1500024 (Refugee)

[2016] AATA 3666

1500024 (Refugee) [2016] AATA 3666 (23 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1500024

COUNTRY OF REFERENCE:                  Indonesia

MEMBER:Ruth Cheetham

DATE:23 March 2016

PLACE OF DECISION:  Sydney

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

(i)that the third 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 23 March 2016 at 3:44pm

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 claim to be citizens of Indonesia, applied for the visas [in] April 2014 and the delegate refused to grant the visas [in] November 2014. The infant applicant was the main applicant for the visa, her parents were included as family unit members. In the Tribunal, the mother is the main applicant, and the infant daughter and husband are included. Nothing of significance depends on this, but for the sake of ease of reference the Tribunal will refer in this decision to “the mother”, “the father” and “the daughter”, to “the parents”, and to “the applicants” for the plurality.

3. The parents appeared before the Tribunal on 23 March 2016 to give evidence and present argument. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages. The applicants were represented in relation to the review by their registered migration agent.

   SUMMARY

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

5. In summary, the Tribunal is satisfied that there is a real chance that the daughter would suffer serious harm, being female genital mutilation (“FGM”), if she returns to Indonesia because she is a member of the particular social group of young female [Country 1] Muslims in Indonesia, and her parents would not be able to protect her from this harm either by relocating or by seeking State protection.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Summary of protection claims

6. The parents are Muslim, from a [Country 1] Muslim community in Indonesia. They fear that their parents will force the daughter to undergo “circumcision”, or female genital mutilation “(FMG”). It is a tradition in the [Country 1] Muslim community in Indonesia. The mother underwent FMG as a [young] child, as did other female members of the family on both sides. The daughter’s grandparents believe it is their responsibility to ensure the daughter is brought up properly and have declared that she will be “circumcised” or they will do it themselves. The parents disagree and this has caused family arguments. The parents believe the grandparents will take the daughter away, and the authorities will not intervene.

7. The parents know that FMG is not required by the Quran but that it is a practice that is carried out from one generation to the next. The father spoke with a religious leader, who told him that it is not compulsory. The mother has had arguments with her own mother about other traditional practices and has refused to observe some of those traditions, such as the ceremony of shaving her daughter’s head seven days after birth. The mother also has refused to wear the [Country 1] style of hijab, preferring to wear no hijab at all or a shorter, more modern style. The parents state that even if they were to move somewhere else in Indonesia, there will be a [Country 1] community and they will be pressured about the daughter’s “circumcision”. They state that the Indonesian authorities will not intervene in a matter of this nature and they cannot access protection for their daughter.

   Evidence at the Tribunal hearing

8. At the hearing, the mother gave the majority of the evidence. She stated that her family had come from [Country 1] to Indonesia at the time of her parents’ grandparents, and that her husband’s family came at the time of his grandparents, via [another country]. The [Country 1] community in [City 1] is distinct, they are part of that community and when they were in Indonesia they attended the community gatherings. The mother stated that the [Country 1] community is much more conservative in their religious observances and dress, and that even though FGM is not mentioned in the Qu’an it is a tradition which is observed from generation to generation.

9. The mother stated that her mother and her mother-in-law have very strong views in support of FGM and those views are supported by the [Country 1] community generally. She stated that she fears she would not be able to prevent her mother and mother-in-law from taking her daughter without her knowledge to undergo FGM by a traditional midwife. She stated that although she and her mother resided in Jakarta before she came to Australia, her mother has since sold that house and moved back to [City 1] where they originally came from, and that several members of her husband’s family also live in [City 1], which is where he grew up, although he has relatives in all of the five major islands of Indonesia. The mother also stated that she has [relatives] in [City 1], and her [siblings] live there. She stated that her mother and sister both visited her in Australia at the time of the birth of her daughter, and her mother was pressuring her then to return to Indonesia so that her daughter could undergo FGM but she resisted this pressure. She stated that if she were in Indonesia it would be very difficult for her to resist the pressure, and that in any case her mother and her mother-in-law would take her daughter without her knowledge. The father stated that his family has been contacting him and telling him he has to bring their daughter back so that she can be circumcised but he tells them, untruthfully, that he is still studying and cannot leave.

10. The mother stated that in her family, her mother and sister and aunts have all undergone FGM, as has she. She stated that [last year], her sister had given birth to a daughter, and that daughter had undergone the procedure, despite the opposition of her sister. Her mother had simply taken her sister’s daughter to the traditional midwife and had it performed. The mother stated that her mother’s [relative] had a daughter at about the same time as her sister was born, that a few months after the birth the daughter was circumcised, and that she died from an infection resulting from that procedure.

