1514062 (Refugee)

[2015] AATA 3809

1514062 (Refugee) [2015] AATA 3809 (25 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1514062

COUNTRY OF REFERENCE:                  Indonesia

MEMBER:Suhad Kamand

DATE:25 November 2015

PLACE OF DECISION:  Sydney

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

Statement made on 25 November 2015 at 12:15pm

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 [in] October 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.  

2. The applicant who claims to be a citizen of Indonesia, applied for the visa [in] July 2015. The delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia has protection obligations as set out in the relevant law.

3. Relevant law is attached at Annexure 1.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The claims made and/or arising on the evidence are that the applicant faces a real chance of serious and/or significant harm in Indonesia in connection with the following, including cumulatively: he is a Christian convert from Islam; he is an active, proselytising follower of the Christian faith who has a strong desire to preach the Gospel and seek converts to Christianity; under Sharia law and amongst fundamentalist Muslims he is considered an apostate and he fears being harmed and even killed by Islamic fundamentalists for this; he would not be able to freely, openly and safely practice his Christian faith in Indonesia and would only be safe in Indonesia if he denounces his Christian faith, reverts to Islam, constrains his preaching activities and if he is “discerning as to whom he preaches to”[1].  It is claimed that his risks of harm are heightened by having spent several years in his youth being educated in a “fundamentalist” Islam environment, by his character, and by his activities which include attempts at forming a Christian organisation named [name]. He claims that he will be harmed by Islamic fundamentalists amongst his family, relatives and the Indonesian population more generally, that harm being described by him as “serious harm” including death, mistreatment and discrimination, including in employment, to the extent that his ability to gain employment will be impeded and “therefore threaten my fundamental right to subsist[2]”.

   [1] Submissions from the applicant’s RMA, submitted after the applicant’s Tribunal appearance, by email dated 17 November 2015

   [2] Paragraph s 41-42, unsworn statutory declaration at 56-59, [file number]

   Delegate’s decision

5. The delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations. The applicant provided the Tribunal with a copy of the delegate’s decision record.[3] While the delegate accepted that the applicant is a Christian convert from Islam and an active member of the Protestant Christian faith, the delegate was not satisfied that the applicant faces a real chance of serious and/or significant harm in Indonesia in the reasonably foreseeable future.

   [3] Folios 1-13, Tribunal file 1514062

   Issues before the Tribunal

6. The Tribunal must assess whether: it is satisfied of the credibility and truth of relevant aspects of the applicant’s claims and evidence; on the evidence before it, it is satisfied that the applicant faces a well-founded fear, based on a real chance, of persecution involving serious harm as a refugee if he returns to Indonesia. If the Tribunal is not satisfied that he is owed Australia’s protection as a refugee, it must then consider whether he is owed complementary protection. That involves an assessment of whether there are substantial grounds for believing that the applicant faces a real risk of significant harm in Indonesia for any of the reasons claimed or arising on the evidence.

7. The Tribunal’s assessment is informed by a range of sources, including: the Department’s file relating to the applicant which includes his Protection visa application form and documents provided in support of that application[4]. The applicant also attended a Department interview [in] July 2015 and the Tribunal has listened to the audio recording of that interview. The Tribunal’s assessment is also informed by its detailed exploration of the applicants’ claims when the he appeared before it on 17 November 2015. During that appearance he communicated in English and also with the assistance of an interpreter in the Bahasa Indonesian and English languages. He identified no issues of capacity impacting on his ability to participate in any aspect of the Protection visa application or review process. His Registered Migration Agent (RMA) was also present during that appearance and provided a short written submission after the hearing. The Tribunal has had regard to the above as well as to other material available to it from a range of sources, referred to, where relevant, in its considerations below.

