1417245 (Refugee)

[2016] AATA 3073

1417245 (Refugee) [2016] AATA 3073 (14 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1417245

COUNTRY OF REFERENCE:                  Indonesia

MEMBER:Meena Sripathy

DATE:14 January 2016

PLACE OF DECISION:  Sydney

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

Statement made on 14 January 2016 at 5:15pm

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 applied for the visa [in] February 2014 and the delegate refused to grant the visa [in] September 2014.

3. The issues in this review are whether the applicant has a well-founded fear of persecution in Indonesia for one or more of the five reasons set out in the Refugees Convention; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Indonesia, there is a real risk that he will suffer significant harm.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   RELEVANT LAW

5. 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

6. 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).

7. 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.

8. 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.

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

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

    Complementary protection criterion

16. 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’).

17. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

18. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

19. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Application

20. The applicant is a [number] year old, single man from Jakata, Indonesia. He holds a Bachelor of [subject] and worked as [a professional] in Indonesia. He states his religion as Catholic. He speaks, reads and writes Indonesian and English. He provided one residential address from 1997 to November 2013. 

21. In his reasons for leaving his country the applicant claims he is of Chinese ethnicity and was discriminated as a Chinese in Indonesia. He claims to have suffered tortures from his neighbours, classmates and colleagues. There was a riot in 1998.  At that time he was working in [his town] as [a professional].  His boss was Chinese.  The company was burned to the ground, several colleagues were missing. The applicant was scared and hid at home.  In 2012 his neighbours came to his house and damaged things. They smashed the windows and doors. They beat and threatened him. They wanted him to move out from the area.  His parents told him to come to Australia for his safety.

22. The applicant was invited by the delegate to attend an interview [in] September 2014. He did not attend the interview as scheduled.

    Evidence before the Tribunal

23. On 15 December 2015 the Tribunal received a written submission and supporting documents from the applicant’s newly appointed representative.  The submission provides the following claims and information:

    ·The applicant has encountered discrimination, harassment and differential treatment from a young age on the grounds of his ethnicity and religion.

    ·His parents were Chinese and Buddhist.  He went to a Catholic high school and became a Catholic in junior high school.

    ·Throughout his life he encountered man events that ranged from being called “cina” (a derogatory term for Chinese), to being beaten up for his religion.

    ·He was bullied at school and discriminated at work due to his Chinese ethnicity.

    ·He was unable to get into a good state university and had to attend a private university

    ·On or around [a date in] September 2012 he was attacked by a group of angry Muslim people who lived in the vicinity of his house. He was having his weekly Catholic prayer meeting at his home.  He bore the brunt of the attack as he was the owner of the house.  He had to be hospitalised, and had an operation on the wound.  A photo of his injury is attached. He reported the incident to the police after he recovered but they took no action.

    ·The applicant was also a victim of the May1998 riots when many Chinese people were targeted, beaten, raped, burned or killed.  He feared for his life at this time and hid at home. The office where he worked was ransacked and burned.

    ·The applicant feels that whenever there is a riot the Chinese are always the scapegoats.  These events traumatised him and he fears such persecution again in future. He feels hate and resentment towards him by Indonesians on the basis of his Chinese ethnicity.

    ·He was harassed and discriminated against when looking for a job and organising documents such as citizen ID, drivers licence, passport and other formal documents.

24. The representative submits the applicant fears significant harm on the basis of his Chinese ethnicity and Catholic religion.  He argues persecution against Catholics and Christians in Indonesia is well documented in reports and articles, and makes reference to several of these in his written submissions, and attaches copies of the articles.

    Hearing

25. The applicant appeared before the Tribunal on 17 December 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages. The applicant was represented in relation to the review by his registered migration agent.

26. The applicant told the Tribunal he completed the application form with the assistance of a friend, who was not a registered migration agent. When asked by the Tribunal if he agreed the contents of the applicant were true and accurate, he did not give a definitive response. The Tribunal asked the applicant why he did not attend the Department interview.  Initially he said he did not know about it. He then changed his evidence and said that he received the invitation but his friend who helped him to complete the application told him it was not necessary to attend the interview.  When queried by the Tribunal why he would think it was not necessary for him to attend, he said he wanted to come but his friend told him that it was futile to do so because his application would be refused.  

