1612394 (Refugee)

1612394 (Refugee) [2020] AATA 790 (17 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1612394
COUNTRY OF REFERENCE: Indonesia
MEMBER:Scott Clarey
DATE:17 February 2020
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 February 2020 at 4:12pm

CATCHWORDS
REFUGEE – protection visa – Indonesia – ethnicity and religion – Chinese Christian – member of particular social group – business owner – dispute with local authorities about business taxes and permit – interrogated and detained – credibility – time as unlawful non-citizen and delay in applying for protection – late claim of mistreatment at consulate in Australia – country information – status of Chinese and Christians – refusal of parents’ application for protection affirmed – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 423A, 424AA(1)(b)(iii)
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kavan v MIMA [2000] FCA 370
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Zhang v RRT [1997] FCA 423

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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 3 August 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Indonesia, applied for the visa on 15 June 2015. The delegate refused to grant the visa on the basis that they were not satisfied there was a real chance of persecution for one or more of the reasons mentioned in s.5J(1)(a) of the Act.
[The applicant] applied to the Tribunal for review of this decision on 10 August 2016. [The applicant] provided the Tribunal with a copy of the delegate’s decision record.
[The applicant] appeared before the Tribunal on 22 May 2019 and on 7 February 2020 to give evidence and present arguments. At [the applicant]’s request, the first hearing on 22 May 2019 was a joint hearing along with his parents, [Mr A] and [Ms B], the review applicants in case [Number]. [The applicant] was represented in relation to the review by his registered migration agent. The representative attended both Tribunal hearings. The Tribunal hearing was conducted with the assistance of an interpreter in the Bahasa Indonesia and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail 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).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)–(6) and ss.5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Identity
[The applicant] claims to be a citizen of Indonesia and has provided a copy of his passports to the Department with the application. I find that the applicant is a citizen of Indonesia, which is also the receiving country for the purposes of the refugee and complementary protection assessments.
Relevant background
[The applicant] is a [age]-year-old man from Surabaya, Indonesia. I note that his parents, [Mr A] and [Ms B], lodged a separate protection visa application with near identical claims. At the request of [the applicant]’s representative, the parents’ application was heard before the Tribunal at the same time as [the applicant]’s application.
[The applicant] arrived in Australia in September 2010 on a tourist visa. The visa ceased one month later, in October 2010, and [the applicant] remained in Australia unlawfully. The applicant applied for the protection visa under review on 16 June 2015.
On 2 May 2019 [the applicant]’s representative submitted a request to the Tribunal that this case be heard simultaneously with that of [the applicant]’s parents, given [the applicant]’s claims were based upon his parents’ claims and the surrounding issues which stem from events that were described in both protection visa applications. The Tribunal agreed to this request and a joint hearing was held on 22 May 2019. A second hearing was held on 7 February 2020. At both hearings, [the applicant] was asked questions and given explicit, individual opportunities to address, and raise issues with, the Tribunal.
I note that the claims on the protection visa application form were near identical to the claims set out on [the applicant]’s parents’ protection visa application. When I asked [the applicant] and [Mr A] about this at the first hearing, both confirmed that the form had been completed at the same time and that [Mr A]’s claims had been ‘copied and pasted’ into [the applicant]’s application form. I clarified with [the applicant] that this did not mean that he had been directly involved in the claimed dispute his father had with local authorities regarding business issues (discussed further below). [The applicant] confirmed that he had not been directly involved and did not have detailed knowledge of the claimed dispute which forms the basis for his and his parents’ protection claims.
Based on the above information (and at [the applicant]’s request) I have therefore assessed [the applicant]’s application primarily in relation to the claims made by his father, [Mr A] (case [Number]) as [the applicant]’s claims on his protection application were based upon his father’s claims. I note that at the hearing, [the applicant]’s representative confirmed that his claims were ‘identical’ to [Mr A]’s claims. Where appropriate I sought (and have considered) [the applicant]’s responses, including in relation to relevant country information (as detailed below). I have also assessed separate claims made orally and in writing by [the applicant].
Claims from the protection visa application
[The applicant] set out his claims for protection in his application form as follows:
Why did you leave that country(s)?
I left Indonesia in order to avoid a risk of being arrested by Indonesia government. Indonesia government want to arrest me because I attended demonstration against government corruption with my father. I know my father hate government corruption when I was young. My father worked [in] my grandparents’ small restaurant. He always tell me how corruptive the Indonesian goverment officers are. In August 2010, I and my father attended a demonstration against government corruption. I escaped after police come. I believe Indonesian police and government are searching me. I and my father came to Australia [in] September 2010. I know Indonesian government will arrest me if I go back to Indonesia.
What do you think will happen to you if you return to that country(s)?
