1509889 (Refugee)

[2017] AATA 467

1509889 (Refugee) [2017] AATA 467 (24 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1509889

COUNTRY OF REFERENCE:                  Indonesia

MEMBER:Carolyn Wilson

DATE:24 February 2017

PLACE OF DECISION:  Adelaide

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

Statement made on 24 February 2017 at 1:39pm

CATCHWORDS
Protection visa (Class XA) – Indonesia – Race – Ethnic Chinese – Religion – Catholic – Communal violence – Threats of harm – Loss of citizenship

LEGISLATION
Migration Act 1958, ss 36, 65, 417, 499
Migration Regulations 1994 Schedule 2

CASES
SZGIZ v MIAC (2013) 212 FCR 235
AMA15 v MIBP [2015] FCA 1424

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Indonesia applied for the visa [in] January 2014 and the delegate refused to grant the visa [in] July 2015.

3. The applicant was invited to attend a hearing on 24 February 2017, however he declined the hearing invitation and asked that a decision be made on the papers.    

4. The applicant was represented in relation to the review by his registered migration agent.

   RELEVANT LAW

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. 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’).

8. 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

9. The issue in this case is whether the applicant meets the complementary protection criteria.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

10. The applicant arrived in Australia in July 2001 as the holder of a [temporary] visa.  He applied for a Protection visa [in] August 2001. That application was refused by a delegate [in] October 2001.  The Refugee Review Tribunal affirmed that decision on 9 September 2002.  The applicant’s Bridging visa ceased [in] November 2002.  He remained in Australia unlawfully for 12 years.  He was located by the Department in January 2014.  He subsequently lodged a further application for a protection visa, the subject of this decision. 

11. Section 48A imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. The Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 has held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa. The Federal Court in AMA15 v MIBP [2015] FCA 1424 upheld the Tribunal’s approach of considering only claims in relation to the complementary protection criterion in s.36(2)(aa), where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a). In light of these authorities, the Tribunal has considered the applicant’s claims only in relation to s.36(2)(aa).

12. In his application form the applicant made the following claims:  

    Q.43 Why did you leave that country

    ‘During the late 1990s ethnically Chinese Indonesians were racially targeted and vilified by indigenous Indonesians. One of the reasons for this was due to the perceived wealth of Chinese Indonesians.  Tensions between the two groups came to a head when Indonesia was caught in a financial crisis.  Being ethnically Chinese, I was a target for abuse. Riots broke out across Indonesia.  I heard from friends and saw on the television stories of rioting, shootings and rape. As a business owner, particularly dealing with [services], my livelihood was crippled by the financial crisis.  Being Chinese further subjected my business to loss  In order to escape any potential harm, I moved to Australia in July 2001.’

    Q.45 What do you fear may happen to you if you go back to that country?

    ‘I will be physically and verbally abused and harmed.  If I attempt to start my business back up again the premises and stock will be damaged and I will not be able to financially survive due to slander against my reputation.’

    Q.47 Why do you think this will happen to you if you go back?

    ‘I fear that there remains an underlying prejudice towards ethnically Chinese Indonesians in Indonesia.  I am also Catholic and therefore not a part of the majority religions in the country.  I fear that this may make me the target of not only racial abuse, but religious abuse too.

    ‘I also do not know whether I still have citizenship rights in Indonesia. If I do not, my ability to live and work will be severely compromised.

    ‘I have built my future in Australia with an employer that relies on me to set up and maintain his business. If I was to go back to Indonesia I would struggle to find employment given my age and previously sustained injuries.  This would then affect my ability to financially care for my parents’.

13. The applicant has declined to attend either an interview with the delegate or a hearing with the Tribunal to discuss his claims.  No written submissions have been provided to the Tribunal.