27. He provided to the Tribunal the following information about his family and background in Indonesia.  He lived at the address provided in the application since around 1980.  He lived there with his mother, until she passed away from [a medical condition] in [year].  His parents divorced when he was about [age] years old and he has never lived, or maintained contact, with his father. The applicant confirmed his education details as provided in the application.  He has a Bachelor of [subject] degree, which he obtained in [year].  He confirmed his employment history.  He has been continuously employed in his professional field of [profession] from [year] until November 2012.  He left his last position voluntarily because it was not a good position from his perspective. From November 2012 until he came to Australia in November 2013, he did freelance work helping people out with [related tasks]. 

28. Prior to the last entry to Australia, the applicant visited Australia for [number] days in February and March 2013.  He travelled here with his [relative] who arranged the visit.  The purpose of this visit was to accompany his [relative].  He stayed with her and her friend and did sightseeing. They both returned to Indonesia after this visit. The only other travel the applicant has done is a holiday visit to [another country] in [year] with his mother.

29. The applicant confirmed he is of Chinese ethnicity.  His religion is Catholic. He was baptised in [year], while in high school. His mother was Buddhist.  He became Catholic because he went to a Catholic school and attended church during that time.  The Tribunal asked the applicant about his religious practice.  He regularly attends Sunday services at church in Indonesia. In addition to attending church, he also does group prayer sessions.  He meets with a group every 2-3 weeks, but not regularly, only when he has time.

30. The Tribunal asked the applicant why he left Indonesia in November 2013.  He said he left because he was no longer comfortable in Indonesia.  He said he experienced discrimination.  When asked to elaborate on what he means by that, he said when he was little and played with friends, people in the village would hit him. During the riots in1998 his home was affected.  When asked to give more details, he said it was damaged.  He was hiding inside with his mother and uncle.  There were a lot of people outside and they tried to break down the door.  Luckily for them they did not succeed so they did not get in. When the Tribunal asked him to clarify that in fact they did not break down the door – he agreed.  The Tribunal asked if anything happened to his work place during the riots, he said it was looted. He wasn’t there at the time. 

31. The Tribunal put to the applicant that his account about the riots is different to what he provided in his statement in the application and what his representative submitted to the Tribunal.  There he said his workplace was burned to the ground, that he hid in his house and he never mentioned anyone trying to break down the door.  The Tribunal explained that these inconsistencies may lead the Tribunal to have concerns about the veracity of his account of these events. In response the applicant said the workplace was looted and there may have been a fire.  He offered no other explanation for the inconsistencies.

32. The Tribunal asked if there were any other incidents.  He said he is still traumatised by the events of 1998.  There is no guarantee it won’t happen again.  It was not the first time that the Chinese community was attacked either. There were incidents in the 1970’s and 1980’s. There was also another incident.  He was participating in a group prayer session at his home.  Some people were unhappy about it and they attacked them.  There were 8-10 people, they were native Indonesians, they were young men and some wore turbans.  They said to them they cannot pray here.  They beat him and some of the others also. He went to hospital and he also made a police report. The Tribunal asked why he hasn’t provided records of the hospital visit or the police statement. He said he did not know it was necessary but he can obtain it if necessary. The Tribunal pointed out to the applicant that given his evidence that it was his intention to seek protection in Australia when he came here, it would have considered it reasonable that he would bring such documents with him.  He said he didn’t know to do so.  The Tribunal asked him, that if this incident occurred and he was fearful for his life as a result of it, why he returned to Indonesia after his visit to Australia in March 2013.  He said he did not know about seeking protection at that time.  He said that it was true that he was injured. The Tribunal pointed out that his account to the Tribunal about the 2012 incident is different to what he said in the application. He didn’t mention in his statement that this incident occurred during a prayer group meeting, and he referred there to windows and doors being smashed.  The applicant made no comment.

33. After this incident he continued living at the same address.  He continued to meet for the prayer sessions but not at his house again.  After that it was at other peoples’ homes. There were no other incidents in which he suffered harm but he just doesn’t feel safe in Indonesia after the riots and this incident and he wants to find a safer place to live.

