1605785 (Refugee)

1605785 (Refugee) [2021] AATA 582 (21 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1605785
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:David McCulloch
DATE:21 January 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 21 January 2021 at 9:01am
CATCHWORDS
REFUGEE – protection visa – Indonesia – complementary protection criterion – ethnically Chinese Indonesian – anti-Chinese riots of 1998 – Chinese businessman employing Indonesians – Christian – credibility concern – late claim not raised earlier – mental health issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
SZGIZ v MIAC (2013) 212 FCR 235
Yao-Jing Li v MIMA (1997) 74 FCR 275
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 and Border Protection to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of Indonesia, previously applied for protection visas on 6 August 2010, which was refused on 25 November 2010. The Tribunal affirmed the decision on 14 July 2011. The applicants sought Ministerial intervention on 10 August 2011, which was refused on 14 September 2011. The applicants applied for judicial review of the decision [in] January 2012, which was dismissed [in] July 2012. The applicants made the current application for protection visas on 17 October 2012 and the delegate refused to grant the visas on 22 March 2016.
The current application is allowed as a result of the Federal Court decision of SZGIZ v MIAC (2013) 212 FCR 235, dated 3 July 2013. This allows a further protection visa application to be made before 28 May 2014 under the complementary protection criterion in a situation whereby the person’s prior protection visa application was made and refused prior to the commencement of the complementary protection criterion on 24 March 2012. This means that the Refugee Convention aspect of the applicant’s claims has been determined and the matter before the Tribunal relates only to complementary protection criterion (s.36(2)(aa) of the Act).
The first and second named applicants appeared before the Tribunal on 5 November 2020 at 10.30 am to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages. The applicants were represented in relation to the review by their registered migration agent, who attended the hearing.
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, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and, generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
As indicated, the refugee criterion has already been considered in the previous application by the applicants. This application will only consider the complementary protection criterion.
Subsections 36(2)(b) and (c) provide, as an alternative criterion, that the applicant is a non‑citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spouse and dependent children.
The Tribunal is satisfied on the evidence that the second named applicant (‘applicant wife’) is the spouse of the applicant, that the third named applicant (‘applicant daughter’) and the fourth named applicant (‘applicant son’) are dependent children of the applicant and therefore are members of the same family unit as the applicant.
In the hearing, both the applicant and his migration agent indicated that claims of harm in Indonesia were not being made by the applicant wife, the applicant daughter and the applicant son. They are seeking protection only based on being members of the same family unit as the applicant.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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. The Tribunal has before it the DFAT Country Information Report – Indonesia, 25 January 2019. The applicant’s migration agent indicated in the hearing that he had a copy of this report, and quoted from it in the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the first named applicant (‘the applicant’) and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicants arrived in Australia [in] April 2010 as the holders of TR 676 tourist visas, valid until 20 July 2010. The applicants applied for the protection visas on 6 August 2010. Prior to coming to Australia, the applicant states that he travelled to [Country 1], [Country 2] and [Country 3], but does not list any dates for the travel.
The following information is apparent from the application for protection forms. The applicant was born on [date] in [location], West Java, Indonesia. The applicant is a Christian of Chinese ethnicity, who speaks, reads and writes both Indonesian and English. The applicant married [in] April 1999. The applicant’s father is deceased, and his sister resides in Australia. The applicant does not list where his mother currently resides. The applicant lived at three addresses in [Indonesia], but lists no dates as to when he lived at these addresses. The applicant attended primary and secondary school, attending three different educational institutions. The applicant completed an [Qualification 1] at [School 1] in 1990. The applicant worked as a [Occupation 1] for [Employer 1], and then in [Occupation 2] for [Employer 2]. The applicant also worked as a joint owner of [Business 1], and then as an owner for a home industry in [Business 2]. The applicant lists no dates or addresses for his employment.
The applicant wife was born on [date] in Jakarta, Indonesia. The applicant wife is a Christian of Chinese ethnicity, who speaks, reads and writes Indonesian and English. The applicant wife lists her occupation as ‘housewife/accounting’. The applicant wife lists three educational institutions, but does not indicate what she studied, nor when.
The applicant daughter was born on [date] in Jakarta, Indonesia. The applicant daughter is a Christian of Chinese ethnicity, who speaks, reads and writes both Indonesian and English. The applicant daughter lists neither education nor employment.
The applicant son was born on [date] in Jakarta, Indonesia. The applicant son is a Christian of Chinese ethnicity, who speaks, reads and writes English.
The applicant provided two written statements regarding his claims for protection. The first statement, provided to the Department at the time of the original protection visa application, provides as follows (not corrected for spelling or grammar):
Applicant and his family member came to Australia as the tourist visa and entering Australia [in] April 2010.
[The applicant] claims that both of their relatives/parents were the victim of the May 1998 riots that cause their parents passed away. In 1999 [the applicant] married [Ms A], they married ([in] April 1999) and was trying to move on with their life.
During the incident of May 1998, his parents house were raided by mob of people, looted and robbed, applicant parents asked him to ran away and they too will ran away, applicant due to his fear, ran with the thought that his parents were behind him. He kept running and running outside, he was waiting for his parents, and thought they might gone to a different directions, applicant intend to go to his friend house. On the street, he was bashed, robbed, kicked and punched, bleeding. He could not go anywhere, so he went to a motel and hide there for a few days.
He was black and bruised and didn't get up for a couple of days. He lost contact with his parents.
After couple of days, he went back and found out his parent's house were burned down and found out that his parents could not escape the mob and were burned alive inside. The mob looted and clean every single things in the house, the mob of people then throw LPG gas and close the door from outside. They throw the fire and it exploded with the parents inside.
This was coming from the witness of one of his neighbours.
Before the incident happened, applicant work at [Employer 3], for [specified section], (1991-1993), then he worked as [Occupation 1] at 1993 — 1998 with [Employer 1], this company too, was burned down during the riot and applicant could not go back to work there.
Then Applicant was trying to find another job as [Occupation 2] on 1998 (end of 1998) — 2002 at [Employer 2], this company was looted and robbed and went back to business at the end of 1999, so applicant continue to work until 2002.
On April 1999 as applicant didn't have any family, he decided to marry his fiancée, [Ms A]. Then he started his family. On [date] his first daughter born, which completed his happiness.
On 2000-2001 — applicant were helping the building of his church, the Moslem people/native indigenious, came and forced them to stop the building of the church. They came with cleaver, bamboo, basket ball wood, applicant and his other Christian members of congregation could not go to the church for almost period of 1 year. They had to go to one place to another, to one house to another's house of the congregation just to have the place of gathering and worship.
After 1 year, with long pray and help from the Lord (he claims), they got their permit back and start to build the church again.
On the year of 2001 — there were flood, big flood, his house were flooded, applicant and his family went to other place for refugee, by the time he went back to his house, everything were looted (again). Also due to the flood applicant got Typhus at that time.
Applicant then open his own business in year 2002 — 2004 and joined venture business.
During his business venture, again in his area, he still must pay the "protection money" to the mob of people nearby his business area. Applicant had so much trauma in his life, whenever he sees lots of people, he shook and froze.
These people vandalised his business. Due too much pressure from the mob, no matter how many times they have reported to the authority, nothing has been done.; at the end of the day, applicant decided to stop working in that area and move again.
Applicant then tried again to open his company [Business 2], at [location], doing the business as the home industry, [Product 1]. They employed about [number] employees. The cheapest employees to saw and made [Product 1] are the native Indonesian, so all of their employees are Indonesian, no Chinese. Applicant thought he was providing the employment for these people, maybe everything will be ok or at last, something good will come out from his life.
