1611189 (Refugee)

[2021] AATA 730

1611189 (Refugee) [2021] AATA 730 (8 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1611189

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Melissa McAdam

DATE:8 February 2021

PLACE OF DECISION:  Sydney

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

Statement made on 08 February 2021 at 11:52am

CATCHWORDS

REFUGEE – protection visa – Indonesia – race – ethnic Chinese – former gang member – sought to resign from the gang – framed with drugs by former gang – delay in applying for protection – general criminal activity – Natural disasters – COVID-19 pandemic – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 22 July 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Indonesia, applied for the visa on 5 November 2015.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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 themselves 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).

6. 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.

7. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of 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

8. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   SUMMARY OF CLAIMS AND EVIDENCE

   Protection visa application

9. The applicant is [an age] year old man from Indonesia. The following is a summary of the claims and information he provided in his Protection visa application:

   a.He was born in Probolinggo in Indonesia.  He submitted a copy of his Indonesian passport issued in 2007 and his Indonesian Birth Certificate.  Only his mother’s name appears on the Birth Certificate. 

   b.He lived in Probolinggo, Java Timur (East Java) in Indonesia. He is ethnic Chinese and of Catholic religion. He has never been married or in a de facto relationship. His father lives in China and his mother and older brother live in Indonesia. He attended three years of university in Indonesia. He worked in his own business selling [products] in Indonesia.

   c.He left Indonesia because he was involved in gangsterism, [Mr A gang].  The gang’s activities included collecting protection fees and robbery.  He decided to leave the group but the gang did not allow this.  If he leaves the group will kill him. He was harmed by the gang.

   d.He came to Australia to look for a better life without fear and gangsterism.

   e.The [Mr A gang] are active all over Indonesia especially in the applicant’s area. If he returns to Indonesia the gang will kill him. He tried to move to another part of the country but the situation kept happening and the gang can find him so he will have to move again.

   f.He sought help but no one wants trouble with the gang. The authorities take bribes and can’t protect him.

   g.He departed Indonesia on his Indonesian passport [in] September 2010 and arrived in Australia on the same day on a Visitor visa, valid until December 2010.

   Departmental Interview, 03 June 2016

10. The following is a summary of the claims and information the applicant provided in his Departmental Interview:

    a.He has no family in Australia. In 2008 he applied for a visa to come to Australia work on a farm in Adelaide but his application was refused.

    b.He opened a small business in 2007.  In 2007 he started sales and marketing for his friend selling [specified products]. When he did not have money, he worked for the gang. He has a gang tattoo. 

    c.He joined a gang in 2005. He was with the gang until he went to jail in March 2009. In 2009 he was in jail. Gangsters framed him with drugs. They were giving him a warning because he wanted to leave them.

    d.The gangster put drugs in the applicant’s car. It was [ecstasy pills]. The applicant was put in jail for one year and a month. When he came out he was scared and stayed at his mother’s house. His mother helped him apply for a visa to Australia.

    e.He left Indonesia because the gangster was always looking for him. The gangster did not want to lose the applicant. The applicant made good money for the gangster.

    f.The gang leader was called [Mr A]. The gang was called the [Gang 1]. There were 200 people in the gang. The gang was based on Java Island and maybe in Jakarta. The applicant’s boss’ name was ‘[Mr B]’. He lived in Surabaya. The applicant lived sometimes in Surabaya and sometimes in Probolinggo.

    g.The applicant joined the gang because he did not have money.  He was looking for his friend who knew the gangsters. They drank beer together. His friend told the applicant that he could join the gang and his life would get better.  His friend threw a sex party and beer and drug party for the applicant. The friend’s name was [Mr C]. He lived in Probolinggo. He is still a gangster. The applicant has lost contact with him.

    h.The applicant would take security money from people and shops. He would take 10,000 rupiah or 5,000 rupiah. They would give the money because they are scared of the gangsters. The applicant would do this with 15 people.  He was just one of them, not the leader. The applicant would make about 50,000 everyday for the gang. He made about 10,000 rupiah for himself.  He did not make a lot of money. He had to share the money with other gang members.

    i.The applicant initially borrowed 2,000,000 rupiah from [Mr C]. Then [Mr C] introduced the applicant to [Mr B] and told the applicant he would have to work for the gang to pay back the 2,000,000 rupiah.

    j.The applicant wanted to stop working for the gang because he had a good safe business selling.  He told [Mr C] this and [Mr C] said the applicant could not leave because he gave the applicant a party and a good life and did not charge interest.  [Mr C] was not happy with the applicant.  [Mr C] framed the applicant with drugs. He gave the applicant the drugs in a car when the applicant wanted to go with an Indonesian girl, when he wanted to get happy with someone. He put his jacket somewhere and hurried to go to a party with his girlfriend.  Somebody called the police and the police caught him with the drugs in his front pocket. The applicant did not see anyone put the drugs in his front pocket.

    k.The police caught him on a Friday night when he was hurrying to the party with his girlfriend. The police stopped him and said his car hit a motorbike. They checked his body for drugs.  He was travelling to the party from his home. He does not know how people put the drugs in his clothes at his home.  The police hit the applicant on his face. The police searched his house.  After this the applicant was put in jail for a year and two months.  He then stayed with his mother at Surabaya and stayed at a secure house and applied for a visa to Australia.

    l.The applicant has a document from the jail showing his release from the jail. He was released from jail in April 2010 and lived with his mother in her house for seven months. He would just sleep and look after his mother. He had no contact with the gang during this time. They did not find him in Surabaya.  Surabaya is about 2 and ½ hours drive from Probolinggo.

    m.He came to Australia because he wanted to make a good life.

    n.The applicant’s brother supported their mother. He has two brothers. One is in [Country 1] and one runs a [business] in Surabaya.  He cannot talk about money with his brother. The applicant has a good relationship with his mother.

    o.The applicant does not want to go back to Indonesia. His house is in Probolinggo.  He is ethnic Chinese and there are racist people in Indonesia. If he wants to open a good business there can be a problem. The gang was a mixed Chinese and Indonesian gang.

    p.The gangsters will look for him if he returns to Indonesia.  They did not find him because he was staying at his mum’s house. But he was not working there. Even though six years had passed they would look for the applicant wherever he returns. He is important to the gang because they treated him well about his debt. He repaid his debt in full.  But if people help someone in Indonesia they don’t forget. They will be able to find him.

    q.The applicant has no money to move to another part of Indonesia.  He will have to look for work. He does not have a house in Jakarta. The delegate put to the applicant he was able to find work and arrange things, apply for a visa and learn a new language in Australia so he would be able to do so in Indonesia.  The applicant responded that he tried to find work in another place, but he is scared.

    r.The delegate put to the visa applicant that in his Visitor visa applications he stated that he worked for his mother and provided evidence of this. The applicant replied this was true but he had also joined the gang. In 2010 the applicant asked his mother for money to buy stuff. He worked for his mother. He would borrow money from her to buy stuff for his business.  He did work for his mum. He looked after a shop. This was from 2008 to 2009. At sometime the gangster went to the shop. His mother had a business. The applicant did not have a business of his own. He had a shop. He was a salesman for his friend selling [specified products]. The gangsters would come to his Mum’s shop and take money from him.  This was when the applicant was in the gang.  They would give him beer.

    s.He came to Australia in 2010 but waited five years to apply for a protection visa because he only just heard in the last year that Chinese people have got a protection visa. He was initially told that it would cost $10,000 or $20,000 to get a visa. He did not know it only cost $35. He did not speak English well then.  He did not go to a lawyer or migration agent or immigration office to find out how to try to stay in Australia. He just heard from his friend it would cost $10,000 and that it would depend how lucky he was how long he could stay. It cost the applicant $200 to apply for a Protection visa.  

    t.The applicant had problems as an ethnic Chinese person in Jakarta in the jail. The Indonesians would hit him because they did not like Chinese.

