1505429 (Refugee)

[2016] AATA 4773

1505429 (Refugee) [2016] AATA 4773 (9 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1505429

COUNTRY OF REFERENCE:                  Indonesia

MEMBER:Louise Nicholls

DATE:9 December 2016

PLACE OF DECISION:  Sydney

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

Statement made on 09 December 2016 at 10:39am

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.

CATCHWORDS
Refugee – Protection visa – Indonesia – Race – Ethnic Chinese – Threats of harm from father-in-law – Unhappy personal history – Father-in-law opposed marriage - Better economic situation in Australia than Indonesia – Unwilling to relocate in Indonesia

LEGISLATION
Migration Act 1958, ss. 36(2)(a)-(c), 65,

91R(1)(b) and(c), 91R(2), 499
Schedule 2 of the Regulations

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicants are wife and husband and claim to be citizens of Indonesia. The applicant wife has submitted her own claims for protection and the applicant husband has made claims as a member of his wife’s family unit. 

2. [In] March 2014 the couple arrived in Australia travelling on [temporary] visas which ceased [in] June 2014. The applicants applied for Protection visas [in] August 2014. The applicant wife provided a copy of the applicants’ passports and a typewritten statement setting out her claims.

3. The applicant wife claimed she feared being harmed or killed by her husband’s parents if she returned to Indonesia. She also claimed the applicants belonged to the ethnic Chinese community in Indonesia and they fear harm and discrimination from members of the local Indonesian community if they return.

4. The applicant wife attended an interview with a delegate of the Minister for Immigration [in] March 2015.

5. The delegate refused to grant Protection visas under s.65 of the Migration Act 1958 (the Act [in] March 2015. The delegate was not satisfied that the applicants met the criteria for the grant of protection visas.

6. This is an application for review of that decision. The applicants provided a copy of the delegate’s decision record [in] March 2015 with the application for review.

7. The applicants appeared before the Tribunal on 22 September 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

8. The applicant wife gave evidence about her background, her marriage to the applicant husband, her migration history and her claims for protection. The applicant husband gave evidence about his background and his reasons for not wishing to return to Indonesia.

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

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

    CONSIDERATION

11. The issue in this case is whether the applicants meet the refugee criterion, and if not, whether they meets the complementary protection criterion.

12. Although the applicant husband has not completed an application form stating he is submitting his own claims for protection (Form C), the Tribunal has considered the claim that he is ethnic Chinese and faces harm and discrimination in Indonesia for reasons of his ethnicity. It has also considered his claim that he cannot find work in Indonesia which will provide him and his family with financial security.

13. In her written statement accompanying her application for protection the applicant wife claims that she left Indonesia because she feared she would be harmed or killed by her husband’s parents who were unhappy with the couple’s marriage. She stated that due to some unhappy personal history the couple’s parents had clashed when they were younger. The applicant’s father had been attacked and injured by her husband’s father and her husband’s father had been gaoled for [number] years as a result of this attack.

14. The applicants met in 2007 and told their parents about their plans to marry in 2009. Their parents opposed the marriage, the applicant wife’s parents relented but the applicant husband’s father assaulted the applicant in December 2010 and made threats against her. The couple had a child in [year], married in 2012 and left Indonesia to escape harm from the husband’s father in 2014.

15. The applicant wife also claimed that she and her husband are ethnic Chinese and face harm and discrimination for reasons of ethnicity if they return to Indonesia.

16. The relevant law is set out in Attachment A.

    Background

17. The applicant wife is [age] and was born in [location] (near [City 1]), Indonesia. She is a Buddhist and of Chinese ethnicity. She and the applicant husband married [in] June 2012 in [City 1], Indonesia and they have [a] child, [who] is currently living in Indonesia.

18. The applicant husband is [age] and was born in [City 1] Indonesia. He is a Buddhist and of Chinese ethnicity.

    What is the country of reference?

19. The applicants provided copies of their Indonesian passports which were issued in 2013. They gave evidence they were Indonesian citizens, they were fluent in the Indonesian language and familiar with the geography and culture of Indonesia. The Tribunal accepts on the evidence before it that the applicants are citizens of Indonesia and that Indonesia is the receiving country for the purpose of s.36(2)(aa).

    Assessment of Claims

20. The applicants claims are set out in the statement attached to the application for protection, elaborated on in the interview with the delegate and contained in the oral evidence given at the Tribunal hearing.

    Background.