Applicant business they established from bottom, since 2005, and it started to flourish and growing well. Applicant took care all his employees well and thought if he took everyone well, he will get everything back in return, their loyality and commitment in the work.
Later on applicant found out that some of his [Product 1]'s productions were stolen a lot. He was suspecting the lost coming from the inside, but didn't know from which one or from whom.
He started to put the camera hidden camera, watch over everyone closely. Later on he found out that 2 of his employees stealing these. He fired them completely.
[note – illegible as a hole is punched through the word] weeks later, his two employees came with several big men to his office. They started threatening him and saying of discrimination and unfair termination of job. Applicant argued and told them because they were stealing.
The men were feeling insulted and said in abusive words: you Chinese always think you are better than anyone else in this country. You are nothing and we owned this land, not you. You only stay in this country we allow you so. But you always think you are better than us. We will teach you lessons.
Applicant report this to the authority, they took all verbal and written notes of what applicant claims.
A few week later, the mob came again, this time, with more people. They came in front of the office, playing football, kicking the balls to all window glasses. The window glasses broken. Applicant call the "hansip"/ local police area, and hansip came, and sit down with these people smoking. Applicant called the handyman to fixed the window. But the next day it was broken again. They did it again.
Everyday, they were all in front of his office. Applicant feels he has been intimidated. Every time they see applicant passed by, they spat on the floor, with their burning eyes looking at him.
Applicant could not stand the pressure and the indication, applicant claims he lives on fear day and nite. He is traumatized by his past life experiences, and he decided to sell everything he has, packed his back and want to move to Australia.
Applicant claims he is a hardworking man all his life, but he could not have any safety feeling in Indonesia, no matter what he is doing there. He tried his best to move on with his life, but the atmosphere and circumstances very hard. The Chinese are not allowed to make simple or single mistakes, they always must to swallow any unfair treatment.
Perhaps if applicant never have any bad experiences, he will not feel too much, but due to his bad experiences, applicant feels that he can not cope with any of this anymore. Especially now he has his own family and he does not want any of his family become the victim of this unfair treatment. He wants his children to have a better future without any racist and broad injustice and discrimination to live by.
For this reasons applicant is applying for the protection visa as he feels that he has the ground to claims due to his past bad experiences and persecution that he suffered in the past. Therefore applicant is seeking the protection of Australia so they can remain in this country permanently.
The applicant provided another written statement to the Department setting out his claims for protection for the second application, as follows (not corrected for spelling or grammar). This is the same statement that was provided by the applicant in 2011 to the Tribunal after the Tribunal hearing as part of the review of the refusal of the first protection visa application:
By means of this letter I lodge an application for protection and permission to remain in Australia because I have experienced persecution for reason of race and religion, injustice and treatment which has harmed my family.
In 1998 in May, on the 13-14^th at around 4.00 pm there was a mass uprising against the government of President Soeharto, and the Indonesian people and in particular the ethnic Indonesians destroyed, rampaged and persecuted as well as killed those who were of Chinese descent. Both my parents became victims of their cruelty.
That day at around 6.00 pm I had arrived home. We lived in a shop and with a residence above [in] West Jakarta, and I went up to the third floor to hide because I felt afraid given the events that had occurred in the street. With the cries of the masses outside shouting: “Allahu akbar!! [God is Great!!] Kill the Chinese!!”
The masses began to break down our door and they battered at it until the door burst open and they took whatever they could find in the lounge room, the bedrooms, the bathroom, and they ransacked it and we were all extremely frightened.
In coarse words that said “Chinese out … !!” We hugged each other in fright. My parents aid “[Son,] run and save yourself, just leave mummy and daddy here … !” I said “Np … !! Let us die together … !! Mummy said in tears: “You are still young and have a long life before you.” O said “Let’s go out together. I will guard you.”
We tried to escape down the outside stairs but the people headed us off. They pulled at my parents shouting: “Hay, you Chinese, where do you think you are going … !!” They roughed us up. They grabbed at us forcefully. I ran out and managed to get away and then hid awaiting my parents to come out.
Suddenly a group of other people came and intercepted me, and they hit me and carried me off. They treated me with a complete lack of humanitarianism until I lost consciousness. In the middle of the night I awoke feeling extremely sore all over my body and walked with difficulty, finally finding a place where I could overnight and went inside. There were many victims there. I stayed there a few days to recover.
On 17 May in the morning I went out to find out the whereabouts of my parents. I walked towards home but it had been burnt to the ground. People nearby said that when that had occurred, a crowd had been plundering and had engaged in arson by throwing LPG gas cylinders inside, and then throwing fire in after the cylinders. There had been an explosion inside where my parents had been.
I cried hysterically calling out for my parents, and their shapeless burnt bodies were found.
My mental condition was not stable for early 6 months. I was deeply depressed, and stressed like someone insane, feeling I had sinned because I had not been able to save my mother and father, and whenever I met up with a crowd of ethnic Indonesians, I shook, was fearful, and had a deep feeling of revenge.
Before the revolution, I worked at the “[Employer 3]” workshop from 1991-1993 in the [specified] section. At the [Employer 1] from 1993 to 1998 I worked as a [Occupation 1]. This company also fell victim to rioting and plundering during those events. the head of the company and his family fled to [Country 1]. I worked at [Employer 2] in [Occupation 2] until I left in 2002.
In 1991 I married [Ms A] and we began a new life together. On [date] our first daughter was born and this completed out happiness.
In 2000-2001 I helped in church construction. Muslims / ethnic Indonesians came to force us to cease the church construction. They came with machetes, bamboo and basket ball timber. I and the rest of the church congregation could not go to church for almost one year. We had to go from one place to another, from the house of one of the congregation to another just to find a place to gather and pray. After a year, with prayers and God’s help, the church again received permission and we began construction again.
In 2001 there were floods. I and the family had to take refuge because our house was inundated to a height of about 1.5 meters which quickly flooded into the house, and all we could think of was to save ourselves. When we returned to look at the condition of the house, our goods had been plundered and even our important documents had disappeared. On top of that I caught typhus for two weeks while at the place of refuge.
From 2002 to 2004 I tried with a friend to open a business [but] this only lasted two years. There was a group of local people who always came to extort “Security money” from us. If we refused their demands, they were not averse from chasing away our customers with coarse words and even often destroyed our equipment.
There as been so many traumas in my life that whenever I see crowds I feel in shock and perspire.
These people destroyed my business, and there was much pressure which we experienced from these people and even though we kept reporting this to the responsible authorities/the police, there were however no steps taken to help me, and in the end we decided to close down the business at a loss and move on again.
In 2005 with whatever capital I still had I began a business [called] “[Business 2]” in [location]. I began by using our residence where there were just a few machines and workers.
We used ethnic Indonesians as workers rather than ethnic Chinese, because of the cheaper costs and we also hoped to have good relations with the neighbourhood the majority of whom were Muslims/ethnic Indonesians.
The business went well. We increased the number of machines and workers until there was no longer enough space for the family to live there, and so we rented a house where we could live which was about 2 blocks from the business. There were 10 permanent workers and 5 day labourers.
Our relationship with the workers was reasonably good, and every year at the Muslim Ramadan holidays we always gave them a bonus to cover the costs of the holiday and frequently gave financial support to workers who had fallen on hard times.
We started to get reports from customers that the total number of goods we had sent them were not in accordance with the accompanying documentation. I thought that possibly there were mistakes being made when they were despatched but in the following days we got similar reports from a few of our other customers. We raised the matter with our employees but none of them knew anything about it.
Secretly while the workers were on holidays we set up a hidden camera in the goods packing section. Via the camera we finally learnt there were two new employees who were committing the theft. Before I fired them, I gave them a warning. Because I did not want to make the problem worse, I did not report the theft to the police.