34. When asked what he fears will happen to him if he returns, the applicant said he does not think he will be safe. The Tribunal asked the applicant if anything happened to him after he returned to Indonesia in March 2013 until he left again in November. He confirmed that there were no other incidents.

35. The Tribunal discussed independent information it had before it which indicated conditions had improved for Chinese Indonesians since the 1998 riots, and that there haven’t been similar incidents since then.  Also regarding the situation for Christians, while there are reports of deteriorating tolerance for  religious minorities, the main issue for churches appear to be the approval process for building places for worship and the main reported incidents relate to closing down houses of worship. The Tribunal explained that while there is some evidence of discrimination and harassment of Chinese and Chinese Christians such treatment may not come within the meaning of the terms ‘serious harm’ and ‘significant harm’.

1. At the conclusion of the hearing the applicant requested 3 weeks to provide evidence in support of his claims. 

2. On 4 January 2016 the Tribunal received a Statutory Declaration from the applicant dated 23 December 2015 declaring: that he was attacked around September 2012 by a group of Moslems who dislike his prayer meeting at his home; that he suffered significant injuries due to this attack; that he visited a hospital for treatment for his injuries; that he reported the incident to the police in Jakarta; that he has tried to get evidence of the attack from the police and hospital but has been unable to because he is in Australia and they insist he attend personally to get the records.

   Independent information

   Ethnic Chinese in Indonesia

3. Since the widespread violence experienced by Chinese Indonesians in 1998, conditions have improved for Chinese Indonesians both culturally and formally. In the last ten years, the representation of Chinese Indonesians in public office, including running for local and national elections has greatly increased; Chinese Indonesians have been encouraged to apply to join the police force; and Chinese ethno-religious holidays are no longer banned – indeed Chinese New Year is now a national holiday. Most significantly, institutional barriers to acquiring citizenship and its attendant rights have been lifted, although some reports of discrimination by bureaucratic agencies persist.

4. In the 2010 Indonesia census, 8.8 million people listed themselves as having Chinese ethnic origins, constituting some 3.7 per cent of the population. This figure represented a significant increase from the 1.2 per cent reported in the previous census, leading some to argue that the primary reason for such dramatic growth is the preparedness of Indonesia’s ethnic Chinese population to declare their origins following a decade of social and political reform.[1]

5. Since the end of the Suharto era, successive Indonesian presidents have introduced reforms seeking to enhance the ethnic Chinese population’s political, legal and cultural rights. Notable reforms include: the lifting of the ban on the teaching and display of Chinese languages by President Abdurrahman Wahid;[2] the official declaration by President Megawati Sukarno Putri making Chinese New Year a national holiday;[3] and the adoption of a new citizenship act allowing millions of previously stateless Chinese to apply for Indonesian citizenship.[4]

6. Indonesia has been largely free of anti-Chinese violence since the 1998 riots.[5]

7. Freedom House noted in 2012 that ethnic Chinese once avoided participating in public politics; however an increasing number of Chinese are standing as candidates in national elections.[6] Minority Rights Group International (MRGI) reported that in the 2004 elections, “there were several parties that openly claimed to be representing ethnic Chinese, something that was unheard of during the rule of former president Suharto. Although these parties won only a small number of votes, they did raise the profile of the Chinese community”.[7]  The present governor of Jakarta, Bakusi Tjahaja Purnama is an ethnic Chinese Christian.[8]

8. In 2008, the Indonesian Assembly passed an anti-discrimination act that sets a minimum jail term for discriminatory acts.[9] Despite the passing of the act, the following year President Yudhoyono “called on all state officials to improve their services to the country’s Confucian and Chinese-Indonesian communities, saying all discriminatory acts against minorities must be put to an end”.[10]

9. Despite the President’s plea and the passage of the anti-discrimination law, sources report ongoing discrimination of ethnic Chinese, particularly by petty officials and police. Freedom House reported in 2012 the following:

   Chinese-Indonesians continue to encounter difficulties obtaining identity cards and other personal documents from the government. Chinese-Indonesians are also subject to predatory taxes and license fees when dealing with local bureaucrats due to their alleged affluence. Although the police extort from nearly all victims who come in contact with them, they extort from the Chinese even more intensely. As a result, there is a vicious cycle in which this minority has unusually low rates of reporting of hate crimes and violence, which in turn makes them more targeted because an attacker can expect to get away with it.[11]

