1508681 (Refugee)

[2017] AATA 1003

1508681 (Refugee) [2017] AATA 1003 (7 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1508681

COUNTRY OF REFERENCE:                  Indonesia

MEMBER:Linda Symons

DATE:7 June 2017

PLACE OF DECISION:  Sydney

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

Statement made on 07 June 2017 at 3:20pm

CATCHWORDS
Refugee – Protection visa – Indonesia – Race – Ethnic Chinese – Discrimination – Physical assault and theft – Loss of employment – Detention – State protection – Fabricated claims – Credibility issues

LEGISLATION
Migration Act 1958, ss 36, 65, 424AA, 438, 499
Migration Regulations 1994 Schedule 2

CASES
MZAFZ v MIBP [2016] FCA 1081

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, arrived in Australia [in] July 2014 as the holder of a [temporary] visa. This visa expired [in] October 2014 and he thereafter became an unlawful non-citizen. [In] November 2014, he was granted a Bridging C visa in association with his application for a Protection visa. He was granted a further Bridging C visa [in] January 2015.

3. The applicant applied to the Department of Immigration and Border Protection (the Department) for the Protection visa [in] November 2014 and the delegate refused to grant the visa [in] May 2015.

4. The applicant appeared before the Tribunal on 20 April 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

5. The issues that arise on review are whether the applicant is owed Australia's protection under the Refugee Convention or under the complementary protection criterion.

   RELEVANT LAW

6. 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.

7. 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).

8. 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.

9. 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’).

10. 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 AND FINDINGS

11. The applicant's claims in his application for a Protection visa filed [in] November 2014 are summarised as follows: -

    ·He came to Australia to seek protection. He suffered discrimination in Indonesia because of his Chinese ethnicity.

    ·When he was young he did not understand discrimination. In Senior High School, he realised that his class was divided into two groups; indigenous Indonesians and Indonesians of Chinese ethnicity. The indigenous Indonesians, who made up 80% of the class, did not talk to the Indonesians of Chinese ethnicity who often found themselves in a corner of the classroom. Indigenous Indonesian classmates took their money and other things from them but they could not say anything because they would have been beaten up.

    ·After graduating from Senior High School, he worked at [business 1] selling Chinese [products] from [year]. His boss was an Indonesian of Chinese ethnicity. He was discriminated against at work. Groups of indigenous Indonesians went to the shop to steal things but his boss did not dare to say anything. He thinks his boss let them steal things to avoid trouble.

    ·In 2008, a group of indigenous Indonesian males tried to steal his mobile telephone while he was working at the [business 1]. He stopped them but they became very angry and thrashed the shop. They beat him and took his mobile telephone and wallet. He called the Police who attended the shop and took photographs of everything. He showed the Police the faces of the men who attacked him on the monitor but the Police ignored him. The Police Officers were also indigenous Indonesians. They took him to the Police Station and locked him up for a day and a night. After he was released, his boss fired him because his shop had been thrashed because of him.

    ·He changed jobs and obtained work at [business 2]. In 2013, the same group of indigenous Indonesian males went to [business 2] and found him. They beat him again because he had reported their robbery to the Police in 2008 and they had been looking for him. He nearly died. The Police could not help him.

    ·The group of indigenous Indonesian males went to his house and hurt his [Relative A]. To hide from them, he went to [Country 1] to accompany his [Relative A] for a health check. He then returned to Indonesia. He was afraid to walk on the street by himself. The group of indigenous Indonesian males belonged to a gang and they threatened to kill him. He was scared and came to Australia to seek protection.

    ·He fears harm from the indigenous Indonesian males, gangs and the Police.

12. The applicant provided to the Department and to the Tribunal a copy of his Indonesian passport.

13. The Department invited the applicant to attend an interview [in] May 2015. He failed to attend the interview.

    Nationality

14. The Tribunal finds that the applicant is a citizen of Indonesia based on his Indonesian passport and his evidence and will assess his claims on this basis. The Tribunal finds that the applicant is outside his country of nationality. There is no evidence before the Tribunal to suggest that he has a right to enter and reside in any country other than his country of nationality.

    Does Australia have protection obligations to the applicant under the Refugees Convention?

15. The applicant gave evidence to the Tribunal that a friend named [Friend A] helped him to prepare his application for a Protection visa. He stated that [Friend A] charged him $[amount] to prepare his documents. He stated that he provided [Friend A] with the information to prepare his visa application and that the information he provided him was true and correct. He stated that he is satisfied that his visa application is accurate and complete.