Two weeks later the men I had fired came to our office with a few large friends and came up to me and rudely said “Hey, you Chinaman why did you fire our friends for no reason whatsoever?” We had a heated debate. I said they had committed theft! One of them thumped the table saying: “You Chinese think you are better than us, I’ll teach you a lesson … !! You are just a guest here, go back to your country … !” My heart was aflame hearing their words, and I could barely hold back my emotions. All the employees just watched and didn’t do anything.
Once again this event gave me headaches, I couldn’t sleep, I felt very afraid, my body shook and I felt faint if I saw/heard a crowd shouting as if the events of the past were repeating themselves in my life. My wife had to always calm me down.
I reported what had happened to the authorities and wrote a report but there was no response. In fact they asked for Rp 5 million as a guarantee of safety.
A few weeks later the same people came and this time they brought even more people, and they interfered with our workers on purpose. Some of them played ball outside and then kicked it on purpose at our windows breaking them all.
I reported this to the local Civil/local district Security and they came in fact sat down on smoking joked with those people.
The next day called a tradesman to repair the broken windows. This often happens repeatedly. Every day they turned up at the office. I was feeling intimidated. Every time I passed, they spat on the ground and stared at me with a hateful glare in their eyes.
From time to time my daughter came from home from playing was often crying because she had been teased and made fun of by the kids she was playing with, who would shout "And unclean Chinese … She eats pig … Don't play with her … !!!)”
At the end of June 2009 around 8:30 PM, I was coming back from town after meeting customers on a quiet street heading [home]), I was stopped by two former workers of mine. I got out of the car but suddenly there were five more people who came out of the bushes carrying bamboo and sharp objects.
They straightaway kicked me, hit my body and face breaking a few of my teeth, and my left hand was cut by a sharp object.
This event gave me a fever for two weeks because of the bruises I suffered on my body and face.
Two weeks after that incident, full of feelings of revenge and hate I went to the place where the people who had mistreated me, with a machete (although my wife had forbidden me to go), but I did not find them. I did not report it to the police because I no longer had faith in the police.
I am a hard worker and feel responsible for my wife and children and tried to continue my life despite the pressures, threats and fear, the constant interruptions to my business, and not being able to concentrate because of the continuing vexation. As a result I often become angry because of the stress. Whatever I did to try and help you get Indonesians, I always ended up being a victim of injustice is an atmosphere of my life felt heavy.
I desired a better future for my family, particularly for our children's future. I did not want my children to experience what I had, to live under pressure, intimidation and unjust discrimination.
That is why I have applied for a protection visa, because I believe, they are persecuting me because of my Chinese race. They will not persecute their own race (ethnic Indonesian) but because I am Chinese, they always take advantage, continually harming me. I have become profoundly traumatised by the events that have befallen my family, my parents, and I am continually haunted by fear of being persecuted by them, and every time I see a group of ethnic Indonesians, I shake, and there is an extraordinary feeling of anger in my soul. I have asked for legal protection from the police, the civil defence force but they just ask for money without providing any meaningful protection.
This is the reason I am asking for a protection visa, because of the continual persecution as a result of my ethnic race. In this regards, I ask the honourable Member Patrick to consider my case, and that I can no longer live in Indonesia, because the background I have experienced has been too intense.
I thought before that I could begin a new business and life, but clearly it happened again. I ended up with broken teeth, and I did not tell this at the beginning because I was ashamed, but no matter what has happened, I am now aware that Member Patrick needs to know everything that has happened to me, because Member Patrick is the only person who can help me now.
This statutory declaration which I am swearing, because I am a Christian, I am prepared to swear upon the Bible, the holy book I hold with the highest regard, that everything I have experienced is what has occurred with no embellishments and that all this is evidence.
Please consider my case because of what I have experienced, the death of my parents, burnt alive which up to the present I cannot let go from my innermost self and soul.
I promise I will not become a burden to Australia, and I can work at anything. I am not afraid of a hard life, but to live under persecution without meaningful legal protection, is a dreadful thing to suffer.
I hope no one suffers what I have suffered, but events such as these occur where there is persecution against Chinese, in particular me who have experienced them directly.
To live anywhere in Indonesia, relocation, is not possible, because of the psychological trauma that I have suffered from persecution.
Thank you for giving me 14 days to augment my claims. God bless Member Patrick and your family.

The applicant provided to the Department photographs of him with teeth missing and a picture of a [body part] (presumably the applicant’s) with a scar.
On the Tribunal file relevant to the first review is a report from a consulting psychologist dated 3 March 2011. Included in the report is a handwritten response to the question of ‘What is the cause of [the applicant]’s mental and depressive conditions?’. The handwritten response indicates that his mental and depressive state are triggered by his memories of his parents who were robbed, looted and invaded at the family home by the rioters in 1998, in Jakarta. It is indicated that the applicant felt that he had abandoned his parents.
The applicant provided an additional statutory declaration to the Tribunal dated 28 October 2020. It refers to some mistakes in the original application. It indicated that both of the applicant’s parents died in 1998. The applicant provides details of three churches he attended in Indonesia.
The applicant indicated that in the first Tribunal hearing, he was under significant pressure and suffering from depression and could not provide his evidence effectively. As a result, there were confusions and contradictions in his evidence. When the applicant applied to the Department for the first time, he could not provide full information because of his mental health issues. That was the reason the physical assault in 2009 was not mentioned in the original application.
Reference is made to both the applicant and the applicant wife’s church activities in Australia. It is indicated that if they returned to Indonesia, they will be engaged in proselytising and will face persecution as a result of that. Additionally, it is claimed that coronavirus has caused a rise in anti-Chinese sentiment. They will be targeted on the basis of their ethnicity wherever they relocate to within Indonesia.
The applicant wife provided a letter to the Tribunal, undated. It refers to the family’s involvement in Christian activities in Australia. The third named applicant, the applicant’s daughter [provided] a letter dated 20 March 2020 making reference to her studies and the church activity of herself and her family. A [school] report for the year ended 2011 is provided in relation to the fourth named [applicant].
Supporting letters attesting to the church activity, good character and contribution to Australian society of the applicants are provided, including by church officials. Photographs are provided of, presumably, the applicants engaging in church activities.
Also provided following the hearing was an additional statutory declaration by the applicant responding to various issues raised by the Tribunal during the hearing. Relevant responses are referred to in the analysis and discussion below.
Independent Information
Chinese Indonesians and events of 1998
Chinese Indonesians have historically faced discrimination and some violence. At Indonesia’s independence following the Dutch-Indonesian War, nearly half of Chinese Indonesians did not receive Indonesian citizenship and became stateless when Indonesia broke off diplomatic relations with the People’s Republic of China.[1] Many ethnic Chinese were killed in anti-Communist pogroms, and anti-Chinese riots occurred since the 1970s.[2]
[1] Minority Rights Group International, ‘Indonesia – Chinese’, World Directory of Minorities and Indigenous Peoples, 31 January 2018, (accessed 7 February 2020).
[2] Ibid.