21. The applicant wife is [age] and was born in [City 1], Indonesia. [City 1] is located in West Kalimantan.

22. Her parents are living in [City 1]; her father owns a small [business] and her mother looks after the home. She has [siblings] living in [City 1]. The applicant wife attended school in [City 1] and finished school when she was [age]. After she left school she did not have a job for about a year and then found work in as [a] store in about 2005/2006.

23. She and the applicant husband met and formed a relationship in about 2007. At the hearing she first claimed that she and the applicant husband married in 2009. She then corrected this evidence and stated she lived at home until she and the applicant husband moved in together in about 2009. Their [child] was born in [year] and they married at the Civil Marriage Registry in 2012. She later stated they did not move in together until 2011.

24. The applicant wife claimed she worked from about 2007 until 2010.  Whilst she lived at home she and her parents contributed to her financial support and after she moved in with the applicant husband he supported her.

25. When questioned further about her relationship she stated that she worked until 2010 when she became pregnant. She claimed she was still living at home in 2010 when she became pregnant and they moved in together in 2011.

26. It would appear from the evidence that the applicant wife does not have a clear recollection of when she and the applicant husband moved in together, however, the exact dates are not relevant to the claims made by the applicants and the Tribunal accepts that the parties were in a relationship from 2007 and moved in together at least by the time their [child] was born in [year] and they have lived together since that time.

27. The applicants’ [child] is [age] and living with the applicant wife’s parents in Indonesia.

28. The applicant husband first worked with his father until he moved in with the applicant wife. He then worked as [Occupation 1] in Indonesia before he came to Australia.

29. The applicant wife stated in her written statement that she was born in Indonesia and came to Australia to avoid the risk of being harmed or killed by the parents of her husband.

30. She claimed that her husband’s parents were not happy with the marriage of the applicants. The applicant wife fell in love with her husband in 2007. In 2009 they told their parents about their marriage plans. The first time their parents met they fought each other and the police were called.

31. Later the applicant found out that something bad had happened between their parents when their parents were young; her mother was the fiancée of her husband’s father but her mother later met her father at their graduation party and they fell in love.  The relationship between her mother and her husband’s father broke up and her husband’s father became angry and he stabbed her father several times. Her husband’s father was jailed for [number] years.

32. After the applicants’ parents fought each other in July 2009 they tried to pressure the applicants to separate but the couple did not want to separate. Finally the applicant wife’s parents accepted her husband but the applicant husband’s father remained very angry and tried his best to separate them.

33. In December 2010 her husband’s father came to her workplace and slapped her and threatened to kill her if the couple did not separate. After that the applicants rented a room and started to live together. Their son was born on [date] and they registered their marriage [in] June 2012.

34. One night in February 2014 her husband’s [sibling] came to the house and told them that [sibling’s] father had found where would they lived. The couple moved out to a hotel and then the applicants travelled to Australia [in] March 2014.

35. At the Tribunal hearing the applicant wife claimed that she feared returning to Indonesia because of problems with the applicant husband’s family. She stated that they did not agree to the marriage because of a problem in the past between the families. She also claimed the situation in Indonesia was not guaranteed and she feared being robbed. 

36. The applicant wife stated that she and the applicant husband met in [City 1] through mutual friends. After they were friends for about six months the applicant husband met her parents.

37. The applicant wife stated that when she and her husband first met they had not met each other’s families.  Once her husband met her parents they found out there was opposition to their relationship because of problems between her father and her husband’s father. The applicant wife’s mother and her husband’s father had originally been engaged to be married but the engagement was broken when her parents met and formed a relationship. The Tribunal put it to the applicant wife that, despite the problems with their parents, the couple still went ahead and set up a household together, had a child in [year] and married in 2012.

38. The Tribunal asked the applicant why the problems they had with their parents caused them to leave Indonesia.  The applicant wife stated that [City 1] was a small place and that the applicant husband’s parents would not accept the marriage and they were angry with them.  The Tribunal asked her how that had affected the couple and why they felt they had to leave Indonesia.  She stated their life in [City 1] was not good and they had to work hard to support themselves.  She stated the economy was not supporting them and her husband’s family was angry.

39. The Tribunal asked her why they did not move somewhere else in Indonesia such as Jakarta with its larger population and greater job opportunities.  She stated there was a problem with Islam and things were awkward and difficult in Jakarta. 