    Delegate’s Decision

11. The Delegate was not satisfied the treatment the applicant faced in jail, an as ethnic Chinese person, amounted to persecution.

12. The Delegate accepted that the applicant  may have been a gang member but could not conclude that he served his prison sentence as a result of drug possession which was framed by his former gang and that he continues to receive threat of harm from that gang.

13. The Delegate noted that the applicant could not explain why he thought a gang with 200 members would be able to find him if he relocates elsewhere. The Delegate considered that there were other areas of Indonesia that the applicant could safely and lawfully access and reside in to be beyond the reach of gang.

14. The Delegate considered that the applicant’s lengthy delay in applying for a Protection visa weighed strongly against the depth of his stated fear of being persecuted in his home country.

15. The Delegate found there was no evidence that the applicant would be unable to access the same level of legal protection from the authorities as any other Indonesian citizen.

16. The Delegate was not satisfied that the applicant had a well-founded fear of persecution in Indonesia, or that he was owed complementary protection.

    Information to the Tribunal

    Pre-Hearing Submissions

17. Since lodging his review application the applicant has submitted numerous messages and materials to the Tribunal. These messages and materials contain accounts of his situation in Australia and his dealings with various people and government bodies in Australia, as well as information about anti-ethnic Chinese sentiment and actions, and crime in Indonesia, and documents regarding his [Occupation 1] work, tax payments, and earnings in Australia.

18. On 8 October 2016 the applicant sent an email referring to country information but which also contained information related to his time in prison in Indonesia. In summary the applicant stated that when he wanted to resign from the gangsters in 2008 one of the gangsters was unhappy and framed him with drugs so the applicant was imprisoned.  When the applicant was interviewed by the police he told the police that [Mr B], the gangster leader, framed the applicant with drugs. The Indonesian police then captured [Mr B] (referred to again as the gangster leader) and put him in the same jail with the applicant.  [Mr B] was unhappy with the applicant so made friends with the other prisoners and told them the applicant put [Mr B] in jail. The applicant told the other prisoners that [Mr B] framed him with drugs. One day the prisoners who were [Mr B’s] friends fought with the applicant. The police then called the applicant and hit him and loosened or dislodged his teeth. [Mr B] is native Indonesian and his prisoner friends were native Indonesian while the applicant is ethnic Chinese. After he was released from prison he had to change his home.  He just stayed at home doing nothing but watching television and the Internet.  He was scared the gangster leader would be looking for him.  The gangsters are still looking for the applicant.  While in Australia a gangster sent a letter to the Australian Embassy.  After that the applicant’s mother received a letter from the Australian Embassy stating that the applicant had not returned to Indonesia so his mother could not now get an Australian visa.

    Tribunal Hearing, 02 November 2020

19. The applicant appeared before the Tribunal by video on 2 November 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages. The following is a summary of the information provided by the applicant at the hearing:

    a.The applicant confirmed that all the information in his visa application was correct and there was nothing he wished to add.

    b.He was born in Probolinggo, East Java. He lived in Probolinggo and Surabaya. In [year] he was in Jakarta, where he attended high school. In 2007 he lived for a year in Bali.  He had followed his gang there.

    c.He attended university in Surabaya in [year].  He studied [specified course].  He did not graduate because he was overwhelmed with work matters with friends.  His work was in sales of [products].

    d.Between 2001 and 2004/5 he worked at a retail store selling [different products].  After this he no longer worked as he joined the gang.  He joined the gang because Indonesia’s economy was not well and he needed the income. He has never worked for his mother.

    e.With the gang he was mostly extorting money from people.  He did not do any other work outside of the gang. On average he earned more than 50,000 rupiah every two days.  This is equivalent to about $5. It was enough to live on then.  He stayed in a boarding house and the gang paid his rent and for his food.  He stayed there for five years. This included short periods when he would go home to visit his mother two or three times a month because he did not want her to know he was in a gang.

    f.His mother has lived in Surabaya since 2009 with his eldest brother.  His mother is retired.  His eldest brother owns a company which makes [products]. His child is studying in [a named city]. The applicant’s other brother lives in [Country 1].  He is [an Occupation 2] and takes responsibility for their mother.

    g.The applicant’s father was from [another country]. He passed away in 1997. The applicant’s mother is ethnic Chinese. The applicant is in contact with his mother and brothers.  They are very good. His mother and elder brother have no problems in Indonesia.

    h.The applicant came to Australia with his mother. She only stayed for two weeks, as a holiday, because she could not afford to stay longer.  She later wanted to come back to Australia but she was blacklisted.

    i.He will die if he goes back to Indonesia because members of his former gang are looking for him to kill him.  The gang is very big.  He was also wanted by the police because he was sort of involved in a drug dealing case and they wanted him back in Indonesia.  He was not dealing the drug but was using the drug so the police wanted him for that.

    j.The gang want to find him and kill him because when he was in prison he reported some gang members and told the police they were the sellers of the drugs. The police and prisoners would hit the applicant.  The applicant reported this but because of corruption his reports did not go anywhere. He was hit so badly his tooth fell out. He reported this but there was no follow up and no response and as a result he was hit again. He therefore became very fearful.  When he was released he had to move around, almost every month.  Before he flew to Australia he did not go out of the house.

    k.The gang want to kill him because a gang member was charged with drug dealing and got 5 years imprisonment because the applicant named him to the police.  He wanted revenge. His name is [Mr B]. The applicant did not tell the department that [Mr B] was imprisoned because of the applicant’s information because the delegate did not ask him to explain in detail. The Delegate did not ask him in detail and did not question him about it.

    l.The applicant does not know where [Mr B] is now.  The applicant is scared to keep in contact with him.  [Mr B] was in the same prison as the applicant.  [Mr B] beat the applicant.  The prison police saw that but did not do anything. [Mr B] often beat the applicant in prison.  When they were first put in prison he was sentenced to 5 years and the applicant only got 1 year.  The applicant was arrested and one week later [Mr B] was arrested.  This was in 2009.

    m.The applicant was arrested because he was in possession of drugs. He told the prosecutor he was just a user so why put him in jail. The prosecutor said this in accordance with the law. The applicant found it hard to accept.  Indonesian law is very strange and corruption is very high. 

    n.The applicant was in Probolingo when he was arrested.  He was walking with his girlfriend.  He had drugs in his pocket.  He complained to the police officer that he was just a user.  The applicant told the police that [Mr B] had given him the drugs.  He told the police where [Mr B] hangs out and they arrested [Mr B] about one week later. He told the police about [Mr B] because he thought the police would shoot him in the leg if he did not. They intended to charge the applicant as a drug dealer.  They said if he is not a drug dealer then he should show them the dealer.

    o.[Mr B] was just an ordinary member of the gang like the applicant. There were about 200 members in the gang, in different locations.  The applicant was based in East Java and sometimes Central Java. The boarding house the applicant lived in was in Pasuruan, between Probolinggo and Surabaya. The applicant never met the gang leader because he was too low level. [Mr B] was a low level member too. The gang leader’s name is [Mr A]. 

    p.The Tribunal asked the applicant about ‘[Mr C]’.  The applicant could not recall ‘[Mr C]’ and asked where he would know of him.  The Tribunal told the applicant that he had mentioned ‘[Mr C]’ during his Protection visa application.  The applicant responded “Oh yeah” and that he must have forgotten, [Mr C] is one of [Mr B’s] friends, and a gang member.