16. During the hearing, the Tribunal discussed with the applicant his background, his family, his education, his employment, where he lived in Indonesia, his overseas travel, his reasons for leaving Indonesia and why he fears returning to Indonesia. The Tribunal found aspects of his evidence to be vague, lacking in detail, contradictory and unconvincing. There were several significant inconsistencies in his evidence. He made new claims during the hearing. The Tribunal finds that he is not a credible or reliable witness for the following reasons.

17. In his visa application, the applicant claimed that he suffered discrimination at school because of his Chinese ethnicity. The Tribunal discussed this claim with him during the hearing. He stated that at school 80% of the students were of Malay ethnicity and 20% were of Chinese ethnicity and the students who were of Chinese ethnicity could not do much because they were a minority. When asked what it was that he could not do, he stated that he had difficulty making friends. When asked why he could not make friends with the 20% of students who were of Chinese ethnicity, he responded that he did but felt bullied. When asked how he was bullied, he responded that they went to the playground for sports and when they returned to class some of their belongings were gone. When asked whether he reported that to the teachers, he responded that they did not have any evidence and the teachers reminded them to be careful on the next occasion. When asked whether he had any other problems at school, he responded that someone wrote racist comments about the colour of their skin and shape of their eyes.

18. In his visa application, the applicant claimed that he was discriminated against at work. He claimed that he worked at a Chinese [business 1] from [year] for a boss who was also of Chinese ethnicity. He claimed that groups of indigenous Indonesians went to the shop and stole things but his boss did not say anything in order to avoid trouble. He claimed that in 2008 a group of indigenous Indonesian males went to the [business 1] and tried to steal his mobile telephone. He claimed that he stopped them, they became angry and thrashed the shop. He claimed that they beat him and took his mobile telephone and wallet. During the hearing, he gave inconsistent evidence. He initially stated that he was employed between [year] and 2008 selling [products]. He subsequently gave evidence about an incident that happened to him whilst he was working in the [business 1] in 2010 or 2011.

19. The Tribunal asked the applicant about this incident. He stated that there was a group of young unemployed boys in his village who went to the [business 1] one night when he was there on his own. He stated that they looked at him, saw that he was of Chinese ethnicity and decided to harass him. He stated that they took [items] from the shop and asked him where his mobile telephone and money were kept. He stated that he initially refused to tell them and they threatened him so he gave them what they wanted. He stated that once they got what they wanted they left the [business 1]. This version of events is very different to what he claimed in his visa application. These inconsistencies in his evidence raise concerns in relation to his credibility and the veracity of his claims.

20. The Tribunal asked the applicant whether he reported this incident to the Police. He responded that he did. He initially stated that the Police did not go to the shop. He subsequently stated that they did, had a look around the shop and asked him to provide a written statement. He stated that the Police said they would follow it up but did not catch the perpetrators. This version of events is very different to what he claimed in his visa application. In his visa application, he claimed that he reported this incident to the Police who attended the shop and took photographs of everything. He claimed that he showed the Police the faces of the men who attacked him on the monitor but the Police ignored him. He claimed that the Police Officers, who were also indigenous Indonesians, took him to the Police Station and locked him up for a day and a night. These inconsistencies in his evidence raise concerns in relation to his credibility and the veracity of his claims.

21. In his visa application, the applicant claimed that after he was released from the Police Station his boss fired him because his shop had been thrashed because of him. During the hearing, he gave inconsistent evidence. He stated that the same group of indigenous Indonesian males returned to the shop two weeks later but it was not bad like the first time. When asked whether he contacted the Police and told them that the same group of indigenous Indonesian males were in the shop, he responded that he did not as he was worried that something would happen. When asked whether he contacted the Police after they had left the shop, he responded that he did. He stated that the Police said they would come and follow it up and came to the shop some time later. These inconsistencies in his evidence raise concerns in relation to his credibility and the veracity of his claims.