40. The Tribunal put it to her that moving elsewhere in Indonesia would have been the solution to her family problems in [City 1].  It put it to her that Jakarta was a very large city and they could have found work and lived in a different neighbourhood.  She stated that she and her husband wanted to have a good life.

41. The Tribunal asked her if the reason she came to Australia was to improve her family’s economic circumstances.  She stated that they wanted to get away from her husband’s parents and that there was no guarantee of security in other parts of Indonesia.

42. The Tribunal asked the applicant if anything had happened to her in [City 1] which caused her to be concerned for her safety and she stated that she was afraid that their home would be broken into and robbed. She also feared discrimination. The Tribunal put it to her that [City 1] had a large ethnic Chinese population of between 70 to 80% of the population and there were many Buddhist temples in the city.  The Tribunal put it to her that as there was a large Chinese population it did not appear that they would face discrimination for this reason and that they would be able to access non-discriminatory police protection in the event of criminal conduct such as robbery and theft.

43. The Tribunal asked the applicant wife if she had suffered any mistreatment in [City 1] and she stated that the applicant husband’s family had hit her and beat her.  By way of explanation, she stated that her husband’s father had a fight with her father in 2009 and both fathers went to the police station to complain but the applicant husband asked his father not to pursue it any further.  Even though the complaint was withdrawn the applicant husband’s father held a grudge because of this fight. He started “badmouthing” the applicant wife.

44. The Tribunal asked the applicant wife how her father-in-law’s conduct had affected her if they were not living in the same household. She stated that he could find her anywhere and a few times he came to the [shop] she worked in and slapped her and told her to leave his son.  She did not make a complaint to police because she did not want to cause problems for her husband.  She and her husband talked about it and wanted to find a good way out of the situation.  She is hoping that eventually her father-in-law will accept her.

45. The Tribunal put it to her that she could have taken steps to protect herself against her father-in-law and she stated she tried to find ways he would accept her but he was still angry.  She stated her mother in law was not happy but was not as angry as her father-in-law. 

46. The Tribunal put it to her that she could have taken steps to protect herself but chose not to take those steps for the sake of family harmony.  She agreed and stated she was married to his son; he did not want to see his father in gaol.

47. The Tribunal put it to her that she and her husband could have gone to live somewhere else in Kalimantan such as [City 2] but she stated they went there and looked but did not want to stay there.  She stated they feared they would be subject to robberies and could not live without fear in those places. 

48. The Tribunal put it to her that it appeared she did not leave Indonesia for any Convention based reason but left because of an unresolved family dispute in [City 1].  She stated she feared harm from her husband’s family and did not feel safe about her security.  When it was put to her that nothing had happened to her she stated she worried about past anti-Chinese riots and had seen people subjected to robberies and violence.

49. The Tribunal asked the applicant wife about her Chinese ethnicity. When asked why the couple could not move to Jakarta she stated that there was some discrimination against persons of Chinese ethnicity and that demonstrations had taken place against the Chinese. The Tribunal put it to her country information indicated that demonstrations had taken place many years ago and country information indicated there was no current risk of harm to persons of Chinese ethnicity and rare instances of official discrimination in relation to employment and education. She referred to recent riots in relation to the mayor of Jakarta who was a Chinese Christian. She stated that small issues could become big issues.

50. In relation to her fears of family violence the Tribunal put it to her she could take steps through Indonesia’s domestic violence legislation to protect herself and that state protection was available.  The Tribunal put it to her that she could either complain to the local police in [City 1] and she could also apply for a restraining order under Indonesian law.  Further there were many places in Indonesia that she and her husband could move to where there would not face problems from her husband’s family.

51. In response the applicant stated she would like to stay in Australia and she would like her child to join her in Australia.

52. The applicant husband gave evidence he is [age] and was born in [City 1].  His parents and [siblings] are all living in [City 1]. His father is a [occupation] and his mother does not work.  He completed school when he was [age] and he speaks Mandarin and English. After he finished school he helped in his father’s business and worked there until he married. He then worked as a [Occupation 1].

53. He and his wife met and formed a relationship in 2007. They moved in together in 2010, had a child in [year] and married in 2012.  They registered their marriage with 2 friends as witnesses in 2012 and lived in a rented place in [City 1].

54. The applicant husband stated they left Indonesia because it was hard for him to find work and support his wife and child on his income as a [Occupation 1].  His family did not want to assist him because they were not happy that he married his wife.  He explained that there was bad feeling between the families before they married because his wife’s mother had been the fiancée of his father. After she met the wife’s father she changed her mind and broke off the engagement and this made his father very angry.