The largest riots occurred in 1998. The riots were triggered by economic strains and political struggle,[3] but some groups suspect that Indonesian security forces encouraged the riots to justify emergency measures used to suppress growing opposition to President Suharto.[4] The riots began when four students were shot dead on 12 May 1998, following student protests against the government. The riots began in Java, and then spread on a larger scale to Jakarta, Solo, Medan and other cities. The riots led to looting, burning, rape and murder, mainly targeting ethnic Chinese.[5] It is believed that more than 1,000 people were killed during the riots, and many ethnic Chinese women and girls were raped.[6] The widespread rape and murder caused many ethnic Chinese to flee Indonesia.[7] Many Chinese businesses were targeted,[8] and Jakarta’s Chinatown district was targeted on 14 May during the 1998 riots.[9] Hundreds of Chinese-owned businesses and shops were destroyed in Jeneponto, Jakarta and Medan.[10]
DFAT information
[3] Immigration and Refugee Board of Canada, IDN105128.E Indonesia: Situation of Chinese-Indonesians, including Christians; treatment by society and authority (2012 – April 2015), 2 April 2015, (accessed 7 February 2020).
[4] Minority Rights Group International, ‘Indonesia – Chinese’, World Directory of Minorities and Indigenous Peoples, 31 January 2018, (accessed 7 February 2020); United States Department of State, 1999 Country Report on Human Rights Practices – Indonesia, 23 February 2000, (accessed 7 February 2020).
[5] Minority Rights Group International, ‘Indonesia – Chinese’, World Directory of Minorities and Indigenous Peoples, 31 January 2018, (accessed 7 February 2020).
[6] Immigration and Refugee Board of Canada, IDN105128.E Indonesia: Situation of Chinese-Indonesians, including Christians; treatment by society and authority (2012 – April 2015), 2 April 2015, (accessed 7 February 2020).
[7] Ibid.
[8] United States Department of State, 1999 Country Report on Human Rights Practices – Indonesia, 23 February 2000, (accessed 7 February 2020).
[9] Minorities at Risk, Chronology of events concerning Chinese in Indonesia (1990 – September 2006), 16 July 2010, (accessed 7 February 2020).
[10] Ibid.
DFAT Country Information Report – Indonesia, 25 January 2019 provides the following information (underlining added):
Security Situation
Terrorism is a threat in Indonesia, as in much of the world. A Catholic church was attacked in February 2018 and a series of incidents occurred in May 2018, including church bombings and suicide and sword attacks in Surabaya and Pekanbaru. ISIL, or groups linked to ISIL such as Jamaah Ansharut Daulah (JAD) have claimed responsibility for, or inspired, a number of recent attacks and, as with many other countries, Indonesia is concerned at the risk posed by fighters returning from conflicts in the Middle East and the Philippines. Many returning fighters had no combat experience while overseas and others have come back disillusioned by their experiences. This does not necessarily mean that they have been deradicalised or no longer pose a threat.
Recent terrorist attacks have focussed on state institutions as their primary target, in particular police. Churches have also been attacked (see Christians). Attacks against western interests occur but are currently less frequent, for example, the January 2016 attack at a Starbucks café in Jakarta, the bombings of the JW Marriot and Ritz Carlton hotels and the Australian embassy in 2004 and 2009 and the Bali bombing of 2002.
Indonesia’s elite anti-terrorism force, Detasemen Khusus 88, commonly known as ‘Densus 88’ or ‘Detachment 88’ is effective in investigating and disrupting terrorist attacks. Densus 88 has detected and prevented many JAD inspired or organised attacks. Smaller operations and lone wolf attacks are harder to detect.
Active armed insurgencies against the central government, for example in Aceh, have largely ceased. Small-scale violent secessionist activities continue in the Papua provinces (see Secessionists in the Papua Provinces). Indonesian authorities continue to conduct security operations against the remnants of the Santoso terrorist networks in Central Sulawesi province after Indonesian police killed its eponymous ISIL-linked leader in July 2016.[11]
[11] DFAT, Country Information Report – Indonesia, 25 January 2019, p.14, paras [2.41] – [2.44].
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Ethnically Chinese Indonesians
Successive waves of immigration to Indonesia from China over more than five centuries have resulted in an established ethnically Chinese Indonesian community throughout the country. The 2010 census recorded 2.8 million ethnic Chinese living in Indonesia, comprising 1.2 per cent of the population. This figure may understate the actual number, as some Indonesians of Chinese descent are reportedly reluctant to self-identify due to past tensions. Many Chinese Indonesians who trace their history in Indonesia for many generations may no longer identify as Chinese and many do not speak Chinese. About half of the ethnically Chinese population are Buddhist and about 42 per cent are Christian. Fewer than five per cent are Muslim, compared with over 87 per cent of Indonesians generally.
The Suharto-era New Order regime implemented a range of measures that discriminated against Chinese-Indonesians. The law prohibited Chinese language newspapers, schools and cultural expressions, and many Chinese Indonesians were pressured to take Indonesian names. Some ethnic Chinese had difficulty obtaining citizenship and Chinese Indonesians were required to carry a document proving their Indonesian citizenship. As noted in Recent History, in May 1998 during the Asian financial crisis, rioters targeted the ethnic Chinese community due to their perceived wealth. As many as 1,000 Chinese Indonesians died in incidents related to the riots, women were raped, and businesses were burned or looted.
Since the end of the New Order regime in 1998, successive governments have removed most official policy measures discriminating against ethnically Chinese Indonesians. Chinese New Year is celebrated as a national public holiday, Confucianism is an officially recognised religion, Chinese cultural performances and languages are accepted, and the Constitution no longer distinguishes between ethnic Chinese and ‘indigenous’ Indonesians, with barriers to citizenship removed. In 2014, then-President Yudhoyono issued a regulation changing the Indonesian word used to designate ‘of Chinese descent’ from one which was often associated with racial slurs. A number of Chinese Indonesians have held high office and work in a range of sectors, including the police, clergy and the business community.
Some anti-Chinese sentiment remains at a societal level. Although many Chinese Indonesians are not wealthy, most of the country’s richest and most prominent businesspeople are ethnically Chinese Indonesian, which is a source of resentment for some non-Chinese Indonesians.
In 2012, President Widodo faced strong criticism from conservative Islamist groups in his campaign for the Governorship of Jakarta for having a Chinese Indonesian and Christian running mate, Basuki Tjahaja Purnama, popularly known as ‘Ahok’, who later succeeded him. After succeeding Widodo as governor, some of Ahok’s policies were controversial and politically divisive, such as slum-clearing, which was perceived as anti-poor. Later, after he was accused of blasphemy in late 2016, a range of groups with complex agendas united to use Ahok’s ethnic and religious background as a means to mobilise large crowds of demonstrators (see Blasphemy and Defamation of Religion). Ahok was later convicted of blasphemy and imprisoned.
Anti-Chinese sentiment in Indonesia intersects with religious and economic issues. Islamic organisations blamed China for a supposed upsurge in communist sentiment, a politically sensitive subject (see also Recent History), in mid-2016. Increased Chinese investment in Indonesia has also caused local critics to express concerns about imported Chinese labour and Chinese control over national assets.
Small-scale local riots took place in a town in North Sumatra in 2016, following an allegation of blasphemy against a Chinese Indonesian woman (see Blasphemy and Defamation of Religion). While the riots were ostensibly anti-Buddhist, most Indonesian Buddhists are ethnically Chinese and local media described the riots as anti-Chinese and stated that some Chinese families had fled the region. A number of youths were arrested, prosecuted and imprisoned in the wake of the riots.
DFAT is aware of reports of Chinese Indonesians facing discrimination in relation to buying land in Yogyakarta. Yogyakarta is a special administrative region run as a sultanate, in which the sultan is also the governor. In March 2018, a regional court upheld a 1975 law that only allows ‘native Indonesians’, which has been construed to exclude ethnic Chinese, to own land in Yogyakarta.