I think Indonesia government want to arrest me. Indonesia government want to arrest me because I attended demonstration against government corruption.
Did you experience harm in that country(s)?
Yes. Yes, I experienced harm in Indonesia. I hate government corruption since I was young. I know my father hate government corruption when I was young. My father worked [in] my grandparents’ small restaurant. He always tell me how corruptive the Indonesian goverment officers are. In August 2010, I and my father attended a demonstration against government corruption. I escaped after police come. I believe Indonesian police and government are searching me.
Did you seek help within the country(s) after the harm?
No. I do not know who can help me in Indonesia.
Did you move, or try to move, to another part of that country(s) to seek safety?
No. I do not know where is safe for me in Indonesia.
Do you think you will be harmed or mistreated if you return to that country(s)?
Yes. Yes, I believe I will be harmed if I return to Indonesia. I know my father hate government corruption when I was young. My father worked [in] my grandparents’ small restaurant. He always tell me how corruptive the Indonesian goverment officers are. In August 2010, I and my father attended a demonstration against government corruption. I escaped after police come. I believe Indonesian police and government are searching me. I and my father came to Australia [in] September 2010. I know Indonesian government will arrest me if I go back to Indonesia.
Do you think the authorities of that country(s) can and will protect you if you go back?
No. No I do not think Indonesian authorities can and will protect me. In August 2010, I and my father attended a demonstration against government corruption. I escaped after police come. I believe Indonesian police and government are searching me. I also believe they will arrest me if they find me.
Do you think you would be able to relocate within that country(s)?
No. I do not think I would be relocate within Indonesia. In August 2010, I and my father attended a demonstration against government corruption. I and my father escaped after police come. I believe Indonesian police and government are searching me. There is no safe place for me in Indonesia.
On 15 May 2019, [the applicant]’s representative submitted a number of news clippings to the Tribunal, including an online article from an unstated publication titled ‘HASSAN: Christians are increasingly persecuted in places like Indonesia’ (dated 24 May 2018); an undated article published in ‘East Asia Forum’ titled ‘Why Indonesia’s Christian Diaspora Fears Going Home’; an undated ‘cut-and-paste’ from what appears to be Wikipedia that includes the heading ‘Violence and Discrimination against Christians’; an untitled article from the Washington Post about church bombings in Indonesia (dated 13 May 2018); an article from an online source ‘Tribunnews.com’ titled ‘Media Australia: Loser Prabowo Claims Victory on Indonesia’ (dated 21 April 2019); an article from ‘The Conversation’ titled ‘Chinese Indonesian women break the silence of mass rapes in May ’98’ (dated 1 June 2018); and an article from the ‘New York Times’ titled ‘In Jakarta, Reports Of Numerous Rapes of Chinese in Riots’ (dated 10 June 1998).
I have also had regard to a written submission (signed by [the applicant]’s father [Mr A] and dated 17 May 2019) that was attached to an email sent to the Tribunal on 20 May 2019. The submission included a number of disjointed dot points that ostensibly related to the near identical similar claims outlined on both [the applicant]’s and [Mr A]’s protection visa applications.
I note that [the applicant]’s representative, in her email of 15 May 2019 requested that all submissions and supporting documents be placed on both files (for both the review applications of [the applicant] and [Mr A]/[Ms B]) because they were ‘applicable to the family’ as a whole.
I have also had regard to an email from [the applicant]’s representative on 29 January 2020, in response to the second hearing invitation, that attached a signed personal statement from [the applicant] (dated 29 January 2020) that said he had experienced historic bullying and discrimination from Indonesian Muslims ‘who live around my house’. He stated that he was very scared as a child because Indonesia was a majority Muslim country. The statement also said that ‘When we were in melbourne our passport had expired and We tried to ask for renewal at Indonesia Embassy but they refused and cursed at me because I look like Chinese and said that was not recognized and lost Indonesian citizens and traitors to the country for applying for protection visa’. These issues are discussed further below. The email also resubmitted the newspaper articles mentioned above.
Findings and reasons
The issues in this review are whether [the applicant] has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) of the Act and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Indonesia, there is a real risk he will suffer significant harm.
For the following reasons, I have concluded that the decision under review should be affirmed.
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at [482]:
care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’ (The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants, the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at [348] per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547).
Delay in seeking protection
I have concerns relating to the timing of the application for protection in considering the genuineness of [the applicant]’s claims to fear serious harm in Indonesia. I note that a delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm (see Zhang v RRT & Anor [1997] FCA 423; Kavan v MIMA [2000] FCA 370). [The applicant] first arrived in Australia in September 2010 on a tourist visa.
I note that [the applicant] applied for a protection visa on 16 June 2015, more than four years after he had become unlawful. I note that at the time he applied for the protection visa, [the applicant] had limited options to remain in Australia.