55. Both he and his wife did not know this until they met and formed a relationship but his father’s hostility made it very difficult for them.  His father stated the applicant husband needed to make a decision; he could either choose to stay with his wife or return home. If he chose his wife he would be angry and not help him at all.  The Tribunal asked him if he had contact with his parents and he stated he spoke to his mother but not his father.  The Tribunal asked him if anything had happened to his wife to make her fear for her safety in [City 1] and he stated that his father accused his wife of making him leave home.  He cannot return home and so he rented a house with his wife and child but they did not have enough money to live well.

56. The Tribunal asked him why he moved to Australia instead of to another part of Indonesia and he stated the situation was the same everywhere in Indonesia; there was no capital and he could not earn enough to look after his family.

57. The Tribunal explained the law relating to the recognition of refugees and put it to the applicant husband that he did not appear to have a Convention related fear of serious harm.  He stated his life is threatened because he cannot live comfortably and may not be able to make a living in Indonesia.  The Tribunal put it to him he could get a job and he stated that if he was allowed a bit more time in Australia he would have enough money to return home.  He stated if he could not stay in Australia he would look for other ways to earn money but could not do that now. He stated he needed about 6 months in Australia where he would acquire enough money to be able to go back to Indonesia with enough capital.

58. The Tribunal asked him if he had any other reasons for fearing return and he stated that his wife and child would be destitute if he returned now and when it was put to him that his wife’s family was looking after their [child] he stated they only have enough for themselves. 

59. The Tribunal accepts that the applicant wife is of Chinese ethnicity and is married to the applicant husband who is also of Chinese ethnicity. The Tribunal accepts that she and her husband lived in the town of [City 1] which is located in West Kalimantan with a majority Chinese ethnic population. The ethnic Chinese in West Kalimantan have generally had lower incomes than the Chinese in Jakarta and have not suffered the perception that they are disproportionately wealthy. [1]

    [1] Multiculturalism in the Chinese Diaspora Worldwide Transnational Connections Li Wei Routledge, 16 Oct. 2015 p124

1. [City 1] is situated [in] West Kalimantan, about [number] kilometres [from] [City 2][2]. It is “[a town]” with a population of between 60,000 to 80,000 and an estimated ethnic Chinese population of 70%[3].

   [2] ‘Information Deleted

   [3] [Information Deleted]

2. The Tribunal accepts that the applicant husband’s father does not approve of the marriage of the applicant wife and husband. He has not been supportive of the marriage and due to his hostility has not provided financial support to the husband. The Tribunal accepts he has been and remains hostile to the applicant wife.

3. The applicant wife claimed and the Tribunal accepts that following the disclosure of their relationship to their parents in 2009 her husband’s father has opposed the relationship, has been critical of the applicant wife and has on occasion verbally abused her. The applicants claim that the applicants’ parents were known to each other through a broken engagement and that this caused significant problems for the applicant’s relationship. The written statement and interview with the delegate suggest that the applicant’s husband’s father was convicted and gaoled for an earlier assault on the wife’s father. However, no mention was made of this assault and conviction during the hearing. Whatever the nature of the conduct of the fathers and the outcome, the Tribunal accepts that there was some personal conflict between the families before the applicants met in 2007 and hostility after 2009.

4. The applicant wife claims and the Tribunal accepts that in about 2010 her husband’s father once came to the [shop] where she worked, argued with her and slapped her when he was expressing his anger about the relationship. She made this claim in her written statement and at the delegate’s interview. At the hearing she claimed this occurred a few times without any relevant detail. However, the Tribunal considers that this incident occurred once in 2010 as claimed and that the evidence she gave at hearing that it occurred a number of times was embellished to strengthen her claims that she feared her father in law. The applicant told the Tribunal she chose not to complain to police about this incident for the sake of family harmony and the Tribunal accepts this evidence.

5. Despite the hostility and opposition of the applicant husband’s father the Tribunal finds that the applicants continued their relationship, they moved in together in about 2010/2011, they had a [child] in [year] and married in 2012. They remained living in [City 1] until they departed for Australia in 2014. This suggests that whilst the situation may have been uncomfortable for them they did not fear harm from the husband’s father.

