1511795 (Refugee)

1511795 (Refugee) [2017] AATA 916 (12 May 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1511795
COUNTRY OF REFERENCE:                  Indonesia
MEMBER:Christine Cody
DATE:12 May 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 May 2017 at 4:44pm

CATCHWORDS
Refugee – Protection visa – Indonesia – Political opinion – Demonstration against government corruption – Loss of employment – Revenge by one police officer

LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 424AA, 499
Migration Regulations 1994 Schedule 2

CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] July 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Indonesia, applied for the visa [in] March 2015 on the grounds that he is a refugee or entitled to protection under Australia’s complementary protection provisions. The delegate refused to grant the visa on the basis that the applicant did not attend an interview to which he was invited and the delegate considered that, on the basis of a lack of information provided by the applicant, he could not be satisfied that the applicant suffered significant harm in the past or will suffer harm in the reasonably foreseeable future.
CRITERIA FOR A PROTECTION VISA
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, he or she 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.
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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes namely the DFAT Country Information Report Indonesia, 9 June 2015 (“the DFAT report”)), to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the “Refugee criterion”, or, if not, whether he meets the “complementary protection criterion”. For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.
Claims and evidence
The Department
The Departmental file contains documents including the applicant’s protection visa application forms, copies of pages from the applicant’s passport, and the delegate’s decision record.
According to the applicant’s written documents:
·     He was born on [date] in Surabaya, Indonesia. He lived at the same address in Indonesia from birth until November 2014.
·     His ethnicity is Chinese. His religion is Christian.
·     He completed [education level] in [year], and then commenced a [degree] at University in [year]. He completed this degree in [year].
·     In Indonesia, he worked from July 2004 until August 2005 as [an occupation]; from September 2005 until August 2009 he worked in [another occupation] and from September 2009 until November 2014 he was in [a third occupation]. All of his jobs were in Surabaya, and were with different companies.
·     He speaks, reads and writes in English and Indonesian.
·     He has never been married or in a de facto relationship.
·     His passport was issued legally by the Indonesian authorities [in] 2012 (valid until [2017]) (he told the Tribunal that this is his second passport).
·     Although his application form states that he had not travelled previously to any other country in the last 30 years, according to the passport stamps provided he had engaged in prior travel in and out of Indonesia.
·     The only detail of family members he provides is his parents. They are married and live at the same address where the applicant lived all of his life (he told the Tribunal, however, that he had wrongly declared that, and his parents are divorced and have not lived at that address since 1994).
·     He left Indonesia, legally, using his passport, [in] December 2014. He arrived in Australia [the next day], holding a [temporary] visa.
·     He is not in contact with relatives outside of Australia.
·     He has no personal contacts in Australia (although he told the Tribunal that he had managed to rent accommodation and get work and had contacts through the church).
·     Since his arrival in Australia, he has lived at the same address (as at the date of signing his protection the visa application, which occurred [in] February 2015). He is not currently employed.
His claims can be summarised as follows:
·     The applicant left Indonesia to avoid the risk of being harmed by the Indonesian government and police. He had been persecuted by the Indonesian government because he attended a demonstration against government corruption.
·     In August 2005 he had attended a demonstration against government corruption; he was arrested by the Indonesian police, detained for [number] days and lost his job.
·     In August 2009 he attended another demonstration against government corruption; he was arrested by the Indonesian police and detained for [number] days. His employer was forced to fire him and he had to find another job. He did not want to give up his belief.
·     In October 2014 he attended another demonstration against government corruption and he was lucky because, on this occasion, the police did not catch him. But he heard that they wanted to arrest him and so he came to Australia.
·     He will be arrested if he returns to Indonesia because he attended a demonstration against government corruption.
·     He hates corrupt government officers in Indonesia.
·     He cannot relocate or obtain state protection because it is the Indonesian government and police who will find him and harm him.
