1611189 (Refugee)

This matter concerned an application for a protection visa by a male applicant from Indonesia, who identified as ethnic Chinese and Catholic. The applicant claimed he was involved with a gang in Indonesia, which engaged in activities such as collecting protection fees and robbery. He stated he sought to leave the gang but feared retribution, including death, and alleged he was framed with drugs by former gang members, leading to his imprisonment. He arrived in Australia in September 2010 and applied for a protection visa approximately five years later. The decision under review was made by the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth) (the Act), which relates to refugee status, or alternatively, under section 36(2)(aa) of the Act, concerning complementary protection. Specifically, the Tribunal had to determine if there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Indonesia, the applicant would suffer significant harm. This involved assessing the credibility of his claims regarding past persecution by the gang, the risk of future persecution, and the potential for harm due to his ethnic Chinese background.

The Tribunal considered the applicant's claims in light of Ministerial Direction No. 84, the Refugee Law Guidelines, and the Complementary Protection Guidelines. It noted the applicant's delay in applying for a protection visa, his past involvement in general criminal activity as a gang member, and the circumstances surrounding his imprisonment. The Tribunal also took into account country information regarding the treatment of ethnic Chinese individuals in Indonesia and the activities of gangs. After evaluating the evidence, the Tribunal affirmed the delegate's decision, finding that the applicant had not established a real risk of significant harm upon return to Indonesia that would engage Australia's protection obligations. The Tribunal's reasoning implicitly addressed the applicant's claims of fear of the gang and potential discrimination, concluding they did not meet the threshold for protection.

The Tribunal affirmed the delegate's decision, meaning the applicant's protection visa application was not granted.