10. Similarly, in 2012 the US Department of State reported:

    [S]ome ethnic Chinese noted that, despite recent reforms, public servants still discriminated against them when issuing marriage licenses and in other services. Some activists assert that most cases of discrimination against ethnic Chinese persons go unreported. Some public officials made public statements that government officials of Chinese ethnicity made decisions based on their heritage and not based on national interest. Discussions of corruption on local blogs at times degenerated into racial diatribes.[12]

11. Freedom in the World 2014 states that Ethnic Chinese, who make up less than 3 percent of the population but are resented by some for reputedly holding much of the country's wealth, continue to face harassment.[13]

    Christians in Indonesia

12. Christians remain Indonesia’s largest minority, comprising approximately nine or ten per cent of the total population. Human Rights Watch states that there are 22 million Christians living in Indonesia comprising 9.3 per cent of the population, while the US Department of State cites 2010 Indonesian census figures stating that the population is seven per cent Protestant and three per cent Roman Catholic.[14] East Nusa Tenggara province reportedly has the highest proportion of Catholics at 55 per cent, and Papua the highest proportion of Protestants at 58 per cent. Other areas with significant Protestant and Catholic communities include the Maluku Islands and North Sulawesi.[15]

13. The Ministry of Religious Affairs continues to recognise six religious groups, including Catholicism and Protestantism. Conversions between religious groups occur and are permitted by law, though conversions are sometimes controversial. Some Muslims have reportedly accused Christian groups of using food and microcredit programs to entice impoverished Muslims to convert.[16]

14. Major reports argue that whilst Indonesia has been known for its religious tolerance in the past, the general level of tolerance has deteriorated in recent years. In February 2013, the UN High Commissioner for Human Rights stated that Indonesia risked losing its culture of diversity and tolerance “if firm action is not taken to address increasing levels of violence and hatred towards religious minorities and narrow and extremist interpretations of Islam”.[17] Similarly, Freedom House states that “Indonesia has been considered a prime example of the compatibility of Islam and democracy and a success story for peaceful coexistence of different religions within a secular state. However, inter- and intrareligious tensions have increased significantly in recent years”.[18]

15. The US Commission on International Religious Freedom (USCIRF) notes that Indonesia’s “tradition of religious tolerance and pluralism has been strained. While the government has addressed past sectarian violence and curtailed terrorist networks, religious minorities continue to experience intimidation, discrimination, and societal violence”.[19] In February 2013, the Asia director, Human Rights Watch, stated that the Indonesian government’s “failure to take decisive action to protect religious minorities from threats and violence is undermining its claims to being a rights-respecting democracy”.[20]

16. Two issues particularly pertinent to the treatment of Christians are legal provisions regarding blasphemy and the approval process for building houses of worship. Article 156(a) of Indonesia’s criminal code prohibits hostility, hatred or contempt against religion, or disgracing a religion, with up to five years’ imprisonment. The Supreme Court upheld the law in 2010. Freedom House reports that although the blasphemy provision does not specify any particular religion, in practice it is mainly used to target blasphemy against Islam.[21]

17. The approval process required of those who wish to construct houses of worship remains an issue for Christian groups, particularly those living in Muslim majority areas with growing Christian populations.[22] Human Rights Watch reports that churches in Muslim-majority areas of the country have found it increasingly difficult to obtain permits, with some taking between ten and twenty years to obtain.[23]

18. Both government action and societal violence have been responsible for closure of minority houses of worship in Indonesia,[24] and churches have been closed due to permit issues. Approximately 200 Christians recently held an Easter service in front of the Presidential palace in the capital, protesting against church closures and contending that local officials are using permits as “an excuse to kowtow to religious hardliners”.[25] In March 2013, a protestant church in Bekasi that was the subject of one of the court orders mentioned by the ICG was demolished by the local government. While officials reportedly cited the lack of a building permit as the reason for the demolition, Human Rights Watch ultimately attributes the demolition to protests against the church’s construction by hard-line Muslims.[26]

19. Human Rights Watch alleges that light prison terms imposed on those prosecuted for attacks against religious minorities sends a message of official tolerance for mob violence.[27] For example, in 2011 a member of FPI was sentenced to five and a half months’ imprisonment for stabbing a reverend and attacking a congregation member in Bekasi.[28] Furthermore, Human Rights Watch states that “[d]ozens of regulations, including ministerial decrees on building houses of worship, continue to foster discrimination and intolerance”.[29]

    FINDINGS AND REASONS

    Nationality

20. On the basis of his evidence to the Tribunal, and his Indonesian passport, and the absence of any other information to cast doubt about the validity of his documentation, the Tribunal accepts the applicant is a national of Indonesia and considers Indonesia is the country of nationality and the receiving country for the purpose of assessing his claims against the refugee and complementary protection criteria respectively.