When considered in conjunction with my other concerns relating to [the applicant]’s evidence and claims detailed below, I find that this delay in applying for a protection visa is not indicative of someone who fears for their physical safety. I find that it suggests that he did not have a well-founded fear of persecution for the reasons claimed and that he made the protection visa application only when he had few other options to remain in Australia.
Assessment of claims
[The applicant] claims to fear that if he returns to Indonesia he will be harmed by the Indonesian authorities on the basis of his relationship to his father. I have also assessed related matters arising on the facts of the case, including issues relating [the applicant]’s Chinese ethnicity and Christian faith, and claimed issues relating to the renewal of [the applicant]’s Indonesian passport. I note that at the first hearing, [the applicant]’s representative confirmed that [the applicant]’s claims were identical to his father’s and that the harm [the applicant] claimed to fear was as a result of the claimed situation his father faced with regard to his dispute with local government authorities (which will be outlined in further detail below).
Issue relating to the meaning of ‘attended demonstration against government corruption’
In the protection visa application, it appeared [the applicant] claimed that he would be harmed by Indonesian authorities if he returned to Indonesia because he ‘attended demonstration against government corruption many times’ and was previously arrested by the police. As noted above, [the applicant]’s claims in the protection visa application are based upon those made by his father, [Mr A], in a separate application. I note that in its decision record, the Departmental delegate had (understandably) interpreted this to mean that [the applicant] and/or [Mr A] was claiming to have attended organised demonstrations against government corruption (such as mass rallies) and had come to the attention of authorities in this way. At the hearing, it became clear that this was a misunderstanding of these claim(s). I clarified with [Mr A] at length during the joint first hearing and it became clear that [Mr A]’s claims relate to a specific dispute he had with the local government/council authorities in relation to the payment of business taxes. [Mr A] explained that when he had written ‘attended demonstrations’ in his original application his intended meaning was that he had gone to the local council office to dispute in person the payment of the business taxes in question with the local government authorities who were attempting to levy them. He did not mean that he attended an organised demonstration or mass rally against general government corruption (something which he had not done). At the hearing, [the applicant] confirmed his father’s evidence that he was not directly involved in the claimed business dispute, but claimed to be implicated due to his father’s disagreement with the local authorities. I find therefore that [the applicant] does not face a real chance of suffering persecution involving serious harm or a real risk of suffering significant harm on return to Indonesia from the Indonesian authorities or anyone else as a consequence of him (or his father) attending mass demonstrations against the government, because I accept that this did not occur.
Fear of harm from Indonesian authorities

At the first hearing, [the applicant] claimed not to know specific details of his father’s business dispute upon which a number of his claims were based. He deferred to his father’s account of this dispute. At the hearing, [Mr A] explained that his family had operated a Chinese restaurant for approximately 20 years, which was originally started by his parents. [Mr A] had worked in the restaurant for most of his life. [Mr A] claimed there was a longstanding issue relating to the payment of tax. He claimed that every few months the family would receive a notice that the taxes were being increased. [Mr A] claimed the family and the business were being targeted by the local authorities because of their Chinese ethnicity and because the restaurant served pork, which he said was considered ‘haram’ by the local authorities who he said were Muslim. I asked why he thought the tax increases were only being levied on his business for reasons relating to his Chinese ethnicity, and not as a general measure to raise revenue. [Mr A] responded that he thought this because there was another restaurant close by that was run by a former employee of his restaurant who was Muslim. He said that this other restaurant served Indonesian and Chinese food but did not serve pork and that they did not have the same issue with the local authorities. When asked how he knew about the tax situation of the other restaurant, [Mr A] stated that he did not know for certain as there was no official statement about it, but he ‘thought’ his competitor at the other restaurant had not been required to pay the same tax increases because this restaurant remained open.
[Mr A] stated that because of these issues with the local council, he had to operate the business without a business permit. He said that in 2001 he received the first warning from the local authorities that the restaurant would be closed because it was operating without a permit but this had only been a threat and his business was not forced to close and continued to operate. [Mr A] claimed that as the business was his family’s only source of income, the threats of closure caused great stress to the family. [Mr A] claimed that his mother and brother both passed away due to the stress caused by these threats of closure that never eventuated. I note that [Mr A] presented no documentary evidence to corroborate any of these claims.