22. The applicant gave evidence to the Tribunal that the last time he saw this group of indigenous Indonesian males was when they returned to the shop two weeks after the incident when they stole his mobile telephone. This is not consistent with his claims in his visa application. In his visa application, he claimed that in 2013 the same group of indigenous Indonesian males went to the [business 2] where he worked and found him. He claimed that they beat him again because he had reported their robbery to the Police in 2008 and they had been looking for him. He claimed that he nearly died. He claimed that the Police could not help him. He also claimed that the same group of indigenous Indonesian males went to his house and hurt his [Relative A]. He claimed that, to hide from them, he went to [Country 1] to accompany his [Relative A] for a health check. He claimed that they belonged to a gang and threatened to kill him. He claimed that he was afraid to walk on the street by himself. These inconsistencies in his evidence raise concerns in relation to his credibility and the veracity of his claims.

23. The Tribunal raised as an issue with the applicant the number of inconsistencies in his evidence and its concerns in relation to his credibility and the veracity of his claims. He responded that he may have forgotten to mention the details but his evidence summarised what had happened to him. The Tribunal informed him that it does not accept that he forgot to mention that he had been arrested by the Police and locked up for a day and night. He responded that he was in gaol for a day and they let him go. When asked why he was in gaol, he responded that it was because he was ethnic Chinese. He stated that he forgot to mention that he had been arrested. The Tribunal does not accept this explanation as it is implausible.

24. In his statement of claims, the applicant claimed that he went to [Country 1] to hide from the group of indigenous Indonesian males and then returned to Indonesia. His evidence to the Tribunal is that he travelled to [Country 1] to accompany his [Relative A] for a medical check-up. In his visa application, he stated that he was in [Country 1] [between specified dates in] August 2013 and went there with his [Relative A] for a health check-up. These inconsistencies in his evidence raise concerns in relation to his credibility and the veracity of his claims.

25. The applicant gave evidence to the Tribunal that he lived in a small village called [Village 1] with his parents from the time of his birth until he left Indonesia [in] July 2016 to travel to Australia. He stated that he has not lived anywhere else in Indonesia. He stated that he occasionally spent the night elsewhere when visiting friends. When asked whether he had considered relocating elsewhere in Indonesia where he would have been safe, he responded that if he had moved to another place he would not have had his family with him. When the Tribunal pointed out that he does not have any family in Australia, he responded that he has friends who have come over here. When the Tribunal suggested that he could have moved to Jakarta and made friends there, he responded that he is still traumatised about indigenous Indonesian people and is a bit worried.

26. The Tribunal is of the view that if the applicant travelled to [Country 1] to hide from the group of indigenous Indonesian males, it is highly unlikely that he would have returned less than two weeks later to his small village of [Village 1] where the group of indigenous Indonesian males lived and where they were likely to locate him. The Tribunal would expect that if he returned to Indonesia from [Country 1] and still feared for his safety, he would have relocated to another place in Indonesia where he was less likely to be located. His conduct is not consistent with his claims. This raises concerns in relation to his credibility and the veracity of his claims.

27. In his visa application, the applicant claimed that the group of indigenous Indonesian males threatened to kill him, he was afraid and came to Australia to seek protection. During the hearing, he gave evidence that he first applied for a passport in 2012. He stated that since he finished High School in [year] it was his intention to come to Australia to study here. He stated that he applied for a Student visa to study in Australia but there was a problem so he did not proceed with it. He stated that there was an issue in relation to discrimination in his village. When asked what that had to do with his application for a Student visa, he responded that his parents were working and discrimination against them impacted on their income. He subsequently stated that he did not have enough money to be able to apply for a Student visa to study in Australia.

28. The Tribunal asked the applicant what he thought would happen if he returned to Indonesia. He responded that he assumes that the group of indigenous males are looking for him. The  Tribunal pointed out to him that they are from his village, which is a small village, he continued to live there until he left for Australia [in] July 2014, they had plenty of time and opportunity to find him and harm him if they wish to do so but did not. He responded that they may come back and bully him. He stated that he has been away from his village for a while and they may look for him. When asked why they would look for him now, he responded that maybe they think he is still the same person and easy to be bullied. The Tribunal finds it implausible that this group of indigenous Indonesian males would still be looking for him or have any interest in him.

29. The records of the Department indicate that the applicant applied for a [temporary] visa to travel to Australia. He provided the Department with documents in support of that application. Those documents indicate that he was employed by his father in an administrative role in [company name]. This is not consistent with his evidence that his father was a vendor who sold food and did so for a long period of time. It is also not consistent with his evidence that the only work he did in Indonesia was to work in a Chinese [business 1] (for someone other than his father) and in a [business 2]. The Tribunal put this information to him, pursuant to s.424AA of the Act, and noted that these inconsistencies in his evidence raise concerns in relation to his credibility and the veracity of his claims. He responded that his agent told him that if his father owned a big business it would be easier for him to come to Australia than if his father owned a small business.