    Consideration of applicant’s claims

21. When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims.  This usually involves an assessment of credibility of the applicant.  When doing so the Tribunal is mindful of the difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. 

22. The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. (See MIMA v Rajalingam (1993) FCR 220) However the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see Selvadurai v MIEA& Anor (1994) 34 ALD 347 at 348).

    Credibility finding

23. The applicant failed to attend an interview with the delegate despite being invited.  When asked by the Tribunal why he did not attend, he initially said that he did not receive the invitation and did not know about it.  He then clarified that he did in fact receive the invitation and he wanted to attend but his friend, who helped him to fill in his application told him it was pointless to attend and advised him not to.  The Tribunal considers this a weak explanation for his failure to attend. Having made an application to seek protection in Australia the Tribunal considers it reasonable that the applicant would attend to clarify and provide further information about his claims.   It considers his failure to do so, in the absence of a reasonable explanation, reflects poorly on his general credibility. The applicant attended the hearing before the Tribunal and the Tribunal had the opportunity to question him at some length about his claims.  It observes that his oral evidence to the Tribunal was vague, general and lacking in convincing detail.  He was hesitant and somewhat evasive in his responses to the Tribunal’s questions.  His evidence was internally inconsistent and contradictory in relation to a number of his claims, the details of which are discussed further below.  For reasons more fully discussed below, the Tribunal has concerns about the credibility of the applicant as a witness and it does not accept he has given a truthful account of past events and experiences in Indonesia.

    Consideration of [the applicant’s] claims

24. The applicant claims he has always been discriminated in Indonesia on the basis of his Chinese ethnicity.   He gave as an example that he was bullied and hit when a child at school.  The Tribunal is prepared to accept, having regard to the country information referred to above, that the applicant suffered some degree of discrimination and harassment on the basis of his Chinese ethnicity in the past in Indonesia.  However, it also observes that he was able to compete his education to tertiary level, have continuous employment in his field from prior to his graduation until his departure  for Australia and stayed living in the one apartment for most of his life, all of which suggests that any discrimination or harassment he experienced did not cause disruption to his life such as to prevent him from accessing education, employment or accommodation. 

25. He has made claims relating to his experiences during the 1998 riots.   The Tribunal has concerns about the veracity of these claims however, as his account in his application differed in significant respects from his account to the Tribunal and he was vague and hesitant in recounting the details to the Tribunal. In his written application the applicant stated that during the riots his company was burned to the ground and some colleagues went missing. He said he was scared and hid at home.  He did not mention anything that happened to him at home.  However, in his oral account to the Tribunal he said he was at home with his mother and uncle, and people tried, unsuccessfully, to break in to loot them.  When asked if anything happened to his workplace, he said it was looted.  He did not mention that it was burned, until the Tribunal put to him his previous statement, and then he said there may have been a fire. Despite the significant time that has passed since these events, given the applicant’s claims about the significance and trauma it continues to cause for him, it would expect, if truthful, that he could recall details such as whether the workplace was burned or not and whether people attempted to break into his house or not.   In this context, the Tribunal considers the inconsistencies to be significant and it does not accept that these events occurred at his home or his workplace as claimed.

26. While the Tribunal accepts on the basis of the country information referred to above that widespread violence and riots was experienced by Chinese Indonesians in 1998, it does not accept that the applicant’s workplace was looted or burned or that anyone attempted to break into his home to loot it during this period.  

