1610170 (Refugee)

1610170 (Refugee) [2018] AATA 1211 (31 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1610170
COUNTRY OF REFERENCE:                  Indonesia
MEMBER:Paul Windsor
DATE:31 March 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 31 March 2018 at 1:42pm
CATCHWORDS
Refugee – Protection visa – Indonesia – Fear of harm – Socio-economic discrimination – Christian – Chinese Indonesians discriminated against – Attacked by debt collectors – Family members received threats – Attempted to relocate to other places – Inconsistent evidence – Extraordinary delay in applying for protection – No risk of significant harm
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K-5LA, 36, 65, 499
Migration Regulations 1994 Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] June 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Indonesia, applied for the visa on [date] January 2016. The delegate refused to grant the visa noting that the applicant was an unlawful non-citizen in Australia for 5 and a half years before she sought protection; provided only vague information in her application with no supporting detail about the reasons she claims to fear returning to Indonesia; and did not respond to an invitation to contact the Department to discuss her claims at an interview or to provide additional information. The delegate found that on the information before him the applicant would receive effective protection from the Indonesian authorities against any threats she might face from creditors. In relation to the complementary protection criterion, the delegate found that the protection the applicant could obtain would be such that there would not be a real risk that she would suffer significant harm should she be returned to Indonesia.
The applicant applied to the Tribunal for review of this decision on 6 July 2016. The applicant provided the Tribunal with a copy of the delegate’s decision record.[1]
[1] See folios 9-16 of Tribunal file 1610170.
The applicant appeared before the Tribunal on 2 June 2017 to give evidence and present arguments. With the applicant’s consent this was a joint hearing with [Mr A] (Case 1610172), who is applicant’s brother-in-law and husband of her sister [Ms B] (who along with the applicant’s niece, [Ms C], is included as an applicant in case 1610172). [2] The applicant has lived at the same address as the applicants in case 1610172 since arriving in Australia with them on [date] March 2010, is represented by the same registered migration agent, and has made closely related claims for protection. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.
[2] See folio 41 of Tribunal file 1610172.
The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal 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, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) – 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
In her Protection visa application[3] the applicant claims to be a citizen of Indonesia who was born in Pontianak in Kalimantan Barat (West Kalimantan) province Indonesia on [date]. She states that she is ethnic Chinese, a Christian, and speaks, reads and writes Indonesian and reads and writes English. She did not indicate her marital status. She indicated she departed Indonesia legally on [date] February 2010 via [Airport 1] Jakarta and arrived in [City 1] Australia on [date] February 2010, entering on a Visitor visa (the delegate’s decision record indicates that the travel dates are actually in March rather than February 2010).
[3] See folios 15-39 of Departmental file [number].
Claims from the applicant’s Protection visa application
The applicant’s claims as set out in Part C of her Protection visa application[4] are summarised as follows:
[4] See folios 18-20 of Department file [number].
·She left Indonesia because of distrust of the judiciary and law enforcement, poor system of government and bureaucracy.
·The destruction of the global economy has impacted on the economy and there are big problems with poverty and unemployment. Due to such problems she has been living in harsh conditions so she had to borrow money from her relatives.
·She could not pay the debt. She lived in mental distress and fear.
·‘Many people in [Country 1] (sic) have problem like me, who borrowed money had been hit, injured and killed’.
·If she returns she will get caught by her creditor and could be beaten, injured or killed. They will be searching for her. They had already threatened verbally to hurt her.
·She sought help but nothing happened because it is seen as an economic matter and considered a personal problem.
·She did not try to move to another part of the country as this is a socio-economic matter and she will experience the same problem if she moves somewhere else within Indonesia.
On 1 June 2017 the applicant’s representative forwarded a submission in support of her claims.[5] This included revised claims which are summarised as follows:
[5] See folios 48-54 of Tribunal file 1610170.
·The applicant lives with her sister and brother-in-law’s family.
·After her family applied unsuccessfully to several banks in Indonesia, in early October 2008 the applicant’s brother-in-law followed up a newspaper advertisement suggesting that cash loans were given without any complicated arrangements. The applicant’s brother-in-law did not suspect that these were ‘syndicate loan sharks’. There was no ‘binding legal agreement’ but the applicant was named as an emergency contact. The applicant’s brother-in-law borrowed money which was handed over immediately by a man named [Mr D].
·The applicant’s brother-in-law used the money to start a business and support his family but in January 2009 the business failed and he went bankrupt. He sold his assets and gave the remainder of the money to [Mr D]’s assistant. Subsequently he was told there was still more to be paid.
·When the applicant’s brother-in-law refused to pay the extra money the applicant and her brother-in-law began receiving threats to their and his family members’ lives. These threats have continued.
·They alerted the police on many occasions but were unsuccessful in gaining protection.
·They attempted to relocate to several different places but their location was always exposed and demands for more money were made.
·The applicant has suffered trauma from the harassment and continuation of immense fear for their lives has driven her to flee her home country.
The representative submits that the applicant’s fear of persecution is based on:
·Harm from the creditors in Indonesia;
·Distrust of the Judiciary and law enforcement of government;
·Corruption of authorities within Indonesia; and
·Chinese ethnicity in Indonesia.
The representative submits that as the applicant was never given a date to attend an interview with the delegate it was highly prejudicial of the delegate to rely on this in disputing the genuineness of the fear held by the applicant and her family members. The representative also argues that the delegate, in the absence of an interview with the applicant, has used country information incorrectly to support his own assumptions.
In relation to the delay in the applicant seeking protection after arriving in Australia the representative submitted that the applicant was unaware of her option to seek protection in Australia.
The representative provided legal argument regarding corruption in Indonesia and the operation of the Indonesian Court for Corruption crimes (or Tipikor Court) and the Corruption Eradication Commission (Komisi Pemberantasan Korupsi or KPK). The representative also provided argument that the applicant’s fear of harm is linked to her Chinese ethnicity, commenting that discrimination against Chinese Indonesians makes it extremely difficult for them to subsist, as well as hide. Supporting articles were provided regarding discrimination against ethnic Chinese in Indonesia and violence against ethnic Chinese during the May 1998 riots in Indonesia.
The representative provided details of the debt and harm suffered which are summarised as follows:
·The loan was for the amount of IDR [amount] [approximately AUD [amount] at the current exchange rate], with 10 per cent withheld for initial interest and administrative costs, and was incurred in September 2008.
·With the applicant’s agreement her brother-in-law gave her details as an emergency contact.
·The applicant’s brother-in-law was required to pay IDR [amount] per month.
·In January 2009, due to great commercial loss, the business was declared bankrupt. The applicant’s brother-in-law sold his assets in order to pay for the operational costs of the business and the loan.
·The applicant’s brother-in-law contacted [Mr D] to pay the debt. [Mr D]’s assistant [Mr E] received the payment and guaranteed that [Mr D] would provide proof of the debt payment personally. This proof was never issued. Her brother-in-law thought this was common business practice.
·In February 2009 her brother-in-law began a new job in Bekasi. Not long after, he received a call from a man named [Mr F] expressing interest in becoming his business partner. When he advised this person that his business was bankrupt he was warned he should be careful as his family is alone. He later realised he was being threatened.