11. The Tribunal asked whether it would be possible to live elsewhere in Indonesia in order to protect their daughter from having FGM imposed on her. The father stated that he has relatives all over Indonesia who would know where he is because [Country 1] Muslims in Indonesia have their own areas in each city, and [Country 1] Muslims are easily recognisable in [Indonesia].

    Relevant country information

12. There are many sources for information and background on the practice of FGM in Indonesia but for the purposes of this decision two recent articles[1] have been relied upon: “The custom of female circumcision remains good business”, Indonesia Global Post 15 April 2015 and “Indonesia: Female genital mutilation persists despite ban”, IRIN, 2 September 2012.

    [1] and >

    FMG is accepted as an important and beneficial cultural and religious tradition and is widely practiced in Indonesia. According to country information FMG 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.

13. FMG 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.'

14. 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 FMG and the number of invasive procedures.

15. The available information indicates that the majority of Indonesians of [Country 1] descent originally come from [Location 1] in [Country 1]. Most present day Arab communities in Indonesia identify themselves as “so-called [Arabs].[2] [Location 1] Arabs, being mostly Sunni Muslims and reckoning [Location 1] in [Country 1] as their original homeland, have settled in Indonesia for several centuries. According to UN Population Fund information, while an estimated [number] per cent of women in [Country 1] are circumcised,[3] in [Location 1] an estimated [number] per cent of women are circumcised. The [Location 1 Arabs], in Indonesia as elsewhere, are mainly Sunni Muslims and mainly belong to [a certain sect][4]. According to the Population Council research report on FGM, “a majority of Muslims in Indonesia are followers of [the sect] who perceives circumcision as an obligatory [practice].[5] A 2005 IRIN article states: “The most common form of the procedure [is] thought to be excision, which involves removal of all or part of the clitoris and possibly the labia minora”[6].

    [2] [Information deleted].

    [3] [Information deleted].

    [4] [Information deleted].

    [5] [Information deleted].

    [6] [Information deleted].

    Protection visa criteria

16. 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.

17. 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.

18. 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 v MIEA[7] and in Applicant S v MIMA[8]. 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". …

    [7] Applicant A v MIEA (1997) 190 CLR 225

    [8] Applicant S v MIMA (2004) 217 CLR 387

19. 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.

20. The Tribunal must consider whether the applicant can relocate to avoid the risk of harm. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country[9]. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of ‘practicable’, to expect him or her to seek refuge in another part of the same country. What is ‘reasonable’ in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense[10].

    [9] Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1

    [10] SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing

21. 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.

    FINDINGS AND REASONS

22. The applicant is a young Muslim girl of [Country 1] descent. This is a group of people who 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. The Tribunal is satisfied that young Muslim females of [Country 1] descent constitute a particular social group in Indonesia. The Tribunal is 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.

23. The Tribunal accepts that the applicants come from a family and cultural background where FGM was practised and expected. Every female in the applicant’s immediate family has been subjected to FGM, including the mother’s niece as recently as [2015]. A relative of the mother died from complications resulting from FGM. The Tribunal accept that the applicant’s parents would not be able to protect their daughter from this harm. On the basis of the independent information, the Tribunal is 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. That harm is significant physical ill-treatment within the meaning of s91R(2)(c) of the Act and therefore constitutes persecution.

24. Although the threat of harm emanates from private individuals, in light of the independent information on the prevalence and acceptance of FGM in Indonesia, the Tribunal accepts that the police and authorities would not be able to protect her from this threat of harm. This is also partly because it would not, based in the country information, be regarded as harm, out of the ordinary or illegal. The Tribunal finds that the Indonesian authorities would be unable and unwilling to protect the applicant from this threat of harm. The Tribunal is also satisfied, on the basis of the parent’s evidence, that it would not be possible for them to relocate within Indonesia and avoid the harm feared.

    CONCLUSIONS

25. For the reasons given above the Tribunal is satisfied that the third named applicant is a person in respect of whom Australia has protection obligations. Therefore the third named applicant satisfies the criterion set out in s.36(2)(a).

26. The Tribunal is satisfied that the first and second named applicants are the mother and father respectively of the third named applicant and are members of the same family unit for the purposes of s.36(2)(b)(i). It follows that the other applicants will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.

    DECISION

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

    (i)that the third 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 third named applicant.

    Ruth Cheetham
    Member