1. The Tribunal asked the applicant whether he had provided the Department with a bogus document to support his application for a [temporary] visa. He responded that the document is not bogus as his father did own a food shop and it was called by that name. He stated that he worked for his father in his shop. The Tribunal pointed out that he did not mention that he worked for his father in his food shop when asked about his employment in Indonesia and this raised concerns for the Tribunal as to whether he had provided false information to the Department to obtain a [temporary] visa or whether he had provided false information to the Tribunal.

2. The applicant responded that what he told the Tribunal was the truth. The Tribunal noted that this raised concerns for it that, if he was prepared to provide false information to obtain a [temporary] visa, he may also be prepared to provide false information to obtain a Protection visa. He repeated that what he told the Tribunal was the truth.

3. The records of the Department indicate that the applicant was granted a [temporary] visa [in] June 2014. However, he did not arrive in Australia until [July] 2014. The Tribunal put this information to him, pursuant to s.424AA of the Act, and noted that his conduct was not consistent with his claims and this raised concerns in relation to his credibility and the veracity of his claims. He responded that he needed to buy luggage and a ticket. The Tribunal does not accept that it would have taken almost six weeks to purchase luggage and a ticket particularly in circumstances where he claims that the group of indigenous Indonesian males threatened to kill him, he was scared and afraid to walk down the street by himself. In these circumstances, the Tribunal would expect him to have left Indonesia soon after he obtained his [temporary] visa [in] June 2014.

4. The records of the Department indicate that the applicant arrived in Australia [in] July 2014 on a [temporary] visa that was valid until for three months. His [temporary] visa expired [in] October 2014 and he thereafter became an unlawful non-citizen. He was thereafter at risk of being deported to Indonesia. The Tribunal put this information to him, pursuant to s.424AA of the Act, and noted that it would expect that if he came to Australia to seek protection and was at risk of harm if he returned to Indonesia he would have obtained immigration advice and lodged an application for a Protection visa soon after his arrival in Australia. The Tribunal noted that his delay until [November] 2014 to apply for protection raises concerns about his credibility and the veracity of his claims.

5. The applicant responded that at that time he was looking for information and that is why there was a delay. When the Tribunal pointed out that he has a friend in Australia who has been studying here who could have helped him, he responded that his friends are on Student visas and do not know about Protection visas. When the Tribunal pointed out that they could get on the Internet and do some research, he responded that he did not have the courage, his English is not very good and that is why he needed his friends to help him. The Tribunal does not accept this explanation.

   Country information

6. The DFAT Country Information Report on Indonesia indicates the following in relation to Chinese Indonesians:

   According to the 2010 population census, there are 2.8 million ethnic Chinese living   in Indonesia, accounting for 1.2 per cent of the total population. Some observers   have suggested this number could be higher owing to a historical reluctance for   people of Chinese descent to self-identify because of discrimination concerns.   Historically, Chinese Indonesians have tended to wield economic clout beyond their   numbers, and have been considered better educated and better connected to the                political classes. These factors often led to resentment amongst some members of                    the broader Indonesian community.

   During the Suharto era (1967 – 1998), a range of policies restricted the rights of   ethnic Chinese Indonesians: the Indonesian constitution stipulated that the President   had to be a 'pribumi' (i.e., 'indigenous') Indonesian; Chinese Indonesians were   pressured to adopt Indonesian names; and it was illegal to print material in Chinese   characters. Many Chinese Indonesians went to great lengths to hide their ethnic   identity, including for reasons relating to personal safety. Widespread riots in 1998   (leading up to the fall of Suharto) led to over 1,000 mostly ethnic Chinese being   killed.

   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.

   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. 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.

   A BBC media report from 2005 stated that Indonesian Chinese were still unlikely to   get a place at a state-run university, or join the army or police. According to the   report, a person of Chinese descent could be required to pay between 3 and 7 million   rupiah to obtain the citizenship letter frequently required to attend school, obtain a   passport or buy land. DFAT assesses that the situation for Chinese Indonesians has   improved markedly in the ten years since this article was published and that, broadly   speaking, such discriminatory practices rarely still occur.