    q.The applicant was threatened in Indonesia. [Mr B] said he would tell his friends to find the applicant after he was discharged from prison.  [Mr B] had beaten the applicant many times in prison. The applicant reported this to the prison guards but there was no response.  The applicant received threats from [Mr B] and from his friends.  The friends told the applicant to be careful as they will find and kill him after his release.  [Mr B’s] family said this too.  The friends and family said this to the applicant when they came to visit [Mr B] in the prison.  The gang members who visited got angry and asked why the applicant would tell the police about [Mr B].

    r.They want to kill the applicant because he only got one year’s prison whereas [Mr B] got five.  The family has to provide for a prisoner in Indonesian jails. They don’t understand why [Mr B] got a longer sentence than the applicant. The prison was in Probolinggo, far from Pasuaran.

    s.It was not enough for [Mr B] to just beat the applicant.  He did not kill the applicant in prison because the applicant was put in a room further away from him.  He had to pay 5,000,000 rupiah to the prison facility for this.

    t.[Mr B] beat the applicant only once but as a result his tooth became crooked inside and his face was blue.  So he was moved to another room, but he had to pay for that.    His brother in [Country 1] helped him with the money. The applicant had to bribe the guards 20,000 to 50,000 rupiah a day, and give cigarettes to the prisoners because he was the only ethnic Chinese person in prison.  This was to prevent him from being beaten.

    u.After he was released the applicant stayed at his mother’s house at first.  But then he had to move every month, to Jakarta and other places.  During this period he was not able to leave the house as he was scared.  He did not stay at his mother’s house because they were worried about his safety. They decided he would move to other places. 

    v.People can do what they want in Indonesia, criminally.  [Mr B’s] friends and family think [Mr B] has suffered because of the applicant. In 1998 Chinese people were disadvantaged and their stores burned and looted. Two years ago some churches were bombed.

    w.The applicant’s mother has been blacklisted by the Department which means someone informed on the applicant else how would the Department know.  The Tribunal put to the applicant how would the Department not know the applicant had overstayed in Australia given their records and monitoring.  The applicant responded that the Department did know but many people come and go to and from Australia and his mother received a letter so it seems someone reported him.  In 2019 a Malaysian national lived in Australia while his passport and ID card showed different numbers and the applicant reported him and received a letter of thanks from [the government].

    x.The Tribunal put to the applicant that he had written in his Protection visa application that he was in his home in Surabaya for the period before he left for Australia.  He responded that he thinks he already explained in 2016 that before he came to Australia he moved places.

    y.The Tribunal put to the applicant that he had been away for ten years so why would the gang still be interested in him. The applicant responded that they have a deep grudge.

    z.The Tribunal asked the applicant why he waited five years to apply for a Protection visa and he responded that when he first came an ‘agent type’ told him that if he wants to make a visa he had to pay $20,000 and there was no guarantee. The applicant had to pay 30,000,000 rupiah to an agent for his Visitor visa.  His mother provided the money. He applied for a Protection visa in 2015 because he saw that the conditions in Indonesia with criminality were getting worse.   He also observed there was an increasing number of Malaysians in Australia so he asked how they got visas to remain. He received information about Bridging visas and was told it was quite cheap.

    aa.The Tribunal put information from DFAT to the applicant that assesses former gang members to be at a low risk of violence. The applicant responded no, he is scared.  He is traumatised by what happened to him in prison and the torture he went through.  Sometimes he was beaten.  He had to bribe people and not everyday he would have that money, so the guards would just let him be beaten by other prisoners.  They would beat him mostly because he did not give them their portions so the guards would look the other way.  The prisoners would beat the applicant because they felt it was not fair [Mr B] got a 5 year sentence.  The applicant was the only ethnic Chinese in the prison.

    bb.The Tribunal put to the applicant that his mother and brother have not been bothered by the gang, which indicates the gang are not looking for him.  The applicant responded that he had to move places and rent a place on his own.  He had to live in the boarding house because he did not want his family to know. His mother never visited him while he was in prison.  Only his mother’s employee visited the applicant in jail.

    cc.That is the only problem the applicant has in Indonesia. Other potential problems are with the police because he is a former prisoner, already discharged.  Because it was a drug case the police may come after him and look for him.  When he was in prison he was involved in a drug situation but it was not him. Someone had to borrow his bank account and an investigator from regional police was trying to catch the drug dealer but could not find the evidence. The investigator said in front of the applicant just put the drug in the pocket of the dealer.

    dd.The two reasons the applicant does not want to return to Indonesia are because the gang members are still looking for him, and because the police would or may look for trouble with him because he is a former prisoner.

    ee.He cannot live in another part of Indonesia to avoid problems with the gang because in other regions, such as Aceh, there is no church; in Sumatra they are anti-Chinese people; and there are natural disasters on other islands, such as volcanoes and earthquakes.

    ff.There aren’t problems for him because he is ethnic Chinese.  Because he was part of a gang there slightly is a problem for him as an ethnic Chinese because native Indonesians will cross boundaries against him, and because he is a former prisoner even though just a drug user.  By native Indonesians he means [Mr B].

    gg.He works as [an Occupation 1] in Australia.

    hh.The COVID 19 pandemic is in Indonesia and many people are infected.  He thinks the Corona virus is dangerous for everyone anywhere.

    ii.First and foremost he doesn’t want to go to Indonesia because gang members are still looking for him for revenge. The second reason is because he is a former prisoner.  There is also corona virus and natural disasters in Indonesia.

    jj.The Tribunal asked if there were any indications that the gang members were still looking for the applicant. He responded yes, when he was released he had to move around. He flew to Australia and while here someone reported his situation to the Australian embassy in Jakarta which resulted in his mother being banned.  He suspects a gang member reported him.  Indonesian crime rates are increasing and anything can happen.

    kk.The Tribunal asked the applicant if he had consulted a doctor about his claimed trauma. He responded that he has been happy and living his life okay in Australia.

    Post Hearing Submission

1. On 7 November 2020 the applicant sent an email message to the Tribunal outlining the following:

   In Indonesia he was a gangster. Everyday his gang was always fighting with another gang.  He has tattoos which are the symbol of his gang.  So he has enemies from the other gang too.  The police are also his enemies because he was in jail with a drugs case so the Indonesian police are always looking for a problem.  He does not use drugs anymore but the Indonesian Police can catch him and put drugs in his pocket. When he was in jail he had another case about a drug dealer using his bank account for drugs transactions.  He heard a conversation between the Indonesian Police to put drugs in the pocket of the drugs dealer.  Indonesia laws are not good and there is high corruption.

   As a former gangster he is worried how he will the meet character criteria to become a permanent resident in Australia.  So he believes he must report important information about security in Australia to the Australian Department.

   He did not apply for a protection visa when he arrived because the agents explained he must pay $10,000 but this will still not warranty his application, or he can fake a marriage with an Australian woman which will cost $50,000.  Because it cost a lot of money he did not do either.

2. On 15 November 2020 the applicant submitted a link to a youtube video regarding the attempted rape and murder of a teenage girl by an Indonesia police brigadier. The applicant argues that shows he can be easily killed in Indonesia

3. On 22 and 29 November 2020 the applicant submitted links to reports regarding fires, murders, rapes, robberies and an earthquake in Indonesia, to the Tribunal.

4. On 30 November 2020 the applicant submitted information regarding his [Occupation 1] work in Sydney.

5. On 27 December 2020 the applicant submitted a copy of his new Indonesia passport issued [in] 2020.

   Country Information

6. DFAT’s most recent ‘Country Information Report on Indonesia’, published in January 2019, contains the following:

   RACE/NATIONALITY - Indonesia is one of the world’s most ethnically diverse countries. The government promotes racial and ethnic tolerance and legislation prohibiting racial discrimination and vilification has been in force since 2008. Article 28I (2), among other articles, of the Constitution states that every person shall have the right to be free from discriminatory treatment based upon any grounds whatsoever and shall have the right to protection from such treatment. … Overall, in spite of some problems discussed above [sic], Indonesia is a successful multi-ethnic society. Friendships and even marriages between people of different ethnicities are not uncommon. Inter-religious marriage can cause difficulties. Larger cities in particular are more ethnically mixed and people live and work side-by-side with their peers of different ethnicities.

