia permanently. The Tribunal accepts that he has a subjective fear of returning to Indonesia but does not accept that it is well-founded. The Tribunal accepts that he may face some discrimination because of his Chinese ethnicity if he returns to Indonesia now or in the reasonably foreseeable future. However, the Tribunal does not accept that it would amount to significant harm as defined. The Tribunal does not accept that he would not be able to obtain State protection.  

11. In view of the above, the Tribunal is not satisfied that there is a real risk that the first named applicant will suffer significant harm for reason of his Chinese ethnicity if he returns to Indonesia now or in the reasonably foreseeable future.

    Christian

12. The Tribunal discussed with the first named applicant his claims in relation to being a Christian. He stated that he is a Christian and belongs to the Protestant denomination. He stated that he practised Christianity in Indonesia and attended Church regularly. He stated that he attends Church in Australia and helps as a photographer and an usher. When asked what concerns he has as a Christian if he returns to Indonesia, he responded that because he is a Christian and of Chinese ethnicity he has concerns for the same reasons stated previously.

13. The DFAT Country Report on Indonesia[4] indicates the following in relation to Christians:

    Indonesia’s Constitution provides for the freedom to choose, believe, practice and worship a religion of choice. That said, the Constitution and the first tenet of the country’s national ideology (Pancasila) stipulates that the state shall be based upon the belief in the “one and only God”. Indonesia officially recognises six religions: (Sunni) Islam; Roman Catholicism; Protestantism; Buddhism; Hinduism; and Confucianism and all Indonesian citizens are required to subscribe to one of the six recognised religions. Christians make up approximately 10% of Indonesia’s population (7% of whom are Protestant and 3% of whom are Roman Catholic).

    Churches can face forced closures and protests by local hard-line groups who claim   a mandate to prevent their construction and operation. Conflicts between Christians   and Muslims from Ambon (Maluku) and Central Sulawesi have occurred in the past.   These tensions are largely resolved but could flare up again.

    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. While acts of religious intolerance                   rose in part as a result of former President Yudhoyono’s failure to act decisively in                response to attacks on minorities and the subsequent emergence of a culture of   impunity, DFAT assesses that this situation could change depending on how   President Widodo responds to such incidents when they occur.

    [4] Ibid.

14. The country information indicates that in recent years the main target of Indonesian extremist groups has been Indonesian police officers.[5] It also indicates that the Indonesian government is taking active steps to prevent further terrorist attacks in Indonesia.[6]

    [5] How has terrorism risk changed in Indonesia since the Bali bombings, The Sydney Morning Herald, 2 October 2015. ( Jakarta bombing: Indonesian government to strengthen counter-terrorism laws in wake of attack, ABC News, 22 January 2016. (>

    The applicants have provided the Department and the Tribunal with a large volume of supporting letters from [Church 1] and members of that Church. They have also provided some country information. The Tribunal has had regard to this country information and the supporting letters from the [Church 1] and members of that Church.

    Findings

15. Having considered the claims and the evidence, the Tribunal accepts that the first named applicant is a Christian and that he attended Church regularly in Indonesia. The Tribunal accepts that he attends Church regularly in Australia and has many friends and supporters through the Church. The Tribunal accepts that he will continue his practise of Christianity if he returns to Indonesia. The Tribunal accepts that as a Christian and being of Chinese ethnicity he belongs to a minority community.

16. The Tribunal does not accept that all indigenous Indonesians consider ethnic Chinese to be their enemies and that he will be targeted for this reason and because he is a Christian. The Tribunal does not accept that he would not be able to get State protection for these reasons or because of the influence of Islamic extremists.

17. In view of the above, the Tribunal is not satisfied that there is a real risk that the first named applicant will suffer significant harm for reason of his religion or his religion and his Chinese ethnicity if he returns to Indonesia now or in the reasonably foreseeable future.

    Perceived to be wealthy

18. The Tribunal discussed with the first named applicant his claim in relation to being perceived as a person with wealth due to his long stay in Australia. He stated that he never made that claim. When the Tribunal noted that that is one of his claims in his visa application, he responded that it is not correct. He stated that he has been in Australia for [number] years and does not want to return to Indonesia.

19. In view of the first named applicant’s evidence, the Tribunal accepts that this is not a claim made by him and rejects this claim.