·After the phone call from [Mr F] the applicant’s brother-in-law received a call from [Mr D] asking when he could repay the remaining debt. He was told what he had paid to [Mr E] was only the interest and the bulk of the loan was outstanding. [Mr D] threatened there would be fatal consequences if he didn’t pay.
·When her brother-in-law threatened to go to the police, [Mr D] told him to do so, knowing he had control over many police members.
·[Mr D]’s Associates came to her brother-in-law’s house in Tangerang demanding payment from his wife (the applicant’s sister) and damaging the house. Her sister went to police but was refused protection.
·Following this her sister and niece moved to Bekasi with the applicant’s brother-in-law. They lived peacefully for a few months when suddenly in November 2009 they received a call from [Mr D] again threatening them and telling them he could find them wherever they went, even outside Java. [Mr D] gave them one month to pay IDR [amount], otherwise he would kidnap their daughter (the applicant’s niece) and sell her, and ‘do something’ to the applicant and her sister.
·A few days after the phone call [Mr D]’s affiliates came to her brother-in-law’s workplace but her brother-in-law did not let them know he was there.
·They also visited the applicant at her workplace in Jakarta and threatened her. She was told that as they are Chinese no one would care what happened to them even if they were murdered or raped.
·One day [Mr D]’s people visited her house. Out of fear she asked her roommate to answer the door and say she wasn’t home. [Mr D]’s people threatened the roommate that if she wished to live she should stay out of it.
·The applicant’s brother-in-law was followed and kicked off his motorcycle on his way home from work and told ‘this is just the beginning’. This drove him to depart for Australia and they began to rent a property in the area to escape the threats.
·In mid-December, while he and his family were out, neighbours told the applicant’s brother-in-law that people had come into their rented home in Bekasi. The applicant’s brother-in-law and his family relocated to his hometown in Jepara. In January 2010 they applied for visas and upon their grant left from Jakarta for Australia.
·The applicant and her family were constantly forced to relocate due to [Mr D] and his affiliates’ actions. Even before they left for Australia [Mr D]’s people came looking for them in Jepara but by that time they were already in Jakarta.
Claims from the hearing of 2 June 2017
Key matters raised at the hearing relating to the applicant’s claims are summarised as follows:
·Her parents and brother are living in the Tangerang area of Indonesia (a district adjacent to the western side of Jakarta).
·Her older brother is a manager at a [company].
·She is not working in Australia currently as she does not have work rights but previously had worked part-time [in] Australia. Her mother is supporting them (her and her sister’s family).
·She acquired a Bachelor’s degree in [a certain discipline] in Jakarta and worked as a [professional] supervisor for a company in Jakarta before coming to Australia.
·She lived with her sister and brother-in-law in Tangerang until around June 2009 when she moved to a boarding house in Jakarta.
·The applicant’s brother-in-law indicated he moved to Jakarta where he met his wife (the applicant’s sister) in 2006. He said worked as a [occupation] and was promoted by the company and sent to [Country 2] (where his daughter was born) for two years until mid-2008.
·He indicated that when he returned to Jakarta in mid-2008 he took up an opportunity put to him by the applicant’s brother to start his own business in the manufacture of[goods]. His product was sold to a [company] that his brother-in-law worked for. The applicant’s brother-in-law said the business was run from the ground floor of a two storey two bedroom home he had purchased in Tangerang. He said he had around 25 employees.
·The applicant’s brother-in-law indicated that in September 2009 he sought business loans from several banks to expand his business but was declined as he did not fit their requirements. In October 2009 he responded to an advertisement in a newspaper for cash loans with no requirements. A person named [Mr D] looked over his workplace and agreed to loan him IDR [amount]. IDR [amount] was advanced and 20 million (10 per cent) retained as an administrative fee. There was no written agreement, [Mr D] simply asked for a receipt. The applicant’s brother-in-law did not seek any third party advice before entering the agreement. The terms were that he pay IDR [amount] per month interest until he could repay the principal. He did not provide any security. [Mr D] looked at his identity card and took some photographs of the business.
·The applicant’s brother-in-law felt he could meet the monthly repayments as his business was doing well and orders had been really high in Ramadan (which he said was in about October 2008).
·He said the business got into difficulties when one specialist employee quit suddenly without notice and he could not find a replacement. Orders were rejected on quality grounds and other orders cancelled.
·The applicant’s brother-in-law indicated they continued operating until January 2009 then sold all the machinery and paid the debts. He said he rang [Mr D] who told him the debt was IDR [amount] because there were extra costs for administration fees and interest. While the applicant’s brother-in-law could not understand why the debt amounted to IDR [amount] he said he paid it. [Mr D] sent his assistant [Mr E] (who usually collected the monthly interest payment) and the applicant’s brother-in-law paid [Mr E] the amount owing in cash. He got a receipt with [Mr D]’s name on it.
·The applicant’s brother-in-law indicated that in May 2009 [Mr D] rang him saying he still owed money. He thinks [Mr D] may have wanted to ‘fleece’ more money from him because he is ethnic Chinese. [Mr D] threatened him, calling him ‘Chinese’ and saying if he did not comply incidents like 1998 might happen to him, that he would be harmed and his wife raped. When he said he would go to the police [Mr D] replied go ahead, commenting that he has many friends in the police force.
·The applicant’s brother-in-law said that the next day he went to the police. He said did not take the receipt or discuss repayment of the loan, only the threat [Mr D] had made. He commented that after that he lost confidence in the police and the justice system in Indonesia.
·In early June, within 1-2 weeks of [Mr D] ringing him and him having gone to the police, he decided it would be best if his wife and the applicant moved from the Tangerang residence and joined him in Bekasi (a district adjacent to the east side of Jakarta) where he was staying. This was also because after [Mr D] rang him in May 2009 [Mr D] started sending people to the Tangerang residence. This happened every day for 1-2 weeks. He said that usually they only saw his sister-in-law (the applicant) coming in and out but one day they saw his wife and shouted at her ‘Chinese’ and ‘pay your debt’ and damaged some property. His wife rang the police who came and looked at the damage and told his wife they should pay the debt.
·The applicant’s brother-in-law indicated that after that people came to the workplace of his sister-in-law (the applicant).
·The applicant’s brother-in-law said that after they moved to Bekasi things were peaceful for a few months until November 2009 when [Mr D] called him again. [Mr D] said to pay the debt or he would carry out the earlier threat. Now [Mr D] asked to be repaid IDR [amount]. [Mr D] did not explain why he thought he should be paid IDR [amount]. The applicant’s brother-in-law said [Mr D] wanted to meet him at his office but he declined. He said [Mr D] sent people to the office and indicated that later he suffered an injury when he was pushed off his motorbike while riding home. He commented he was told it was ‘only the start’.
·The applicant’s brother-in-law said that in mid-December he arrived home and was told by neighbours that a group of men had been loitering around his house. They gathered some belongings and documents and moved to Jepara in central Java. He was hiding with family in Jepara but his brother said he did not want to get involved in trouble so they could only stay temporarily. From December 2009 until March 2010 they moved from one hotel to the next, including in Jakarta when they applied for their visas.