   DFAT assesses that most Indonesians are unlikely to face official or societal discrimination on the grounds of race or ethnicity. Where clashes between different ethnic groups have occurred in recent times, they have often occurred along ethnic lines in areas with sizeable transmigrant populations. Disputes over land ownership and usage, perceptions of social and economic exclusion or cultural resentment have on occasion resulted in outbreaks of localised violence throughout the archipelago. DFAT assesses that, for the most part, Indonesian security authorities have effectively prevented such incidents and sought to resolve them quickly when they have occurred in recent years.

   Ethnically Chinese Indonesians - Successive waves of immigration to Indonesia from China over more than five centuries have resulted in an established ethnically Chinese Indonesian community throughout the country. The 2010 census recorded 2.8 million ethnic Chinese living in Indonesia, comprising 1.2 per cent of the population. This figure may understate the actual number, as some Indonesians of Chinese descent are reportedly reluctant to self-identify due to past tensions. Many Chinese Indonesians who trace their history in Indonesia for many generations may no longer identify as Chinese and many do not speak Chinese. About half of the ethnically Chinese population are Buddhist and about 42 per cent are Christian. Fewer than five per cent are Muslim, compared with over 87 per cent of Indonesians generally.

   The Suharto-era New Order regime implemented a range of measures that discriminated against Chinese-Indonesians. The law prohibited Chinese language newspapers, schools and cultural expressions, and many Chinese Indonesians were pressured to take Indonesian names. Some ethnic Chinese had difficulty obtaining citizenship and Chinese Indonesians were required to carry a document proving their Indonesian citizenship. As noted in Recent History, in May 1998 during the Asian financial crisis, rioters targeted the ethnic Chinese community due to their perceived wealth. As many as 1,000 Chinese Indonesians died in incidents related to the riots, women were raped, and businesses were burned or looted.

   Since the end of the New Order regime in 1998, successive governments have removed most official policy measures discriminating against ethnically Chinese Indonesians. Chinese New Year is celebrated as a national public holiday, Confucianism is an officially recognised religion, Chinese cultural performances and languages are accepted, and the Constitution no longer distinguishes between ethnic Chinese and ‘indigenous’ Indonesians, with barriers to citizenship removed. In 2014, then-President Yudhoyono issued a regulation changing the Indonesian word used to designate ‘of Chinese descent’ from one which was often associated with racial slurs. A number of Chinese Indonesians have held high office and work in a range of sectors, including the police, clergy and the business community.

   Some anti-Chinese sentiment remains at a societal level. Although many Chinese Indonesians are not wealthy, most of the country’s richest and most prominent businesspeople are ethnically Chinese Indonesian, which is a source of resentment for some non-Chinese Indonesians.

   … Anti-Chinese sentiment in Indonesia intersects with religious and economic issues. Islamic organisations blamed China for a supposed upsurge in communist sentiment, a politically sensitive subject, in mid-2016. Increased Chinese investment in Indonesia has also caused local critics to express concerns about imported Chinese labour and Chinese control over national assets.

   Small-scale local riots took place in a town in North Sumatra in 2016, following an allegation of blasphemy against a Chinese Indonesian woman. While the riots were ostensibly anti-Buddhist, most Indonesian Buddhists are ethnically Chinese and local media described the riots as anti-Chinese and stated that some Chinese families had fled the region. A number of youths were arrested, prosecuted and imprisoned in the wake of the riots.

   DFAT is aware of reports of Chinese Indonesians facing discrimination in relation to buying land in Yogyakarta. Yogyakarta is a special administrative region run as a sultanate, in which the sultan is also the governor. In March 2018, a regional court upheld a 1975 law that only allows ‘native Indonesians’, which has been construed to exclude ethnic Chinese, to own land in Yogyakarta.

   With the notable exception of the 2016 riots, which may have been partly motivated by racial tensions, anti-Chinese violence has been low since events in 1998. Although memories of the crisis have caused continued anxiety amongst many members of the Chinese Indonesian community, exacerbated by events such as the Ahok blasphemy trial and the 2016 riots, DFAT assesses that Chinese Indonesians currently face a low risk of violence. Persistent anti-Chinese sentiment may lead to low levels of societal discrimination.

   RELIGION - Article 28E (1) and (2) of the Constitution guarantees citizens the freedom to choose and practise the religion of their choice and the freedom to believe their faith; while Article 28I (1) includes freedom of religion as a human right that cannot be limited under any circumstances. Article 29 (1) and (2) stipulates that, while the state shall be based upon belief in One God, all persons are guaranteed the freedom of worship according to their own religion or belief. However, Article 28J (2) qualifies these protections by stipulating that, in exercising their rights and freedoms, every person has the duty to accept restrictions established by law. These restrictions are for the sole purposes of guaranteeing the recognition and respect of the rights and freedoms of others and of satisfying just demands based upon considerations of morality, religious values, security and public order in a democratic society.

   Indonesia is home to the world’s largest Muslim population: over 207 million Indonesians identified as Muslim in the 2010 census. … Indonesia’s government officially recognises only Islam, Catholicism, Protestantism, Buddhism, Hinduism, Confucianism (since 1999) and indigenous beliefs (‘aliran kepercayaan’ since 2017). ...

   Religious pluralism is an established part of modern Indonesia and a wide range of local and international sources consider that inter-faith tolerance remains strong. Local sources do, however, report an increase in localised instances of religious intolerance over the past decade, including threats from hard-line Islamist organisations.

   …

   Christians - Christianity is Indonesia’s second-largest religion after Islam. Approximately 24 million Indonesians listed their religion as Christian in the 2010 census. Protestants make up approximately 7 per cent of the total population and Catholics approximately 3 per cent of the total population. Christian communities exist in every province and Christianity is the majority religion some of the eastern provinces including the Papua provinces and North Sulawesi. East Nusa Tenggara, especially the island of Flores, is majority Catholic. About a million Christians lived in Jakarta at the time of the last census. A large number of Protestant churches operate in Indonesia including mainstream Protestants (especially those related to Lutheran denominations) and evangelical and Pentecostal churches as well as non-denominational independent churches.

   Christians are generally able to practise their faith freely throughout Indonesia. High-level inter-denominational and inter-faith dialogues, especially between Muslims and Christians and between Catholics and Protestants, occur regularly. Christians residing in some areas, particularly where hard-line Islamist groups are more influential (such as Aceh, and parts of East and West Java) have occasionally been prevented from worshipping, including through forced church closures and the disruption of church services, however this violence and discrimination appears to be localised.

   A small number of recent terrorist attacks have targeted Christians, although most recent terrorism events have targeted state institutions, especially police. The May 2018 Surabaya suicide bombings affected Catholic, mainstream Protestant and Pentecostal communities. Several churchgoers and a priest were injured in a sword attack on a Catholic church in Yogyakarta in February 2018, in which the perpetrator hacked at statues of Jesus and Mary before being shot by police.

   Christian communities have remained resilient in spite of recent violence and church attendance has not fallen as a result. Security at churches increased briefly after the May attacks and police provide extra protection at major festivals such as Christmas and Easter. Some Muslim groups also volunteer to assist or provide security at events and festivals.