   [4] [File number]

   Assessment of the first applicant’s claimed circumstances – credibility

8. The applicants’ Protection visa application form was completed with the assistance of [his migration agent], an RMA with [company]. During his Tribunal appearance the applicant indicated that an interpreter was not used to complete those forms. The forms outline the applicant’s claims for Australia’s protection, detailed further in a typed, English language statement which, while set out in the format of a statutory declaration, is unsworn and undated, but signed in the applicant’s name on each page[5] (Written Statement). The applicant told the Tribunal that an interpreter did not assist in the completion of the Written Statement. The application is also supported by documentation including: copies of the applicant’s  passport identity pages; school records identifying the applicant as attending a Christian school in Indonesia between [year] and [year] and recording  his religion at that time as Islam; documents evidencing his Baptism in Indonesia [in] October 1994[6]; copies of social media posts made in the applicant’s name containing content promoting Christianity, spanning 2010 to 2015; a letter from [a] Church in [Australia], dated in August 2015 and confirming his marriage within that church [in] 2013[7]. The applicant informed the Tribunal that his wife is an Indonesian national who visited Australia during that time and has since returned to Indonesia.  The Tribunal accepts that evidence.

   [5] Ibid, folios 56-59

   [6] Ibid folio 90

   [7] Ibid, folio 101-102

9. While significant aspects of the applicants’ claims impress the Tribunal problematic, other aspects of his circumstances are supported by reliable documentation and consistent evidence. Having had the benefit of speaking directly to the applicant for several hours during his Tribunal appearance, together with having reflected on the totality of the evidence  before it, the Tribunal accepts that the applicant: is a national of Indonesia; was born in [year] to a Muslim father and a mother, who, while born Christian, had converted to Islam for the purposes of marrying the applicant’s father. The Tribunal accepts that his parents separated when the applicant was aged around between [age] and [age] years of age, at which time the applicant’s father left his family and his mother reverted to Christianity; the applicant only heard from his father once after his parents’ separated, that contact being by phone prior to the applicant reaching the age of ten; during the applicant’s last contact with his father, his father simply asked the applicant how he was. The applicant told the Tribunal that he has not spoken to his father since that time and he does not know what his father is doing. The Tribunal accepts that evidence. The Tribunal also accepts that, in 1994, the applicant converted, also voluntarily, to Christianity; he has been a practicing Christian since that time and he continues to be an active, practicing Protestant Christian within the [church]. The Tribunal accepts that the applicant intends to continue to practice within this faith in the reasonably foreseeable future, and that this desire includes proselytising and seeking converts to the faith.

   Claims regarding the applicant’s family

10. The applicant told the Tribunal that his mother continues to practice the Christian faith, as do his [siblings]. He said that he heard that his mother was beaten around 6 months ago as she was heading to church in Indonesia. He said he did not mention that during his Department interview despite having heard of the incident only a few weeks prior and despite being asked during that interview about whether his family has been harmed in respect of their Christian religion. He said that, when he thinks of his family he thinks of his wife, and it may not have come into his thoughts to mention this incident at that time. When the Tribunal asked how he knows that the attack on his mother was religiously motivated he said he does not, and conceded that it may not have been. The Tribunal considers that, had the applicant’s mother been attacked a few weeks prior to his Department interview, he would have mentioned it at that time. The Tribunal finds the applicant’s evidence regarding that incident to be lacking in credibility and to be speculative as to the motivations behind the claimed attack. The Tribunal is not satisfied that the applicant’s mother was attacked in Indonesia in connection with her Christian faith or practice. Nor has the applicant advanced any other evidence of either of his [siblings who are] practicing Christians who attend church and were born to a Muslim father, or his wife, who [contributes] in a church of the same denomination as the applicant’s chosen church, having been harmed in any way at any time by anyone in Indonesia in connection with their Christian faith or practices.

11. Regarding his siblings, the applicant told the Tribunal that he has [number of siblings]. He said that, while his mother was required to convert to Islam to marry his father, the applicant’s sisters (who have the same biological mother and father as the applicant) were never required by his father to practice Islam or to pray at the Mosque. However, the applicant and his [brother] were, as children, required to practice Islam, as their father was more focussed on his sons than his daughters. The applicant told the Tribunal that, while he was guided by his father to practice Islam as a young boy, after his father left the family when the applicant was aged [age] or [age], the applicant continued, voluntarily, to practice the Islamic faith by attending the Mosque for prayer five times a day, attending Koran recitation classes and a range of other practices which, as an adult, the applicant came to consider “fundamentalist”. The applicant told the Tribunal that he continued to engage in such activities until he was aged around [age].