·The applicant’s brother-in-law said they applied for the visas in January 2010 and the visas were granted the same month. He indicated they delayed travelling because he promised his mother-in-law that he would not depart without his sister-in-law (the applicant) and there was a delay in her getting her passport as it was at his mother-in-law’s residence.

At the hearing the representative indicated that she wished to submit a psychologist’s report for the applicant and a medical report for the applicant’s brother-in-law regarding injuries sustained when he was forced from his motorbike, and to prepare further submissions in response to country information discussed at the hearing. The representative also indicated that she would organise statements from the applicant’s father and her sister-in-law regarding claims made by her sister at the hearing that ‘they’ came to her father’s residence and threatened him, still call and harass him from time to time, and that they had also found her husband’s sister in central Java, in a city located quite far from Jepara, and asked about their whereabouts.
Post hearing submissions
On 20 June 2017 the representative sent the Tribunal a further submission in support of cases 1610170 and 1610172.[6] Additional matters raised in the submission are summarised as follows:
[6] See folios 59-73 of Tribunal file 1610172.
·The initial applications were not done by the applicants themselves and do not reflect their circumstances. In desperation the applicants sought the assistance of a man they met at their local market who told them they could apply for protection visas. They paid him $[amount] for each of the two applications. They signed blank applications and were not able to contact this person again. They never received a copy of the applications and so were unaware what was stated in them.
·Since the ‘brutal beating’ the applicant’s brother-in-law faced in Indonesia he has suffered [pain] and [deformities].
·An imaging report was provided for the applicant’s brother-in-law indicating that he had a [spine x-ray] on [2017] which revealed ‘[medical condition]’. A letter dated 9 June 2017 from the Refugee Health [service] indicated that he ‘has previously been referred to a Refugee Health physiotherapist for management of his bilateral shoulder pain but did not attend for any treatment’.
·A psychologist’s report for the applicant states she was referred to Psychology services at the Refugee Health [service] in September 2016 to assist with treating symptoms of depression and anxiety.
·The applicant’s sister submitted a letter which seeks to provide further information that she had omitted at the hearing, due to the ‘pressure and overwhelming emotions’ she felt at the time. In the letter she states that they had re-established their lives when they relocated to Bekasi, that both she and her husband were working and that they were even taken on a holiday by those companies. She indicates that they would not have left this behind if they did not have to as their lives are not better in Australia and they were scared and unlawful for many years. She comments that they can’t work in Australia and her mother sold her house to support them.
·Additional photographs and articles were provided regarding ongoing racial discrimination and prejudice against ethnic Chinese Indonesians. It was submitted this severely impedes and isolates the applicants from receiving aid in their country.
Later on 20 June 2017 the representative forwarded to the Tribunal copies of emails dated 23 and 24 May 2017 from the applicant’s sister to the representative to verify that she had forwarded to the representative on these dates their ‘story letter’ and her ‘sister’s story’ (the applicant’s story) respectively. The actual stories were not submitted to the Tribunal.
The representative did not forward any statements from the applicant’s father or sister-in-law regarding any threats or approaches made to them by [Mr D] and/or his associates.
Findings and reasons
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to her receiving country of Indonesia, there is a real risk the applicant will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity
On the basis of the copy of the applicant’s Indonesian passport provided to the Department,[7] the Tribunal accepts that the applicant is a citizen of Indonesia and that her identity is as she claims it to be. The Tribunal accepts that Indonesia is the applicant’s ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
[7] See folio 40 of Department file [number].
Credibility

The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)
The Tribunal finds that the applicant is not a credible witness for the reasons discussed below.
Assessment of claims
In essence the applicant claims to fear returning to Indonesia because her brother-in-law has been targeted for extortion by a loan shark named [Mr D], and she was living with her sister and brother-in-law and her details were provided to [Mr D] as an emergency contact. The applicant claims that [Mr D] has targeted her brother-in-law, his family and her due to their Chinese ethnicity, because ethnic Chinese Indonesians are viewed as wealthy and because they suffer discrimination from the non-ethnic Chinese majority population. The applicant claims that they cannot obtain protection from the Indonesian authorities because of ‘Corruption of authorities within Indonesia’, indicating that she distrusts ‘the Judiciary and law enforcement of government’. She fears that she could suffer serious harm in the form of rape, other physical violence and murder, if she returned to Indonesia.
Delay in seeking protection, generic initial claims and failure to request an interview
In his decision record the (a copy of which was provided to the Tribunal by the applicant), the delegate indicates that the applicant arrived in Australia on [date] March 2010. Her visa ceased and she became an unlawful non-citizen on [date] June 2010. The applicant and her brother-in-law (case 1610172) lodged their Protection visa applications on [date] January 2016. This is nearly six years after they arrived in Australia and over five and a half years after they became unlawful non-citizens in Australia.
In the decision record the delegate considered the lengthy delay in the applicant lodging a Protection visa application after arriving in Australia, the vague information provided in the application (with no supporting details about the reasons she claimed to fear returning to Indonesia, and a reference to the situation in [Country 1]), and the applicant not having sought to take advantage of an opportunity provided to her in writing ‘to contact the Department within 7 days to arrange an interview to discuss her claims’. The delegate commented that he considered it ‘reasonable to expect that someone in her circumstances would seek to engage Australia’s protection obligations as soon as possible’.
In the submission of 1 June 2017 the representative contends that the delay in seeking protection was because the applicant was unaware of her options in terms of seeking protection in Australia. The representative further contends that, as the applicant was not given a date of an interview she was ‘deprived of an interview’ and it is ‘highly prejudicial’ to use the applicant’s ‘non-appearance at the interview’ as a factor in considering whether the applicant had a genuine fear.
In the submission of 20 June 2017 the representative states that the initial applications (for case 1610170 and 1610172) were not done by the applicants themselves and do not adequately reflect their circumstances. It is claimed that the applicants paid a fee of $[amount] for each application to a [Country 3] man then signed blank forms on the basis that they could provide further details if needed through a [social media app]message. It is claimed, however, that they were unable to make further contact with this man; that he lodged their applications without approval and without accurate information as to the reasons for seeking protection; and without providing the applicants with a copy of the applications, resulting in them being unaware of the contents.
The Tribunal finds the representative’s submissions problematic for the following reasons. The Tribunal considers that it is highly relevant to the applicant’s claim to fear serious harm should she return to Indonesia to query why the applicant delayed making a Protection visa application for nearly six years after arriving in Australia, where she had been unlawful for over five and a half years, and then, after having made an application, did not include accurate information regarding her circumstances, and did not take advantage of an opportunity given to her to seek an interview with the Department to discuss her claims to protection. The Tribunal read to the applicant the claims that had been included in her application form and queried her that these claims are very different to what she had told the Tribunal. The Tribunal commented that it found it difficult to understand why, if the things she had told the Tribunal had happened, they were not at least touched on in general terms in her application, and why it had taken so long for her to present her real claims. She replied that she was very deeply depressed. The applicant indicated that her sister arranged for ‘their friend’ to fill out the form. When queried why this person did not put in the story they told him she replied that he said just sign and he would help. The Tribunal queried the applicant that she speaks good English and asked why she didn’t take responsibility for ensuring her story was in her application, given she had been in Australia as an unlawful non-citizen for such a long time and might be expected to have a strong incentive to make sure that the application was completed correctly. She indicated that she was not in her right mind at the time so just followed whatever she was asked to do.