With the notable exception of the 2016 riots, which may have been partly motivated by racial tensions, anti-Chinese violence has been low since events in 1998. Although memories of the crisis have caused continued anxiety amongst many members of the Chinese Indonesian community, exacerbated by events such as the Ahok blasphemy trial and the 2016 riots, DFAT assesses that Chinese Indonesians currently face a low risk of violence. Persistent anti-Chinese sentiment may lead to low levels of societal discrimination.[12]
…
[12] DFAT, Country Information Report – Indonesia, 25 January 2019, pp.16 – 17, paras [3.5] – [3.13].
Christians
Christianity is Indonesia’s second-largest religion after Islam. Approximately 24 million Indonesians listed their religion as Christian in the 2010 census. Protestants make up approximately 7 per cent of the total population and Catholics approximately 3 per cent of the total population. Christian communities exist in every province and Christianity is the majority religion some of the eastern provinces including the Papua provinces and North Sulawesi. East Nusa Tenggara, especially the island of Flores, is majority Catholic. About a million Christians lived in Jakarta at the time of the last census. A large number of Protestant churches operate in Indonesia including mainstream Protestants (especially those related to Lutheran denominations) and evangelical and Pentecostal churches as well as non‑denominational independent churches.
Christians are generally able to practise their faith freely throughout Indonesia. High‑level inter-denominational and inter-faith dialogues, especially between Muslims and Christians and between Catholics and Protestants, occur regularly. Christians residing in some areas, particularly where hard-line Islamist groups are more influential (such as Aceh, and parts of East and West Java) have occasionally been prevented from worshipping, including through forced church closures and the disruption of church services, however this violence and discrimination appears to be localised.
A small number of recent terrorist attacks have targeted Christians, although most recent terrorism events have targeted state institutions, especially police. The May 2018 Surabaya suicide bombings affected Catholic, mainstream Protestant and Pentecostal communities. Several churchgoers and a priest were injured in a sword attack on a Catholic church in Yogyakarta in February 2018, in which the perpetrator hacked at statues of Jesus and Mary before being shot by police.
Christian communities have remained resilient in spite of recent violence and church attendance has not fallen as a result. Security at churches increased briefly after the May attacks and police provide extra protection at major festivals such as Christmas and Easter. Some Muslim groups also volunteer to assist or provide security at events and festivals.
Conversion to and from Christianity is common. Some bureaucratic difficulties can be encountered in registering a change in religion with the government, but this is not a significant barrier to conversion, which commonly occurs without difficulty. Some Pentecostal Christians are involved in door-to-door evangelical activities, which have been known to upset religious sensitivities. Preaching by foreign missionaries is unlawful, but the US State Department reports that many foreign missionaries preach without official sanction.
Christians do not generally experience discrimination in gaining access to health care, education or employment.
DFAT assesses that Christians residing in areas where they are a majority do not face either official or societal discrimination. Christians residing in areas where conservative Islam is prevalent face a low risk of societal discrimination in the form of impediments to worship, although this risk is unlikely to include violence. DFAT assesses that Christians face a low risk of terrorism in spite of recent exceptional events.[13]
[13] DFAT, Country Information Report – Indonesia, 25 January 2019, pp.20 – 21, paras [3.35] – [3.41].
The DFAT report does indicate an increase in localised instances of religious intolerance over the past decade, including threats from hard-line Islamist organisations.[14]
Independent information provided on behalf of the applicant
[14] DFAT, Country Information Report – Indonesia, 25 January 2019, p.18, para [3.19].
The applicant’s representative provided submissions and accompanying country information to the Department on 17 March 2016.
The submission refers to several country reports on Indonesia regarding rising religious intolerance, a lack of protection by Indonesian authorities and widespread corruption. Mention is made of US, Canadian and Australian case law regarding the imputation of a religious belief to a refugee by their persecutors. It is submitted that the applicant would be imputed to be a Christian due to his religious and ethnic background, and therefore faces persecution. Reference is made to Australian case law regarding state protection, and of country reports regarding unwilling, ineffectual or corrupt Indonesian authorities. It is submitted that Indonesia does not have adequate protection of minorities. It is submitted that the applicant is unable to relocate, as the feared persecutors are widespread in Indonesia, and there is no area in Indonesia willing to offer effective state protection.
The representative also provided the following country information:
·A New York Times article ‘Jakarta Attack Raises Fears of ISIS’ Spread in Southeast Asia’, 13 January 2016. Mention is made of ISIS claiming responsibility for an attack in Jakarta. Reference is made to ISIS groups carrying out attacks in the Philippines. A terrorism expert is quoted as seeing a spike of terror planning in Indonesia. Reference is made to Indonesia’s history of terrorism, and it discusses the person believed to be leading ISIS in Indonesia. Reference is made to the three main radical groups in Indonesia.
·A New York Times article ‘Battling ISIS in Indonesia’, 18 January 2016. Mention is made of Indonesia’s history regarding terrorism. The article refers to the main suspect for ISIS in Indonesia, and notes that ISIS appears to be a change from the mostly ineffectual terrorist attempts since 2010. Reference is made to vying for the leadership of Indonesian ISIS members, and that this could result in more violence in Indonesia. Mention is made of plans that Indonesia should undertake to prevent further terrorist incidents.
·A Time article ‘Indonesia’s Long Battle with Islamic Extremism Could Be About to Get Tougher’, dated 14 January 2016. Mention is made of Indonesia’s history of terrorism. The article notes that there are 22 local groups that have pledged allegiance to ISIS. Recommendations are made for Indonesia to take in regards to terrorism.
·An article from Terrorism Monitor, ‘Evidence Mounts of Islamic State Influence in Indonesia’, 13 November 2015. Reference is made to evidence of growing numbers of ISIS members and Indonesians travelling to Syria. The country notes deportations to Indonesia from persons suspected of trying to enter Syria. Reference is made to diverse profiles of ISIS recruits from Indonesia, it and notes the suspected defection of a senior civil servant.

The applicant’s representative provided further news reports and a Yahoo Answers question, ranging from May 2017 to August 2018. The reports discuss instances of Chinese-Indonesians facing discrimination from ethnic Indonesians, including facing prosecution for blasphemy. There are reports that discuss mass rapes and violence against ethnic Chinese women that occurred during the 1998 riots, and the lack of official government investigation into these cases. Mention is made of a failure to compensate the victims of the riots or to prosecute violent perpetrators. Reference is made to the prosecution of former Jakarta governor Ahok for blasphemy, following a quotation from the Quran during a re‑election campaign in 2017. The reports discuss concerns of rising Islamic extremism in Indonesia including reports of terrorist attacks against predominantly Chinese Christian churches, and the effect this has on Christians and Chinese Christians within Indonesia, and links blasphemy prosecutions against Chinese Christians. A report discusses the current president Jokowi’s difficulties with conservative Islamic members of his coalition government and steps he has taken to run with an orthodox Islamic cleric in order to counter this. There is a report discussing the history of Islam in Indonesia and its differences with Arabic Islam.
The applicant provided following the hearing a number of additional articles as follows:
·An article by V Arianti and Muh Taufiqurrohman, ‘Extremist charities spread in Indonesia,’ East Asia Forum, 17 March 2020, stating that more than 1,100 people in Indonesia have been arrested under suspicion of terrorism since 2015, and more killed in counter-terrorism operations. It is stated that terrorist groups provide stipends and financial assistance to individuals’ families, especially the families of arrested or killed members. Mention is made of Islamic State charities emerging recently, which facilitate prison visits and provisioning inmates, as well as sponsoring families for health care, education and establishing businesses. Reference is made to the names of several charity groups and the fluctuating numbers. It is stated that the charities work to consolidate extremism and sponsor former inmates who are still radicalised to attend prison and speak to inmates. Mention is made of government attempts to monitor and curtail the charities and the difficulties the government faces in doing so.