The Tribunal
The applicant lodged his application for review form stating that he sought a review of his visa refusal dated [in] July 2015. He did not provide any further documents (other than a copy of the identification page of his passport) or submissions.
In the hearing invitation he was requested to provide all documents, submissions, evidence to the Tribunal upon which he sought to rely by 2 May 2017. No response was received.
The applicant appeared before the Tribunal on 9 May 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages. The Tribunal explained to the applicant that it was not bound to follow the delegate’s decision record and it would make a fresh decision on all of the evidence before it. At the hearing, as discussed below, the applicant’s claims and claimed fears were different from his written materials. He told the Tribunal that there was only one person who caused him concern, a lone police officer who may want to seek revenge on him. He told the Tribunal on multiple occasions that he had no concerns, fears or worries about returning to Indonesia, other than this one person.
The Tribunal was concerned that, even on the applicant’s own evidence, the applicant’s claim that it was the lone police officer who had been asking questions about him and who would harm him may have been speculative. When it asked him, he said he didn’t know who the person was. When the Tribunal said it could have been a friend, he said if it was a friend he would have left his contact details. While the Tribunal agrees that may be the case, there are many reasons why a person may be asking questions about someone, and it does not mean that the person seeks to cause the applicant harm. The applicant then claimed that there had been occasional enquiries about him and his whereabouts since he left Indonesia but he could not give much detail about this or who made the enquiries. The Tribunal put to him that it appeared speculative that he faces a real chance of serious harm or a real risk of significant harm from this person, noting that he doesn’t know who he is and he had not been threatened nor caused any harm (while in Indonesia between October and December 2014), he said they had not done this “yet”.
While noting that it had not made up its mind, the Tribunal put to the applicant its concerns about his credibility and claims, as well as country information sourced from the DFAT Report, and information pursuant to s.424AA of the Act. At the end of the hearing he said that he is just hoping he can stay till end of this year and if nothing else happens he wants to go home as he misses his family.
Further relevant evidence and information is set out below.
FINDINGS AND REASONS
Country of reference, ethnicity
The applicant provided his passport to the Tribunal, and claimed in his application form to be a citizen of Indonesia. The Department accepted that the applicant is a national of Indonesia. The Tribunal is prepared to accept that the applicant is a national of Indonesia, and that the appropriate country of reference for the assessment of his refugee claims, and the receiving country for the purposes of his complementary protection claims, is Indonesia.
The Tribunal is also prepared to accept that the applicant is of Chinese ethnicity.
Credibility
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded” or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
Pursuant to s.5AAA of the Act it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.
Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169‑70).
The Tribunal had a number of concerns about the applicant’s changing/ inconsistent evidence, omissions, his delays in leaving Indonesia once his visa had been granted, and the reasons for his fears upon return to Indonesia. The Tribunal did not find the applicant to be a credible, truthful, or reliable witness in relation to matters central to, and related to, his claims. The Tribunal’s concerns are set out below.
Firstly, the Tribunal was concerned with inconsistencies between the applicant’s application form and his evidence to the Tribunal. He had told the Tribunal that he can understand English, that he had read through his application form, and that everything was true and correct. The Tribunal noted that, in his application form, he claimed that he had left Indonesia to avoid the risk of arrest and harm by the Indonesian police and government, who wanted to arrest him because he attended a demonstration against government corruption; and he does not want to return home because he will be arrested for this reason.
However, in his evidence to the Tribunal, he claimed that the reason he left Indonesia was because, when attending a demonstration in October 2014, he had accidentally pushed over a police officer, who took his name, and did not arrest him, but then possibly this lone police officer was sometimes attending his house/asking about him, to seek revenge. He claimed that the reason that he feared returning to Indonesia was this lone police officer. Although he was given numerous opportunities to say whether he had any other concerns or fears of harm in Indonesia, he insisted that he had no concerns other than from this lone police officer who may take action against him for personal reasons, namely revenge.