The applicant’s brother-in-law indicated that a [Country 3] ‘acquaintance’ he met at the supermarket filled out the forms and he just signed his. He indicated he paid $[amount] for the two applications (cases 1610170 and 1610172) and was given a completed form to sign. When asked whether he told this person his circumstances the applicant’s brother-in-law said he did, commenting that he told him about his story and why he had to run away and come to Australia. The Tribunal also read to the applicant’s brother-in-law the (identical) statements that had been included in his application. The Tribunal put to him that what was in the application is very different to what he had told the Tribunal at the hearing and what was in the submission which had been provided by the representative only late the previous afternoon, giving rise to significant concerns about the truthfulness of the account. The applicant’s brother-in-law responded that someone else completed the form and he was asked why he came to Australia. He said he explained he was fearful but said he did not mention [Country 1]. The Tribunal indicated that it accepted that the reference to [Country 1] was an error but indicated it found it difficult to understand why there were no references at all that related to the claimed ‘real story’ and why they had not sought to provide a correct account until the day before the hearing. The representative indicated that she had been ill for the previous two weeks and that the applicants (in both cases 1610170 and 1610172) had provided her with written submissions which she relied on in drafting her submission. She said she had emails which verify the dates these written submissions were provided to her (copies of these covering emails, which are dated [May] 2017, were subsequently provided to the Tribunal). Contrary to the representative’s later submission, however, the applicant’s brother-in-law said he explained his story to the person who completed the application and this person filled out the form for him. The applicant’s brother-in-law said he wanted to read it first and check but the [Country 3] man said don’t worry, that he had written what had been told to him, and told the applicant’s brother-in-law to sign where he indicated. The applicant’s brother-in-law commented that he then received advice from the Department advising that that they had been granted bridging visas but must not work and said he queried the [Country 3] man that he had told him he would be able to live in Australia and work but the visa he got said he must not work. The applicant’s brother-in-law said he told the [Country 3] man that he paid him $[number] and now cannot work. The applicant’s brother-in-law said the man got angry with him and told him to just wait and that after that, the applicant’s brother-in-law did not contact him anymore.
In relation to the delay in making the Protection visa applications the applicant’s brother-in-law said he had got the impression that only people involved in war could apply for a Protection visa. The Tribunal asked if he ever made inquiries through community networks where it might be expected that there would be some knowledge about Protection visas. He said when other Indonesians found out he was illegal they looked down on him, so he did not tell them. When asked if he ever looked on the internet, including on the Department website which has information about Protection visas, given he must have been fearful that he would be detained as an unlawful non-citizen, or speak to an immigration agent or someone who might be able to advise him regarding his immigration status, he replied that he had no idea about that and that he came to Australia just to hide.
The Tribunal found the evidence given by the applicant and her brother-in-law unconvincing. The account at the hearing by the applicant’s brother-in-law of his dealings with the [Country 3] man who he said completed the Protection visa applications is inconsistent with the later explanation in the representative’s submission of 20 June 2017. The Tribunal also notes that there was personal information in the applicant’s Protection visa application regarding her family composition, travel history, previous address, employment history and education, and that her current email address was stated as her contact address (and was used by the Department to correspond with her including to notify her of the delegate’s decision). Appended to this notification was a copy of the decision record (which included a summary of the claims included in her application), which the applicant subsequently provided to the Tribunal. The Tribunal finds that this undermines the applicant’s claims to have not played any role in the completion of her Protection visa application and to have been unaware of the claims included therein.
When asked by the Tribunal why she did not take the opportunity given to her by the Department to attend an interview the applicant said she did not receive the letter. The Tribunal commented that the letter usually also contains advice about going to an office of the Department to provide personal identifiers (finger prints and a facial image) and asked her if she did that. She confirmed that she attended the Department’s office to provide personal identifiers but indicated that she did not read and see the part of the letter about requesting an interview. She added that they thought the Department might call them. The Tribunal put to the applicant that given they had been in Australia as unlawful non-citizens for a long time it might be expected that they would have read letters sent to them by the Department very carefully. She did not respond. While the applicant initially stated that she did not receive any advice offering the opportunity to attend an interview, the Tribunal also considers that the applicant, who has good English language skills, would have received to her email address the advice from the Department referred to by the delegate that she could request an interview within seven days of receiving that advice. The Tribunal considers that the applicant could have taken the opportunity offered to her to contact the Department within seven days to request an interview to discuss her claims further. The Tribunal therefore does not accept the representative’s assertion that the applicant was ‘deprived of an interview’ by the delegate.
The Tribunal also considers that the extraordinary delay in seeking protection is a relevant consideration in this case. In this regard the Tribunal would expect that, if the applicant’s subsequent claims were true, she (along with her brother-in-law and sister) would have had very strong motivation to find out how they could regularise their status so they could remain in Australia. The applicants present as educated and intelligent people, the applicant’s sister has some English language skills and the applicant has good English language skills. The Tribunal considers that between the three of them they would have been able to search on the internet and identity asylum seeker support services and/or looked at the Department website which includes relevant information about making Protection visa applications, and would have lodged Protection visa applications much sooner than they did.
In reaching these conclusions the Tribunal has given consideration to the claims made by the applicant at the hearing that she was very deeply depressed at the time the Protection visa applications were completed. The representative indicated at the hearing that the applicant suffers from panic attacks and subsequently submitted the psychologist’s report dated [June] 2017 referred to above. This report indicates that the applicant was referred to Psychology services at [a Refugee Health Service] [in] September 2016 to assist with treating symptoms of depression and anxiety. The report states that she has been receiving psychological treatment primarily focusing on providing her with emotional support and practical cognitive-behavioural strategies to enable her to problem-solve and better cope with her ongoing psychosocial stressors. Based on the psychologist’s report the Tribunal accepts that the applicant has suffered symptoms of depression and anxiety, at least since 2016. The Tribunal accepts that this may have impacted on the extent and quality of her engagement in the process of making her Protection visa application but noting the role and support of her sister in this process, the Tribunal does not accept that the applicant was unaware of what was included in her application. At the hearing, while noting the representative’s advice regarding the applicant suffering panic attacks, and offering that breaks could be taken as and when needed, the Tribunal found the applicant was able to provide comprehensive evidence, in English, without requiring any breaks.
Failed business venture

The applicant’s brother-in-law claims that, after returning from [Country 2] in mid-2008, he decided to establish a [manufacturing] business in Jakarta because his brother-in-law (wife’s brother) worked for a [company] and advised him there were good opportunities in this area. He indicated that he set up a business in his two-bedroom home in Tangerang, clearing out the ground floor of the two-storey property to accommodate 25 employees and machinery. He indicated that that he, his wife, his child (born in [Country 2] on [date] 2008) and the applicant lived upstairs.
The applicant’s brother-in-law indicated the [goods] were sold to the company where his brother-in-law worked and that initially the business was very successful. He said that by September 2009 he wished to expand and sought business loans from several banks but was declined. He indicated that in October 2009 he saw an advertisement and decided to take a cash loan ‘with no requirements’ and no written loan agreement, from a private lender. He claims that one ‘specialist’ employee quit suddenly without any notice, fatally affecting the business because he was unable to find a replacement. He said this person was a supervisor who allocated work, undertook quality control of all products and was the only person who could handle all the machinery.