    Cumulative findings

20. Having considered all of the first named applicant’s claims, individually and cumulatively, the Tribunal is not satisfied that there is a real risk that he will suffer significant harm for any of the reasons put forward by him if he returns to Indonesia now or in the reasonably foreseeable future. The Tribunal is not satisfied that there is a real risk that he 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.    

21. Accordingly, the Tribunal is not satisfied 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. 

    Second named applicant    

22. The Tribunal discussed with the second named applicant her background, her family and why she fears returning to Indonesia. The Tribunal found her to be a credible witness.

23. The second named applicant gave evidence that her first application for Protection visas was prepared by someone else. She stated that she is not aware of whether he is a migration agent but she paid him some money for assisting her. When asked whether the information she provided this person to prepare her first application for a Protection visa is true and correct, she responded that it is “mostly correct.” She stated that her husband was traumatised by what happened during the riots in 1998 but she was not. She stated that she just wanted to remain in Australia legally and there was no other way to stay.  

24. The second named applicant gave evidence that her second application for Protection visas was prepared by her migration agents, [company name]. When asked whether the instructions she provided her migration agent for the preparation of her second application for Protection visas are true and correct, she responded that they told them their story, the migration agent prepared the documents and they signed it.

25. The Tribunal discussed her claims with the second named applicant. When asked to tell the Tribunal her reasons for fearing to return to Indonesia, she responded that she was not traumatised by the riots in 1998. She stated that she does not want to be separated from her husband and will follow him wherever he goes. She stated that her husband has spent almost [number] years in Australia and wants to stay here. When asked if she had any concerns for herself about returning to Indonesia, she responded that she does not care where she lives. She stated that whether she lives in Australia or Indonesia it is all the same to her.

26. The Tribunal asked the second named applicant again whether she had any concerns for herself if she returned to Indonesia. She responded that she had no concerns for herself. When the Tribunal pointed out that she had made claims in her own right in her visa applications, she responded that Chinese girls are being raped. She stated that this could happen anywhere. She stated that it could happen in Indonesia or Australia or anywhere else. She stated that accidents happen. The Tribunal is satisfied that this is not a claim being made by the second named applicant.

27. In view of the evidence given by the second named applicant, the Tribunal accepts that, other than for the claims made in relation to her husband, the claims made on her behalf in her visa applications are not claims that she is making. This is consistent with the evidence of the first named applicant who stated that the second named applicant is not making any claims. Accordingly, the Tribunal rejects those claims.

28. In assessing the second named applicant’s claims in relation to her husband, the Tribunal refers to its assessment of her husband and his claims above. For the reasons given above, the Tribunal accepts that the first named applicant was traumatised by events that took place in 1998 and that he does not wish to return to Indonesia. The country information referred to above indicates that there have been many changes in the country conditions since 1998 and the Indonesia of today is very different to the Indonesia the first named applicant left in 1999. The applicants have not provided the Tribunal with any recent evidence in relation to the first named applicant’s current mental health status. On the evidence before it, the Tribunal is prepared to accept that the first named applicant may be anxious and/or depressed if returned to Indonesia and that he may be reminded of events that occurred in the past. The Tribunal is not satisfied, on the evidence before it, that this would prevent him from “leading a normal life in Indonesia”.

29. The Tribunal has found that it is not satisfied that there is a real risk that the first named applicant would suffer significant harm if he returns to Indonesia now or in the reasonably foreseeable future. The Tribunal accepts that if the first named applicant is upset at having to return to Indonesia this could impact on the second named applicant and their relationship. The Tribunal is not satisfied, on the evidence before it, that this impact on her would amount to significant harm as defined.

    Findings

30. In view of the above, the Tribunal is not satisfied that there is a real risk that the second named applicant will suffer significant harm because of her husband’s history in Indonesia or because his mental state would present him from leading a normal life in Indonesia if she returns to Indonesia now or in the reasonably foreseeable future.

31. Having considered all of the second named applicant’s claims, individually and cumulatively, the Tribunal is not satisfied that there is a real risk that she 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.    

1. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the second named 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 second named applicant does not satisfy the criterion in s.36(2)(aa) of the Act. 

   CONCLUSION

2. The Tribunal finds that the applicants do not satisfy the criteria in s.36(2)(aa) of the Act.

3. There is no suggestion that the applicants satisfy 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 applicants do not satisfy the criterion in s.36(2) of the Act.

   DECISION

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

Linda Symons
         Member