The Tribunal put to the applicant its concern about these inconsistencies, including the omission to mention in his protection visa application, his fear of this one police officer. In response the applicant said that the evidence is not that different; maybe it is just not as detailed, and things are different when someone asks you questions. The Tribunal has considered this response however it does not find it persuasive. As put to the applicant, there is a significant difference between fearing the Indonesian police and government generally for reasons of having attended a demonstration against government corruption, compared with fearing a single police officer, who seeks revenge on a personal level.
The Tribunal later asked the applicant whether the reference in his protection visa application form to the Indonesian police and government being after him was incorrect, and he said that maybe it is wrong, but he believed that the lone police officer was part of the Indonesian police and government. Given the applicant’s evidence to the Tribunal that he only has one fear of one police officer, the Tribunal considers it highly unlikely that he would not have referred to this in his application form.
The Tribunal considers that the inconsistency in his claims undermines his credibility.
Secondly, the Tribunal was concerned that the applicant’s claim to have attended a demonstration and to have feared harm in October 2014 and thereafter, was not credible or consistent with other evidence, as set out below:
·     The applicant told the Tribunal that the incident with the lone police officer had occurred at a demonstration in early October 2014. After that, a person who did not identify themselves came to his area in mid-October 2014 and asked questions about him, and he assumed this was the police officer seeking revenge. He was very scared and he “fled to [Country 1]” in mid-October 2014. The Tribunal notes that his passport stamps confirm that he had travelled to [Country 1]. The applicant said that he had returned to Indonesia after a few days. The Tribunal put to the applicant that his return to Indonesia appeared inconsistent with his claim to fear harm. In response he said he doesn’t know why the lone police officer did not get him when he returned, but he knows that he was looking for him. The Tribunal does not find this response persuasive, given that a few days earlier, the applicant claimed to have been in fear, and to have “fled” the country because of this lone police officer. He did not provide any reason to believe that circumstances may have changed such that he could be safe in Indonesia. The Tribunal considers that his return to Indonesia from [Country 1] undermines his claims to have fled Indonesia in fear. The Tribunal’s concerns in this regard are heightened, because in his earlier evidence, he told the Tribunal that he had gone to [Country 1] for a holiday with a group of friends (not to flee persecution). The Tribunal considers that his changing evidence also undermines his credibility.
·     When giving evidence about where he lived in Indonesia, the applicant told the Tribunal that he lived at his [relative]’s home, where he had lived ever since he was little, right up until the time he came to Australia. However, when the Tribunal was asking about his claims, his evidence changed and he said that he was never at home. At a different stage in his evidence he said that after he returned from [Country 1] he lived in different places, he rented a room. When the Tribunal noted that this was also different to his initial evidence that he stayed living at home right until the time he came to Australia, he then said that he did not stay at the rented place all the time and he went back home from time to time. The Tribunal considers that his changing evidence undermines his credibility, and his initial evidence that he remained living at home until he came to Australia indicates that he did not have a genuine fear of harm from this lone policeman, nor did this lone policeman seek to harm him, as it would be expected that he could have located him at his home sometime between October and December 2014, but he did not do so. When the Tribunal asked if he wanted to comment on its concerns about the changes in his evidence about where he lived, and the concern that he had remained living at home despite his fear, he said that if that is what the Tribunal believes he does not know what to say, sometimes when trying to tell what happened, mistakes are made. The Tribunal noted that it had not made up its mind. The Tribunal has considered the applicant’s response however it does not find it persuasive, especially given his clear confirmation early in the hearing that he lived at home right up until the time he came to Australia.