The Tribunal has significant concerns regarding the applicant’s brother-in-law’s account of this business, particularly that it was very successful initially (before he claimed to have borrowed money to expand it) but failed essentially because it was dependent on one person among 25 employees. The Tribunal finds it difficult to accept that in the year and a half of operation no-one else had been trained in, or had learned this person’s job, and that in a labour market the size of Indonesia’s the applicant’s brother-in-law was not able to find a replacement for this person, including by offering a very attractive salary. When queried, he indicated that he did not think of advertising for a replacement and just hoped that his brother-in-law, to whom he was supplying [goods], could find one for him. Notwithstanding these concerns, the Tribunal accepts that the applicant’s brother-in-law may have had a [manufacturing] business that failed and ceased operating in January 2009.
Claimed loan from [Mr D]
The Tribunal also has significant doubts that the applicant’s brother-in-law borrowed money from a loan shark named [Mr D] to finance the expansion of this business. The Protection visa applications state that money was borrowed from relatives. The representative’s submission of 1 June 2016 states that the applicant’s brother-in-law responded to a newspaper advertisement in October 2008 suggesting that cash loans were given without any complicated requirements but states that he did not suspect that these were ‘syndicate loan sharks’. The applicant’s brother-in-law indicated that the loan was provided without any written agreement, was at an effective interest rate of 10 per cent per month, with an initial interest and administrative fee of 10 per cent of the loan value. While he indicated that he did not seek any advice regarding the loan, including from a lawyer or from a business support organisation such as a chamber of commerce, the Tribunal finds it difficult to believe the applicant’s brother-in-law was so naïve as to not know that money borrowed in such circumstances, without any formal loan agreement, would be from an unlicensed money lender (or loan shark), and that he would not have obtained or retained some documentation (such as a copy of the receipt he claims he provided to [Mr D]) regarding the loan amount.
Notwithstanding these concerns, even if the Tribunal accepts that the applicant’s brother-in-law borrowed from a loan shark in October 2008, he indicated that he repaid the loan in full (indeed with extra costs) in January 2009. He stated that he received a receipt, in [Mr D]’s name, indicating that he had repaid the full amount requested by [Mr D] (IDR [amount]) in January 2009. He indicated that his problems began several months later, in May 2009, when [Mr D] rang him (following a call from a man named [Mr F] enquiring about his business and warning him to be careful) and began demanding more money and threatening him.
The Tribunal finds the accounts of what occurred from when the applicant’s brother-in-law claims [Mr D] called him after he repaid the loan until they departed Indonesia in March 2010 to be highly improbable. The motive offered for [Mr D]’s claimed actions is that he sees ethnic Chinese as ‘loaded’ and wants to fleece them. It is hard to accept, however, that [Mr D] would see the applicant’s brother-in-law as having capacity to pay a large extortion demand (finally an additional IDR [amount] over the IDR [amount] the applicant’s brother-in-law claimed to paid in January 2009) when, if the account is true, it would be clear to [Mr D] that the applicant’s brother-in-law, having needed to borrow from a loan shark to expand his business, had suffered a business failure and had been required to take an administrative job in a school (from February 2009). Given [Mr D] had been fully repaid it is difficult to see what logical motive [Mr D] would have for pursuing the applicant’s brother-in-law from May 2009 until they departed Indonesia in March 2010, and why he would continue to pursue the applicants (via the applicant’s father and sister-in-law) many years after they had departed Indonesia.
Claimed threats, harassment and violence from [Mr D] and his associates
The applicant’s brother-in-law claims that [Mr D] called him in May 2009 demanding more money, calling him ‘Chinese’ and threatening him that that if he did not comply incidents like 1998 might happen to the applicant – that he would be harmed and his wife raped (the submission of 1 June 2017 states that [Mr D] told the applicant’s brother-in-law he had one month to pay or [Mr D] would kidnap his daughter and sell her as well as ‘do something’ to his wife and sister-in-law). The Tribunal queried the applicant’s brother-in-law that the submission provided a day earlier indicated that [Mr D] called him not long after he started a new job in Bekasi in February 2009, rather than in May. He indicated the call was in May, just after he received a call from [Mr F]. The Tribunal asked him whether he had a receipt in [Mr D]’s name for the money paid. He said he did. The Tribunal asked him why he did not go to a lawyer to develop a case that he had paid in full. He replied that in Indonesia it was not common to go to a solicitor in such circumstances. He said he went to the police the next day because [Mr D] had threatened him. The applicant’s brother-in-law had indicated, however, that [Mr D] had also goaded him about going to the police, indicating that he had ‘many friends’ in the police force. The applicant’s brother-in-law said he did not take the receipt when he went to the police station, stating that he did not discuss repayment of the loan, only the threat received. When the Tribunal queried him why he would not have given the background to the threat he replied that he told the story and police responded that he should try to reconcile with [Mr D]. When the Tribunal again queried the applicant’s brother-in-law why he would not have explained what he had done and shown the receipt to indicate he had paid the debt in full, he referred to [Mr D]’s comment that he has friends in the police and said at that point he lost confidence in the justice system in Indonesia. Later in the hearing he said that when he first went to the police to report [Mr D]’s threat against him, the police asked him what the reason for the threat was and he told the police it was on the basis of an unpaid debt. The Tribunal found the account by the applicant’s brother-in-law unconvincing. Contrary to the submission of 1 June 2017, which stated he ‘alerted police on many occasions and was unsuccessful in gaining protection from the authorities’ he indicated he went to the local police on one occasion only (and claimed that his wife subsequently called police on one occasion), without taking the evidence which indicated that he had repaid the debt in full, told them [Mr D]’s threats were on the basis of an unpaid debt, and based on comments that he should try to reconcile with [Mr D], said he lost confidence in the entire judicial system in Indonesia. The Tribunal considers that in such (unusual) circumstances, the applicant’s brother-in-law could have and would have sought legal advice regarding how best to proceed to deal with any extortion attempts by [Mr D] and possibly corrupt police.
The applicant’s brother-in-law told the Tribunal that after he had been to the police following [Mr D]’s call in May 2009, he decided that his wife and sister-in-law should move from Tangerang and join him in the house he had been living in Bekasi since he got a job there in February 2009. He said this was in early June, within 1-2 weeks of [Mr D]’s call and him having gone to the police. He also indicated that [Mr D] sent people to his house in Tangerang to harass him and his family. The Tribunal found there were significant inconsistencies in the evidence given at the hearing by the applicant, her sister and her brother-in-law regarding [Mr D] having sent people to the house in Tangerang. The applicant told the Tribunal that she was living at the house in Tangerang with her sister and niece when her brother-in-law found a job in Bekasi and started residing there. Consistent with the written submissions provided on 1 June 2017, the applicant stated that ‘not long after’ her brother-in-law paid [Mr D] (via his assistant [Mr E]) in January 2009, [Mr D] called her brother-in-law asking for payment. She stated that after her brother-in-law went to the police, [Mr D]’s people started coming to the house, making insults and threats and knocking on the door. She commented that she had to make sure they were not there when she left for work, and that one time when she came home they were there and she was called ‘Chinese’ and told to tell ‘them’ to come out and pay. She said her sister had to hide, could not go out to get food, and they could only have one small light on at the back of the house at night. When the Tribunal asked her how long these people kept coming for, the applicant said they came for 3-4 months. Noting the comments in the submission that [Mr F] and then [Mr D] called the applicant’s brother-in-law ‘not long after’ he began his new job in Bekasi in February 2009, the Tribunal asked the applicant if this was from about March. She replied ‘yes’. The applicant said that the people who came got angry one day after her sister confronted them, and damaged the gate and some furniture in front of the house. She said they called the police but the police did not want to process the case and instead one officer ‘mockingly’ told them to pay their debt and said this is what happens when you make people upset. The applicant commented that she realised then it was because they are Chinese, adding that she had heard ‘them’ calling us ‘Chinese little eye pig bastard’ all her life.