6. In her written statement the applicant wife claimed that her husband’s father had found out where they lived and had threatened them and this is why they left Indonesia. However, when asked why they left Indonesia at the hearing the applicant wife stated that [City 1] was a small place, her husband’s family were angry with them and they did not have enough money to support themselves. The applicant husband referred to his concern that he could not financially support his family in [City 1] or other parts of Indonesia. Neither the wife nor her husband repeated the claim that they left because of threats made against them and the Tribunal does not accept this claim.

7. The Tribunal does not accept that the applicant husband’s father threatened them and does not accept they left Indonesia for this reason. The evidence before the Tribunal is that the applicant’s husband’s father had been hostile to the relationship from 2009 and despite this hostility the couple moved in together, had a child and married, lived and worked in [City 1]. If they had been genuinely concerned for their safety the Tribunal considers they would have complained to local police or taken steps to move to another area of Kalimantan or Indonesia.

8. The Tribunal finds that the applicants were finding it difficult to support themselves in [City 1] and were looking for other opportunities to improve their economic situation as well as having some time away from the husband’s family. The evidence indicates that after their [child] was born their sole source of income was the husband’s income as a [Occupation 1]. The applicant husband told the Tribunal it was difficult to survive on this income. The applicants left Indonesia without their [child] and arrived in Australia [in] March 2014 on visit visas. The Tribunal accepts the evidence that when they left Indonesia they left their [child] in the care of the applicant wife’s family and that they have no concerns about his safety in [City 1].

9. The applicants applied for protection visas [in] August 2014 some 5 months after their arrival in Australia. At the hearing the applicant husband gave evidence that he just needed about 6 more months in Australia to build up his assets before the returned to Indonesia. The applicant wife stated that she hoped that with time the relationship with her father in law would improve. Taking all the evidence into account the Tribunal does not consider that the applicants left Indonesia because they feared the applicant husband’s father but left to improve their economic situation.

10. The applicant wife stated they could not move to another area in Indonesia because she was concerned about crime and security. The applicant husband stated they could not move because their economic situation would not be any better than in [City 1]. The Tribunal does not accept the applicant’s wife’s claim that if she moved to another part of Indonesia she would be subject to criminal conduct and a lack of security. It does not accept that her claimed fears are genuine. She was vague and speculative when asked about her reasons for this claimed fear and she could not give any plausible reason why she thought the situation in other parts of Indonesia was unsafe.

11. The applicant wife made claims about her Chinese ethnicity in her written statement. At the hearing she agreed that [City 1] had a large Chinese population and that there were no particular ethnic problems in that town. The applicant did not make any claims she had suffered any serious harm or discrimination for reason of her Chinese ethnicity but claimed that there was discrimination against the Chinese in Jakarta and referred to riots against the Chinese in the past. Although the applicant husband is of Chinese ethnicity he made no specific claims that he feared harm for this reason.

    Do the applicants meet the refugee criterion?

12. The Tribunal has considered the situation for both the applicant wife and applicant husband if they returned to Indonesia now or in the foreseeable future.

13. The applicant wife claims she fears returning to Indonesia because her husband’s father is hostile to the couple’s marriage and that she fears he will continue to be hostile and cause problems for the couple if they return to [City 1]. The Tribunal has accepted that the applicant husband’s father is hostile to the relationship and has been verbally abusive to the applicant wife. It also accepts that he slapped her on one occasion in 2010. It does not accept he made threats to harm the applicants in 2014.

14. The Tribunal does not accept that the applicant wife and applicant husband left Indonesia because they feared the applicant husband’s father and it does not accept that they hold genuine fears they will face harm from him if they return to Indonesia for reasons set out earlier in this decision.

15. Even if the Tribunal accepted that the applicants had genuine fears of harm, which it does not, the Tribunal does not accept the claimed fears are Convention related. The applicant wife claims she fears harm from her father in law and that fear directly arises from the applicant wife’s personal relationship with the husband’s family members. The evidence clearly indicates that this is not a fear which is for reasons of race, religion, nationality, membership of a particular social group or political opinion.

16. In any event, the Tribunal considers that the applicants would be able to access non-discriminatory state protection in relation to the claimed fears of family violence and abuse from the husband’s father. The country information indicates that Indonesia has family violence legislation which provides significant protections to its citizens on a non-discriminatory basis. The law allows for the provision of information to victims, provides that state authorities must give assistance for access to protection orders, provides counselling to victims, and allows for the granting of protection orders and sanctions against domestic violence. Further Indonesia law extends the provisions to other relationships through marriage[4]. These provisions are made available through local police authorities. Further there are a range of support groups operating in Indonesia with readily available contact details and there are specialised Women’s Help Desks in police offices, Crisis centres in hospitals in major cities, shelters and legal aid assistance provided by a number of NGO’s.  The Mitra Perempuan (Women’s Crisis Centre) provides a telephone hotline, counselling, advocacy and support.