   Conversion to and from Christianity is common. Some bureaucratic difficulties can be encountered in registering a change in religion with the government, but this is not a significant barrier to conversion, which commonly occurs without difficulty. Some Pentecostal Christians are involved in door-to-door evangelical activities, which have been known to upset religious sensitivities. Preaching by foreign missionaries is unlawful, but the US State Department reports that many foreign missionaries preach without official sanction.

   Christians do not generally experience discrimination in gaining access to health care, education or employment.

   DFAT assesses that Christians residing in areas where they are a majority do not face either official or societal discrimination. Christians residing in areas where conservative Islam is prevalent face a low risk of societal discrimination in the form of impediments to worship, although this risk is unlikely to include violence. DFAT assesses that Christians face a low risk of terrorism in spite of recent exceptional events.

   …

   Criminals and Victims of Loan Sharks

   Police shootings of drug suspects rose in 2017-2018. This followed a directive by President Widodo in July 2017 to act firmly and shoot drug traffickers, particularly those resisting arrest. Police reportedly shot at over 50 alleged drug users or sellers for resisting arrest in lead up to the 2018 Asian Games, killing 11 people. Drug charges, including against users not involved in trafficking, can attract the death penalty. People accused of drug offences may have difficulty obtaining legal services because lawyers are unwilling to take on their case.

   The Law on Human Rights (1999) and the Penal Code both prevent double jeopardy. DFAT is not aware of examples of breaches of double jeopardy.

   Gangs are known to exist in Indonesia. Preman, a colloquial term meaning ‘thug’, are also widely reported. These gangs may be ostensibly ethnically or faith-based, however rules around ethnicity and religious affiliation are not necessarily strictly adhered to. Other gangs can include bikie gangs and organised criminals involved in drugs. Although reliable crime statistics are unavailable, local sources say gangs tend to be smaller in scale than they once were and that their size and influence has decreased in the last ten years. … DFAT assesses that former gang members have a low risk of violence; gangs are unlikely to have the resources to pursue a former member, particularly outside of their area of activity. The response of police to victims of gang violence would not be different to other victims of crime or criminals.

   …

   Arbitrary Arrest and Detention - Indonesian law prohibits arbitrary arrest and detention. Under the Criminal Procedure Law (1981), police are required to charge suspects accused of non-terrorism offences within 24 hours of arrest, but orders can be made for further periods of detention. International and local human rights groups report that arbitrary arrests occur regularly. The government’s ‘tough on crime’ approach often rewards police both socially and institutionally for high arrest and conviction rates. DFAT assesses that, although the principle of the presumption of innocence is enshrined in law, its application within the criminal justice system and acceptance by the community at large is still weak.

   …

   Police - The Indonesian National Police (INP) has more than 400,000 police officers and civilian employees (including 13,000 women), deployed to 32 regional police forces across the archipelago. … Many religious and ethnic minorities serve in the police. Chinese Indonesians and Christians, particularly Catholics, serve in both the national police and the military. … A semi-independent government advisory body (KOMPOLNAS) maintains oversight of the INP and acts as an alternative advisor to the president on policing matters. KOMPOLNAS has limited investigative powers and can recommend (but not order) follow-up actions.

   The INP does not enjoy the same high public esteem as the TNI: a 2013 poll by Transparency International found that the police ranked as the least trusted public body in Indonesia. Professionalism varies across the police. Shortages of equipment, a lack of training, a low investigative capacity, and corruption limit the effectiveness of the police. Reports of police abuses are common, including unnecessary or excessive use of force while dispersing protests and the abuse of suspects in detention.

   … Human rights organisations claim police are rarely held to account for abuses. While police can be tried under criminal jurisdiction, impartial criminal investigations into police actions are uncommon. The usual practice is for police to conduct their own investigation, which often results in minor disciplinary actions. Such actions, usually against junior or mid-ranking officers, include short periods of detention, demotions and deferral of training opportunities. Details of investigations, court proceedings and verdicts are rarely made public.

   …

   Detention and Prison

   The Directorate General of Corrections administers Indonesian prisons. According to the World Prison Brief and information published by the Directorate General of Corrections, Indonesia had a prison population of 249,419 as of May 2018, detained in 464 facilities (2016 number) throughout the country. In May 2018, 34 per cent of those in prison were pre-trial or remand detainees. … In general, Indonesian prisons do not meet international standards because of overcrowding, poor sanitary conditions, and inadequate treatment programs. Prison riots and protests over lack of services have led to jailbreaks on multiple occasions. Food provided is basic and malnutrition is common. Health issues are widespread, particularly skin ailments and upper respiratory infection diseases. Drug networks, criminal syndicates and terrorist recruiters reportedly operate with relative impunity in many prisons. Prisoners with access to money are able to procure special privileges, including better accommodation, entertainment and food.

   …

   INTERNAL RELOCATION - Indonesian citizens are legally able to move and reside freely within all territories of the Republic of Indonesia, and Indonesians can and do relocate for a variety of reasons. Major cities, particularly Jakarta, offer Indonesians greater opportunities for employment. Presidential Decree No.25 (2008), based on Law No.23 (2006) requires Indonesian citizens who relocate within Indonesia to register with the relevant local authority within one year of relocation. Registration information is passed to higher authorities. DFAT assesses that practical factors such as income and lack of family connections are the primary obstacles preventing an Indonesian from relocating within the country, rather than concerns over religion or ethnicity.

7. A November 2014 journal article “Youth Gangs and Streets in Surabaya, East Java: Growth, Movement and Places in the Context of Urban Transformations”[1], states:

   Within their territory, youth gangs attempt to regulate the flow of wealth, goods and work opportunities. Ideally, all business opportunities should fall under their supervision: gangs extract fees from traders and offer protection from thieves and intruders in return; they collect information about prospective short-term or long-term work opportunities in the formal and informal market; they also monitor the sale of illegal substances and stolen goods. Gangs also manage to raise money by imposing a payment on those who cross their territory—city dwellers who enter the neighborhood to look for inexpensive labor or mi­grants from the surrounding rural areas who travel from one place to an­other looking for accommodation and a job.

   … There are two notions that are associated with gang membership. The first is the notion of discipline (disiplin), which refers to the existence of a code of apprenticeship and behavior among gang members; the second is the no­tion of physical invulnerability (ilmu kebal). To be a gang member means to embrace a set of norms of conduct and to acquire specific corporeal abilities. These two elements are connected to one another.

   The idea of discipline is inculcated in new members as soon as they be­come part of the group and presupposes that an initiate must understand the place he occupies within the gang. Not all members are equal, despite a diffused sense of solidarity and the sentiment that relations among mem­bers should be harmonic. …  Hierarchies and statuses, moreover, are reworked and adjusted on a daily basis, and gang members see their influence oscillate as they compete with one another to show slickness in the attempt to make a living (to be cerdik, clever, ingenious). Indeed, they place strong emphasis on the apti­tude to generate money, income and to gain possession of stolen goods. …

   … In kampung Malang, youth gangs usually occupy small barracks, shacks, and abandoned homes. These squat settlements are scat­tered all over the neighborhood and symbolize the possession of a specific territory. In fact, they are considered as the “headquarters” of the gang and are usually the place where gang members aggregate to hang out during the day. …

   …  there is an inherent element of ambiguity that seems to characterize the notion of invulnerability as intended here by these youths. As implied by numerous gang members, because a gang’s configuration might change a great deal over a short period of time, and gang members might jump in and out from one gang to another, it is not always easy to trust an initiate’s commitment to the group.

   [1]  Alcana, M., 2014,  “Youth Gangs and Streets in Surabaya, East Java: Growth, Movement and Places in the Context of Urban Transformations”, November.

1. The 2019 US DOS Human Rights Report for Indonesia contains the following regarding prison conditions in Indonesia:

   Conditions in the country’s 522 prisons and detention centers were often harsh and sometimes life threatening, due especially to overcrowding. … Overcrowded prisons faced hygiene and ventilation problems, which worsened living conditions of convicts.