[Mr A] claimed that he complained about these tax increases on three occasions to the local council. He said that he received a warning on the first occasion and on the second occasion he said he was interrogated by the police about why he was complaining so much, but was released a few hours later. [Mr A] stated that six months after the death of his brother in July 2009, he had to close the business in January 2010 because he could not afford to pay the taxes. He said he subsequently went on a holiday to [Country 1] and [Country 2] with his family and after he returned to Surabaya, he attempted to reopen the business but the authorities would not give him permission to do so because of the taxes he owed and because he did not have a business permit. [Mr A] said that at this point he proposed to the authorities that he would pay the tax owed in instalments but that his offer was rejected. When questioned, [Mr A] stated that the authorities never explicitly linked the tax issue to the fact that he was Chinese or that the restaurant sold pork. [Mr A] stated that the authorities knew he didn’t have a business license and tried to deliberately extort him as a result. [Mr A] estimated that at this point he owed the local council around $[amount] in back taxes. [Mr A] said that in August 2010 he made a very strenuous complaint to the local authorities after they had rejected his offer to pay off his tax bill in instalments. He said that a big argument ensued at the council office and the police were called by the council. [Mr A] said that he was detained for a few hours but was not charged and was released later that day. [The applicant] was not directly involved in this incident or dispute. One month later [Mr A], [Ms B] and [the applicant], arrived in Australia and have not departed since.
I discussed with [the applicant] at the hearing general issues relating to his ethnicity arising from the facts of the case and his specific circumstances. I put to [the applicant] country information that suggested Chinese Indonesians face low levels of societal discrimination and a low risk of violence due to their ethnicity. Specifically, the DFAT country information report for Indonesia stated:[1]
[1] Department of Foreign Affairs and Trade, Country Information Report – Indonesia, 25 January 2019, Sects. 3.5-3.13
Successive waves of immigration to Indonesia from China over more than five centuries have resulted in an established ethnically Chinese Indonesian community throughout the country. The 2010 census recorded 2.8 million ethnic Chinese living in Indonesia, comprising 1.2 per cent of the population. This figure may understate the actual number, as some Indonesians of Chinese descent are reportedly reluctant to self-identify due to past tensions. Many Chinese Indonesians who trace their history in Indonesia for many generations may no longer identify as Chinese and many do not speak Chinese. About half of the ethnically Chinese population are Buddhist and about 42 per cent are Christian. Fewer than five per cent are Muslim, compared with over 87 per cent of Indonesians generally.
The Suharto-era New Order regime implemented a range of measures that discriminated against Chinese-Indonesians. The law prohibited Chinese language newspapers, schools and cultural expressions, and many Chinese Indonesians were pressured to take Indonesian names. Some ethnic Chinese had difficulty obtaining citizenship and Chinese Indonesians were required to carry a document proving their Indonesian
citizenship. As noted in Recent History, in May 1998 during the Asian financial crisis, rioters targeted the ethnic Chinese community due to their perceived wealth. As many as 1,000 Chinese Indonesians died in incidents related to the riots, women were raped, and businesses were burned or looted.
Since the end of the New Order regime in 1998, successive governments have removed most official policy measures discriminating against ethnically Chinese Indonesians. Chinese New Year is celebrated as a national public holiday, Confucianism is an officially recognised religion, Chinese cultural performances and languages are accepted, and the Constitution no longer distinguishes between ethnic Chinese and ‘indigenous’ Indonesians, with barriers to citizenship removed. In 2014, then-President Yudhoyono issued a regulation changing the Indonesian word used to designate ‘of Chinese descent’ from one which was often associated with racial slurs. A number of Chinese Indonesians have held high office and work in a range of sectors, including the police, clergy and the business community.
Some anti-Chinese sentiment remains at a societal level. Although many Chinese Indonesians are not wealthy, most of the country’s richest and most prominent businesspeople are ethnically Chinese Indonesian, which is a source of resentment for some non-Chinese Indonesians.
In 2012, President Widodo faced strong criticism from conservative Islamist groups in his campaign for the Governorship of Jakarta for having a Chinese Indonesian and Christian running mate, Basuki Tjahaja Purnama, popularly known as ‘Ahok’, who later succeeded him. After succeeding Widodo as governor, some of Ahok’s policies were controversial and politically divisive, such as slum-clearing, which was perceived as anti-poor. Later, after he was accused of blasphemy in late 2016, a range of groups with complex agendas united to use Ahok’s ethnic and religious background as a means to mobilise large crowds of demonstrators (see Blasphemy and Defamation of Religion). Ahok was later convicted of blasphemy and imprisoned.
Anti-Chinese sentiment in Indonesia intersects with religious and economic issues. Islamic organisations blamed China for a supposed upsurge in communist sentiment, a politically sensitive subject (see also Recent History), in mid-2016. Increased Chinese investment in Indonesia has also caused local critics to express concerns about imported Chinese labour and Chinese control over national assets.
Small-scale local riots took place in a town in North Sumatra in 2016, following an allegation of blasphemy against a Chinese Indonesian woman (see Blasphemy and Defamation of Religion). While the riots were ostensibly anti-Buddhist, most Indonesian Buddhists are ethnically Chinese and local media described the riots as anti-Chinese and stated that some Chinese families had fled the region. A number of youths were arrested, prosecuted and imprisoned in the wake of the riots.