27. The applicant claimed that he suffered physical harm in an incident in September 2012 when a group of people attacked him and his fellow Catholic prayer group during a prayer meeting at his home.  Again, the applicant’s account of this incident was significantly different between his written application and his oral testimony before the Tribunal.  He wrote in his application that his neighbours came to his house and smashed his windows and doors and hurt him. He said they threatened him and wanted him to move out from the area. He said his family was so scared and his parents told him to come to Australia.  To the Tribunal and in his oral testimony the applicant has said that this incident occurred during a prayer group meeting and that the motivation of the attackers was to get them to stop having their prayer group.  He did not mention any damage to his house.  He said he and some others were physically hit. The applicant’s oral evidence to the Tribunal was that his mother passed away in [year] and he has never lived with or had contact with his father since they divorced when he was [age]. The Tribunal also observes that the applicant travelled to Australia in February 2013, after this incident, and returned to Indonesia.  If this incident did occur as claimed, it would be reasonable to expect that he would have explored options for not returning to Indonesia at that time.  At the hearing the applicant mentioned that he visited a hospital in relation to injuries suffered by him during this incident and also reported it to the police.  He has not provided any evidence to support his claimed hospitalisation or police report.  The Tribunal has considered, but does not accept, the applicant’s explanation that he is unable to obtain the reports because he is now in Australia and unable to get them personally. If he was hospitalised following this incident as claimed and reported the incident to police, the Tribunal considers it reasonable to expect the applicant to have brought these records with him, or be able to produce them to the Tribunal to support his claims.

28. Considering all of these reasons, and its overall adverse assessment of the applicant’s credibility, referred to above, the Tribunal does not accept the applicant’s account of this incident in September 2012 is truthful.  It does not accept that he, or anyone else, was attacked by a group of people who came to his home, for reasons of his ethnicity, religion or any other reason.  

    Fear of future harm

29. The Tribunal has not accepted that the applicant has in the past personally suffered physical threats to his safety or harm on the basis of his ethnicity or religion as claimed. It accepts on the basis of the country information cited above, that ethnic Chinese generally in Indonesia have in past years experienced serious attacks and institutionalised discrimination. It is prepared to accept that the applicant may also have suffered some forms of discrimination, name calling and harassment in the course of his life.  The Tribunal also finds, however, on the above cited information, that the situation has improved significantly in the past 17 years, and in particular violence and tensions against ethnic Chinese have subsided and the Government has abolished many of the discriminatory laws applicable to ethnic Chinese. While the information suggests that some discriminatory practices remain, in the Tribunal’s view, the discriminatory practices described above do not give rise to serious harm.

30. Having considered all the material before it, including the applicant’s claims and evidence and independent information, the Tribunal is not satisfied there is a real chance the applicant will face persecution for reasons of his race, ethnicity or religion, or for any other Convention reason, in the reasonably foreseeable future. 

31. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

32. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal has considered whether 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 he will suffer significant harm as defined in s36(2A) of the Act.

1. Having regard to the evidence and claims before it, and the Tribunal’s reasons above for the absence of a real chance of serious harm, the Tribunal is also not satisfied there is any real or substantial basis to believe there is a real risk  the applicant will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or that he will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment if he is returned to Indonesia.  On the evidence before it, the Tribunal is not satisfied the applicant has suffered significant harm within the meaning of that term in the past. In the Tribunal’s view, any discrimination or harassment the applicant may face as an ethnic Chinese or Christian would not amount to significant harm within the meaning of that term. It 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 the applicant will suffer significant harm as defined in subsection 36(2A) of the Act.

2. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

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

   DECISION

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

   Meena Sripathy
   Member

   
   
   

[1] Hussain, Z 2012, ‘Chinese Indonesians Come Full Circle’, The Jakarta Globe, source: The Straits Times, 8 June < Accessed 5 February 2013 <Attachment>

[2] ‘Chinese-language newspapers said flourishing in Indonesia’ 2009, South China Morning Post, 16 December <Attachment>

[3] Dickson, A 2012, A Chinese Indonesian Mosque’s Outreach in the Reformasi Era, Arts Online, Monash University website < Accessed 1 February 2013 <Attachment>; Purdey, J 2009, ‘A common destiny’, Inside Indonesia, July-September < Accessed 18 September 2009 <Attachment>