·An article by Umair Jamal, ‘How are women transforming Indonesia’s extremist landscape?,’ ASEAN Today, 25 August 2020, stating that there is growing evidence suggesting that women are playing more public roles in Indonesian extremist groups. It is stated that, while militant groups have historically been male-dominated, these groups are using social media to entice women to join, and that the Indonesian authorities are facing difficulties adapting to the new threat of radicalised women. Reference is made to the use of female suicide bombers and the shift of women playing more active roles due to social media. The article discusses Indonesia’s responses, including expanding its counter-terrorism laws, and difficulties faced by the government.
·An article ‘Indonesian police issue Jemaah Islamiyah warning’, UCA News, stating that Indonesian police have warned of terrorist attacks following recent arrests. It is stated that the arrested were attempting to recruit more people. Reference is made to an intelligence analyst stating that terrorist groups are using COVID-19 to gain momentum while security forces are distracted.
·The first paragraph of an article ‘ISIS spreads to Indonesia’, 14 April 2017, stating that many extremists in Indonesia have pledged allegiance to ISIS.
·An article ‘Ethnic Chinese still grapple with discrimination despite generations in Indonesia,’ The Straits Times, 19 March 2017, referencing a refusal to register a land sale in Java to an ethnic Chinese man as authorities said the land could only be owned by natives. Reference is made to ongoing discrimination against ethnic Chinese and the charges against Ahok for insulting Islam. The article discusses ongoing difficulties of Chinese people in Java obtaining land. Mention is made of historic discrimination by the Suharto regime and anti-Chinese riots in 1998 due to economic crisis being blamed on Chinese businessmen.
·An article by Tom Allard, Agustinas Beo Da Gosta, ‘Exclusive – Indonesian Islamist leader says ethnic Chinese wealth is next target’, Faithworld, 13 May 2017,stating that Bachtiar Nasir, the leader of an Islamic group that pushed for the prosecution of Jakarta’s governor Basuki Purnama, has stated that the wealth of the ethnic Chinese was a problem and backed an affirmative action programme to aid native Indonesians. Reference is made to Nasir’s involvement in the protests against Purnama, and other religiously-motivated objectives he has. The article discusses historic discrimination against ethnic Chinese, including a smear campaign against President Joko Widodo stating that he was of Chinese descent. Reference is made to government policy on income equality and non-discrimination against ethnic Chinese and indigenous. IT is stated that Nasir’s group is a conglomeration of different Islamic groups which support the former president Subianto, and that the groups are attempting to link Islam with inequality as part of a pre-2019 election campaign.
·An article ‘Indonesia protests awaken fears for minority Chinese,’ Breitbart, 29 November 2016, states that the campaign to prosecute the Jakarta governor for insulting the Quran has overflowed with racial slurs, unnerving ethnic Chinese given the historic violence against them. The article discusses the protests’ organisation. Reference is made to fears that more anti-Chinese violence could occur.
·An article by Eunike Himawan, ‘22 years after the anti-Chinese riots in May 1998, research reveals that prejudice and trauma still exists’, unknown publisher, 20 May 2020, recounting the events of the 1998 riots. It is stated that COVID-19 has militated tensions and prejudice against ethnic Chinese, and that negative attitudes towards ethnic Chinese still exists today. Reference is made to a survey conducted by the author, showing victims of the riots still feel trauma and fear from the riot.
·An article ‘Heavy persecution, Indonesia is not safe for Christians’, unknown publisher and date, referencing attacks against a Christian church in Indonesia in 2018. It is stated that there have been other attacks, and that prosecution of these attacks is neglected, which emboldens radical groups. Reference is made to a Christian organisation Open Doors, which ranks Indonesia as 38 of the 50 most dangerous countries for Christians, worsening since its 2017 ranking as 46. Mention is made of considerable influence by conservative Islamic parties and radical groups which generate anti-Christian sentiment. Mention is made of how Open Doors arrives at its rankings, focusing on violence and pressure on Christians in church, community, family, personal and national life. Reference is made to closure of churches and government inaction on state policy regarding opening churches.
·An article ‘Religion in Indonesia’, referencing Indonesia as a secular country which is predominantly Islamic. Reference is made to the Indonesian law recognising only six religions and storing a person’s faith as part of their personal data. It is stated that atheism has not been accepted in Indonesia. There are statistics provided which lack a date or source, showing Muslims to make up 87.2% of Indonesia’s population, and Christians 6.9%, Catholics 2.9%, and then a breakdown of other religions in Indonesia. Mention is made of the varying attitudes towards religion, from strict Muslims and more lax Muslims. Mention is made of animistic beliefs in Indonesia. Reference is made to religious violence and light prison sentences for perpetrators of such violence, and it is stated that these attacks are an exception and Indonesia is predominantly a pluralist and peaceful society.
·An article ‘Islam in Indonesia’ discusses the historic rise of Islam in Indonesia.
·An article ‘Rizieq Shihab warns of the dangers of a ‘time bomb’ that will explode’, CNN Indonesia, 12 November 2020, stating that Rizieq Shihab, the Grand Imam of the Islamic Defenders Front, has said that inconsistency in handling accusations of blasphemy was a time bomb. It is stated that groups supported by the government were protected from the laws, while disliked groups were prosecuted. It is stated that, if not fixed, this could result in a bloody revolution. Reference is made to a prosecution for slander against Shihab.
·An article, ‘Four Christians in Indonesia killed by IS-linked militants’, Straits Times, 28 November 2020, stating that four people in a remote Christian community on the island of Sulawesi were killed by persons linked with Islamic State. The attackers killed several people and torched homes, including one used for regular church services. Although no one had been arrested, authorities said the attack was undertaken by members of the IS-linked east Indonesia Mujahideen (MIT).
Hearing, credibility, findings, and assessment
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. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative enquiries and decision‑making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), 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: Prasad v MIEA (1985) 6 FCR 155 at 169‑70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45, nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant, the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for … [but this should not lead to] … an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
While the Tribunal accepts certain parts of the applicant’s claims, it has credibility concerns with other claims.
The Tribunal does accept the applicant’s claims as to broadly what happened to his parents and himself in the anti-Chinese riots of 1998. The Tribunal accepts that the applicant’s parents were killed in these riots, and that the applicant was physically attacked, although, as detailed below, the Tribunal has some evidentiary concerns with aspects of the claimed attack. Over time, in both his written and oral claims, the applicant has provided a broadly consistent narrative of these accounts, including with an emotional content in oral evidence before the Tribunal that gave the Tribunal the impression that the applicant broadly was recounting events which actually occurred. The events are also consistent with independent information about the riots at this point.
The Tribunal is very conscious of the acutely traumatic effect of the events that the Tribunal accepts – the death of his parents and the attack on him. It clear to the Tribunal that this has resulted in ongoing mental trauma for the applicant.
The Tribunal also accepts the applicant’s account of firing two Indonesian workers employed in the applicant’s [Product 1] business in 2009 after it was found that they had been stealing. The Tribunal is satisfied that these individuals create difficulties for the business, spitting at staff, turning up to the office and smashing windows.
However, the Tribunal does not accept the applicant’s claim made for the first time in the Tribunal hearing with respect to the first application that he suffered from an attack and bashing in 2009, about a month after issues arose from the business firings.
This is for a number of reasons. It is not a claim made in the relatively detailed written account provided as part of his protection visa. It was made for the first time in the first Tribunal hearing, with further detail contained in the additional written statement provided following the hearing. In response to this issue in the hearing, the applicant indicated that he only mentioned this when the Tribunal Member asked about evidence. The applicant also indicated that he had tried to forget details of harm.