·     The Tribunal was concerned that the applicant gave inconsistent evidence about when people were looking for him after the demonstration in October 2014. He initially said that he claimed that he heard, before mid-October, that a person in casual clothes (whom he suspected was the police officer he had pushed at the demonstration) was looking for him. The person asked about what the applicant did; about his life. The applicant said he was in fear and then resigned from his job and fled to [Country 1]. He initially said this was the last thing that happened to him before he came to Australia in December 2014. He then said that this happened on several occasions, all before he went to [Country 1], and that nothing had happened after he had returned from [Country 1]. Later however, when telling the Tribunal that he had moved back and forth between his home and a rented place after he returned from [Country 1], he said he would move out of home whenever he heard someone was looking for him. The Tribunal put to him his evidence that there had been no further enquiries after he came back from [Country 1]. He then again changed his evidence and said that he did not hear that someone was looking for him after returning from [Country 1], instead it was just his own fear making him move out of his home. The Tribunal is concerned that his changing evidence undermines his credibility.
· The Tribunal was concerned with the applicant’s delay in leaving for Australia once he received his visa, and with his inconsistent evidence about when he obtained his visa. The applicant told the Tribunal that he got his visa one week before he left, and his delay in leaving was because he wanted to see his family. The Tribunal however noted that Departmental movement records indicate that he was granted the visa [in early] December 2014, but that he did not arrive in Australia until [later in] December 2014. This information was put to the applicant pursuant to s.424AA of the Act. In response, the applicant said that he recalled it was one week, but he doesn’t recall exactly. The Tribunal has considered this response but does not find it persuasive. As put to the applicant, it considered that if he was in fear, he would have known when he received his visa, and he would not have not delayed in leaving Indonesia for about [number] days. The Tribunal considers that his unexplained delay of almost [period] in leaving Indonesia after he received his visa, and his evidence that he would have only stayed one week because he wanted to see his family before he left, undermines his claims and credibility.

Thirdly, the Tribunal was concerned that the applicant failed to mention, at hearing, that he had been detained (as claimed in his application form) and lost his job on two occasions because he had attended two other demonstrations. The Tribunal had asked whether anything else that happened to him that he had not told the Tribunal about, and he said no. The Tribunal put to the applicant its concerns that in his protection visa application form, he had referred to being detained on two occasions, yet he had not mentioned this to the Tribunal when asked. In response, he said he thought that the Tribunal was talking about things other than what were in his application form because the Tribunal said it had read his application form. While the Tribunal agrees that it had told him at the beginning of the hearing that it had considered the Departmental and Tribunal files, as put to the applicant at hearing, the Tribunal asked him when there was anything else that happened to him that he had not told the Tribunal about, he had said no. In response, the applicant was silent.
He later changed his evidence about why he did not mention his detentions and losses of jobs: he said that he didn’t mention these things because it was a long time ago and he was only detained, and is only the last incident which he is really worried about. The Tribunal is not persuaded by his response. It notes that he mentions two detentions in his application form, which indicate that they were significant; but he did not mention the lone policeman in his application form. The Tribunal considers that his omission to mention that he had attended other demonstrations and was detained, and lost his jobs, undermines his claims and his credibility.
For the reasons set out above, the Tribunal does not consider the applicant to be a credible witness.
Other matters
Whilst the Tribunal accepts, on the basis of the country information, that there is government corruption and protests against this in Indonesia, it is not prepared to accept that this supports that this particular applicant attended demonstrations against corruption.
The Tribunal acknowledges that the applicant could have been nervous at the hearing or have made some mistakes, however it is not prepared to accept that this can explain the difficulties with his evidence.
Credibility summary
Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility, as discussed above, lead the Tribunal to conclude that the applicant is not a witness of truth and that he has fabricated accounts of events and claimed fears, upon which he has based his protection claims.
Findings on the applicant’s claims
The Tribunal is prepared to accept that the applicant has lived in Indonesia and worked in responsible jobs there. It also accepts that he has travelled on numerous occasions on holidays from Indonesia, to [Country 1] [and other countries]. It also accepts that he has some relatives in Indonesia.