[4] Seneviratne, K 2007, ‘Ethnic Chinese Find New Acceptance’, Inter Press Service, 1 March < Accessed 12 April 2007 <Attachment>; Hera, D 2006, ‘Law provides more inclusive definition of being Indonesian’, Action in Solidarity with Asia and the Pacific, source: Jakarta Post, 12 July < Accessed 2 October 2006 <Attachment>; Law of the Republic of Indonesia No. 12, 2006 on Citizenship of the Republic of Indonesia, UNHCR Refworld <Attachment>

[5] International Crisis Group 2010, Indonesia: “Christianisation” and Intolerance, Crisis Group Asia Briefing N°114, 24 November, p.3, footnote 16 <Attachment>

[6] Freedom House 2012, Countries at the Crossroads: Indonesia, <Attachment>; Higgins, A 2012, ‘Ethnic Chinese at last see a new future opening up in Indonesia’, The Guardian, source: Washington Post, 21 August < Accessed 1 February 2013 <Attachment>

[7] Minority Rights Group International 2008, World of Minorities and Indigenous Peoples - Indonesia: Chinese, < Accessed 18 February 2011 <Attachment>

[8]COI - Cochrane J 2014, ‘An Ethnic Chinese Christian, Breaking Barriers in Indonesia’, The New York Times, 22 November < barriers-in-indonesia.html?_r=0> [accessed 22 November 2014] <CISNET BACIS CX1B9ECAB7611

[9] ‘Bill against racial discrimination passed’ 2008, The Jakarta Post, 29 Octoberb < Accessed 3 November 2008 <Attachment>

[10] ‘Chinese Indonesians recognize improvement’ 2009, The Jakarta Post, 2 February < Accessed 2 February 2009 <Attachment>

[11] Freedom House 2012, Countries at the Crossroads: Indonesia <Attachment>

[12] US Department of State 2012, Country Reports on Human Rights Practices 2011 – Indonesia, 24 May, Section 6 <Attachment>

[13] Freedom House, Freedom in the World 2014 - Indonesia, 26 June 2014, available at: [accessed 16 December 2015]

[14] Human Rights Watch 2013, In Religion’s Name: Abuses against Religious Minorities in Indonesia, February, p.21 < Accessed 28 February 2013 <Attachment>; US Department of State 2012, 2011 International Religious Freedom Report – Indonesia, 30 July, Section I <Attachment>

[15] US Department of State 2011, 2010 International Religious Freedom Report (July-December) - Indonesia, 13 September, Section 1 <Attachment>

[16] US Department of State 2012, 2011 International Religious Freedom Report – Indonesia, 30 July, Sections I & III <Attachment>

[17] ‘Indonesia must tackle rising discrimination and violence, says UN human rights chief’, 2012, UN News Service, 13 November, UNHCR Refworld < 28 March 2013 <Attachment>

[18] Freedom House 2012, Countries at the Crossroads 2012: Indonesia, 20 September <Attachment>

 <Attachment>

[20] Human Rights Watch 2013, Religious Minorities Targets of Rising Violence < Accessed 28 March 2013 <Attachment>

[21] Freedom House 2010, Policing Belief: Indonesia < Accessed 10 January 2012 <Attachment>

[22] ‘Planning Processes and Houses of Worship’ 2011, Radio National, 26 July < Accessed 2 April 2013 <Attachment>; Human Rights Watch 2013, Indonesia: Order an End to Church Demolitions, 25 March < Accessed 27 March 2013 <Attachment>

[23] Human Rights Watch 2013, Indonesia: Order an End to Church Demolitions, 25 March < Accessed 27 March 2013 <Attachment>

 <Attachment>

[25] ‘Indonesians mark Easter outdoors after church closures’ 2013, Agence France-Presse, 1 April, Google News < Accessed 2 April 2013 <Attachment>

[26] Human Rights Watch 2013, Indonesia: Order an End to Church Demolitions, 25 March < Accessed 27 March 2013 <Attachment>

[27] Human Rights Watch 2013, World Report 2013 – Indonesia, 31 January < Accessed 8 February 2013 <Attachment>

[28] Tampubolon, H D 2011, ‘FPI leader gets less than six months for church attack’, 25 February, The Jakarta Post < Accessed 21 June 2011 <Attachment>

[29] Human Rights Watch 2013, World Report 2013 – Indonesia, 31 January < Accessed 8 February 2013 <Attachment>