14. The applicant has not identified any past harm he experienced for reason of his ethnicity or religion. His claims speak only of generalised discrimination and violence directed towards Chinese Indonesians, without giving particulars of harm suffered by the applicant.  Given he says he left Indonesia to avoid any potential harm, the Tribunal finds he has not previously suffered significant harm. The applicant’s parents and [number] siblings remain in Indonesia.  The applicant has not provided any claims or evidence to suggest they have suffered significant harm for reason of their ethnicity or religion.

15. The Tribunal has had regard to the DFAT Country Information Report – Indonesia (9 June 2015), which provides the following information on the treatment of Chinese Indonesians:

    Chinese-Indonesians

    3.2 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.

    3.3 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.

    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. 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.

    3.6 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.

    3.7 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).

    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.

16. The Tribunal acknowledges this report is from 2015, however the applicant has not identified or provided any country information that indicates any change since June 2015. The latest US State Department report on Human Rights Practices Indonesia 2015 (released 13 April 2016) does not identify any issues of concern for ethnically Chinese Indonesians.  The Tribunal is aware of the current blasphemy charges against the Governor of Jakarta (as noted in the DFAT report, a Chinese Indonesian Christian) and is aware of protests that have recently arisen in relation to his political campaign and the charges.[1]  However, given only 1 death from three mass rallies, the Tribunal does not accept this is evidence of worsening conditions for Chinese Indonesians generally or that the applicant personally faces a real risk of significant harm for any unrest related to the Governor of Jakarta. The Tribunal relies on the information in the DFAT report, and the lack of any evidence from the applicant of recent or past harm to anyone in his family or local community in Indonesia, to find there are not substantial grounds for believing the applicant faces a real risk of significant harm for reason of his ethnicity should he be returned to Indonesia.

    [1] >

    In relation to his claim to fear significant harm because of his religion, the Tribunal has had regard to the DFAT Country Information Report – Indonesia (9 June 2015) on the treatment of Catholics and Christians in Indonesia:

    Christians

    3.46 Christians make up approximately 10 per cent of Indonesia’s total population (approximately seven per cent of whom are Protestant and three per cent of whom are Roman Catholic).The provinces of Papua, West Papua, East Nusa Tenggara, and North Sulawesi are predominantly Protestant Christian. Catholics mostly reside in East Nusa Tenggara, Central Java and the sub-district of Muntilan. Large numbers of Christians also reside in Ambon (Maluku), Central Sulawesi and Northern Sumatra.

    3.47 Churches can face forced closures and protests by local hard-line groups who claim a mandate to prevent their construction and operation. For example, on 21 March 2013, the Batak Protestant Church in Bekasi (outside Jakarta), was demolished following a local government order. Separately, the GKI Yasmin Church and HKBP Filadelfia Church in West Java remained closed following sustained harassment since 2006 and 2007 respectively. Despite obtaining all necessary approvals, both churches had been denied operating permits by their local governments, who had also refused to recognise 2013 Supreme Court rulings in the churches' favour. The Indonesian Ombudsman has since found the Bogor Mayor guilty of malpractice, through a complete lack of “commitment to implement the Supreme Court verdict”. Nevertheless, the Mayor has refused to comply with the Court's verdict or acknowledge the Ombudsman's finding. DFAT has been told by credible sources that local residents have been paid by hard-line groups to harass members of the GKI Yasmin Church while police had been paid a substantial weekly sum to maintain a constant police presence outside Church grounds and prevent parishioners from entering. The Church has also been pressured to relocate. In 2013, Human Rights Watch documented cases where churchgoers had been subject to constant harassment by local groups who had disrupted services by reading passages of the Koran through loud speakers directed at the congregation. Conflicts between Christians and Muslims from Ambon (Maluku) and Central Sulawesi have occurred in the past. These tensions are largely resolved but could flare up again.