On the basis of the adverse credibility finding the Tribunal does not accept that: the applicant demonstrated against government corruption; was detained; lost jobs; had any political or anti-corruption beliefs; attended a demonstration where he escaped and was thereafter sought and is still sought after by the Indonesian government and Indonesian police; that he fled to [Country 1]; that in a demonstration he accidentally pushed a police officer who sought and seeks revenge upon him; that anyone has made enquiries about him or his whereabouts either while he has been in Indonesia or since he has been in Australia.
The Tribunal does not accept that he fears returning to Indonesia, nor that anyone seeks to harm him or arrest him. It does not accept that he has any interest in attending demonstrations in Indonesia, nor that he will do so in the future.
The Tribunal finds that the applicant was prepared to make false claims to support a protection visa application. The Tribunal does not accept that anyone has had any adverse interest in the applicant while he was in Indonesia or since he has been in Australia.
Thus, while the Tribunal accepts that there is corruption and protests in Indonesia, in the circumstances of this particular applicant, and on the evidence before it, the Tribunal is not satisfied that he has faced or does face any serious or significant harm as a result of corruption or attending demonstrations against corruption, nor does it accept that in his particular circumstances (returning home to his family and working, as he has done in the past and in Australia) he faces a real chance of serious harm or a real risk of significant harm.
The Tribunal put to the applicant that it was required to consider the DFAT report which refers to country conditions in Indonesia, however if it did not accept his claims, it would appear that the report does not indicate that he has a well-founded fear of persecution nor that he faces a real risk of significant harm. The applicant did not have any comment.
The applicant’s ethnicity and religion
The applicant claims to be of Chinese ethnicity and the Tribunal is prepared to accept this. The applicant also claimed to be a Christian since birth in Indonesia, and to have attended church twice a week in Indonesia and once a week in Australia. He said that, in Australia, he has also been undertaking certain activities such as being an usher and taking around the collection box. He also claimed that he was a member of a committee which organises events such as retreats (he assists by driving, dealing with the equipment; schedules). He claimed that he repented in 2011, leaving his old his life behind (he used to go to clubs and discos but now does not do so). He said that in Indonesia, in addition to attending a large church congregation, he was deputy chair or deputy leader of a fellowship. When asked what that involved, he said “Not much, I pray for the members and I do some counselling if they need counselling”.
As well as its concerns about the applicant’s credibility generally, the Tribunal was concerned with the applicant’s limited evidence about his religion, given his claimed involvement in his religion since birth, and regular attendances at church and extra involvement and roles. For example, the applicant said his religious beliefs are “Jesus”. When the Tribunal asked whether he could say anything more than the word Jesus, he said “about being saved, eternal life”. The Tribunal asked him to provide more detail about the concepts because he was just saying some words, instead of explaining about his religion. He said that he learned from the Bible that the only way to be safe is through Jesus. The Tribunal asked how does that make you safe and he said “believing”. The Tribunal asked further questions and said to the applicant that it still does not understand how one can be safe through Jesus. In response he said “how can I explain it” and he was then silent. The Tribunal asked whether he could explain it and he said “I only know what I read was ‘just believe in Jesus and you will be safe’ and that’s it”.
As put to the applicant at hearing, he is an educated person who could express himself and talk about other issues, yet he was not able to tell the Tribunal much detail about his Christian beliefs which he claims to have held all of his life. The Tribunal is however prepared to accept that the applicant considers himself to be a Christian, and has attended church in Indonesia and in Australia, and that he will again attend church in Indonesia. The Tribunal put to the applicant that it may find it difficult to accept that he has done any other activities such as leadership roles. In response the applicant said he has explained what he can and what he knows and the rest is up to the Tribunal.
Although the Tribunal has some doubts, it accepts that he offers some limited low level assistance for the church (driving, dealing with equipment, being an usher) and will continue to do so in Indonesia. It does not accept that he has had any leadership roles or was an activist or that he has had or has a significant religious profile or involvement, nor that he will seek to do so in Indonesia or that he faces a real chance or real risk of being imputed with such roles or profile in Indonesia.