DFAT is aware of reports of Chinese Indonesians facing discrimination in relation to buying land in Yogyakarta. Yogyakarta is a special administrative region run as a sultanate, in which the sultan is also the governor. In March 2018, a regional court upheld a 1975 law that only allows ‘native Indonesians’, which has been construed to exclude ethnic Chinese, to own land in Yogyakarta.
With the notable exception of the 2016 riots, which may have been partly motivated by racial tensions, anti-Chinese violence has been low since events in 1998. Although memories of the crisis have caused continued anxiety amongst many members of the Chinese Indonesian community, exacerbated by events such as the Ahok blasphemy trial and the 2016 riots, DFAT assesses that Chinese Indonesians currently face a low risk of violence. Persistent anti-Chinese sentiment may lead to low levels of societal discrimination.
I also discussed with [the applicant] at the hearing general issues relating to his Christian faith arising from the facts of his case and his specific circumstances. I put to [the applicant] country information that suggested there is a significant degree of religious pluralism and tolerance in Indonesia, supported by various laws intended to protect the right to religious expression and belief. Specifically, the DFAT country information report for Indonesia stated:[2]
[2] Department of Foreign Affairs and Trade, Country Information Report – Indonesia, 25 January 2019, Sect. 3.14, 3.15, 3.19 and 3.35-3.41
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. The country hosts two of the largest Islamic organisations in the world, Nahdlatul Ulama and Muhammadiyah, both of which have millions of followers and are socially and politically influential. Most Indonesian Muslims are Sunni, although up to 3 million are Shi’a and approximately 200,000 to 400,000 are Ahmadi. According to the 2010 census, Muslims comprise 87.2 per cent of the population; Protestant Christians 7 per cent; Roman Catholics 2.9 per cent; Hindus 1.7 per cent; others (including Buddhists) 0.9 per cent. Indonesia’s government officially recognises only Islam, Catholicism, Protestantism, Buddhism, Hinduism, Confucianism (since 1999) and indigenous beliefs (‘aliran kepercayaan’ since 2017). The vast majority of Indonesians are categorised by the government as belonging to one of these religions. Other religions including Judaism or Daoism are not prohibited and have general protection under the Constitution described above. Religious groups outside the official religions must obtain legal charter as a civil society organisation from the Ministry of Home Affairs.
…
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.
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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.
Response of [the applicant] to country information
I note that when this country information was discussed at the first hearing, [the applicant]’s responses were vague, speculative and at times confused. He initially intimated that it was he ([the applicant]) who had made the complaint to the authorities about the business tax issue but when this was clarified, [the applicant] changed his answer saying he meant to say the complaint was made by his father to the local council about the business tax issue. As noted above, [the applicant] knew little about the issues outlined by his father, upon which many of his claims are based, stating that he was not sure of the exact reason the family restaurant had closed but said he thought it had something to do with the local government. [The applicant] stated that people who lived in his neighbourhood also knew about the family’s restaurant business. He said that if he and his family were to return to Indonesia, he was afraid the people who lived nearby could burn down the house and/or kill the family. [The applicant] stated that if there was a ‘political event’ then it could create an unfavourable situation for the family, because members of the community who may wish to do the family harm know where they live. [The applicant] said he did not understand politics but he said that what he knew was that every time there was a problem with politics, Chinese and Christian people were usually targeted. He said that is why the family was always alert.
[The applicant] stated that there were bombings in several churches in Surabaya last year and that he feared that one day unnamed forces may wish to replicate what happened in 1998. In response to specific country information relating to the decreased risk of violence faced by Chinese Indonesians, [the applicant] stated that: ‘it has been over 20 years since then and I admit that the risk of violence has gone down significantly ever since’ but he said that he did not know what might happen in other cities and that this might happen again in Surabaya in the future. [The applicant] stated: ‘it is true there is no real threat at the moment, but the Chinese people are always alert and trying to be careful’ and he said that social discrimination was still prevalent.
424AA
Potentially adverse information that was contained in the decision relating to [the applicant]’s parents’ case ([Number]) that was made on 21 November 2019 (subsequent to the first hearing on 22 May 2019) was discussed with [the applicant] at the second hearing on 7 February 2020 in accordance with s.424AA of the Act. I explained the relevance and the consequences of the information to [the applicant] and invited him to comment on or to respond to the information. Pursuant to s.424AA(1)(b)(iii), I advised [the applicant] that he may seek an adjournment to consult with his representative before responding to the information. [The applicant] took a brief adjournment to consult with his representative before responding orally at the hearing. [The applicant]’s specific responses are discussed below.