    [4] Domestic Violence Legislation and its implementation 2013 UN Womenhttp://asiapacific.unwomen.org/en/digital-library/publications/2015/03/domestic-violence-cedaw-legislation-and-its-implementation

17. The applicant wife made claims that she fears harm for reasons of her Chinese ethnicity. The Tribunal has considered whether the applicant wife and husband, as persons of Chinese ethnicity would face harm if they returned to Indonesia now or in the foreseeable future. The applicant wife made claims referring generally to discrimination and anti-Chinese riots.  Neither the applicant wife nor husband made any claims they had suffered any mistreatment or discrimination in the past due to their Chinese ethnicity.

18. As discussed with the applicants at the hearing the country information indicates that Indonesia has a significant ethnic Chinese population and that [City 1] has a majority Chinese ethnic makeup. Despite racially discriminatory policies in the past and widespread rioting which took place in 1998 the current government is committed to racial tolerance and that most discriminatory practices against the Chinese were abolished in the years following 1998.

19. The most recent DFAT report on Indonesia[5] notes that

    3.4 Since 1998, the most discriminatory anti-Chinese aspects of Indonesian public policy have been dismantled. Chinese New Year is now celebrated as a national public holiday; Chinese cultural performances and language are encouraged; and the Constitution no longer differentiates between ethnic Chinese and 'indigenous' Indonesians. In 2014, former president Yudhoyono issued a regulation changing the word meaning "of Chinese descent" in Indonesian ("Cina" – a word holding negative connotations often associated with racial slurs) to "Tionghoa" and China - as a country - to "Tiongkok". 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.

    3.5 Chinese Indonesians are no longer prevented from holding public office but are still largely under-represented in government. However, there are some high profile exceptions. For example, in 2004, Marie Elka Pangestu became the first female Chinese Indonesian minister and Chinese Indonesian politician Yandi Chow is a public legislator in West Kalimantan….

    [5] DFAT Country Information Report Indonesia 9 June 2015

20. The applicant wife referred to the protests made against the governor of Jakarta and claimed that the protests related to his Chinese ethnicity. DFAT notes

    3.5…In November 2014 Basuki Tjahaja Purnama (an ethnic Chinese Christian popularly known as Ahok) was sworn in as Governor of Jakarta after holding the position of Deputy Governor to the then Governor Joko Widodo since 2012. Protests against him by the Front Pembela Islam (or the Islamic Defenders Front) focused specifically, however, on his Chinese and Christian descent.

21. More recently “Ahok” has been named as a suspect in a blasphemy investigation by Indonesian Police. He is accused of insulting the Koran whilst campaigning in governorship elections. There have been recent protests against him by hard-line Muslim groups but also protests supporting him by pro tolerance supporters[6][7]

    [6] 'Ahok': Police name Jakarta governor as blasphemy suspect; BBC news 16 November 2016 >

    Notwithstanding the religious and political tensions which have arisen following these events in Jakarta the Tribunal does not consider that these protests have any impact on the applicants or will cause them to face any risk of harm if they return to Indonesia. They have not claimed any past mistreatment, they have lived in a majority Chinese ethnic locality and they have not claimed to be Christians. DFAT reports generally that

    3.8 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.

22. The applicant wife also made claims about the security situation in Indonesia. She claimed she feared criminal activity and robberies but this appears to be a non-specific and generalised speculative fear and does not have any basis in past mistreatment. She has not provided particular evidence on which her fears are based. The Tribunal does not consider that the applicant wife has any plausible reason for the claimed fear and the Tribunal does not accept that she holds a genuine fear for this reason. Further there is no suggestion that such a fear is Convention related.  