12. Regarding his contact with his [brother], he said that he continued to have contact with him until leaving Indonesia for Australia in 2008. He said his brother lived nearby with his wife in Indonesia. When asked whether his brother had tried to harm him in any way in the 14 or so years the applicant remained in Indonesia after converting to Christianity in 1994, the applicant said he tried to hurt him once in around 1994, but not after that. He said that, in that one incident, his Brother had come to the home the applicant shared with his mother, and they had a verbal altercation which escalated. During that altercation the applicant told his brother to use a nearby knife to kill the applicant, but before his brother could reach for the knife their mother pleaded with them to stop and they did. This was the last time his brother tried to harm him.

13. When asked directly by the Tribunal about whether the applicant has any fear that his father, brother or relatives may harm him on his return to Indonesia, he said he does not. He said it is Islamic fundamentalists amongst the general Indonesian population that he fears. The Tribunal discussed with the applicant that, in his Protection visa application form he expressly claims to fear harm from his family and in his Written Statement he continues to refer to Islamic fundamentalists, including his brother and father, as persons from whom he fears harm. In response the applicant repeated that he does not fear harm from his brother or father, or his relatives, but from Islamic Fundamentalists generally in Indonesia.

14. Based on the evidence before it, the Tribunal is not satisfied that the applicant faces a real chance of harm, including serious and/or significant harm as contemplated by the relevant law, from his father, brother or relatives in Indonesia, for any reason, including in connection with his religion or his religious conversion from Islam, in Indonesia in the the reasonably foreseeable future.

    Claims of harm from Islamic Fundamentalist generally

15. The applicant claims that, having spent time in what he considers an Islamic Fundamentalist environment until he was aged around 13, he thinks his risks of harm as an apostate, and as an active, proselytising Christian, to be heightened to the point where he could be seriously and/or significantly harmed in Indonesia. He claims that, such is his character and commitment to this Christian faith, that he would desire to discuss his Christian religion with everyone, which may include fundamentalist Muslims, which would put him in harm’s way. He claims his risks of harm are heightened further by his intended work with a proposed organisation which he tried to establish in Australia, named [name]. He also claims that his employment prospects in Indonesia would be hindered by his Christian religion, adversely impacting his capacity to subsist.

16. The applicant has given consistent and convincing information and evidence regarding his conversion to Christianity and his religious practices since that time. The Tribunal accepts his evidence that: he attended a Christian school in Indonesia between [year] and [year]; he attended a local family church and Christian fellowship in Indonesia and was baptised in [a church] [in] 1994[8]. While the applicant expressly states in his Protection visa application form that “I have previously not experienced harm in Indonesia because when I was living in Indonesia I had not converted to Christianity”[9], he subsequently informed the Department and Tribunal that he had converted to Christianity in Indonesia and he experienced harm there. As noted above, the Tribunal accepts that the applicant converted to Christianity in Indonesia in 1994 and that he continued to live there as a practicing Christian for some 14 years before coming to Australia in 2008.

    [8] Certificate of Baptism is at folio 90, [File number]

    [9] Ibid, folio 16

    Past harm

17. Regarding his past experiences of harm in Indonesia, the applicant told the Department and Tribunal of the following incidents. In around 1995, while travelling on a train on the day of Eid, a Muslim religious festival, he became engaged in a conversation with a group of Muslims in which he was asserting the theological superiority of Christianity over Islam; the train conductor asked him to stop and reported him to police as he thought the applicant was putting himself at risk of harm by angered Muslims. He was not actually harmed on that occasion.  He also told the Department, during his interview [in] July 2015, that in 1997, he was threatened by Muslims during an anti-Christian riot, however the local police escorted him to safety to allow him to return [home]. He was again unharmed in this incident. He told the Department and Tribunal that he also received one or two threatening phone calls when he was conducting Christian charity work around 1 or 2 years before coming to Australia. He was again unharmed in connection with these calls/threats. The Tribunal accepts that the above incidents occurred. The Tribunal considers it relevant that the applicant cited only these 4 adverse incidents over the 14 years he lived in Indonesia as an active, practicing, proselytising Christian convert from Christianity. He was not seriously or significantly harmed, as contemplated by the relevant law, in any of these incidents, and was offered protection by the local authorities which kept him safe from harm.