   DFAT assesses that cultural preferences mean the majority of Chinese Indonesians   may marry within their own ethnic group but exceptions do occur, mostly without any   societal discrimination or disapproval. Quantifying inter-ethnic marriage is not an   easy task, however, particularly when it comes to ethnic Chinese who have for   generations hidden their descent. Registration of inter-religious marriage can be   administratively difficult in Indonesia (see section on ‘Inter-religious Marriage’ below).

   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.

   Section 438 Certificate

7. The Tribunal informed the applicant that his file from the Department contained a Certificate under s.438 of the Act and it related to the non-disclosure of information contained on three pages on his file. The Tribunal informed him that the Certificate was issued on the basis that it was contrary to public interest to disclose the information because it contained documents relating to business affairs and internal working documents. The Tribunal informed him that the information subject to the s.438 Certificate relates to checks undertaken by the Department, his personal details and correspondence. The Tribunal informed him that the s.438 Certificate appears on its face to be invalid. The Tribunal invited him to make submissions on the validity of the s.438 Certificate and he declined to do so.

8. In light of the Federal Court decision in MZAFZ v MIBP[1] , which considered a s.438 Certificate with similar wording, the Tribunal finds that the s.438 Certificate is not valid as it does not specify a reason that could form the basis for a claim to public interest immunity.

   Other considerations

   [1] MZAFZ v MIBP [2016] FCA 1081

9. The Tribunal has had regard to the Tribunal's Guidelines on the Assessment of Credibility when assessing the applicant's credibility. The Tribunal has also had regard to the DFAT Country Information Report on Indonesia and the Department's Policy Guidelines to the extent that they are relevant to the decision under consideration.

   Findings

10. Having considered all the applicant's claims and all the evidence, the Tribunal finds that he is not a witness of truth. The Tribunal finds that he fabricated his material claims for the purpose of obtaining a Protection visa.

11. The Tribunal accepts that the applicant was born on [date] at Pontianak city in West Borneo in Indonesia. The Tribunal accepts that he is of Chinese ethnicity. The Tribunal accepts that he completed [number] years of education at school and left school in [year]. The Tribunal accepts that he was employed as a cashier in a [business 1] from [year] to 2008 and as a cashier at a [business 2] from 2008 to 2013. The Tribunal accepts that he has not undertaken any other work in Indonesia. The Tribunal accepts that he is unmarried.

12. The Tribunal accepts that the applicant lived with his parents in a small village called [Village 1] from the time of his birth until he left Indonesia [in] July 2014 to travel to Australia. The Tribunal accepts that he travelled to [Country 1] between [dates in] August 2013 to accompany his [Relative A] for a medical check-up.

13. The Tribunal accepts that the applicant wanted to study in Australia after he completed school in [year]. The Tribunal accepts that he was unable to apply for a Student visa to study in Australia because his family did not have the financial capacity to support him in his studies here. The Tribunal does not accept that he worked for his father in an administrative role as claimed in his application for a [temporary] visa to travel to Australia.

14. The Tribunal accepts that the applicant may have faced some discrimination at school and at work because of his Chinese ethnicity. The Tribunal does not accept that it amounted to persecution. The Tribunal does not accept that in 2008, or alternatively in 2010 or 2011, a group of indigenous Indonesian males tried to steal his mobile telephone. It follows that the Tribunal does not accept any of his claims that flow from that.

15. The Tribunal does not accept that the applicant left Indonesia for the reasons claimed or that he fears returning to Indonesia for the reasons claimed. In view of the above country information and the above findings, the Tribunal is not satisfied that he is at risk of serious harm or significant harm because of his Chinese ethnicity if he returns to Indonesia now or in the reasonable foreseeable future.

16. Having considered all of the applicant's claims, individually and cumulatively, and all the evidence, the Tribunal finds that there is no real chance that he will suffer serious harm for reason of his race or any other grounds under the Refugees Convention if he returns to Indonesia now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for a Refugees Convention reason and is not a refugee. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.

    Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm

17. The Tribunal has considered the applicant’s claims under complementary protection. 

18. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to Indonesia now or in the reasonably foreseeable future.

19. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Indonesia now or in the reasonably foreseeable future.  

20. 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 he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.

    CONCLUSION

21. The Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(a) or s.36(2)(aa) of the Act.

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

    DECISION

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

Linda Symons

         

Member