The applicant’s brother-in-law, however, said [Mr D] started sending people to his house in Tangerang after [Mr D] rang him in May. He also indicated that he moved his family and sister-in-law to his rented house in Bekasi within 1-2 weeks of receiving [Mr D]’s call. He said the people came for 1-2 weeks from morning until late afternoon and usually only saw his sister-in-law going in and out. He said one day they saw his wife and started damaging property including the gate, fence and furniture in the front yard. The Tribunal put to the applicant’s brother-in-law that his sister-in-law had indicated that the people started coming in about March and kept coming for 3-4 months. He replied that he had limited knowledge as he was living in Bekasi. He said he thought it was 1-2 weeks but added that his wife and sister-in-law were rarely willing to talk about the problems. When queried why this would be the case he suggested they may have been worried he would become stressed. The Tribunal finds this explanation for the vastly different accounts to be unconvincing. The Tribunal does not accept that if these people were coming to the Tangerang residence prior to the applicant’s brother-in-law having received a call from [Mr D] in May 2009 the applicant’s brother-in-law would not have been told that by his wife and been aware of it. The Tribunal also does not accept that if the people had been coming for 3-4 months he could have formed the impression from what he was told by his wife and sister-in-law that they were only coming for the 1-2 weeks which he claimed elapsed after he received the call from [Mr D] before his family and sister-in-law moved to join him in Bekasi. When the Tribunal put the inconsistency in the accounts to all the applicants together the applicant’s sister commented that the ‘disturbance’ took a long time. In response to questioning regarding when the people first started coming to the residence in Tangerang the applicant’s sister said it was mid-May. She said they were turning up daily for a very long time. She said it was maybe approximately a month. When the Tribunal queried the applicant that she had said it was 3-4 months and her brother-in law that he had said it was 1-2 weeks, the applicant’s sister responded that her husband was not living there. When queried why she did not tell him what was happening she said she reported to him but not on a daily basis. The Tribunal found that the explanations offered do not resolve the significant inconsistencies in the three accounts given. The Tribunal concludes that people were not sent to the residence in Tangerang by [Mr D] to harass them. Accordingly, the Tribunal finds that the applicant’s sister did not call police and police did not attend the house in Tangerang in response to damage to the property by [Mr D]’s associates.
At the hearing the applicant’s brother-in-law stated that [Mr D] then sent someone to the applicant’s office. The applicant had told the Tribunal that after they moved to Bekasi it was peaceful for a time until 3-4 months later in August or September someone came to her workplace. She said a man cornered her in the parking lot, grabbed and touched her and said worse would happen if she did not tell him where her brother-in-law and sister were staying. She claims she was threatened that she should remember the Chinese girls who were raped and murdered. She said people kept coming back every day, harassing her in different ways, including standing looking at her from afar to let her know they were there. She said she was afraid to reveal where her sister and brother-in-law or her parents were living or to go there or contact them so she stayed where she was living in a boarding house. She said she still went to work as she had to support herself. She indicated that while she changed to a different boarding house because [Mr D]’s people subsequently came to the one she was staying at initially, she indicated that she continued to go to work until she resigned two weeks before she departed Indonesia to come to Australia on [date] March 2010. As discussed further below, the Tribunal found this account unconvincing, noting that if these people knew where the applicant worked and kept coming back to her workplace, they could have followed her home, assaulted or abducted her at any time if they wished to find out where her brother-in-law was, or wished to put pressure on him to pay more money, including when [Mr D] issued the claimed one month deadline for payment of IDR [amount], in November 2009.
The applicant said that near Christmas, during the Christmas holiday in 2009, they found her brother-in-law’s rented house. She added that her brother-in-law was knocked from his motorbike in November, suffering injuries to his back which still hurt now. She said her sister and brother-in-law packed and went to a relative’s house in Jepara. She indicated that she joined them when it was holiday time because everyone had gone on holiday and she could not stay in her boarding house by herself. She said [Mr D] called her brother-in-law’s brother-in-law in Jepara asking where her brother-in-law was, so they were asked to leave as he did not wish to get involved. She said they only stayed for two weeks until just after New Year when she returned to her boarding house. She said she still needed to work because she needed her wage and later commented that she also needed to continue to go to work to get a letter from her employer to support her visa application. She said her brother-in-law and sister immediately quit their jobs and went into hiding, staying in all kinds of hotels. She said she quit her job ‘the moment she got her visa’ and went to hide with them also. She indicated this was two weeks before they left Indonesia on [date] March 2010.
The applicant’s brother-in-law said they lived peacefully in Bekasi for a few months until November 2009 when [Mr D] called him telling him to repay the debt or the earlier threat would be carried out. He said he was now asked to repay IDR [amount]. He said [Mr D] wanted to meet with him at his office but he declined. He said [Mr D] sent people to the office and later he suffered an accident when someone followed him while he was riding his motorcycle home, came alongside and pushed him so he fell down. He said he was threatened that this was ‘only the start’.
The applicant’s brother-in-law said in mid-December he came home and was told by neighbours that a group of men had been loitering near the house. He said they decided to go to Jepara to hide with family but his brother said he did not want to get involved so they could only stay temporarily. He said they then moved from hotel to hotel in central Java and stayed in a hotel when they came to Jakarta to apply for their visas. He said while their visas were granted in January 2010 they remained in Indonesia until [date] March 2010 because his mother-in-law insisted they not leave without the applicant, who had problems with her passport.
In the submission of 20 June 2017 the representative comments that the applicant’s brother-in-law has suffered [serious injuries] since the ‘brutal beating’ he faced in Indonesia. As noted above, however, the applicant’s brother-in-law did not claim to have been beaten but indicated that someone pushed him off his motorcycle. The Tribunal does not accept that this claimed incident occurred. The medical reports submitted by the representative do not make any comment regarding the cause of the [injuries]. There is nothing in the reports to suggest these issues were caused by trauma, including a motorcycle accident. The Tribunal also notes that the applicant’s brother-in-law confirmed at the hearing that he travelled to [Country 3] and [Country 3] in late November (the applicant’s sister described this in her letter provided on [date] June 2017 as a company holiday). This ‘holiday’ travel seems inconsistent with the applicant’s brother-in-law in November 2009 having been told by [Mr D] that he had one month to provide IDR [amount] or the previous threats of grave harm to his family would be carried out, being harassed by [Mr D] and his associates, and being injured when pushed off his motorbike by [Mr D]’s associates. When queried regarding this at the hearing, the applicant’s brother-in-law said he went into hiding in mid-December 2009, after [Mr D]’s men came to his house in Bekasi. The Tribunal found this explanation unconvincing given the applicant’s brother-in-law claimed that following [Mr D]’s call in November 2009, [Mr D] asked to meet him at his workplace and was sending his men to his workplace, which if true, would have been very unsettling. The Tribunal also considers that if [Mr D] was seeking to find where the applicant’s brother-in-law was living, [Mr D]’s associates could easily have followed him home from his workplace and harassed/threatened him there rather than pull alongside him when he was on his way home, push him off his motorbike and threaten him, seemingly without finding out where he was living.