18. In addition to the above, the applicant told the Tribunal that he was beaten around 4 years prior to the train incident, in [a town]. He said someone punched him in the face on that occasion. The Tribunal noted that this is not mentioned in any of his written evidence to date, nor does the delegate’s decision record identify him mentioning this during his Department interview [in] July 2015. He responded that he didn’t tell the Department about this incident because he had many experiences and he didn’t talk about all of them. He said this is the only incident where he was physically harmed, however he didn’t consider it important enough to mention as it didn’t cause him as much fear as the train incident. As discussed with the applicant, the Tribunal finds it difficult to accept that, had this incident occurred, being the only incident in which he was violently assaulted with a fist to the face, he would not have mentioned it in his earlier evidence. That this incident has not been mentioned until his Tribunal hearing casts some doubt on whether it did in fact occur. This is compounded by the following. The applicant’s evidence was that the train incident occurred around one year after his baptism, which would have been around 1995. If the [town] incident in which he claims to have been hit in the face occurred 4 years prior as he told the Tribunal, this would have been in around 1991, before the applicant had become an active, baptised Christian.  Based on all the evidence advanced, the Tribunal is not satisfied of the truth of the applicant’s evidence that he was beaten on any occasion in Indonesia in connection with his Christian faith. The Tribunal does, however, accept that the applicant has engaged in heated conversations with Muslims in Indonesia regarding the Christian faith and that he has been removed from those situations without being harmed in any way. The Tribunal also accepts that he was threatened with harm by phone on two occasions but that those threats were not carried out, despite the applicant continuing to practice his faith, including his Christian charity work.

19. While the Tribunal accepts that the applicant has experienced some hostility and threats from Muslims in Indonesia in connection with his Christian practices, including his proselytising, the Tribunal is not satisfied that those past incidents, in and of themselves, amount to serious and/ or significant harm as contemplated by the relevant law, or that they give the applicant any profile giving rise to a real chance of such harm in Indonesia in the reasonably foreseeable future.

    Harm in the reasonably foreseeable future

20. Relevant to assessing the applicant’s risks of harm in Indonesia in the reasonably foreseeable future, in addition to the above, is the following.

    Attempts to establish a Christian based organisation

21. The applicant told the Department and Tribunal that his risks of religiously motivated harm in Indonesia are heightened by  his attempts to establish a Christian organisation in Australia. He told the Tribunal that, while he has not been able to establish this organisation in the way he hoped to date, he hopes to do so in the future. He said that he needed $40,000 to establish a website for his intended organisation but he could not raise the funds. He provided documentary evidence, in the form of an email from himself to [an] Indonesian [government agency][10].  In that email, dated [in] October 2011, he enquires about “[details deleted]” in relation to a “[social organisation]” which he says could raise taxes in the state. His email continues to the effect that: he is registering his organisation, named [name], with [an agency] in Sydney; his organisation intends a range of social assistance measures such as giving interest free scholarship credits to students  and financial assistance to the elderly. His email states he is not a rich person [details deleted].  No evidence of any response from the [agency], or of the organisation being registered anywhere, or of the intended organisation rising beyond a mere concept born in 2011 have been provided. The applicant also submitted a further email to an address at “[website address]” in which he requests use of a space to conduct bible study and other Christian fellowship activities. That email is dated in October 2012. No response to that email has been submitted, nor any evidence that any such meeting or group was actually formed or has met as a result of the applicant’s efforts. The applicant’s oral evidence to the Tribunal was that he understands a similar facebook group has been formed by someone else and that he hopes that his intended group could launch in the future, although he said he would need to launch it in Australia and America before he can start the organisation in Indonesia. He gave no evidence of having taken any steps to progress the development of his claimed intended organisation since 2012.

    [10] Ibid, folio 96

1. While the Tribunal accepts that the applicant has aspirations to engage in Christian fellowship and activities in future, and that he made an unsuccessful attempt to establish a Christian based organisation in Australia in the past, the Tribunal is not satisfied that he has any profile in Indonesia in connection with those activities. The Tribunal is not satisfied, on the evidence before it, that any of the applicant’s intended gatherings or organisations have in fact been established or that they have any followers, members or known profile in Australia or in Indonesia. The Tribunal is not satisfied that the applicant faces a real chance of any harm, including serious and/or significant harm, in Indonesia in the reasonably foreseeable future, in connection with his attempts to form the above groups/organisation. Nor is the Tribunal satisfied on the evidence before it, that the applicant has taken any steps to launch such a group/organisation since 2012 or that he intends to form such group/organisation in the reasonably foreseeable future should he return to Indonesia.

