1417056 (Refugee)

[2015] AATA 3927

1417056 (Refugee) [2015] AATA 3927 (18 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1417056

COUNTRY OF REFERENCE:                  Indonesia

MEMBER:Roslyn Smidt

DATE:18 December 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 18 December 2015 at 2:51pm

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 applicants, who are citizens of Indonesia, applied for the visas [in] June 2013 and the delegate refused to grant the visas [in] October 2014.

3. The second and third named applicants appeared before the Tribunal on 25 November 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

4. The applicants were represented in relation to the review by their registered migration agent. The agent did not attend the hearing.

   THE RELEVANT LAW

5. 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).

6. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

7. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

8. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

9. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

10. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

11. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

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

13. A relevant consideration in this case is the meaning of the expression ‘for reasons of ... membership of a particular social group’. This expression was considered by the High Court in Applicant A’s case and also in Applicant S. In Applicant S Gleeson CJ, Gummow and Kirby JJ gave the following summary of principles for the determination of whether a group falls within the definition of particular social group at [36]:

    … First, the group must be identifiable by a characteristic or attribute common to all members of the group.  Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution.  Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large.  Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group". …

14. Whether a supposed group is a ‘particular social group’ in a society will depend upon all of the evidence including relevant information regarding legal, social, cultural and religious norms in the country. However it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be for reasons of the person’s membership of the particular social group.

15. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

16. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

17. 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’).

18. 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.

19. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. Only the first named applicant in this case has made claims for protection. She is [an infant] child. Her parents and brother are included in the application as members of her family unit.

21. The applicant was born in Australia to Indonesian parents and is a citizen of Indonesia. According to her parents, she is at risk of being subjected to female genital mutilation (FMG) if she returns to Indonesia. Her parents both state that they oppose this practice and do not want their daughter to be circumcised, but they fear that community pressure or intervention by family members who might take their daughter to be circumcised without their consent would mean that they cannot protect her in Indonesia.

22. The applicant’s mother comes from Bali where she was raised by her father who is now deceased. She lived with her mother in Jakarta from 2001 until 2006, when she came to Australia to study. The applicant’s father comes from Jakarta where he lived until he came to Australia to study in 2007. The couple are both from the [Country 1] community in Indonesia and both are committed Muslims. They met through contacts in the Indonesian [Country 1] community in Australia. The applicant’s mother had to obtain the approval of her mother before she was allowed to marry.

23. At the hearing the applicant’s mother said that she was circumcised when she was about 3 or 4 years old. This was done in a village in Java where her relatives live. She said that her circumcision had involved significant cutting and had been very painful. She also said that this has had had an ongoing negative impact on her as it affected her sex life and menstruation. She said that she knew of women who had experienced even worse problems because of being circumcised.

24. The applicant’s mother said that the invasive procedure which she had endured as a child was the type of circumcision which is considered obligatory within her family and the [Country 1] community more generally.  Her niece who lives in Indonesia has been circumcised in this manner. The applicant’s mother said that unlike more symbolic forms of circumcision, doctors are not allowed to perform this procedure, so it was done by women from the community which involved the risk of infection and other problems.

25. The applicant’s mother said that most people, including her family members, saw it as a religious obligation and also believed that girls who were not circumcised became uncontrollable. Uncircumcised girls would find it difficult to marry. For these reasons she would face immense pressure from the community and from her family to have her daughter circumcised if she returned home. She said that if she refused to comply, her family or her husband’s family would take matters into their own hands. She said that this had happened to a friend who had returned from Australia for a visit. Her friend left her daughter with her mother while she went out and returned to find that she had been circumcised.

26. I asked the applicant what she would have done if she had returned to live in Indonesia before her daughter was born. She said that she would have complied with the pressure from her family and the [Country 1] community and allowed her daughter to be circumcised.

27. I asked the applicant’s mother if she would take her daughter to Indonesia to visit her family if she remained in Australia. She said that she was not sure what she would do, but she thought she would be too afraid to take her daughter back to Indonesia.

28. The applicant’s father also gave evidence at the hearing. He said that he had only recently begun to oppose circumcision for girls. He said that he had been influenced by his wife’s views and by seeing the impact circumcision had on his wife. He also said that he believed that his wife circumcision meant that there sex life was not entirely satisfactory.

29. When asked if he believed that circumcision was required by Islam, the applicant’s father said that it was a grey area and there were arguments on both sides.

30. The applicant’s father said that he and his wife would face immense pressure from the [Country 1] community and from their families to have their daughter circumcised because this was a long held tradition and seen as very important.