   … NGOs noted authorities sometimes did not provide prisoners adequate medical care. Human rights activists attributed this to a lack of resources. International and local NGOs reported that in some cases prisoners did not have ready access to clean drinking water. There were widespread reports the government did not supply sufficient food to prisoners, and family members often brought food to supplement their relatives’ diets.

   Guards in detention facilities and prisons regularly extorted money from inmates, and prisoners reported guards physically abused them. Inmates often bribed or paid corrections officers for favors, food, telephones, or narcotics. The use and production of illicit drugs in prisons were serious problems, with some drug networks basing operations out of prisons.

   CONSIDERATION OF CLAIMS AND EVIDENCE

2. The applicant submitted his Indonesian passport. On the basis of this document and the applicant’s oral evidence the Tribunal is satisfied he is a citizen of Indonesia. The Tribunal assesses the applicant’s claims against Indonesia as his country of nationality and receiving country.

3. The applicant claims to fear harm in Indonesia arising from his past as a criminal gang member and his time in prison.  He claims to fear harm from his former gang members, police, and another gang if he returns to Indonesia.

4. The applicant also claims that as an ethnic Chinese person he may have difficulty opening a business in Indonesia. Further, in prison he has been hit by native Indonesians because he is ethnic Chinese.

   Credibility

5. The Tribunal accepts the applicant is ethnic Chinese and Catholic.

6. The Tribunal found the applicant credible regarding the core aspect of his claims that he was a gang member in Indonesia. However most other aspects related to his gang membership and problems with the gang contained substantial inconsistencies.  The Tribunal notes that his oral evidence was markedly different from, and much more extensive than, his initial written Protection visa application, despite the applicant confirming at his Tribunal hearing that all the information in his visa application was correct and there was nothing he wished to add.

   Work in Indonesia

7. The applicant provided a variety of conflicting responses regarding his work and career in Indonesia.  In his written application he stated that he opened a small retail business in 2007. In his oral evidence to the Department the applicant stated that he worked for his mother’s business. He later contradicted this, saying he would borrow money from his mother to buy things for his business.  Then he again stated he actually did work for his mother and looked after her shop, stating that it was his mother who had a business and that he did not have a business of his own. Then he stated he did have a shop or worked in a shop for a friend.  Later he stated he worked at his mother’s shop and the gangsters would visit the shop and take money from him. Finally he stated that he has never worked for his mother and while he was with the gang he never did work outside of the gang.

8. In view of the applicant’s constantly changing responses the Tribunal is not satisfied that the applicant had a business or shop, or worked for a business or shop, while he was a gang member.

   Gang Membership

9. The applicant has consistently maintained that he was a member of a criminal gang for several years in Indonesia.  He was able to explain why he joined the gang, what his role and duties were in the gang, how he was accommodated by the gang, and how he was able to support himself through the percentage of moneys he earned through extortion and robbery.

10. On the basis of his satisfactory oral evidence regarding this aspect of his claim, the Tribunal accepts the applicant was a member of a criminal gang in Indonesia from 2005 up until the time he was imprisoned in March 2009.

    Imprisonment

11. The applicant did not mention his 2009 conviction and imprisonment in his written Protection visa application.  Further, in his character declaration in the visa application form he ticked ‘No’ to the questions regarding whether he had been charged or convicted of any offence in any country.  However since then the applicant has provided official documentary evidence and reasonably consistent oral evidence that he was arrested for possessing drugs in early 2009, convicted and imprisoned in March 2009, and spent just over a year in prison before being released in April 2010.  The Tribunal accepts this occurred.

12. The applicant’s evidence regarding the possession of the drugs that were found upon him was quite inconsistent and confused. Initially he stated that the gangster leader framed him with drugs to warn him not to leave the gang. The Tribunal does not see any sense in this statement given framing the applicant would lead to his arrest and likely imprisonment which goes against the gang’s stated wish for the applicant not to leave the gang.  The applicant stated at another time that the gang did not want to permit him to leave because they had treated him well over a loan he had eventually repaid to them.  The Tribunal considers that even if the gang felt that the applicant was obligated to them because of the favourable terms of a loan and its repayment this would not be a reason to have him imprisoned.  When the applicant spoke of the gang planting the drugs upon him he was unable to clearly or sensibly describe when or how or where this occurred, and provided varying contradicting statements as to how the drugs were found on him. Then before the Tribunal the applicant spoke of having the drugs on him because he was using the drugs.  He complained that he was just a drug user so should not have received such a harsh penalty. The circumstances he described that led to his arrest for possession of drugs were also significantly at odds with his previous evidence.

    In view of the highly contradictory information provided by the applicant the Tribunal does not accept that a member or leader of the applicant’s gang planted drugs upon him.

    Threats and Problems from the Gang

13. The applicant’s evidence about the problems he had from his former gang was confused and contradictory.  In his written Protection visa application he stated that he was being threatened by the gang because he wished to leave it and they would not allow him to leave. He stated the gang would kill him if he left it.  He described the gang trying to find him in Indonesia because he left the gang.  However in his later evidence to the Department the applicant referred to another gang member being unhappy at the applicant’s intention to leave the gang and framing him with drugs, which led to his imprisonment.  In his oral evidence to the Tribunal the applicant did not mention wanting to leave the gang or triggering threats from them because he wanted to leave. Instead he focussed upon problems arising from informing on another gang member.

14. The applicant’s evidence about the main protagonists in his claims related to his gang membership was also very inconsistent.  Initially he repeatedly spoke of a friend who was a gang member, ‘[Mr C]’, as the one who introduced the applicant to the gang and then turned on the applicant because the applicant wanted to leave the gang.   However at his Tribunal hearing the applicant did not refer to [Mr C] or recall any person named [Mr C] until the Tribunal remined the applicant of his previous evidence.  The applicant then stated he did recall ‘[Mr C]’ but described him as a friend of another gang member with no other particular significance.

15. The applicant also gave varying descriptions of the gang member ‘[Mr B]’, initially describing him as the applicant’s boss in the gang but having no other stated role in the applicant’s problems with the gang.  However at his Tribunal hearing the applicant’s evidence changed substantially with [Mr B] being just an ordinary member of the gang similar to the applicant, and being the source of the threats and problems for the applicant.

16. To the Tribunal the applicant raised for the first time that he had told the police that Mr B] was the person who gave the applicant the drugs found upon him. As a result [Mr B] was charged and received a 5 year prison sentence.  Due to the applicant’s informing on [Mr B], [Mr B] and the other gang members want revenge on the applicant and have beaten him and want to kill him.  When the Tribunal asked the applicant why he had not mentioned any of this before the applicant merely stated he was not asked. Given this information is the actual purported source of the applicant’s problems and fears in Indonesia the Tribunal does not accept that he would overlook to mention it at the earliest opportunity if it was true.  Further, the details the applicant provided about the problems [Mr B] caused him in the prison were vague and contradictory. He twice spoke of being beaten often by [Mr B] but then stated it was only once. He spoke of other gang members beating him in the prison but then stated it was other prisoners because he had not shared anything with them or the prison authorities.

17. The Tribunal found the applicant’s evidence about problems with a gang member or leader called [Mr B] significantly lacking in coherence and consistency.  In view of his late raising of the claim and the overall poor quality of his evidence the Tribunal does not accept that the applicant had a problem with [Mr B] or any other gang member because he had informed upon [Mr B] to the police.