I put to [the applicant] information from the decision record from case [Number] relating to its findings on the business dispute with local authorities. Specifically, I put to [the applicant] that in its decision record relating to his parents’ case, the Tribunal was not satisfied that the dispute with the local authorities was in any way related to [Mr A]’s race, religion, nationality, membership of a particular social group or political opinion and therefore it found that neither applicant faced a real chance of serious harm or a real risk of significant harm in relation to this dispute and their fears of persecution on this basis were not well founded. [The applicant] responded by saying that the family business sold pork meat which Muslims disapproved of. This resulted in threats when [the applicant] was a child from people who he claimed threatened to force the closure or burn down the shop. When asked who these threats came from, [the applicant] said they were from ‘people around the area who didn’t like us’. He said they were ‘general people’ making these claimed threats, they were not from government officials. [The applicant] said that he didn’t experience the issues related to the business personally, and that he knew only limited information about the claimed business dispute with local authorities, but experienced general harassment and bullying from kids that lived near his house when he was younger.
Conclusion on issues relating to Chinese ethnicity and/or Christian faith

I accept that [the applicant] is an Indonesian man of Chinese ethnicity who is of the Christian faith. I accept that some reports suggest there has been ‘an increase in localised instances of religious intolerance over the past decade, including threats from hard-line Islamist organisations’ in Indonesia generally. I accept that Indonesian Christians have, in the past, been targeted by extremist groups, including in a small number of recent terrorist attacks. I note, however, country information in the DFAT country report states 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.
I have also reviewed more recent country information relating to the election-related violence in Indonesia. I do not consider that the recent events demonstrate that the situation in Indonesia has significantly changed since DFAT reported that Chinese Indonesians face a low risk of violence and low levels of societal discrimination.
I acknowledge and accept that [the applicant] may have faced some bullying and discrimination in the past related to his religion and/or ethnicity, and may face some discrimination relating to his Christian faith and/or his Chinese ethnicity in the future if he were to return home to Indonesia. Given the available country information outlined above (and discussed with [the applicant] at the hearing), and after considering the evidence before it relating to his life history and personal circumstances, I am not satisfied that this would arise to the level of serious or significant harm as envisaged by the Act. I find that [the applicant]’s fears of persecution on this basis are not well founded.
Conclusion on issues relating to business dispute with local authorities
I accept that [the applicant]’s father ([Mr A]) ran a restaurant business in Surabaya and that [Mr A] was involved in a dispute with the local authorities involving unpaid taxes and business permits (as outlined above). Neither [the applicant] nor [Mr A] has claimed that [the applicant] was directly involved in this dispute, only that he is indirectly impacted as he is a member of [Mr A]’s family. I note that there is no country information before the Tribunal to suggest that Chinese and/or Christian Indonesians are specifically targeted by council authorities in this way. I note that neither [the applicant] or [Mr A] presented documentary evidence to corroborate these claims and that the reasons for believing [Mr A]’s treatment at the hands of the local council to be ethnically and/or religiously motivated are particularly weak. I consider [Mr A]’s claims to be highly speculative. For example, I note that by his own admission, [Mr A] stated that he was not sure that his Chinese ethnicity and/or his Christian faith was the reason the increased taxes had been levied on his business and/or the business permit was denied by the local council. I note that by his own admission, [Mr A] stated that the council authorities had never stated that this was the reason his business was being targeted but that [Mr A] had thought this to be the case because he believed, but was not certain, that another restaurateur who was Muslim and who did not serve pork had not been obligated to pay the taxes. I am not satisfied that this business dispute with the local authorities relates in any way to the reasons set out at s.5J(1)(a) of the Act.
Given the country information outlined above, and after considering the personal circumstances of both [the applicant] and his father ([Mr A]), I find that [the applicant] does not face a real chance of suffering persecution involving serious harm on return to Indonesia from the Indonesian authorities, society or anyone else as a consequence of his Christian faith and/or his Chinese ethnicity, being the son of a Chinese and/or Christian businessman who does not comply with specific Islamic customs or for any other reason. I find that [the applicant]’s fears of persecution on this basis are not well founded.