Further, the applicant made no suggestion that he had ever suffered harm in Indonesia as a Christian or on the basis of his Chinese ethnicity, and he did not claim either in his written materials or to the Tribunal, to fear harm on the basis of his religion or ethnicity. When the Tribunal noted there were no claims made on these bases, he said that there had been an election in Jakarta and the governor was a Chinese Christian, but as he did not win the election, there are no concerns about violence. He said he does not fear harm for reasons of his ethnicity or his religion.
The Tribunal accepts that he has not suffered any harm in the past, nor does he have any concerns about returning to Indonesia because of his religion or his ethnicity. The Tribunal is not satisfied that the applicant has a subjective fear of persecution. Even if he did, having considered the country information, the Tribunal is not satisfied that he faces a real chance of serious harm, nor that he has a well-founded fear of persecution in Indonesia on the basis of attending church and providing low level assistance at church, nor on the basis of his ethnicity, nor on the basis of corruption. In this regard the Tribunal referred to the DFAT report and its acceptance of the DFAT assessment of low level official or social discrimination on the basis of ethnicity, and that there can be low level official discrimination and violence yet Christians are generally able to practice their faith without interference owing to their officially recognised status, as well as information indicating there has been increased concerns about religious and ethnic tolerance[1].
[1] Refer to extracts in Attachment 2.
The Tribunal is not satisfied that in the applicant’s particular circumstances, he faces a real chance of serious harm from any police or authorities or any person including being affected by corruption or for any reason.
The Tribunal is not satisfied on the evidence before it that there is any reason for considering that the applicant faces a real chance of serious harm.
The Tribunal is not satisfied on the evidence before it that this applicant faces a real chance or real risk of requiring access to state protection.
The Tribunal has considered the applicant’s claims individually, and on a cumulative basis, having regard to the findings that the applicant is not a credible witness concerning past or future harm feared, as well as the relevant country information, other than those claims accepted above, the Tribunal rejects all the various claims made and finds that he does not have a well-founded fear of persecution for any of the reasons put forward by him.
The Tribunal does not accept that there is any credible evidence to support that the applicant faces a real chance of persecution in Indonesia. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
Having concluded that the applicant does not meet the criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa) (see Attachment 1, which provides a summary of the relevant terms).
The Tribunal has accepted that the applicant is [an age] year-old male from Indonesia, of Chinese ethnicity and Christian religion, who was educated in Indonesia, worked in [several specified] roles in Indonesia, and has worked in Australia sufficient to support himself. For the reasons discussed above, the Tribunal is not satisfied that the applicant has been truthful in relation to the majority of his claims. The Tribunal does not accept that the applicant has experienced any of the past harm claimed (including threats, arrests, imputed political opinion, detention, harm, or being searched for or a lack of state protection). The Tribunal considers that he is a resourceful person who has managed to survive in a foreign country. The Tribunal considers that he will return to live with his family and work again in his home country. The Tribunal is not satisfied that in the applicant’s particular circumstances, which include going back and attending church (but not attending demonstrations), he faces a real risk of significant harm from any police or authorities or society, or being targeted, subjected to corruption, harm, lack of police protection, or discrimination or harm for any reason such as his ethnicity or religion (taking into account the matters in paragraph 48 above), corruption or for any other reason.
The Tribunal is not satisfied that there is a real risk that he will face a real risk of adverse attention amounting to significant harm, from anyone, for any reason.
On the evidence before it, and for the reasons discussed above, and having considered the claims singularly and cumulatively, 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 a receiving country, namely Indonesia, there is a real risk he will suffer significant harm. Accordingly, the Tribunal finds that the applicant does not satisfy the requirements of s.36(2)(aa) of the Act.
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Christine Cody
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)   the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)   without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)   the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)   a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)   significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)   a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)   any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)   protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…
Attachment 2
The DFAT Report
The DFAT Report, published on 9 June 2015, notes the improvement in the current experiences of ethnic Chinese Indonesians.
In summary, 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.”
Christians: While some instances of forced closures of churches have been reported in areas where “hard-line Muslim organisations are influential” as well as disruption of some church services and obstruction of parishioners attending services, DFAT concludes with an assessment 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.”[2]
[2] Ibid, para 3.48.
(Corruption)
2.37 Indonesia ranks 107th out of 175 countries and territories on Transparency International's 2014 Corruption Perceptions Index. A 2013 poll by Transparency International Indonesia found the DPR to be the third least trusted public body in Indonesia (behind the police and political parties). DPR members tend to be highly educated, with significant business interests. According to Indonesia Corruption Watch (ICW), 48 DPR members have concerning links to corruption cases, including some key DPR office holders. ..
5.8 DFAT assesses that public confidence in the police is generally low and corruption is endemic (for example, it is generally accepted that police recruits must pay to be accepted into the force and pay again to graduate, and the police ranked as the least trusted public body in Indonesia according to a 2013 Transparency International Indonesia poll). In 2012 the then Police Chief announced a 10 stage police reform program spanning 12 years. The reform plan aims to raise professional standards, enhance community relations, invest in IT and training, update and harmonise law enforcement legislation and fight corruption. Despite this, there has so far been little progress on police reform. Generally speaking, the capacity of the INP to investigate crime varies depending on the INP’s priorities and the resources it allocates accordingly. For example, the counter-terrorism unit (Det-88) is considered to be high performing.
5.14 Although it is too early to assess any progress in judicial reform made by the new government, President Widodo’s campaign manifesto included a 42-point plan for law and justice reform. DFAT assesses that, broadly speaking, while public confidence in the judiciary is higher than for the police or prosecution, it is still regarded with suspicion and very few people voluntarily resolve disputes through courts. Corruption, inefficiencies, and a lack of access to justice remain ongoing challenges. Broadly speaking, cases that are appealed to the Supreme Court usually result in generally just outcomes with lower level courts slowly heading in a similar direction.
The New York Times: Jakarta governor concedes defeat in religiously tinged election, 19 April 2017[3]
[3] Indonesia — The Christian governor of Jakarta, the Indonesian capital, lost a bitterly contested race on Wednesday that was widely seen as a test of religious and ethnic tolerance in the world’s most populous Muslim-majority nation.
Just hours after the polls closed, the governor, Basuki Tjahaja Purnama, conceded defeat to his main challenger, Anies Baswedan, a former minister of education, who had a commanding lead in the voting. Mr. Basuki congratulated Mr. Anies and implored his supporters to “forget all the things that happened during the campaign” — a reference to the religious and racially tinged nature of the election….
Mr. Basuki, who is ethnic Chinese, is only the second non-Muslim governor of Jakarta, a city of about 10 million. He was trying to become its first directly elected non-Muslim leader.
Popularly known as Ahok, Mr. Basuki was elevated from deputy governor in 2014 after his predecessor, Joko Widodo, won the country’s presidential election….
Crucial issues for Jakarta’s voters include public education, health care, transportation, infrastructure development and chronic flooding. But those were overshadowed during the campaign by issues of religion and race in a manner scarcely seen in Indonesia’s democratic era, with anti-Chinese and anti-Christian slurs having been widely spread on social media in recent months.
Some local mosques posted banners saying it was forbidden for Muslims to vote for a non-Muslim candidate.
Mr. Basuki was charged with blasphemy after lightheartedly citing a verse in the Quran last September that warns Muslims against taking Christians and Jews as friends. He said that, given Indonesia’s transition to democracy in the late 1990s, it would be acceptable for Muslims to cast ballots for a Christian.
The governor’s trial resumes on Thursday. Analysts said it was not known how an electoral defeat could affect his defense.

[2017] AATA 916

12 May 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Natural Justice

Appeal