18. The Tribunal considers the different versions of the applicant’s claimed past interactions with the gang and various gang members gives rise to substantial uncertainty about what if any problems he had with the gang. Given the applicant’s inability to present a reasonably clear and consistent account of the central elements about what happened in Indonesia to cause him to seek protection in Australia the Tribunal cannot be satisfied that anything related to his gang membership did occur to cause him to be harmed or fearful for his safety in Indonesia.  The Tribunal therefore does not accept that other gang members harmed, threatened or wanted to harm the applicant in Indonesia, for any reason.

    Assaults and Threats in Prison

19. The applicant claims that while he was in prison he was hit at times by the prison police and other prisoners.  Through the payment of bribes he was able to obtain some protection.

20. The country information referred to above supports the applicant’s claims regarding prison conditions and the treatment of prisoners in Indonesia.  The Tribunal accepts that while in prison the applicant was hit by guards and/or other prisoners and needed to pay bribes to avoid such treatment.

    Problems with Police and further drug related investigations while in prison

21. During his Tribunal hearing the applicant raised a further claim that he fears the police because of indirect involvement in a drug related matter while he was in prison.  His account was somewhat vague but appears to amount to his bank account being used by a drug dealer and the police wanting to plant drugs on the drug dealer to arrest him.  There appears to have been no actual recriminations for the applicant himself arising out of this matter.

22. While his statements lack complete clarity, there is no indication that the applicant was fabricating this information. The Tribunal therefore gives him the benefit of the doubt that while he was in prison a person dealing drugs used the applicant’s bank account and the police discussed planting drugs on the person to apprehend him.

    Release from Prison

23. The applicant gave several different accounts of what he did in the seven months or so after his release from prison. He has variously stated he stayed at his mother’s house while she helped him get a visa to Australia; he tried to move to another part of Indonesia but the “situation kept happening”; he stayed all the months at his mother’s house in Surabaya and would just sleep and look after his mother with no contact from the gang; the gangsters did not find him because he was staying at his mother’s house and not working; he had to move around almost every month; he stayed at his mother’s house at first but then had to move every month, to Jakarta and other places; he was not able to leave his house as he was scared; he did not stay at his mother’s house because she and he were worried about his safety so they decided he would move to other places; and that before he came to Australia he moved places.

24. Given their contradictory nature the applicant’s statements and responses can’t all be true.  The applicant was most clear in reference to remaining at his mother’s house for the period between his prison release and his travel to Australia.   Further, given the Tribunal’s finding above that he was not being threatened by the gang there would be no apparent need for the applicant to move around every month.  The Tribunal therefore finds his evidence that he remained at his mother’s in the months following his release the more reliable account and accepts this is what happened.  The Tribunal finds that during his time at his mother’s he did not experience any approaches or adverse attention from his former gang.

    Fear of Harm in Indonesia

25. The Tribunal has accepted that the applicant is ethnic Chinese and Catholic; he was formerly in a criminal gang in Indonesia for several years; he was arrested, convicted and imprisoned for approximately 13 months for possession of drugs in 2009/2010; he was hit by prison guards and other prisoners while in prison; his bank account was used by a drug dealer when the applicant was in prison; and he lived with his mother following his release from prison.

26. The Tribunal notes that the applicant remained in Australia for five years before applying for a Protection visa.  When asked why he waited so long to apply for protection he responded that he thought it would be too expensive to apply, as an Agent or someone else advised him that it would cost up to $20,000.  He added that he waited until 2015 because he observed that criminality was getting worse in Indonesia.  It wasn’t until he learned it was quite inexpensive to apply for a Protection visa that he then applied.

27. The Tribunal notes he chose to remain in Australia after his mother returned to Indonesia and after his three month Visitor visa expired, without applying for another visa until 2015. He therefore remained in Australia unlawfully for almost five years making himself susceptible to detention and deportation.  

28. The Tribunal considers that if the applicant had a genuine fear of persecution or significant harm in Indonesia he would have made more and earlier efforts to ascertain the actual cost and process for applying for protection in Australia so that he was not at risk of deportation back to Indonesia and more importantly so that could obtain Australia’s protection.  That he did not do so undermines the applicant’s claim to subjectively fear harm in Indonesia.

    Fear of former Gang members

29. The Tribunal has not accepted that the applicant was harmed or threatened by any other member of his gang in Indonesia.  However it accepts that he was a gang member. 

30. The Tribunal notes that after his release from prison the applicant lived with his mother in Surabaya and did not experience any adverse attention from his former gang.

31. The applicant stated to the Department delegate that he had been attacked by some people he knew in Australia. He did not indicate it was connected to his former gang membership and did not pursue the matter before the Tribunal.  When the Tribunal asked him if anything had happened to indicate his former gang continued to have any interest in him he responded only that his mother had been blacklisted by the Department of Immigration in Australia. He believed a member of his former gang reported his mother to Immigration.  The Tribunal accepts that the applicant’s mother has been unfavourably flagged by the Department as a result of the applicant overstaying his Visitor visa in Australia, given she initially accompanied him to Australia and helped him with his Visitor visa application.  However the Tribunal cannot discern any link between this and an action of a gang member, nor could the applicant explain one.  He merely asked how otherwise would the Department know about her.  But as put to the applicant the Department has records of people’s visas and movements so would possess the knowledge independently. The Tribunal does not see the imposition of a restrictive flag on the applicant’s mother’s immigration record by the Department, as any indication that the applicant’s former gang has any ongoing interest in him.  On the information before it the Tribunal is not satisfied that the applicant’s former gang has shown any interest in the applicant or acted against him since he left Indonesia.

32. The Tribunal also notes that it has been over ten years since the applicant was last in Indonesia. The Tribunal considers that the passage of this time greatly reduces any possibility that the gang would have maintained any interest in the applicant to one that is remote.  Over that time gang members would inevitably have come and gone and there is no reason that the gang, if it still exists, would care about an ordinary low level member who last worked for them over ten years ago.

33. The applicant also confirmed that his mother and brother continue to live in Indonesia without problem there.  The lack of interest shown in them further underscores that the applicant’s former gang have no interest in him.

34. Finally, DFAT, in its latest country information report, assesses that former gang members have a low risk of violence and that gangs are unlikely to have the resources to pursue a former member, particularly outside of their area of activity. 

35. In view of the above information and reasoning the Tribunal is not satisfied that there is a real chance the applicant’s former gang will have any adverse interest in the applicant or will try to cause him serious or significant harm in Indonesia.

    Fear of another gang

36. In his last written submission the applicant raised a claim that he has enemies within a gang which had fought against his former gang. He has gang tattoos so will identifiable to the other gang upon return.  He did not provide any further detail of why or how the other gang would harm him in Indonesia.

37. Given the applicant was a low-level member of his former gang, has not been with the gang since early 2009, and has been outside Indonesia for over ten years, the Tribunal can see no reason why another gang would now want to harm the applicant.  There is no indication from the applicant that he wants to, or would, re-join his former gang.  Given the lack of any evidence the applicant would be engaging in gang activities, frequenting gang territories or associating with his former gang there is no indication that he would present any threat at all to another gang in Indonesia if he returns there.

38. The Tribunal is therefore not satisfied there is a real chance that another gang, including any gang which fought with the applicant’s former gang, will cause the applicant serious or significant harm if he returns to Indonesia.

    Fear of Police

39. The applicant also raised a claim to the Tribunal that he fears the police in Indonesia will now target him because of his past drug conviction. He no longer uses drugs but he fears the police will plant drugs upon him.

40. He was unable to explain why the police will do this to him beyond the fact of his past conviction. There is no other evidence or indication before the Tribunal that the police would go to such efforts against him. There is also no other evidence or indication before the Tribunal to suggest why the police would do this to him. Further, over ten years has passed since the applicant was in Indonesia.  There is no indication that since his release from prison he has ever come to the attention of the police again or that he has engaged in any activity that would attract their attention.