In this context the Tribunal also finds unconvincing the applicant’s evidence in relation to [Mr D]’s men having come to her workplace. She indicated in August or September 2009 that a man first came to her workplace in Jakarta, groped and threatened her that she could be raped and murdered if she did not tell them where her brother-in-law was. She said this man ran away when some people came but said he would be back. She commented that she did not contact or visit her brother-in-law or parents for fear she would reveal their address, and that after that people kept coming back every day and harassing her in different ways, including standing and watching her from afar. While she indicated she moved boarding houses because people came there looking for her and she was asked to leave when a housemate was threatened, she indicated that she did not leave her job and that she continued to work at the same place until she got her visa on [date] February 2010, two weeks before she departed Indonesia on [date] March 2010. This is despite the claimed demand from [Mr D] in November 2009 that her brother-in-law pay IDR [amount] in a month or [Mr D]’s previous threats, which included that she would be raped, would be carried out; and even though it is claimed her sister and brother-in-law had been in hiding, firstly in Jepara for two weeks from mid-December 2009 and then by moving from hotel to hotel in central Java and Jakarta, until they departed Indonesia on 5 March 2005.
When the applicant told the Tribunal she returned to her job in Jakarta after New Year as she still needed her wage, even though her sister and brother-in-law had gone into hiding (she said [Mr D] called her brother-in-law’s brother-in-law in Jepara asking where her brother- in-law was), the Tribunal queried her regarding why these people wouldn’t have come back to her workplace. She replied that they did. The Tribunal also queried the applicant why, given the threats and the significant level of harassment they were indicating was happening at this time, they delayed departing Indonesia for a further period of nearly two weeks after her visa was granted on [date] February 2010. She replied that they were waiting on tickets for a plane. Noting that passport stamps indicate that they travelled to Australia via [Country 3], the Tribunal asked the applicant why they couldn’t have waited in [Country 3]. She replied that [Country 3] is too expensive. The Tribunal considers that if [Mr D] had wanted to find the applicant he could have arranged for the applicant to be abducted by his men from her workplace or by following her home from her workplace over the period from when she claims she was first harassed and threatened at work in August or September 2009 until she quit her job after her visa was issued on [date] February 2010. The Tribunal also considers that the delay in departing Indonesia, given the applicant’s brother-in-law and his family members had their visas from [date] January 2010 and the applicant was granted her visa on [date] February 2010, is inconsistent with the claims to be in hiding due to fear of very serious harm from [Mr D]. In this regard the Tribunal notes the comment by the applicant’s brother-in-law that he and his family did not depart Indonesia in January because his mother-in law made him promise they would not leave without the applicant, because of the risk of her being harmed. It is difficult to see, however, how the applicant was being protected from risk of harm given the claim that her brother-in-law, sister and niece were in hiding, moving from hotel to hotel, while she remained at her workplace and boarding house until her visa was granted on [date] February 2010.
Considering all the above findings cumulatively, the Tribunal concludes that the applicant’s brother-in-law was not subjected to extortion or attempted extortion by a loan shark named [Mr D]. The Tribunal does not accept that the applicant’s brother-in-law was threatened by [Mr F] or [Mr D]. The Tribunal does not accept that [Mr D]’s associates came to the applicant’s brother-in-law’s house in Tangerang or his rented house in Bekasi. It follows, therefore, that the Tribunal does not accept that the applicant or her brother-in-law and/or his wife sought police assistance ‘on many occasions’ in relation to threats and harassment from [Mr D] but were denied it. The Tribunal does not accept that [Mr D]’s associates came to the applicant’s workplace or boarding house and threatened, groped and harassed her or threatened her housemates. The Tribunal does not accept that [Mr D]’s associates came to her brother-in-law’s workplace in Bekasi or pushed him from his motorbike. The Tribunal does not accept that [Mr D] rang her brother-in-law’s brother-in-law in Jepara inquiring about her brother-in-law’s whereabouts.
It follows therefore, that the Tribunal does not accept that following the applicant’s departure from Indonesia in March 2010, [Mr D] and/or his associates have called her brother-in-law’s sister inquiring about his whereabouts or have harassed and threatened the applicant’s father.
In reaching these findings the Tribunal has given careful consideration to the comments in the letter submitted by the applicant’s sister on [date] June 2017 indicating that they had re-established their lives in Bekasi and that they would not have left their lives, families and friends in Indonesia if they did not have any other option except to flee. The Tribunal has also considered the evidence given by the applicant at the hearing that she would not have left a very comfortable position at her work in Indonesia to come to Australia where she has no job or social life. While the Tribunal does not know the motivation of the applicant, her brother-in-law and her sister in coming to Australia, it is satisfied based on careful consideration of all the evidence presented that they did not leave Indonesia due to a real chance of suffering serious harm from a loan shark and/or his associates.
Discrimination and violence against ethnic Chinese Indonesians and Christians in Indonesia
The applicant has claimed to fear harm on the basis of her Chinese ethnicity. Articles have been provided regarding historical discrimination against ethnic Chinese Indonesians, the May 1998 riots in which some ethnic Chinese businesses were targeted, and blasphemy charges brought against ‘Ahok’, the ethnic Chinese Christian former governor of Jakarta.
In submissions the representative asserted that discrimination against ethnic Chinese Indonesians makes it extremely difficult for them to subsist, as well as to hide, and that as a small minority of the population who suffer discrimination it is plausible that the applicants’ ethnicity is linked to their fear of harm and that it is more probable that the applicants would be treated adversely in comparison to an ethnic Malay person. The applicants referred to anti-Chinese sentiment and slurs in their evidence and the applicant spoke of an incident when she was a child where she was molested by a man on a bus, but did not feel she could cry out or react because as an ethnic Chinese she had been told not to draw attention to herself. The applicant’s sister also commented in her letter submitted on 20 June 2017 that they were discriminated against because they are Chinese Christians.
In considering these claims the Tribunal has taken into account the following advice from DFAT in its most recent Country Information Report on Indonesia, discussed with the applicants at the hearing:[8]
[8] DFAT Country Information Report, Indonesia, 9 June 2015, sections 3.2-3.8 and 3.46-3.48.
·According to the 2010 census, there are 2.8 million ethnic Chinese living in Indonesia, accounting for 1.2 per cent of the total population.
·Historically, Chinese Indonesians have tended to wield economic clout beyond their numbers, and have been considered better educated and better connected to the political classes. These factors often led to resentment amongst some members of the broader Indonesian community.