The Tribunal noted to the applicant that he had provided in the initial statement a detailed chronology of his life history and harm suffered including significantly impactful events (namely, what happened in 1998). The Tribunal indicated to the applicant that it would have difficulty accepting that the applicant would forget the impactful and relatively recent event, in terms of the decision to come to Australia, of the applicant being attacked and assaulted.
In the written response following the hearing, the applicant referred to his mental health issues as explaining his failure to make mention of the 2009 attack, together with the fact that his psychologist considered that the major cause of the applicant’s trauma was the attack on his parents.
The written response also indicates that because of the mental health issues he was suffering previously, he had recounted both the events of 1998 and 2009 simultaneously causing it to be seen that the incident occurred in 1998 but in fact there was also an incident in 2009.
The Tribunal has difficulty accepting, based on the nature of the applicant’s earlier oral evidence, and acknowledging some mental health issues, that the applicant mistakenly conflated events. The Tribunal considers given the recent claimed attack on the applicant just before fleeing for Australia that this not insignificant recent event would have been included in the relatively detailed initial written claims, if it were true, even accounting for some mental health issues suffered by the applicant.
Further, the applicant provided an Australian psychologist’s report as part of his first application for a protection visa. That details the cause of the applicant’s mental health conditions and depression. It is indicated that this is as a result of his parents being robbed and looted in 1998. Tellingly to the Tribunal, there is no mention of an attack in 2009. As indicated to the applicant in the hearing, the Tribunal would be inclined to think that if this impactful and more recent event had occurred, it would have been disclosed to the psychologist. In response, the applicant was just focusing on the events of 1998 rather than more recent events.
In the written response provided following the hearing, the applicant indicated that he had limited sessions with the psychiatrist and therefore did not have the opportunity to disclose all events.
The Tribunal considers that it more likely that if the claimed 2009 attack actually happened, it would have been disclosed to the psychologist and included in the report, given the not insignificant claimed severity of the attack and its occurrence immediately before the applicant fleeing Indonesia.
Credibility issues in relation to the claimed attack in 2009 are buttressed because of inconsistent evidence given by the applicant as to his teeth being damaged in claimed attacks. The Tribunal in the hearing asked the applicant for details of the injuries that he suffered in the 1998 attack. The applicant indicated that he was kicked and could not get up and received medical treatment at a first aid station because he could not walk. The applicant was asked whether his teeth were damaged. The applicant indicated that they were not damaged in 1998 but were damaged in the attack in 2009.
The Tribunal noted to the applicant that in the Tribunal decision in relation to the first application, it is noted that in the relevant hearing the applicant gave evidence that in 1998 when he was attacked he was hit and that his teeth were damaged. The Tribunal has confirmed this evidence from the transcript of the hearing. In response, the applicant indicated that it could have been the case that in 1998 there were some small breaks on his teeth but that this happened again in 2009.
This evidence, considered cumulatively with the other credibility issues identified as to whether the 2009 attack in fact occurred, cause the Tribunal to consider that the applicant has falsely attempted to indicate that the damage to his teeth occurred in the 2009 attack, but in fact the damage to the teeth, of which a photograph is provided, in fact occurred in the 1998 attack. As indicated, the Tribunal is not satisfied that the applicant has mistakenly conflated the 1998 attack with the 2009 attack.
Further, when the applicant wife gave evidence before the Tribunal, she was asked what injuries she understood that the applicant had suffered in the 1998 attacks. They met shortly after the riots. She indicated in response that she was not sure, but she pointed to her upper arm to indicate a location where the applicant was injured.
As noted to the applicant in the hearing, this is the same location as the applicant has claimed that he was injured, by a sword, in the 2009 attack. This further reinforces to the Tribunal that the applicant has deliberately transposed the attack in 1998 to the claimed attack in 2009, which the Tribunal does not accept occurred.
The Tribunal does note however that when the applicant wife gave evidence to the Tribunal, she did indicate that her husband was attacked in 2009 and gave evidence of him returning home injured after the attack.
However, this does not overcome the cumulative effect of the other credibility concerns identified in relation to this issue. The Tribunal is not satisfied that the applicant’s wife was recounting events that actually occurred in 2009.
The Tribunal is not satisfied that the applicant was physically attacked in 2009 as claimed in the period leading to him coming to Australia.
The Tribunal has further credibility concerns with claimed past harm and difficulty suffered by him in connection with his Chinese ethnicity and the 1998 riots.
A concern is inconsistent evidence given by the applicant as to the timing of his departure from a job in [a] company from 1993 until 1998. In the hearing, the applicant indicated that he left his job because he found it stressful. When the Tribunal asked if he resigned prior to or after the 1998 riots, he indicated that he left before. As put to the applicant in the hearing, this is inconsistent with the details in his written statements which suggest that he was working for this company at the time of the riots and that the company was burned down and he could not return to work there.
In response to this inconsistency, the applicant responded that a friend had told him that he was lucky that he already left and that he could not go back as a result of the adverse impact from the riots. In the written response provided following the hearing, the applicant repeats this explanation, that he had previously left the job prior to the riots but it was because of the riots that it was indicated that he was lucky he did not return and that he could not return because of the riots.

This explanation does not address the inconsistency as to the applicant resigning from his employment before the riots. The applicant’s claim that he could not go back because of the riots does not make sense because he had already left his employment due to stress. The applicant did not qualify his answer as to him leaving his employment due to stress or that he had a wish to return.
A further concern in relation to the applicant’s claim of adverse treatment during his employment relates to his next job from 1998 until 2002 which, in the first written statement, was indicated to be a [Occupation 2] position, but in the hearing was indicated to in fact be a [Occupation 1] position. The Tribunal asked the applicant in the hearing as to any significant problems in this job. The applicant responded that some customers would not pay and that he would have to himself pay amounts when customers did not.
As put to the applicant in the hearing, tellingly he did not indicate, as is indicated in his first written statement, that this business was subject to looting and robbery. In response, the applicant indicated that there was still intimidation. In the written response provided following the hearing, the applicant indicated that looting and robbing were routine events faced by Chinese businesspeople in Indonesia.
The Tribunal has a limited credibility concern at the applicant not mentioning intimidation, looting or robbery when the applicant was asked in the hearing to recount significant difficulties in this job. This is not a major credibility concern but is considered cumulatively together with other matters.
Considering credibility concerns, the Tribunal is not satisfied that the applicant lost a job in 1998 as a result of the anti-Chinese riots.
The Tribunal discussed with the applicant at the hearing independent information concerning harm based on Chinese ethnicity in Indonesia. Particularly, the Tribunal noted the DFAT assessment that there has been significant change since the end of the New Order regime in 1998. Successive governments have removed most official policy members discriminating against ethnic Chinese. Chinese New Year is celebrated as a national holiday. Confucianism is an officially recognised religion. Chinese cultural performances and language are accepted and the Constitution now provides no distinction ethnically.
It was noted that DFAT assesses the Chinese violence has been low since 1998, with the exception of the 2016 riots. DFAT assesses that Chinese Indonesians currently face a low risk of violence, however there may be low levels of societal discrimination.
The Tribunal put to the applicant that, including based on factual claims the Tribunal was likely to accept as to his circumstances, the weight of independent information would not suggest that the applicant in Indonesia today would face a real risk of significant harm based on his ethnicity. In saying this, the Tribunal indicated that it acknowledged a degree of discrimination is suffered by ethnic Chinese in Indonesia. And certainly, there have been past instances of significant harm, particularly involving the 1998 riots. The Tribunal indicated its view, based on the independent information, that it was very unlikely that the events of 1998 would be repeated. The Tribunal indicated that it was not inclined to think that disgruntled friends of employees smashing business windows would constitute significant harm.