1. In view of the lack of evidence to substantiate the applicant’s claim the Tribunal is not satisfied there is a real chance that the police will attempt to plant drugs upon, or otherwise target the applicant as a person with a past drug conviction. 

   Fear of harm in prison

2. The Tribunal has accepted that the applicant was hit in prison and had to use bribery to protect himself from being hit.  If the applicant returns to prison the Tribunal accepts that he would again be exposed to a risk of being hit or beaten or otherwise mistreated in prison.

3. However the applicant is no longer a member of a criminal gang or committing criminal acts.  Apart from his visa status there is no indication that he has been other than law abiding in Australia. He provided receipts and invoices showing that he has earned income here through his work as [an Occupation 1].  There is no indication that he has committed any crimes or engaged in any criminal activity or otherwise come to the attention of the police in Australia.

4. The applicant has not expressed any wish to return to gang or criminal activity.  He left the gang in Indonesia well prior to his departure from the country.  There is no indication he engaged in any further criminal activity in Indonesia following his release from prison.  He gave evidence that he no longer uses prohibited drugs.

5. In these circumstances the Tribunal is satisfied that the chance of the applicant being placed in prison again is remote.  The Tribunal is therefore not satisfied that there is a real chance the applicant would face serious or significant harm arising from being placed in prison in Indonesia.

   Fear as an Ethnic Chinese person

6. The applicant stated that generally there were not problems for him in Indonesia as an ethnic Chinese person. He spoke of his former gang being a mixture of Ethnic Chinese and native Indonesians and of one gang member, [Mr B], who was a native Indonesian causing him a problem by “crossing boundaries against him”.  As expressed by the applicant this appeared an exception, not the norm, within the gang. The applicant has also lost contact with [Mr B] and the gang.  The Tribunal is not satisfied that this aspect of the applicant’s claims gives rise to a real chance he will be harmed by the gang, or another gang, because he is ethnic Chinese.

7. The applicant also stated that he was hit in jail by “Indonesians” because they did not like Chinese and he was the only ethnic Chinese prisoner there.  It is difficult to understand how the applicant would be the only ethnic Chinese prisoner in the prison in view of the general demographic in Indonesia.  Regardless of this point the Tribunal accepts that, in the highly volatile environment of a prison, the applicant could be vulnerable to physical abuse on account of his race from some within the prison. 

8. However as found above the Tribunal considers the chance of the applicant returning to a prison to be remote.  The Tribunal is therefore not satisfied there is a real chance of him being harmed on account of his race in prison in Indonesia.

9. The applicant made reference to the 1998 riots and targeting of ethnic Chinese in Indonesia.  The Tribunal accepts this occurred.  However the country information referred to in DFAT’s report indicates that the authorities, and most ethnic and religious communities, have made concerted efforts to increase sectarian harmony in Indonesia to avoid the repeat of such clashes and targeting.  The available information indicates the efforts have been largely successful, with more integration of ethnic Chinese culture and space for ethnic Chinese business.  While there has been an incident in 2016 of anti-Buddhist violence erupting in Northern Sumatra which mostly impacted the ethnic Chinese community, this was far from the applicant’s home area on the island of Java and has not been repeated since. 

10. On the basis of the available country information the Tribunal considers the chance of the applicant being seriously or significantly harmed by anti-Chinese violence in Indonesia generally and in his home area in particular, to be remote.

11. The Tribunal notes that the applicant’s mother and eldest brother continue to live in Indonesia without problems.  The applicant gave evidence his mother was a businesswoman and his brother also operates a company or [business] in Indonesia. His other brother is [an Occupation 2], now working in [Country 1].  This information indicates that the applicant’s family have managed businesses and professional careers as ethnic Chinese people in Indonesia.  The Tribunal is satisfied that if the applicant wished to pursue a business interest in Indonesia there is no real chance of him being denied this opportunity as an ethnic-Chinse person.  The Tribunal notes the applicant works as [an Occupation 1] in Australia. There is no indication he would be prevented from doing similar work in Indonesia because he is ethnic Chinese.

12. DFAT assesses that ethnic Chinese in Indonesia face a low risk of violence and potential low levels of societal discrimination. The applicant’s evidence and the available country information therefore do not indicate there is a real chance of the applicant being subjected to serious or significant harm as an ethnic Chinese person in Indonesia.  On the basis of the information before it the Tribunal is not satisfied that there is a real chance of the applicant facing serious or significant harm as an ethnic Chinese person in Indonesia.

    Fear as a Catholic

13. The applicant has not raised a claim to fear harm as a Catholic in Indonesia. 

14. The applicant made reference to the bombing of churches in Surabaya about two years ago.  The Tribunal accepts this occurred.  However as noted above the country information referred to in DFAT’s report indicates that the authorities, and most religious communities, have made concerted efforts to increase sectarian harmony in Indonesia.  The authorities also responded to the bombings with increased security measures which have since been withdrawn except at times of Easter and Christmas festivals.  Muslim groups have provided public support to assist with security.  Christians reportedly continue to practice their religion and attend church and there has been no repeat of the terrorist attacks.  

15. According to the available country information Catholics are a sizeable part of the Indonesian population and are largely able to practice their religion without interference.  The Catholic faith is accorded respect and recognition by the government, other official religions, and other Christian denominations.

16. On the basis of the available country information the Tribunal considers the chance of the applicant being seriously or significantly harmed by violence against Catholics or churches, in Indonesia to be remote.

17. On the basis of the applicant’s evidence and the available country information the Tribunal is not satisfied that there is a real chance of the applicant facing serious or significant harm as a Catholic in Indonesia.

    Other Potential Fears

    Criminality in Indonesia

18. The applicant has submitted a great deal of information about general criminal activity, including violence, in Indonesia.

19. While the Tribunal accepts that criminal activity and criminal violence occur in Indonesia there is no suggestion that it is at such a level that there is anything more than a remote chance of the applicant becoming a victim of criminal activity.  The applicant is no longer involved in crime and has not been associated with criminals for over ten years.  There is nothing to indicate that there is anything particular about his character or profile which would render him vulnerable to targeting by criminals or provoke others to violence against him.

20. On the information before it the Tribunal is not satisfied there is a real chance of serious or significant harm to the applicant as a result of criminal activity or criminal violence.

    Natural disasters

21. The applicant has also submitted that he is worried about natural disasters such as earthquakes in Indonesia.  The Tribunal considers such fears have no link to a ground in the refugee definition and do not amount to significant harm.  They do not fall within the criteria for a Protection visa.

    COVID 19 pandemic

22. The Tribunal accepts that the COVID 19 virus is present in Indonesia as it is in almost every country in the world.

23. There is no information before the Tribunal that there is any systematic or discriminatory conduct in Indonesia, attributable to, or arising from the virus, so as to amount to persecution.  The Tribunal is therefore not satisfied the applicant has a well-founded fear of persecution in Indonesia due to the presence of the COVID 19 virus there.

24. There is also no information before the Tribunal that the impact of the virus upon the applicant will result in any of the types of significant harm defined by the Act, with any requisite intent from another person or body. The Tribunal therefore finds that there is no real risk of the applicant being subjected to significant harm in Indonesia, as a result of the virus.

    CONCLUSION

25. The Tribunal has considered the applicant’s accepted claims and is not satisfied they individually or cumulatively give rise to a real chance of serious or significant harm to him in Indonesia.

26. On the basis of the above findings and reasons the Tribunal is not satisfied the applicant has a well-founded fear of persecution in Indonesia as defined by s.5J of the Act.  The Tribunal is also not satisfied there is a real risk the applicant will be subjected to significant harm on return to Indonesia.

27. 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).

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

29. 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

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

    Melissa McAdam
    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.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    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 the 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.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (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.

    …