31. I advised the applicant’s parents that it was my understanding that they had the right to make decisions such as whether there daughter would be circumcised and if they did not want this done they had power to ensure that it did not. The applicants agreed that this was true, but said that they pressure would be extreme and that if they refused to comply their families would take her daughter to have her circumcised. I suggested that they could avoid this by not leaving their daughter in the care of family members they feared might disregard their wishes and arrange for her to be circumcised. The applicant’s mother said she would not be able to refuse to give her mother access to her daughter.  The applicant’s father said that it was not that simple because in Indonesia it was expected that people would obey their elders and follow the traditions of their family and community.

32. I suggested the applicant’s parents could protect their daughter by relocating to another part of Indonesia and cutting off or limiting contact with their families. While their responses to this were differed and were somewhat confused, they both indicated that they believed that this would not be possible as they would not be able to live away from their families and their community.

    Consideration of claims

    Relevant country information [1]

    [1] This overview draw mostly on two articles,  The custom of female circumcision remains good business in Indonesia Global Post 15 April 2015 and Indonesia: Female genital mutilation persists despite ban IRIN 2 September 2012 >

    Female circumcision is accepted as an important and beneficial cultural and religious tradition and is widely practiced in Indonesia. According to country information circumcision in Indonesia has traditionally been largely symbolic, involving ceremonial pricking or snipping or as little as a mere wipe of the genital area. However, more invasive procedures are used in some areas and according to some reports these practices are increasing.  Some reports suggest that the more invasive practices are the most common.

33. Female circumcision was banned in Indonesia in 2006.  However, the Ulema Council, the highest Islamic advisory body in the country, responded by issuing a fatwa authorising FGM, albeit declaring it non-mandatory. Similarly, in 2010 the largest Muslim organisation in Indonesia, Nadhlatu Ulama (NU), issued an edict supporting FGM, though advised against 'cutting too much.'

34. The 2006 ban was effectively lifted in 2010 the Ministry of Health introduced a new regulation which allowed medical professionals to perform less invasive kinds of FGM. In practice, medical practitioners also carry out more invasive forms of the practice and this has contributed to a rise in the overall rates of circumcise and the number of invasive procedures.

    The applicant’s case

35. The decision to circumcise a child in Indonesia rests with the parents. I believe that the applicant’s parents could prevent her circumcision if they were determined to do so. However, I believe that it is likely that they will succumb to family and community pressure and allow their daughter to be circumcised if they return home.

36. While I accept that the applicant’s mother does not want her daughter to be circumcised, she stated at the hearing that if her daughter had been born in Indonesia she would have allowed her to be circumcised because it is expected that young girls of [Country 1] descent are circumcised. The applicant’s father, while no doubt genuine in his current views, appeared not to be entirely convinced that circumcision is not required as a part of his religious practice. Furthermore, when I suggested that they could protect her daughter by not leaving her with members of her family or by relocating to another part of Indonesia, they clearly did not believe that this was possible. I do not believe that they would relocate or cut ties with their families in order to protect their daughter. In these circumstances, I find that there is a real chance that the applicant will be circumcised if she returns to Indonesia.

37. Furthermore, I accept that circumcision of the applicant would not be merely symbolic but would involve invasive and mutilating and would probably be without proper medical care or supervision. The applicant’s mother gave a convincing account of her own painful experience of circumcision and the lasting impact this has had on her life. I accept that the applicant would face the same treatment if she returned to Indonesia. I am satisfied that there is a real chance that the applicant will be subjected to the more severe forms of FGM in the reasonably foreseeable future if she returned to Indonesia. I find that the harm the applicant fears is significant physical ill-treatment within the meaning of s91R(2)(c) of the Act and therefore constitutes persecution. 

38. The applicant is a young Muslim girl of [Country 1] descent. This is a group of people that share the common characteristics of their youth, gender, religion and ethnicity. The shared characteristic/s is not the fear of harm and these characteristics distinguish them from society at large. I am satisfied that young Muslim females of [Country 1] descent constitute a particular social group in Indonesia. I am satisfied that the harm the applicant fears is for reason of her membership of this group and her membership of the group is the essential and significant reason for the harm.

39. For the reasons set out above, I am satisfied that the first named applicant is a person in respect of whom Australia has protection obligations. Therefore the first named applicant is a person in respect of whom Australia has protection obligations.

40. I am also satisfied that the second, third and fourth named applicants are the first named applicants parents and brother and that they are members of the same family unit as the applicant for the purposes of s. 3692)(b)(1). It follows that the other applicants will be entitled to protection visas provided the criterion in s.36(2)(b)(ii) of the Act and the remaining criteria are met.

    DECISION

41. The Tribunal remits the matter for reconsideration with the following directions:

    (i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

    (ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

    Roslyn Smidt
    Member