·During the Suharto era (1967 – 1998), a range of policies restricted the rights of ethnic Chinese Indonesians: the Indonesian constitution stipulated that the President had to be a 'pribumi' (i.e. 'indigenous') Indonesian; Chinese Indonesians were pressured to adopt Indonesian names; and it was illegal to print material in Chinese characters. Many Chinese Indonesians went to great lengths to hide their ethnic identity, including for reasons relating to personal safety.
·Widespread riots in 1998 (leading up to the fall of Suharto) led to over 1,000 mostly ethnic Chinese being killed.
·Since 1998, the most discriminatory anti-Chinese aspects of Indonesian public policy have been dismantled. Chinese New Year is now celebrated as a national public holiday; Chinese cultural performances and language are encouraged; and the Constitution no longer differentiates between ethnic Chinese and 'indigenous' Indonesians.
·In 2014, former president Yudhoyono issued a regulation changing the word meaning "of Chinese descent" in Indonesian ("Cina" – a word holding negative connotations often associated with racial slurs) to "Tionghoa" and China - as a country - to "Tiongkok". The democratisation of Indonesia has also led to a more even distribution of wealth across a greater number of sectors in society, thereby reducing some of the economic profile once held by Chinese Indonesians. However, Chinese Indonesians are still disproportionally influential in the business sector.
·Chinese Indonesians are no longer prevented from holding public office but are still largely under-represented in government. However, there are some high profile exceptions. For example, in 2004, Marie Elka Pangestu became the first female Chinese Indonesian minister and Chinese Indonesian politician Yandi Chow is a public legislator in West Kalimantan. In November 2014 Basuki Tjahaja Purnama (an ethnic Chinese Christian popularly known as Ahok) was sworn in as Governor of Jakarta after holding the position of Deputy Governor to the then Governor Joko Widodo since 2012. Protests against him by the Front Pembela Islam (or the Islamic Defenders Front) focused specifically, however, on his Chinese and Christian descent.
·A BBC media report from 2005 stated that Indonesian Chinese were still unlikely to get a place at a state-run university, or join the army or police. DFAT assesses that the situation for Chinese Indonesians has improved markedly in the ten years since this article was published and that, broadly speaking, such discriminatory practices rarely still occur.
·DFAT assesses that Chinese Indonesians are at low risk of official discrimination although memories of the 1998 crisis have resulted in continued anxiety amongst some members of the Chinese community.
·Persistent historical bias against Chinese Indonesians may amount to occasional cases of prejudice resulting in a low level of societal discrimination.
·Christians make up approximately 10 per cent of Indonesia’s total population.
·Churches can face forced closures and protests by local hard-line groups who claim a mandate to prevent their construction and operation.
·DFAT assesses that Christians in Indonesia are generally at a low risk of official discrimination and violence and are generally able to practice their faith without interference owing to their officially recognised status. That said, DFAT observes that incidents of religious intolerance appear to be on the rise in Indonesia and members of Christian minorities can face a higher risk of societal discrimination and violence in regions where hard-line Muslim organisations are influential. DFAT assesses such incidents occur relatively infrequently in Indonesia.
The Tribunal considers that the DFAT advice indicates that, while some historical biases against ethnic Chinese Indonesians persist, the situation has improved since 1998 and ethnic Chinese are at low risk of official discrimination and, while occasional cases of prejudice persist, overall face low levels of societal discrimination. Similarly, while some incidents of intolerance occur from time to time, Christians are at low risk of official discrimination and violence and are generally able to practise their faith without interference.
In response to this information the applicant’s sister commented that there are many incidents against ethnic Chinese in Indonesia which are covered up and go unreported. She referred to the 1998 riots and the conviction and jailing of former Jakarta Governor Ahok on blasphemy charges. The applicant commented that their mindset is to live quietly and not make trouble, and recounted the anecdote discussed above where she was molested by a man on a bus when she was [age] years of age but remained silent for fear that responding might endanger herself and her mother, who was seated in front of her.
The Tribunal accepts that the applicant was molested on a bus when she was [age] but considers this an isolated incident and does not find that it indicates she faces a real chance of suffering serious harm due to her ethnicity and/or religion should she return to Indonesia. The Tribunal accepts that ethnic Chinese Indonesians were targeted in the 1998 riots and that over 1,000 people were murdered and that there are credible reports of rioters also committing rapes. The Tribunal finds that these events, terrible as they were, occurred twenty years ago in the context of a financial crisis and protests against the long standing Suharto government, and have not been repeated since that time.
While the Tribunal accepts that some instances of discrimination and harm of ethnic Chinese and Christians in Indonesia may not be reported, the Tribunal notes that DFAT reporting is based on DFAT’s on-the-ground knowledge and discussion with a wide range of sources, including credible open source reports as well as protected sources. The Tribunal considers that the DFAT reporting provides a credible and balanced assessment of the situation faced by ethnic Chinese and Christian Indonesians.
Noting that the applicant, her sister and her brother-in-law were all able to gain good employment in Indonesia, the applicant’s sister’s comments that they departed for safety rather than economic reasons, and the DFAT advice above regarding the better education levels and ‘economic clout’ of ethnic Chinese Indonesians, the Tribunal does not accept the representative’s assertion that discrimination is such in Indonesia that it is extremely difficult for ethnic Chinese Indonesians to subsist.
The Tribunal concludes that there is not a real chance that the applicant would suffer persecution involving serious harm from a loan shark and/or his associates or anyone else as a consequence of her Chinese ethnicity and/or her Christian religion or for any other reason set out in s.5J(1)(a) of the Act, should she return to Indonesia now or in the foreseeable future.
Police corruption and state protection
As the Tribunal does not accept that the applicant faces a real chance of suffering persecution involving serious harm from a loan shark and/or his associates or anyone else as a consequence of her Chinese ethnicity and/or her Christian religion or for any other reason set out in s.5J(1)(a) of the Act should she return to Indonesia, the Tribunal finds that the applicant does not require the protection of the Indonesian authorities. Notwithstanding this finding, the Tribunal also discussed with the applicant at the hearing DFAT advice that it assesses that public confidence in the police is generally low and corruption is endemic. DFAT advised, however, that members of the public can make complaints about the police to an internal disciplinary unit. DFAT also indicates that complaints can be made to the Ombudsman and in the case of very serious allegations to KOMPOLNAS (a semi-independent government advisory body which maintains oversight of the Police).[9]
[9] DFAT Country Information Report, Indonesia, 9 June 2015, sections 5.3-5.8.
Complementary protection criterion
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).
In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of her being removed from Australia to Indonesia, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[10]
[10] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
Considering the applicant’s individual circumstances and the relevant country information discussed above, and having regard to the findings of fact set out above, the Tribunal also finds that there are not 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 she will suffer significant harm as set out in s.36(2A), from a loan shark and/or his associates or anyone else due to her Chinese ethnicity and/or Christian religion, Police corruption, her distrust of the Indonesian Judiciary or for any other reason, should she be returned to Indonesia in the reasonably foreseeable future. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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).
Conclusions
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).
Having concluded that 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). Having regard to the findings of fact set out above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Paul Windsor
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)   the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)   without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)   the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)   a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)   significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)   a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)   any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)   protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2018] AATA 1211

31 March 2018

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