   Treatment of Christian converts from Islam and Proselytising in Indonesia

2. Regarding his claims to fear harm in Indonesia from Islamic fundamentalists generally in Indonesia, in connection with both his conversion from Islam and his desire to proselytise, including to Muslims, the Tribunal has considered a range of independent sources including the Australian Department of Foreign Affairs and Trade Report, Indonesia, 9 June 2015 (DFAT Report). The Tribunal has also considered the independent sources and reports referred to in the Delegate’s decision record, and sources submitted by the applicant or on his behalf to the Tribunal and Department, detailing a range of incidents of religious violence in Indonesia. The Tribunal notes that many of the sources excerpted or referred to in the applicant’s submissions regarding attacks on religious minorities and their religious monuments in Indonesia have taken place in Aceh, the only Province in Indonesia to under Sharia law. The Tribunal also notes that, many of the incidents of religiously  motivated violence identified in the material before it refers to attacks on monuments rather than individuals, and identifies inter-Muslim conflicts (between Sunnis, Shia’s and Ahmadis) as a particular focus point for many incidents.

3. However, the Tribunal does accept that there are reliable reports of some Christians and their monuments also being targets of violence in Indonesia in recent times. The Tribunal accepts as reliable that Christian Churches have been raided, burnt down and bombed from time to time by angry mobs. That information must be considered in the context of the totality of the information available to the Tribunal. Relevantly, DFAT, consistent with other reliable sources including the USDOS reported in June 2015 that Protestantism, under which the applicant’s religion is categorised, is officially recognised in Indonesia; religious groups are overseen by the Ministry of Religious Affairs, and permits, which are generally granted, are issued for registered religious groups to hold religious concerts and other events; the government permits the publication of  religious materials, the use of religious symbols, and the delivery of religious speeches as long as dissemination of such information is to persons already belonging to the religious group. DFAT notes, however, as does the USDOS that, Conversion of minors to another religion through "tricks" and/or "lies" is a crime punishable by up to five years in prison[11]. The DFAT report also indicates that Christian 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), with several provinces being identified as predominantly Christian.

   [11] USDOS International Religious Freedom Report, Indonesia, 2015, >

   USDOS also reported in 2015 that there were 289,951 mosques, 69,703 Christian churches, 24,801 Hindu temples, 3,342 Buddhist Monasteries, and 651 Confucian temples in Indonesia, the majority of which operated freely without government interference. NGOs stated, however, that, because of the onerous requirements of a 2006 joint ministerial decree on the construction of houses of worship, as many as 85 percent of all houses of worship, most of them mosques, operated without a permit. USDOS also reports that religious speeches are permissible if delivered to members of the same religious group and are not intended to convert persons of other religious groups[12]. However, USDOS continues that, “despite restrictions on proselytizing, foreign religious groups reported little government interference with preaching or religious conversions. Police provided protection to some churches in major cities during Sunday services”.

   [12] ibid

4. The US Department of State also reported in 2011 that voluntary conversion to another religion in Indonesia is permitted by law[13], and in the more recent report of 2015 reported that:

   ….The constitution states "the nation is based upon belief in one supreme God," but guarantees "all persons the right to worship according to their own religion or belief." The constitution allows for the creation of laws restricting individual rights, including religious freedom, if the exercise of such rights impinges on the rights of others, oversteps common moral standards and religious values, or jeopardizes security or public order. The first tenet of the country's national ideology, Pancasila, similarly declares belief in one God. Government employees must swear allegiance to the nation and to the Pancasila ideology

   …The media, civil society, and the general population were increasingly vocal and active in protecting and promoting tolerance and pluralism. NGOs reported large numbers of Christian-to-Islam and Islam-to-Christian conversions, particularly in urban centers and the province of West Java. Organized intolerant religious groups, however, continued to restrict the rights of minority groups through attacks and intimidation.