23. The applicant husband made claims that he fears he will not be able to financially support himself if he returns to Indonesia; however, there is no other evidence which indicates there is any objective basis to this fear. The applicant husband stated that before his marriage he worked in his father’s business and then worked as a [Occupation 1] but found that the income he earned was not enough to support his family. He also stated he needed to stay in Australia for a few more months to build up his assets. The country information on Indonesia indicates that the Indonesian economy has been one of the strongest performing of the large emerging economies over recent years. Whilst ten per cent of the population are living in poverty and a large proportion are vulnerable to insecure economic conditions, DFAT notes[8]

    2.27 The World Bank reports that Indonesia's unemployment rate was 6.3 per cent in 2013. Youth unemployment has fallen in recent years, from 25 per cent in 2007 to 17.1 per cent in the first quarter of 2014. The country has 92 national labour unions representing around 3.4 million union members nationally (around 15 per cent of total registered workers). However, statistics can be misleading as many individuals hold multiple memberships and unions often inflate their numbers. With a few exceptions, unions overwhelmingly represent employees in the formal work sector in jobs that offer higher wages and good job security.

    2.28 Increasing numbers of Indonesian workers are now employed in the formal sector, driven by strong labour demand and improved access to education. Job quality remains an issue, however, and some estimates suggest that between 50 to 60 per cent of the Indonesian working age population still work in the informal sector. Wages for these jobs are low and there is little protection for workers. In turn, many workers in the formal sector do not have contracts and are often paid below minimum wage.

    [8] DFAT Country Report on Indonesia (ibid)

24. The Tribunal put it to the applicant that he would be able to find work in Indonesia if he returned but he stated he needed capital and was unable to access this through his family.

25. The Tribunal accepts that the applicants may have been able to find access to casual work in Australia and that they are hoping to improve their economic situation before they return to Indonesia. However, the evidence indicates that the applicant husband would be able to work if he returned, that the applicant wife’s family can provide some physical and caring support and that the applicants would be able to support themselves if they returned to Indonesia. The Tribunal does not accept that they would be unable to subsist if they returned and in any event there is no evidence that lower wages or greater difficulty in obtaining work in Indonesia is Convention related.

26. Overall, and taking into account all the claims and supporting evidence. the Tribunal does not accept that the applicant wife and applicant husband have a genuine fear they will face serious harm from the applicant’s husband’s father if they returned to Indonesia. Further the Tribunal does not accept that either the applicant wife or applicant husband would face a real chance of serious harm if they returned to Indonesia now or in the foreseeable future for reasons of Chinese ethnicity or for any other Convention related reason.

27. Accordingly the Tribunal does not accept the applicant wife and applicant husband have a well-founded fear of persecution for any Convention related reason should they return to Indonesia.

    Do the applicants meet the complementary protection criterion?

28. The Tribunal has considered whether on the evidence before it, that there would be a real risk that the applicants will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Indonesia.

29. The Tribunal accepts that the applicants are ethnic Chinese from [City 1] in West Kalimantan. The evidence indicates [City 1] is a majority ethnic Chinese area. They both attended school in [City 1] and their parents continue to live in the area. They obtained visit visas for Australia and they left their [child] with the applicant wife’s parents in [City 1] in 2014. They claim to fear harm from the applicant husband’s father but apart from the claim of the applicant wife being slapped in 2010 and suffering some verbal abuse neither party have claimed any mistreatment by the father and they chose to remain in [City 1] until they left for Australia in 2014. They did not complain about the father’s conduct to local police or take any steps to protect themselves.

30. They have not committed any criminal conduct which would put them at any risk of arrest or detention.

31. The country information set out in the latest DFAT report indicates that the ethnic Chinese are at low risk of official discrimination, that anti-Chinese riots have not taken place since 1998 and they are able to access non-discriminatory state protection against any risk of ethnic based harm.

32. In these circumstances and for reasons set out above the Tribunal does not accept that the applicants will suffer significant harm if they return to Indonesia. There is no evidence that they would be arbitrarily deprived of their life; or the death penalty will be carried out on them; that they would be subject to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment as defined in s.5(1) of the Act.

33. Accordingly the Tribunal 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 that they will suffer significant harm: s.36(2)(aa).

    Conclusion

34. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

    DECISION

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

   Louise Nicholls
   Senior Member  9 December 2016

   
   

   ATTACHMENT A

   RELEVANT LAW

2. 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

3. 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).

4. 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.

5. 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.

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

101.   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.

102.   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.

103.   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.

104.   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.

105.   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.

106.   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

107.   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’).

108.   ‘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.

109.   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

110.   In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

Member of the same family unit

111.   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.

[7] Ahok protests reveal Indonesia's struggle between secular and religious politics; CNBC news 6 Dec 2016http://