Issue relating to the Indonesian election
In both the written submission of 17 May 2019 and at the hearing, [Mr A] raised issues relating to Indonesia’s recent election and in particular relating to the losing candidate Prabowo Subianto, although I note that these claims were vague and at times confused. When asked to explain this issue at the hearing, [Mr A] admitted that it was ‘probably quite a stretch’. When asked why this was relevant to his application, [Mr A] stated that although the issue with his restaurant was his main concern, the opposition was trying to win the presidency with the support of radical Islamist groups. He said that he wasn’t sure but the opposition might want to turn Indonesia into a Muslim country which would be a bad turn of events for non-Muslims. When I discussed with [Mr A] country information which confirmed that the opposition had lost the recent Indonesian election[3] and asked why this was an issue given there had not been a change in government, [Mr A] stated that there was civil unrest and that some of the opposition supporters did not accept the result. [Mr A] also gave a vague and semi-coherent response relating to Tommy Suharto, the son of the former President of Indonesia. He stated that although Tommy Suharto was convicted of the murder of a judge, he was able to establish a political party and become its leader. [Mr A] summated ‘that’s Indonesia’, which was taken to be a general example of political dysfunction and corruption in the country.
[3] BBC News, Indonesia election: Joko Widodo re-elected as president, 21 May 2019,
When asked at the first hearing if he would like to comment on this issue and/or country information that confirmed the opposition had lost the election, [the applicant] stated that from the news he had received the opposition had lost the election but they may not accept the result. He said that this may cause some political unrest in Indonesia and if this were the case then ‘people like us’, meaning Chinese Christians, could be targeted.
As outlined above, in accordance with s.424AA of the Act, at the second hearing I put to [the applicant] information from the decision record from case [Number] relating to findings on issues relating to the Indonesian election. Specifically, I put to [the applicant] that in its decision record relating to his parents’ case, the Tribunal was not satisfied on the evidence before it that the applicants in that case (his parents) would face a real chance of persecution involving serious harm or a real risk of significant harm due to reasons relating to Indonesia’s presidential election and their fears of persecution on this basis were not well founded. [The applicant] responded by saying that if the person the people want to become president loses, then ‘they’ will look for a victim to blame and this was always Chinese people in Indonesia.
Given the available country information, and after considering the evidence before me relating to issues relating to Indonesia’s presidential election, I find that [the applicant] does not face a real chance of suffering persecution involving serious harm on return to Indonesia as a result of issues or circumstances arising from the recent presidential election or for any other reason.
Issue relating to Indonesian passport renewal
In both his written submission of 17 May 2019 and at the hearing, [Mr A] made claims relating to his inability to renew his Indonesian passport at the Indonesian consulate. When asked to elaborate on this claim at the hearing, [Mr A] gave a vague and at times confused response, stating that in 2015 he made an application to renew his passport but that it was refused by the consulate staff because he had a ‘protection visa’. When I pointed out that he did not have a protection visa but held a valid bridging visa, [Mr A] said that when he was asked what kind of visa he had, he told the consular official he was ‘on a bridging protection visa’. [Mr A] said that the consular official told him that ‘if you don’t have a visa we can’t help you with the renewal’ of his passport. He initially stated that the consular official told him that they could not process the passport renewal because he did not have a visa. He then changed his answer and stated that he had been told by the consulate staff that his passport application was rejected because of the ‘application for the bridging protection visa’. [Mr A] said that normally the consulate would cut the corner of an expired passport but had not done this to his passport, which he showed to the Tribunal. [Mr A] said that as a result he didn’t know if he and his family could return to Indonesia.
I note that the DFAT country report states that ‘Indonesians who are returned after unsuccessfully seeking protection overseas are unlikely to come to the attention of authorities’ unless they had been involved in activities such as ‘publicly advocating a separatist movement or displaying separatist symbols’.[4] There is no suggestion that [Mr A] and/or his family have been involved with any such activity nor has [Mr A] claimed that he fears harm in Indonesia as a result of his possible status as a failed asylum seeker.
[4] Department of Foreign Affairs and Trade, Country Information Report – Indonesia, 25 January 2019, Sect. 5.20
When asked if he would like to comment on this issue at the first hearing, [the applicant] stated that he had nothing else to add other than he agreed with his father’s statement on the matter.
As outlined above, in accordance with s.424AA of the Act, I put to [the applicant] at the second hearing information from the decision record from case [Number] relating to findings on issues relating to the claim that the Indonesian consulate refused to renew his family’s passports. Specifically, I put to [the applicant] that in its decision record relating to his parents’ case, the Tribunal did not accept that the passport applications were denied by the consulate as claimed and it found that the applicants in that case (his parents) did not face a real chance of persecution involving serious harm or a real risk of significant harm due to any reason relating to their passports or visa status. [The applicant] responded by saying that he did go to the consulate and his passport application was rejected as he claimed. He said that the consulate staff had racially abused him when he attended the consulate saying words to the effect of Chinese people are not welcome in Indonesia and should go back to China because they knew he had applied for protection. When asked why he had not raised the fact that he had been racially abused at the consulate at the last hearing when given an opportunity to do so, [the applicant] said that he felt he now had more time to talk about the issue and that he decided to explain it in more detail.