   ….The Setara Institute reported 47 cases between January and June in which non-state actors abused or discriminated against religious minority groups, down from 90 over the same period in 2013. According to the report, the provinces most affected by religious communal violence were West Java, Central Java, and East Java. Conflict between different Islamic groups was more common than conflict between groups of different religions

   [13] USDOS International Religious Freedom Report July to December 2010

5. Also relevant, Human Rights Watch reported in 2015, that according to the Jakarta-based Setara Institute, which monitors religious freedom, there were 230 attacks on religious minorities in Indonesia in 2013 and 107 cases in 2014 through November. The alleged perpetrators were almost all Sunni Islamist militants; the targets included Christians, Ahmadiyah, Shia, Sufi Muslims and native faith believers. Only 2 of the attacks expressly detailed in the HRW report were on Christian worshippers in the report period. One incident involved the home of a book publisher and the other was in a village in central Java. 

6. The Tribunal also notes that reliable sources refer to: the growth and strength of the independent Pentacostal movement, to which the applicant’s [Church] belongs, in countries including Indonesia, Singapore and Malaysia[14]; Pentacostal churches frequently conduct Kebaktian Kebangunan ROhani (KKR) Spiritual Awakening Services, which often take the form of large religious rallies in public places, including testimonies from recent converts to Islam[15].

   [14] The state of Pentacostalism in Southeast Asia – Ethnicity, class and leadership, T.Chong, 2015, Yusof Ishak Institute, 25 September 2015

   [15] “Communal tensions in Papua”  International Crisis Group, Asia Report No 154, 1 June 2008.

7. Further, as noted in the Delegate’s decision record and discussed with the applicant during his Tribunal appearance, the applicant’s family resides in [a district], which is part of Surabaya in East Java, a major centre of the Pentacostal faith[16]. The Tribunal notes that Surabaya is the home of one of Asia’s largest mega churches, Rose of Sharon Church, a non-denominational church with over 70 affiliated churches across Indonesia. These churches are reportedly attended by over 50,000 worshipers at a time with several hundred or thousand new members and recent converts being routinely baptised. The Tribunal is not aware of any reports of individual devotees or converts, including converts from Islam, being seriously or significantly harmed in connection with their church attendance, conversion, or baptism. The applicant also told the Tribunal, during his appearance, that [the] area in which he most recently resided in Indonesia, and where he is likely to return to should he have to return to Indonesia has a large, strong, Christian population. He told the Tribunal that he attended Church there and practices his Christian faith there before coming to Australia.

   [16] [Source deleted].

8. The above country information, while identifying a small number of incidents in which minority religions, including Christians and their monuments have been targeted for harm, suggests that such incidents are infrequent and targeted against monuments rather than individuals. There is no information before the Tribunal suggesting that Islam to Christian converts, or those who proselytise and seek converts from Islam have been routinely targeted for serious or significant harm in connection with their faith or activities.

9. The above country information must also be considered in the context of what is accepted of the applicant’s circumstances. As detailed in preceding paragraphs, while accepting that the applicant has become involved in some adverse incidents in the past in connection with his proselytising and participation in activities asserting the superiority of the Christian faith, the the Tribunal does not accept that either the applicant, or any of his family members who remain in Indonesia and actively practice the Christian faith, have been harmed in any way in connection with their faith. This includes the applicant’s [sisters] who, while born to a Muslim father like the applicant, are practicing Christians.

10. Further, the applicant’s conduct and his delay in seeking Australia’s protection does not support his claim to have a subjective fear of serious and/or significant harm in Indonesia in the reasonably foreseeable future. As discussed with the applicant during his Tribunal appearance, he came to Australia in 2008 and has not left since that time. He entered Australia on a [temporary] visa and was assisted, on his oral evidence the Tribunal, by an [Agent]. Yet at no time prior to lodging his Protection visa application in July 2015, did he raise any fears of harm in Indonesia for any reason. This was despite his [temporary] visa being cancelled in December 2011, after which time the applicant remained in Australia unlawfully until he was detained in July 2015. As put to the applicant, he had multiple opportunities to communicate his fears of harm to the Department or to seek advice about how Australia could protect him in the 7 years he had been in Australia. Yet he took no such action. While he told the Tribunal that he was afraid he would be returned to Indonesia if he approached the Department, this does not explain why he did not so much as approach an independent advisor for an opinion as to his options.