    3.48 DFAT assesses that Christians in Indonesia are generally at a low risk of official discrimination and violence and are generally able to practice their faith without interference owing to their officially recognised status. That said, DFAT observes that incidents of religious intolerance appear to be on the rise in Indonesia and members of Christian minorities can face a higher risk of societal discrimination and violence in regions where hard-line Muslim organisations are influential. DFAT assesses such incidents occur relatively infrequently in Indonesia. While acts of religious intolerance rose in part as a result of former President Yudhoyono’s failure to act decisively in response to attacks on minorities and the subsequent emergence of a culture of impunity, DFAT assesses that this situation could change depending on how President Widodo responds to such incidents when they occur.

17. The applicant has not provided any evidence that he is a practising Catholic.  The applicant’s home area is in East Java.  No evidence has been provided by the applicant to indicate this is an area where tensions between Christians and hard-line Muslim organisations exist or are worsening.  Indeed, there are no claims nor evidence from the applicant that he suffered significant harm in the past, or that his family or local community have suffered recent harm, for reason of their religion. The Tribunal is not satisfied there are substantial grounds for believing the applicant faces a real risk of significant harm for reason of his religion should he be returned to Indonesia.

18. Even considered cumulatively, as a Catholic and ethnic Chinese Indonesian, the Tribunal relies on the lack of past significant harm to the applicant, the lack of evidence of significant harm to his family or local community for reason of their ethnicity and religion, and the advice from DFAT that Christians and ethnic Chinese face only a low risk of discrimination or violence, to conclude that there are not substantial grounds for believing the applicant faces a real risk of significant harm for reason of his ethnicity and religion should he be returned to Indonesia.

19. The applicant has also raised claims that he will struggle to re-settle in Indonesia after 16 years absence and will no longer be able to support his parents.  The Tribunal notes the applicant has [number] adult siblings in Indonesia, and considers therefore he has family support he can call on.  The applicant has shown himself to be a resourceful person, having built his own business in Indonesia in the past and worked [in various senior positions and different occupations, specified] in Australia. The Tribunal notes the claim he has suffered a work injury in Australia, however this injury occurred in 2012, he is said to have recovered from the injury, and it has not prevented him from working in Australia.  The Tribunal does not accept there are substantial grounds for believing the applicant faces a real risk of significant harm because he has to re-establish himself in Indonesia. 

20. The applicant also raised claims that he may have lost his Indonesian citizenship and may suffer hardship for this reason.  The Tribunal has had regard to the ‘Law of the Republic of Indonesia Number 12 Year 2006 on Citizenship of the Republic of Indonesia’. The law does state that citizens who live outside of Indonesia for 5 years and do not declare an intention to remain Indonesian, may lose their citizenship.  However, the law also provides procedures for regaining lost citizenship.  The grant to the applicant of a travel document by Indonesian authorities in 2014 indicates he retains Indonesian citizenship. The Tribunal also relies on information provided by the Indonesian Embassy Canberra to the Refugee Review Tribunal[2] in 2010 in which the First Secretary Consular Affairs advised of the procedures for regaining lost citizenship.  In that advice it was noted that travel documents, such as the one provided to the applicant in 2014, can only be granted to Indonesian citizens.  Given the applicant was granted an Indonesian travel document in 2014, the Tribunal is not persuaded the applicant has lost his citizenship.  However, in the event that he has, theTribunal finds there is nothing to indicate the applicant would face a real risk of significant harm in applying to regain his citizenship.

    [2]

1. The Tribunal is not satisfied 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 he will suffer significant harm. The Tribunal finds the applicant does not meet the criterion for complementary protection set out in s.36(2)(aa).

2. The applicant’s representative indicated in the submissions to the Department dated [in] January 2014 that the applicant understood he needed a decision from the Tribunal in order to make a request pursuant to s.417 of the Act for Ministerial intervention. The applicant is requesting the Minister grant him a substantive visa to enable him to apply for a [further temporary] visa, sponsored by his current employer.

3. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in PAM3 ‘Minister’s guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J)’ but is not referring the matter. The Tribunal notes that the applicant can make a request directly to the Minister.

   Conclusion

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

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

   DECISION

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

   Carolyn Wilson
   Member