The Tribunal noted that a claim had been made that mistreatment of ethnically Chinese in Indonesia had been exacerbated by COVID-19. The Tribunal indicated that whilst it was willing to accept that this may be a cause of some limited degree of resentment, in the absence of independent information it was not inclined to accept that the coronavirus would lead to some degree of discrimination and an adverse view towards ethnic Chinese tipping into defined categories of significant harm.
The Tribunal gave the applicant following the hearing a further opportunity to provide any independent evidence in relation to these issues.
As indicated above, the applicant has provided a number of articles/media reports referring to some discrimination, attacks and harm faced by Chinese in Indonesia together with incidents of Islamic extremism and terrorism.
The Tribunal accepts that in the applicant’s [business] from 2002 until 2004, there was some intimidation of the business by local Muslims. However, due to the cumulative effect of the credibility issues identified, the Tribunal considers that the applicant has overstated that intimidation, protection money and looting was the cause of the closure of the business. The Tribunal notes that there is no claim of this occurring in the more recent business from 2005 to 2009. The Tribunal accepts some level intimidation in business activities in China, including based on racial issues. The Tribunal considers that this is part and parcel of doing business in Indonesia[15] and potentially faces all businesses. The Tribunal is not satisfied that what the applicant faced from 2002 to 2004 was a level of significant harm, as defined. The Tribunal is not satisfied that the applicant faces any level of harm in Indonesia based on business intimidation that would fall within any definition of significant harm.
[15] Vanda Felbab-Brown, ‘Indonesia Filed Report I – Crime as a Mirror of Politics: Urban Gangs in Indonesia’, Brookings, 6 February 2013, >
In terms of the vandalising of the business premises in 2009, the Tribunal does not accept that this constitutes significant harm. The Tribunal is not satisfied that the level of harm faced by the applicant and the business from these individuals constituted extreme humiliation. Further, the Tribunal is not satisfied that the individuals involved would, over 10 years after the event, have any desire to inflict significant harm on the applicant as it was a result of specific factors at the time, namely the sacking of employees.
Notwithstanding the independent evidence provided on behalf of the applicant, accepting that there is some degree of discrimination and instances of harm suffered by Chinese Indonesians potentially exacerbated by COVID-19 and a rise in Islamic extremism, the Tribunal is not satisfied based on the weight of independent evidence that the Chinese in Indonesia as a class face a real risk of significant harm based on their ethnicity. The Tribunal is not satisfied that there are attributes or past circumstances of the applicant that demonstrate that he, in particular, faces a real risk of significant harm in Indonesia based on his ethnicity. While the Tribunal accepts that the applicant suffered mental trauma which is to extent ongoing as a result of the events of 1998 and that this increases his sensitivity, the Tribunal is not satisfied that this fact would lead to the applicant facing significant harm on return to Indonesia today and in the reasonably foreseeable future.
In relation to claims based on the practice of Christianity, the applicant indicated in the hearing that he was maintaining a claim of significant harm on this basis. The Tribunal noted to the applicant that he had previously indicated that he had had no difficulties practising his religion, other than the disruption to the building of the church in 2000 and 2001. In response, the applicant maintained that there are risks and violence towards Christians.
The Tribunal noted to the applicant the DFAT assessment in relation to Christianity in Indonesia that Christians are able to practise that faith freely in that country, albeit with some localised discrimination and violence. DFAT assesses that Christians face a low risk of terrorism in spite of exceptional events. The Tribunal put to the applicant that it accepted that there were specific instances of harm suffered by Christians, but it was not inclined to think that Christians as a class faced a real risk of significant harm. The Tribunal also notes that the only harm claimed to have been suffered by the applicant was disruption to the building of a church, which the Tribunal would not be inclined to consider was significant harm.
The applicant requested that he be able to respond in writing, which the Tribunal agreed to. In response, the applicant provided accounts as outlined of some instances of Christians in Indonesia facing harm.
The Tribunal also noted to the applicant that it had concerns that the applicant had a subjective fear of harm based on being Christian. This was on the basis that in the first Tribunal hearing, the applicant had not maintained claims of harm based on being a Christian. He narrowed his claims to be limited to those based on him being of Chinese ethnicity. Similarly, in the interview with the delegate with respect to the current application, the applicant initially indicated that his claims were limited to Chinese ethnicity, not including religion. However, in final submissions at the end of the hearing, this position was changed by the applicant’s agent and the applicant himself who did express concerns based on his religion.
In response, the applicant indicated that he faces harm because of the events that he faced in 1998 and 2009. The Tribunal noted to the applicant these claims are instances of harm based on the race, not religion. The applicant did not respond despite being given considerable opportunity to do so.
The Tribunal noted to the applicant that he had made a claim that he would be a particular risk of harm in Indonesia based on his religion because he would wish to proselytise. The Tribunal noted that there was no independent information that had been provided to the Tribunal which would indicate that there was an increased risk based on proselytising.
The applicant’s migration agent made the oral submission that the DFAT report does make mention of the fact that there have been increased localised instances of religious tolerance over the past decade, including threats from hard-line Islamist organisations.
As indicated, following the hearing, the applicant did provide some reports of Christians facing harm. The applicant also indicated in his written response that he is not claiming harm simply on the basis that he would be a Christian, but combined with his profile and family members’ activities and proselytising in the context of growing Islamic extremism which indicates that anyone who is promoting Christianity will face serious harm.
The weight of independent evidence does not persuade the Tribunal that Christians as a class in Indonesia, including those who proselytise, face a real risk of significant harm in Indonesia. This is notwithstanding that there are some reports of Christians facing harm in Indonesia. The DFAT assessment which the Tribunal gives weight, together with other independent information referred to, does not persuade the Tribunal that an active and practising Christian in Indonesia today would face any defined category of significant harm. The Tribunal does not consider that there is anything in the applicant’s own profile or past in terms of the practising of his religion which would lead him to facing a real risk of significant harm based on the practice of his religion. This includes the risk of harm to the applicant considered cumulatively together with his ethnicity and profile.
The Tribunal’s decision in relation to the first application assessed that the applicant was making a claim based on being the member of a particular social group of Indonesian businesspeople of Chinese ethnicity employing Indonesians.
The Tribunal noted to the applicant in the hearing that his [Product 1] business operated successfully from 2005 until the events arose following the firing of employees. The Tribunal noted that there was no independent evidence that would suggest widespread or systemic significant harm suffered by ethnic Chinese businesspeople, including those employing Indonesians. The Tribunal accepted that while there was some degree of discrimination suffered by Chinese, it was not sustained or systemic such that it would appear that every ethnically Chinese person or business owner employing Indonesians faced a real risk of significant harm.
No independent evidence was provided, including following the hearing, that would establish this. Claims based on a particular social group are relevant to the Refugees Convention criterion, which as indicated has already been considered. The Tribunal is not otherwise satisfied that the applicant faces any definition of significant harm as a result of being, on return to Indonesia, a Chinese businessman employing Indonesians.
The Departmental file contains a Certificate and Notification issued under s.438 of the Act restricting the disclosure of certain information on the file on the basis that the documents are internal working documents and relate to business affairs. The Tribunal does not consider that this provides a basis for public interest immunity. The Tribunal does not consider that the Certificate and Notification is valid. In any event, the documents concerned are not relevant to the applicant’s claims.
In summary, the Tribunal is not satisfied that the applicant is at a real risk of significant harm for any of the reasons claimed.
The Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia, there is a real risk that he will suffer significant harm.
For the reasons given above, the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
David McCulloch
Member

[2021] AATA 582

21 January 2021

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Immigration

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