11. Compounding the above, as discussed with the applicant, detailed in the delegate’s decision are relevant concerns arising from responses the applicant is recorded as giving during his compliance client interview [in] July 2015 and his removal planning interview two days later. In particular, during the former, when asked whether there were any reasons why he could not return to Indonesia he responded that he had no friends there and found life better in Australia. He did not mention that he had any fears of harm in Indonesia for any reason. In the latter interview he was asked the same question and responded that nothing prevented his return to Indonesia and he signed a request for voluntary removal. During his Tribunal appearance the applicant did not dispute any of the above and offered only that he did not know about the Protection visa at the time of those interviews. However, even if the applicant was unaware of the Protection visa at the relevant time, the Tribunal considers that, if the applicant truly held any fear of returning to Indonesia he would have made those fears known at his compliance client interview and/or his removal planning interview. That he did not suggests, in the context of all the evidence advanced including the independent sources referred to above, that the applicant did not and does not have a genuine fear of serious and/or significant harm in Indonesia in connection with his religious conversion or his actual/intended practice as an active, proselytising Christian in Indonesia, or for any other reason.

    Economic hardship/employment prospects

12. Also relevant to the applicant’s risks of serious and/or significant harm in Indonesia is his claim in his Written Statement that his conversion to Christianity will “significantly impede my ability to gain employment and therefore threaten my fundamental right to subsist”. He adds that “In Indonesia employers continue to discern between the religions of potential employees and in the vast majority of cases preferring to employ Muslims rather than members of other faiths”. His Written Statement continues that, “if potential employers were to become aware of my conversion they will be reluctant to associate with me in order to avail the infamy of being associated with a Muslim convert”.

13. However, those claims do not accord with the balance of the applicant’s evidence regarding his employment history in Indonesia. As discussed with the applicant, in his Protection visa application form her identifies being employed in Indonesia as [occupation] between 2004 and 2008 at a [Company] and [another] Company, having only completed his [qualification] in Indonesia in 2004. As put to the applicant by the Tribunal, this suggests that he had no trouble obtaining employment relevant to his studies in close proximity to having completed his [studies], and does not support the claim that his employment prospects in Indonesia are adversely impacted by his religion. In response he told the Tribunal that he is not worried about getting a job in Indonesia and he thinks he will be able to find a job. However, he would not be able to get the type of job he really wants, which would be a job within the government. There is no supporting or reliable evidence before the Tribunal to indicate that converts to Christianity are precluded from government employment in Indonesia. Nor does the Tribunal accept that difficulties obtaining a preferred position rises the level of serious or significant harm as contemplated by the relevant law. On the evidence before it, including the applicant’s employment history and his oral evidence that he is not concerned about getting a job in the private sector in Indonesia, the Tribunal is not satisfied that the applicant will have difficulties obtaining employment which would threaten his capacity to subsist. The Tribunal is not satisfied that the applicant’s employment prospects would give rise to a real chance of economic hardship that threatens his capacity to subsist, or to a denial of capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist. Nor is the Tribunal satisfied, on the evidence before it, that the applicant faces, in Indonesia in the reasonably foreseeable future, a real chance of serious and/or significant harm as contemplated by the relevant law in connection to his employment prospects or his religious conversion or practices more generally.

14. Based on the totality of the evidence before it, the Tribunal accepts that the applicant is a Christian convert from Islam, and that he is an active participant in the protestant Christian church and that he intends to continue to practice his religion and to proselytise and seek converts to Christianity, including amongst the Muslim population in Indonesia. However, for the cumulative reasons detailed above, including the Tribunal’s assessment of the independent sources before it together with what the Tribunal accepts of the applicant’s personal circumstances, the Tribunal is not satisfied that the applicant faces a real chance of serious and/or significant harm in connection with his Christian conversion, faith or practice in Indonesia in the reasonably foreseeable future, or for any other reason either singularly or cumulatively.

    Conclusions

15. 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).

16. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

17. 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

18. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Suhad Kamand
    Member

    
    

    Appendix A

    Relevant Law

19. 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.

20. 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.

21. 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).

22. 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.  

23. 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

1. 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, to the extent that they are relevant to the decision under consideration.

   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.

   …