I note that when [Mr A], [the applicant]’s father gave witness evidence at the second hearing on 7 February, he stated that when he had the dispute with the consular officials that only he and his wife were there; [the applicant] did not attend. When asked if [the applicant] had attended the consulate at a different time, he said he didn’t know but maybe he did go to the consulate by himself. When I asked how he did not know for certain if his son had gone to the consulate by himself and experienced the same problems, he said that he and [the applicant] had never discussed the issue and so he did not know. [The applicant] stated that he had not told his father he had separately attended the consulate and been racially abused on that occasion because he did not consider it to be important enough. When I asked how he could not think it relevant or important enough to mention to his parents that he had attended the consulate alone and had been racially abused by Indonesian consular officials before they refused to renew his passport, [the applicant] offered an evasive and off-point answer stating that because the consular staff had only abused him verbally, if he’d been physically assaulted he would have reported it to the police. When asked again why he had not told his father this had occurred, he said that it was because he did not consider it to be important.
I note that [the applicant]’s claims relating to being racially abused by Indonesian consular staff during a visit he made to the consulate alone were first raised in his personal statement of 29 January 2020 and further discussed at the hearing on 7 February 2020 (as outlined above), despite having various prior opportunities to raise this issue. I note that his father told the Tribunal at the second hearing that he was not sure if [the applicant] had ever attended the consulate alone and was not aware that he had been racially abused. I find [the applicant]’s explanation that he did not think it important or significant enough to tell his father that he had attended the consulate alone, had been racially abused by Indonesian consular officials before they refused to renew his passport to be implausible and I do not accept it. I note that s.423A of the Act requires the Tribunal to draw an adverse inference as to the credibility of an applicant’s claim or evidence where an applicant raises a claim or presents evidence that was not put forward before the primary decision was made. I do not accept [the applicant]’s explanation that he thought he had more time at the second hearing to discuss these issues, which is why he had only raised them in relation to the second hearing. In this case, after discussing the issue with him at the hearing, I am not satisfied that [the applicant] has a reasonable explanation as to why the claim was not put forward to the Tribunal previously despite having had opportunities to do so, including at the hearing on 22 May 2019.
I have carefully considered the claims relating to the inability to have the family’s passports (including [the applicant]’s) renewed by the Indonesian consulate, including [the applicant]’s independent claims related to being racially abused on a separate occasion when he claimed to have attended the consulate alone. I note that no relevant corroborating evidence, such as correspondence with the consulate, has been provided. I do not accept that an expired passport that does not have its page corner cut is evidence of anything relevant to this claim. I note that country information before me does not suggest it is a practice of Indonesian consular officials in Australia to refuse passport renewal applications on these grounds as claimed. The country information does not support this claim in any way. In the absence of any supporting information or relevant evidence, and in the context of my other concerns relating to [the applicant]’s general credibility discussed above, I do not accept that [the applicant]’s passport application (or those of his family) were denied by the Indonesian consulate for the reasons outlined and/or that he was racially abused by consular staff.
I find therefore that [the applicant] does not face a real chance of suffering persecution involving serious harm or a real risk of suffering significant harm on return to Indonesia from the Indonesian authorities or anyone else as a consequence of his status as an asylum seeker, or potential status as a failed asylum seeker, or for any other reason relating to his passport or visa status. I place no weight on this claim for the reasons discussed above.
Conclusion – refugee grounds
Having considered [the applicant]’s claims both individually and cumulatively, all of the available evidence and relevant country information, I find that [the applicant] does not face a real chance of persecution on return to Indonesia for any reason in the reasonably foreseeable future and that his fear of persecution is not well-founded.
For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore [the applicant] does not satisfy the criterion set out in s.36(2)(a).
Complementary protection
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
For the reasons given above, I have found there is not a real chance that [the applicant] would suffer persecution involving serious harm from the Indonesian authorities, society or anybody else if he returned to Indonesia.
In considering whether there is a real risk that the applicant would suffer significant harm if returned to Indonesia, I have noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[5]
[5] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
[The applicant] has not advanced any claims indicating that he considers he would face a real risk of significant harm if returned to Indonesia other than for the reasons discussed above relating to his claims under the refugee criterion. Given I do not accept that [the applicant] faces a real chance of suffering persecution involving serious harm if he returns to Indonesia, I also find, having regard to the findings of fact set out above, that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Indonesia, there is a real risk that he would suffer significant harm in the form of being arbitrarily deprived of his life; having the death penalty carried out on him; being subjected to torture; being subjected to cruel and inhuman treatment and punishment; and/or being subjected to degrading treatment or punishment by the Indonesian authorities, society or anybody else, as a necessary and foreseeable consequence of him being removed from Australia to Indonesia.
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 criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Scott Clarey
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.
…

[2020] AATA 790

17 February 2020

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction