1612577 (Refugee)

1612577 (Refugee) [2019] AATA 5875 (30 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1612577
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Alison Mercer
DATE:30 June 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 30 June 2019 at 8:16pm
CATCHWORDS
REFUGEE – Protection visa – Indonesia – race – Indonesian Chinese – membership of a particular social group of whistleblowers – Christianity – applicant had no political profile – lack of evidence and explanation provided – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 364, 424, 428, 499
Migration Regulations 1994, Schedule 2
CASES
Minister for Immigration and Citizenship v SZQRB (2013) 2010 FCR 505

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 on 28 July 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 he was not satisfied that the applicant was someone to whom Australia owed protection obligations. The delegate found that the applicant did not meet the definition of a refugee (set out in s.36(2)(a) of the Act) and did not fall within the complementary protection provisions (set out in s.36(2)(aa) of the Act).
The Tribunal received a review application on 11 August 2018, which was accompanied by a copy of the delegate’s decision and a copy of the biodata page of the applicant’s Indonesian passport.
The applicant attended Tribunal hearings on 7 February and 9 May 2019. Prior to the second hearing, he provided the Tribunal with written submissions.
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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF LAW, CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is owed protection by Australia. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Protection visa application
In his Protection visa application[1] the applicant claims to be a citizen of Indonesia who was born in Surabaya, Indonesia on [date of birth]. He indicated that he was of Chinese ethnicity and a Christian, and that he speaks, reads and writes Indonesian and English. He states he has never been married. He indicated he departed Indonesia legally and arrived in Melbourne, Australia [in] November 2014 as a visitor, and previously visited [Country 1] briefly in August 2014. He indicated that his parents were in Indonesia. He did not list any siblings in Indonesia or elsewhere.
[1] See Part C of protection visa application on Department file [number].
The Department’s electronic and hard copy records indicate that the applicant’s subclass 600 visitor visa was valid until 28 February 2015, when it ceased. The applicant was granted a bridging visa C when he made his protection visa application on 16 June 2015.
Claims from the Protection Visa Application
The applicant’s written claims from his protection visa application[2] are summarised as follows:
[2] See Department file [number].
·he left Indonesia because his life was in danger from the Indonesian authorities;
·he was an Indonesian Chinese and he grew up in an environment of racism;
·while he was working in [Company 1], he reported corruption by a local taxation officer. That officer knew about the applicant’s report and wanted revenge. The applicant lost his job, and the officer came to him and threatened him. He said that he wanted to kill all of the Chinese in Indonesia;
·the officer hired some gangs to hurt the applicant. These gangs said racist words to the applicant, and told him that they had been hired to hurt him, but because he was Indonesian Chinese, they wanted to kill him. The applicant was badly beaten on his way home. They wanted to kill him but he escaped. He left Indonesia because he knew that they would kill him;
·if he returned to Indonesia, the taxation officer would give him a lot of trouble. The gangs he hired would look for the applicant and try to hurt him;
·the corruption in the government was common, and government officials protected each other. This was why the applicant did not try to seek help after he was threatened and hurt;
·he did not move to another part of the country to avoid the harm he feared because, without a job, he could not afford to move;
·he feared being harmed or mistreated if he returned to Indonesia because he left due to the fact that his life was in danger from the Indonesian authorities. He reiterated that he was Indonesian Chinese and had grown up in a racist environment, and that he had been threatened after he reported local corruption by the taxation officer; and
·he did not think that he would be able to relocate elsewhere in Indonesia to avoid harm as ‘they’ would find him in their government network.
The protection visa application was accompanied by certified copies of the applicant’s biodata pages of his Indonesian passport.
Department decision of 28 July 2016
The delegate was satisfied that the applicant’s identity was as claimed, that he was an Indonesian national and that this was the appropriate country against which to assess his claims. The delegate was further satisfied that the applicant did not hold any other citizenship nor have a right to reside or enter another country.
The delegate refused to grant the visa on the basis that he did not accept that the applicant met the criteria for protection as a refugee (set out in ss.5J(1)(a) and 36(2)(a) of the Act), nor the criteria for complementary protection (set out in s.36(2)(aa) of the Act).
In reaching this conclusion, the delegate acknowledged the applicant’s claims, as set out above.
The delegate accepted that the applicant was an Indonesian national of Chinese ethnicity and a Christian. However, the delegate expressed concerns about the lack of evidence that the applicant had provided in support of his case, noting in particular that the applicant had been invited on 8 July 2017 to contact the delegate to arrange to attend an interview with the delegate, but had not done so.
The delegate took into account a range of country information on government structures and corruption, anti-corruption mechanisms, legal processes, and the situation for Chinese-Indonesians in Indonesia. This included reports and articles from the Australian Department of Foreign Affairs and Trade (DFAT), the United States (US) Department of State, the Immigration and Refugee Board of Canada, Transparency International’s corruption perceptions index 2014, Human Rights Watch (HRW), Amnesty International (AI), Global Advice Net Integrity Solutions, Freedom House and the Institute of Southeast Asian Studies.
The delegate noted that the applicant had provided his claims with minimal details and no supporting evidence. He had not explained the circumstances under which he reported the corruption of a taxation officer, to whom he reported this, or why. The delegate noted that the applicant appeared to be claiming that he was attacked by a gang because he had reported the local taxation official, but also claimed that this attack was racially motivated (due to his Chinese Indonesian ethnicity). The delegate found that, due to the lack of evidence and explanation provided, the reason for the alleged persecution was not clear to him. The delegate found that it was reasonable to expect a person who genuinely feared harm in his country of nationality to present his case in sufficient detail for that issue to be assessed properly, yet the applicant had provided very little detail in his written claims, and had not taken the opportunity to be interviewed by the delegate.
The delegate considered that country information cited above indicated Indonesia had a functioning police force and judicial system, although it also indicated that corruption was prevalent, particularly in the government sector in Indonesia. The delegate noted that certain country information suggested that the Indonesian government was aware of these shortcomings and was attempting to address these issues through the establishment of anti-corruption courts and a Corruption Eradication Commission (KPK). The delegate found that corruption within government affected all citizens of the country, including different ethnic and religious groups. He found that there was no evidence that the government would be unable to access the same level of legal protection from the authorities as any other Indonesian citizen.
The delegate further considered that the country information on the treatment of Chinese Indonesians by the wider community indicated that Chinese Indonesians were at low risk of official discrimination, that the Indonesian government officially promoted racial and ethnic tolerance, and that there had been no reported acts of violence against Chinese Indonesians since 2012. The delegate therefore found that the applicant would receive effective protection from the Indonesian police and judiciary against any threats he faced from the taxation officer and his hired gang.
The delegate found that there were effective protection measures available to the applicant in Indonesia and he did not have a well-founded fear of persecution. He was therefore not a refugee as defined in s.5H of the Act and s.36(2)(a) was not satisfied.
Moreover, for the same reasons (effective state protection), the delegate found that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia, that there was a real risk that he would suffer significant harm. The delegate found that the applicant did not meet s.36(2)(aa) of the Act, as his circumstances did not fall within the complementary protection provisions.
Overall, the delegate was satisfied that the applicant was not at risk of harm from the authorities or anyone else in Indonesia for reasons of his membership of a particular social group or for any other reason. Based on the available country information, and the lack of evidence from the applicant, the delegate was not satisfied that there was a real chance of persecution for one or more of the reasons listed in s.5J(1)(a) in the receiving country. Therefore, the applicant was not a refugee as defined in s.5H and the criteria in s.36(2)(a) were not met.
In relation to complementary protection, the delegate did not accept that the applicant’s circumstances gave rise to a real risk that he would be subjected to any form of significant harm, as defined in s.36(2A), if returned to Indonesia in the foreseeable future. Accordingly, he did not meet s.36(2)(aa).
For these reasons, the delegate found that the applicant was not owed protection obligations by Australia and refused to grant him a protection visa.
Tribunal review application
The applicant lodged a review application with the Tribunal on 11 August 2016. It was accompanied by a copy of the delegate’s decision.
On 7 February 2019, an authorised officer of the Tribunal conducted a preliminary hearing with the applicant, as permitted by the use of the evidence power set out in ss. 364 and 428 of the Act. At this hearing, the applicant indicated the following:
·he had lived at 2 different addresses in Indonesia, prior to coming to Australia: his family home and then a rental property, both were in Surabaya;
·he was unmarried and his parents and a [sister] lived in Indonesia. They were all working but did not send him any money to assist him. He had no family members in Australia;
·immediately prior to coming to Australia, the applicant’s last job was [a Position 1] at [Company 1] in Surabaya, he worked there from mid-2010 to November 2014, earning approximately AUD [amount] per month. During this period, he moved out of the family home and into his own rental property. This was the only job he had in Indonesia before coming to Australia;
·prior to this job, the applicant was completing his tertiary education. He completed a university [degree];
·he made a trip of approximately 5 days to [Country 1] in mid-2014, then came to Australia in November 2014. He said that he decided to leave Indonesia due to racial abuse and discrimination against Chinese and Christian people. Many Chinese were called ‘kafir;’
·he submitted a corruption report against a local taxation officer. This officer was working with one of the managers in the applicant’s country to falsify invoices and provide false mark-ups of products, so the applicant reported them both to a higher level management of the company;
·the higher management did not believe him, so they fired him;
·he believed that they hired a gang to come after him. He believed that the gang were Islamic and that, due to the timing of the gang visit – that is, just after he made his report – it was related to his reporting the corruption within the company;
·he did not have any problems with the Indonesian authorities or police prior to leaving Indonesia or any difficulties obtaining a passport in [2014] or departing legally;
·he chose to come to Australia in November 2014 after Googling and discovering that it had a humanitarian program, and was closer to Indonesia than the US or Canada (countries that also had humanitarian programs);
·he realised that he could not return to Indonesia after the night that the gang came to his house and beat him. However, there was anti-Chinese sentiment, particularly by Muslim groups, in the near past, including the 1998 and 2014 election years. The applicant said that anti-Chinese sentiment was at similar levels to this now, because it was an election year in 2019;
·if he had to return to Indonesia, he feared harm from the 2 people he reported for financial irregularities within the company he formerly worked at. He also feared anti-Chinese violence (a repeat of the 1998 violence). He said that he did not know whether, after 5 years, whether the former colleagues would still want to hurt him, but if they wanted him to keep his mouth shut, they could take any sort of action they needed;
·he was preparing to help his parents leave if there was a serious indication of a repeat of the anti-Chinese violence from 1998 this election year [2019];
·he feared his former colleagues could still harm him because they had been in that company for years and had gained much money through their corruption, and the applicant was the one who knew about their activities;
·he had been harmed in Indonesia. There was one occasion where at least 1 person came and swore at him (‘kafir’) and told him that it was a warning, and they would kill him and that he was lucky that they let him live. There was one instance where a big group came to his house and again swore at him as a ‘kafir’ and beat him;
·on this occasion, the group became angry because he talked back to them – he was hit in the face and knocked to the ground. He was kicked and spat on. His suspicion was that this was related to his anti-corruption report. This happened in November 2014, on a Friday night ;
·he did not seek help after this attack, because he would not have been able to identify the group. Also, it was common knowledge that the police would not help Chinese in this way;
·on being asked whether he considered moving elsewhere in Indonesia to escape the feared harm, the applicant said he considered other places in Java, but he felt that he would not be able to survive there without knowing anyone. He said that he also considered [Country 2], but felt that Australia was his best option;
·in relation to whether the applicant felt it would be safe to return to Indonesia now, more than 4 years after the harm claimed occurred, the applicant said that he didn’t think it was safe. He had been reading about anti-Chinese sentiment and racial abuse and that opposition politicians were using the ‘race card’ a lot. Moreover, the number of radical Islamists was increasing, and prominent Chinese had been imprisoned. Church bombings had taken place in Surabaya;
·the authorities perhaps might be able to protect him from harm from his 2 former colleagues but he would need to pay the police for that protection. However, he did not believe that the authorities would or could protect him from the broader anti-Chinese sentiment in Indonesia; and
·there were no other reasons that he had for his fear of returning to Indonesia.

On 6 May 2019, the Tribunal received a written statement from the applicant, as follows:
Indonesia is a big country located in South East Asia with 6 religion [sic] acknowledged by government, Islam, Catholic Rome, Protestant, Hinduism, Buddhism and Confucianism. According to Wikipedia, 87% of them is Islam.
Living as non-Muslim and Chinese in Indonesia is proven hard all this time. There are many anti-Chinese sentiment that has been for so long existed in Indonesia. We already limited on many aspect on our life. It happened since Soeharto’s era, the 2^nd president of Indonesia, who overthrow Soekarno, the 1^st president, with anti-China sentiment as Soekarno having close relation with Republic of China.
We not allowed to use Chinese name in our life. They advise us to change our name to “Indonesian” name. Its so common for many of us to have 2 name, my name myself is “[Name 1]” in paper but my family called me [a different name]. Obviously when they say “advise” it means like forced, because if we not changed, we would overcome many difficulties in life;
We are not allowed to use Mandarin in our daily language. Many of Indonesian Chinese couldn’t speak Mandarin since the government oppress its being used.
Stigma for China is always PKI or communism party, the party declared illegal, but many of the people with close minded still considered dangerous.
Common sense for minority in Indonesia to couldn’t hold great position in government, even for lowly officer is almost impossible, a lot would got major resistance.
There’s almost none Chinese would enrol in public school, since mostly of them resistant towards us. Its common sense since our older generation, and not changing little bit. Many of Chinese and Christian kids always ended up bullied, from small bully like verbal, to physical abuse. From this I have heard thousand stories. We often called “cina gendeng” (Chinese crazy) since my childhood and now its getting worse, and the popular word nowadays that we called is “kafir,” “penghuni neraka” (hell occupant).
Since that built from our childhood, and their childhood, its already cemmented on their subconsciousness. Deep down in their heart, they still saw us as “immigrant,” and think that they lucky to let us live there. According to LIPI (Indonesia science organisation), the number is risen, around 40% of the respondent agree to make Indonesia a muslim country with Sharia law, more than half of the respondent agree to use violence and destruction if dealing with another religion who obstruct Islam. Survey from LIPI, stated that intolerance number in Indonesia is growing rapidly:
teacher has intolerant opinion towards minority according to survey
to recent survey, more people willing to do jihad
act in Indonesia risen rapidly in the last 3 years
of the uneducated muslim didn’t understand much, they just blindly follow what the preacher told them, and hatred lies down there for many many years, its like tip of the iceberg, just waiting for something to be triggered, and proved by 1998 incident, when nothing related to Chinese and Christian, but somewhat we always ended up become the victim.
I still remember the horror of 98, I was still [age] years old at that time, my uncle live in Jakarta, and his house burned down, thugs loot all his belongings. As for my family, little bit lucky because live in suburb of Surabaya, so little bit far from the centre of the mass destruction, but I could hear many marching thug yell and scream ‘kill kill kill China’ etc, and of course their takbir. We was forced to stay inside the house for a week. We live in mainly Muslim area and our house wasn’t too big or obvious, so our house is luckily spared.
That experience still haunted me to this day, about their screaming ‘kill kill kill’ and trauma about they could yell ‘Allahu akbar’ when do something bad to others. And after years I grew up, I hear many sad stories from my friend about their house robbed, their relatives rapped before their eyes and many more. The story about 1998 survivor or about their experience could be found easily on internet, there are tons of the, and a lot of them is tears burster.
Regarding the president who rule Indonesia, it having a lot of effect. After the 1998 incident, and led to Soeharto being overthrown, Abdurrahman Wahid (Gusdur) rise into president. After Gusdur rise to president, situation get better, imlek is declared as a public holiday, and many things getting better, but seems that’s diversity peace in Indonesia remain a dream, as Gusdur only stay as president for 1 year.
When Susilo Bambang Yudhoyono risen to power, he just let many extremist grow, such as FPI, FBR. In many years I heard about their propaganda about syariah islam, and many things such as “Ganyang cina” (Kill all China), “rise up pribumi” (Native in Indonesia), “Kafir blood is halal,” “Syariah islam should rise” and many more. And things going back to 1960 era or even worse because social media era help spread the propaganda even further. Many innocent muslim is intoxicated with the radicalism mind, even on early age.
Also still fresh in our memory regarding Basuki Thahaja Purnama or commonly called Ahok, the man who got many award as best governor, the very good man and clean to corruption, but ended up tragically in jail, stripped from all his power, without nobody could help him. The reason is totally silly, as he accused to “humiliate Islam name.” But I would say its lucky he still alive because of many media attention. If nobody spotlight him, he would got little bit of “manners teaching,” teach how to behave like a minority. Theres ton of information regarding Ahok and total discrimination against him.
I managed to find little bit for survey and fact:
Intelligent found 39% from university student is radical – 1 Mei 2018
39% is not a small number, which mean from 10 local islam people, 4 of them would think that they want to eradicate minority
2017, Wahid Institute said that 0.4% Indonesia has done radical things, and 7.7% people WILLING to do radical things if possible.
0.4% from 300 millions is 1.2 million HAS DONE radical thing, and 7.7% from 300 millions is 23.1 millions WILLING to do radical thing. For comparison, the Australian military power is 50,000 people. That kind of number isn’t small number.
from 100 mosque in government indicated spread radicalism
and intolerant act risen recently
stated, 58% is intoxicated by radicalism in 5 provinces
bombing happen, 4 bombing in 2 days on Surabaya, and now the terrorist bring their innocent kid into their act, and 2 of them still 16-18 years old, still teenager. Its amazing how the radicalism has spread itself into Indonesia.
Islamic leader in Cilegon, don’t want even 1 other religion in their area
Yasmin, and many other churches that closed by Islamic group
one of Islam’s sect, which majority think they are not islam, got persecuted real bad, they using violence to eradicate anything in the name of islam
Meiliana, imprisoned for 18 months, because want the toa (mosque speaker’s) volume down. This toa phenomenon is make a lot of conflict recently, since every 100-200 meters there is a mosque, and every mosque, they install more than 3 or 4 or even 5 Toa in their mosque.
And this incident has led to Islam group to destroy and burn many of vihara nearby, because they feel offended by Meiliana’s complain. I read in one news portal that eye witness said, they yell “allahu akbar,” They think by doing that, they take revenge and will glorify Islam.
for myself – I managed to get into decent job [at Company 1], the company who partner under [government]. Many of the worker is muslim and local obviously. I start work around 2011, and managed to climb the rank as [Position 1]. After a while, I managed to find many disparities in old documents from 1998 until 2005, about the price of [certain equipment]. Me myself, very idealism person, I couldn’t stand if I saw a crime like that. I consult with other senior team (but his position below me), he advise just to shut my mouth, as its “common sense” and he advise that I will get into big trouble, since I’m minority here, and he said many people jealous of my achievement, and if I go against the higher up, I will got a big big trouble.
So, long story short, I still pursuit the disparities, looking for the real price, and found out that the mark up, until up to 43%. The manager who sign those, Mr [A], also the taxation officer who manage our company’s taxation publication, Mr [B], included in that report. But I make a mistake, Mr [B], knew about my report and threaten me. He come to me and said, things like, don’t make trouble, especially u are minority here, we are lucky to let u live and work etc etc. I still submit my report to my director, but apparently Mr [A] reported me beforehand to my director with fake report, and I ended up fired. And one night, I got beaten up on my way back to [home], they beat me severally and threaten to kill my whole family.
In that point, I knew that Indonesia, would never been safe to minority, and as year goes by, many reports as I have staten before, prove that radicalism number is getting higher. The spreading of radicalism getting faster, even I saw on several of my [social media] friends, who was nice to me back then, now they posting about many jihad thing or syariah’s thing. It make me scared to go back there. Its like time-bomb, will explode but only God knows when, and I’m unwilling to risk my only life.
…
The applicant attended a hearing on 9 May 2019. The Tribunal (differently constituted) took evidence from him with the assistance of an interpreter in the Indonesian and English languages.
In response to the Tribunal’s query as to why he applied for a visitor visa to come to Australia in 2016, the applicant said that he was not sure how to apply for a protection visa from Indonesia, and his travel agent in Indonesia advised him to apply for a visitor visa to come to Australia, in order to apply for protection in Australia. The applicant said that his travel agent was Indonesian-Chinese as well, so he (the agent) understood the applicant’s situation. The applicant clarified that he sought to leave Indonesia because he did not feel safe there. He said that there was long-standing anti-Chinese sentiment in Indonesia, going back to the Soeharto era. Chinese Indonesians were not allowed to use Chinse language or use Chinese names – instead, they were ‘advised’ to use Indonesian names on their birth certificates and in every day life. In response to the Tribunal’s query about the current situation in Indonesia, the applicant conceded that President Joko Widodo (‘Jokowi’) had improved things, as did an earlier President, Gus Dur, in 1998 (although the applicant noted that the latter was only in power for 1 year).
The Tribunal told the applicant that it accepted that the Chinese Indonesian community (in Jakarta, particularly) had been targeted in 1998 during riots occurring during the Asian financial crisis, and at the time that President Soeharto resigned, but noted that this was now 30 years ago, and most available country information indicated that there had been no repeat of violence against the Chinese Indonesian community on this scale since that time. The applicant told the Tribunal that he was [age] years old in 1998. His uncle in Jakarta had his house burned down during the rioting but managed to escape. The applicant said that he and his family were effectively house-bound in Surabaya during this period, for fear of being attacked if they went outside during demonstrations. The applicant described these experiences as deeply traumatic for him as a child, although he conceded that things subsided, and he was able to attend school and college and gain professional employment.
The applicant asserted that during the Presidency of Susilo Bambang Yudhoyono (‘SBY’), more radical Islamic groups in Indonesia were allowed to grow, although he acknowledged that President Jokowi had since banned these groups. The applicant said that these tensions were always worse in election years in Indonesia (such as 1998). The Tribunal observed that 2019 was an election year, but that the election had now been won by President Jokowi, who is now serving a second term. The applicant said that President Jokowi’s main rival, Prabowo Subianto (‘Prabowo’) had supporters who were mobilising ‘people power’ (predominantly Islamic groups) to rise up, on the grounds that they claimed that the election was rigged and should have been won by Prabowo. Groups such as the FPI (‘Islamic Defenders Front) and others were leaning towards radicalism and attempting to incite unrest. The applicant said the leader of the FPI was now in exile in Saudi Arabia, to avoid being dealt with by the Indonesian authorities. The applicant said that due to the racial abuse he had suffered since he was a child, he was concerned by these developments as he felt it would not take much for the Chinese Indonesian community to again be targetted, whatever the cause of the political unrest actually was.
The applicant said that Chinese Indonesian children usually went to private schools, as government schools were predominantly Muslim. He said that although his parents were not rich, they could afford to send him to a private school. However, he had friends who attended government schools, where they described being called derogatory names related to their Chinese background. The applicant said that he grew up in a Muslim-majority area of Surabaya. He confirmed that his family are Christian but said that although his parents are regular churchgoers, and he was also as a child, he was not a regular attendee as an adult. In response to the Tribunal’s query, the applicant said that there was not much of a problem attending church to worship, as most churches were in areas where the majority of the population was Christian.
The applicant confirmed that after he graduated from college, he got a job at [Company 1] , a company that was involved in [a specified area]. It was a private company but had a partnership with the government. Through hard work, he was promoted to [Position 1]. Others were jealous of his progress. In this capacity, he had access to company records, including purchasing orders. While reviewing these, he identified some discrepancies which indicated that the company was paying inflated prices for a range of products (that is, a lot more than the market rate for the products). He prepared a list of all the purchase orders affected that he could identify and provided it to his director. He said that he did not know exactly what happened after that, but his manager then came to see the applicant and told him that he (the applicant) was lucky to have a job, given he was a Chinese Christian, and queried why the applicant was making trouble at the company. The applicant said that this occurred about a week after he provided the report to his director. About a week after this encounter, the applicant said that he was called in by the director and sacked from his job. He was told that the reason for this was that his [project] had failed, but he told the Tribunal that he did not believe that this was the real reason, as his [project] was not even complete at this stage. The applicant said that he assumed the real reason he was sacked was for identifying the corrupt practices of the manager in the purchase order report he made to the director. When asked why he thought this, the applicant said that the timing of his sacking, occurring as it did shortly after he made the report, was highly suggestive of that being the real reason he was sacked.
The applicant said that he tried to reason with his director by defending his [project]. However, the director told the applicant that the company had decided to buy other [product] and no longer needed the applicant’s [product]. He also criticised the applicant’s work over the past 3 years with the company. The applicant estimated that this all occurred about 6 months before he came to Australia. He said that he saw no possibility of trying to regain his employment with the company, given the abuse he received. He noted that a friend of his at the company had warned him not to report the discrepancies he identified, as he would likely get into trouble, but that he (the applicant) felt that he had to make the report. When asked why he felt he had to make the report, the applicant said that he was an honest person, who found it difficult to turn a blind eye to corruption within the company, particularly as he hoped to progress within the company. He could not simply ignore things; he had to try to clean things up. The purchase orders were signed by his manager, which convinced the applicant that the manager was complicit in the corrupt business practices, and was why the applicant went over his head to provide the report to his director. However, somehow his manager found out about this. The applicant noted that the discrepancies he identified (inflated purchase orders) were commonplace in Indonesia, where prices were manipulated between certain company staff and certain suppliers to benefit themselves on an ongoing basis, at the company’s expense.
The applicant said that before he was sacked (but after he had made the report and been told off by his manager), some thugs came to [where] he lived. He then said that people came on 2 to 3 occasions and abused him as a ‘stupid Chinese.’ The applicant then clarified that the first time this happened, he was at home, and answered a knock on the door. When he did so, there was a group of people waiting for him. He did not recognise any of them. He was punched and kicked and slammed into the wall. They racially abused him, then left. The applicant said that he called the police but his attackers left before the police could arrive and in any case, he could not identify them. The applicant said that the police generally would not attend even if he rang and told them he was being attacked. They tell people in such situations to come to the police station and make a report. In response to the Tribunal’s query, the applicant said that the police did not (and generally would not) investigate such an incident, and that they told him that he should pay for protection (that is, he should pay either the police or a third party). The applicant said that after this incident, he was bruised but did not seek medical treatment as it was expensive to do so and he was not incapacitated. This was on a Friday.

On Sunday, people came again. This time, the applicant did not open the door. The same pattern of behaviour occurred so he assumed it was the same people. He was verbally abused. In response to the Tribunal’s query, the applicant said that no specific threats were made, but he assumed that the people were the same ones as the ones who assaulted him the previous Friday night, and that on both occasions, he assumed that this took place at the behest of his manager at work. The next Friday night, he arrived at [home] at about 7 or 8pm, and there was a group of people there waiting for him. They yelled at him ‘kafir’ and punched him, and told him that he was lucky that they let him live. Then they ran off.
The applicant confirmed that most employees at his company, including his manager and director, were Muslim. His manager had a beard, so the applicant assumed he was quite a strict Muslim. The applicant said that he and 2 others were the only Chinese employees.
The applicant reiterated that the police never come to incidents like the ones he described, they always tell people to make a report at the police station. The applicant said that in his case, he felt that it would be useless to do so as the report would simply be filed and no further action taken, unless he was able to pay the police for protection. The applicant said that the police would not protect anyone who could not afford to pay them. He said that he also assumed that the police would not help a Chinese Indonesian person, but they might if the complainant was Muslim. He compared it to trying to get government employment: this was pretty much reserved for Muslim Indonesians and few Christian Chinese Indonesians would get government employment.
The applicant said that after this, he decided that he wanted to leave Indonesia, so that he could live without fear. He moved back to his parents’ house – as he was confident that the gang who had come to his [own home] did not know his parents’ address – and started thinking about leaving the country. In response to the Tribunal’s query, the applicant said that he was not working during this period, except for some sporadic work that a friend, [passed] to him. He confirmed that he was not employed by another company between being fired and leaving Indonesia about 6 months later. His friend was working for himself, and got the applicant to help him out with particular projects at times.
The applicant said that he considered going to either [Country 2] or Australia. The travel agent he saw recommended Australia, as it had a humanitarian program, whereas [Country 2] did not. The applicant said that another factor in his decision-making was that he did not speak [Country 2 language], so [Country 2] would have been more difficult for him. He said that he had some English, so Australia would be easier. The applicant said that his parents were fully aware that he was planning to leave Indonesia and supported him in whatever decision he made. The applicant said that he did consider whether he could move elsewhere in Indonesia, but said that Jakarta was more volatile than Surabaya, and he was unfamiliar with the other islands outside Java. They scared him as he knew nothing about them.
In relation to his visitor visa application, the applicant said that he did not know what it contained, as his travel agent prepared it and he just signed it. He clarified that his travel agent got him to provide certain documents, such as his bank statements and passport, but that the contents of the application form were not completed by him, but by the agent. He said that the agent charged him [amount] rupiah to prepare and lodge it (approximately [amount]). On being shown a copy of his visitor visa application by the Tribunal, the applicant said that it was not completed in his handwriting. The Tribunal noted that the application states that the purpose of the applicant’s proposed visit to Australia is to visit a friend, [Mr C], and that there is a letter from Mr [C] included in the application, in which Mr [C] states that he is inviting the applicant, who is a friend that he met [in] 2013. The applicant said that he was not friends with Mr [C], but had been told by the travel agent that Mr [C] would provide an invitation letter, and Mr [C] did ring him once before he left Indonesia. However, the applicant said that he did not stay with Mr [C] when he came to Australia; he stayed with another friend to whom the travel agent had introduced him.
The Tribunal asked the applicant about his passport, which states that it was issued to him in June 2014. It asked him why he applied for a passport at that time. The applicant said that his old one had expired so he needed to get a new one. The Tribunal asked why he chose to renew it at this time, which (on his earlier evidence) was around the time that he made his report to his director at work, but approximately 5 months before he left Indonesia. The applicant said that his father renewed the family’s passports altogether at the same time, as it was cheaper to do it that way.
The Tribunal invited the applicant to comment on another aspect of his visitor visa application, pursuant to s.424AA; specifically, an employment reference for the applicant from a company [dated] [date] September 2014, in which it is stated that the applicant has been employed there for more than 3 years and will be using his annual leave to holiday in Australia for 3 weeks at his own expense. The Tribunal advised the applicant that it considered that this information was relevant to his review application as it suggested that he was in fact employed at the time that he left Indonesia, and that in turn suggested that the applicant’s claims had been fabricated and may not be genuine. The Tribunal further advised that if it found that the applicant’s claims were not genuine, it might find that he was not a person who met either the refugee or complementary definitions, and this would be the reason to affirm the decision under review. The Tribunal adjourned the hearing to enable the applicant to decide whether he wished to respond to this information at the hearing, or ask for additional time to do so. After the adjournment, the applicant indicated that he wished to respond to the information at the hearing. The applicant said that he was unaware of this letter and he was not employed by the company named in the letter. He said that his travel agent told him that if he was unemployed, it could be a problem for his visitor visa application. Therefore, he assumed that his agent arranged for this letter to be produced to bolster his visitor visa application. The applicant said he was unaware of it prior to the Tribunal raising it with him at the hearing. The applicant said his agent arranged everything about the visitor visa application and sent it to Jakarta, and the only thing the applicant knew was that he got the visitor visa.
The applicant said that he knew that his visitor visa was valid for 3 months. When asked by the Tribunal why he did not apply for a protection visa during this period, rather than some months after, the applicant said that he was unsure of how to go about applying for a protection visa. He felt overwhelmed and other Indonesian people he knew in Melbourne told him that the cost of applying for a protection visa was $[amount] through an agent, and he only had $[amount]. He therefore found casual work to earn money to be able to pay an agent to lodge a visa application on his behalf. The Tribunal noted that the applicant’s earlier evidence was that he specifically chose to come to Australia because of its humanitarian program, and that he spoke and read English before leaving Indonesia, so it was difficult to accept that he was unaware of how to apply for a protection visa himself, or that he could not find information from the Department’s website himself (particularly, the fact that it did not cost $[amount] in Department fees to apply for a protection visa). The applicant said that his English was not that good when he arrived in Australia, and he was stressed and overwhelmed, so it was not easy for him to find the information he needed. He told the Tribunal that he ultimately found a Chinese agent in Sydney who stated he would charge $[amount] or less to lodge a protection visa application for the applicant. The applicant said that he went to Sydney to see this agent and have him lodge the protection visa application. This was the cause of the delay in making his protection visa application.
In response to the Tribunal’s query, the applicant said that he told the agent what had happened to him, and the agent completed the form on the basis of his instructions. He confirmed that he was happy that it accurately reflected his claims, although not in as much detail as he had now provided. The applicant said that the agent told him that he would have an opportunity to expand when he spoke to the Department, but he did not have a Department interview so he was never able to provide the detail he had subsequently provided to the Tribunal in writing and the hearing. The applicant said that he was given a copy of his protection visa application by the agent.
The Tribunal also discussed the bank statements that accompanied the applicant’s visitor visa application. He confirmed he provided these, and identified the last payment from the company before he was sacked – this was in June 2014. He agreed that his bank balance as at July 2014 was about [amount] rupiah (approximately AUD [amount]).
In response to the Tribunal’s query, the applicant said that he initially got a bridging visa C without permission to work, but successfully applied for work rights. He was working [on] a casual basis. He had done this work for a couple of years and usually worked for about 50 hours per week. He was living in shared accommodation with friends.
When asked what harm he feared if he returned, the applicant said that if anything happened in Indonesia politically, the Chinese were the first victims, and were always targetted. The applicant said that he wanted to be free of the fear this caused him but felt that the situation in Indonesia was actually getting more hostile towards Chinese Indonesians, and he drew the Tribunal’s application to the cases of Ahok and Meiliana, as set out in his written statement. He felt these were examples of the fact that the Muslim majority population did not want Chinese Indonesians, such as himself, in their society. The Tribunal noted that these appeared to be fairly isolated incidents, and the Ahok incident involved a high profile politician. It queried why this would lead it conclude that the applicant would be at risk, given he did not have this kind of profile. The applicant responded that the mass media reports only major incidents, but lots of things happen to ordinary people that are not reported. He also drew to the Tribunal’s attention the bombings in Surabaya recently and said that these were genuinely shocking to him, as one took place near where he went to college, and there were very young radicalised Muslims involved, who were only teenagers.
The Tribunal noted that it was now approximately 5 years since he made the report on his manager and corruption within the company, and therefore it was hard to imagine that the manager would still be motivated to harm the applicant if he now returned to Indonesia. The applicant conceded that he could not be sure whether he would still be a target, as he had not seen the manager for 5 years. The applicant said that the manager could still want to harm him, because the applicant had named him as corrupt. He conceded that he would probably be able to find work in another company in his field without too much problem.
In relation to relocation, the applicant said that he was only really familiar with Java, and as he had already stated, he felt the situation there was getting more tense and more radicalised. He said that he was not confident that the authorities could protect him from any harm as they only protect people with money.
The Tribunal then discussed with the applicant a report from April 2018 on the situation in Indonesia from the Australian Department of Foreign Affairs and Trade (DFAT), which mentioned a number of things that the applicant had raised but which concluded that, while there was low level societal discrimination against Chinese Indonesians, the risk of serious harm to this community was considered low, and better than it had been in previous years. The applicant said that he felt the situation was like a ticking time bomb: if there is any kind of political and/or economic conflict, the Chinese Indonesian community would be attacked. He also cited the information from his statement indicating that levels of radicalism and Islamic supremacy were on the rise. This remained of serious concern to him. The applicant said that he did want to return to his home some day, but he did not feel it was safe to do so at present, as the situation was too unsettled, particularly due to the unrest being fomented by the political opposition and rise of radical Islam. These exacerbated the fears he had had since childhood when he experienced the trauma of being targetted.
Relevant country information
The Tribunal had regard to the following country information in assessing the applicant’s claims:
·DFAT Country Information Report on Indonesia (25 January 2019); in particular, the section on Corruption, at paragraphs 2.16 to 2.20, in which it is stated that ‘Notwithstanding strong laws against corruption, international commentators have observed weak enforcement of anti-corruption legislation, ineffective regulatory mechanisms and conflicting legislation, a culture of nepotism and favouritism, and bribery in the public service, judiciary, police and politics. Petty corruption is common in main areas such as policing and education, particularly higher education. President Widodo campaigned for his presidency on an anti-corruption platform, however to date, he has not implemented major corruption reform… The main anti-corruption body is the Corruption Eradication Commission (KPK)… The police and public service may also investigate crimes of corruption. The Ombudsman actively supervises the public service and investigates alleged maladministration by public officials or legal entities funded by the state… The KPK’s anti-corruption efforts have attracted resistance from some quarters, including intimidation and attempts to weaken its authority. In April 2017, an acid attack left a senior KPK investigator with facial burns and eye damage. The attacker had not yet been identified at the time of writing… The Widodo administration has so far protected the KPK and it remains a functional and trusted institution… Indonesia ranked 96^th out of 180 countries in Transparency International’s Corruption Perspectives Index, slightly further down the list from 90^th in 2016. Local sources say the increasing numbers of convictions may have led to the perception that corruption is worsening, when it was in fact being addressed…’ The Tribunal also took into account the section of the report headed ‘Pancasila,’ in relation to which paragraphs 2.35 to 2.36 provides as follows: ‘Pancasila is the official, foundational ideology of the Republic of Indonesia… a new agency, the Presidential Working Unit on Guiding the Ideology of Pancasila [has been established], which includes senior political, military and judicial figures, and representatives of Muslim, Christian, Buddhist and Hindu communities…’ In the sections on Indonesia’s Security Situation and Communal Violence, it is stated at paragraphs 2.41 to 2.42 and 2.47 that ‘Terrorism is a threat in Indonesia, as in much of the world. A Catholic church was attacked in February 2018 and a series of incidents occurred in May 2018, including church bombings and suicide and sword attacks in Surabaya and Pekanbaru… Recent terrorist attacks have focussed on state institutions as their primary target, in particular police. Churches have been attacked…Government and community groups have since undertaken peace-builiding efforts in Ambon and Malaku province [after severe clashes between Muslims and Christians there between 1999 and 2002] to promote common values and build inter-faith links between communities. These areas have been largely peaceful for a number of ears. However, ongoing communal tensions along religious and ethnic lines in some parts of the country retain the potential to lead to violence…’ It is further stated in Chapter 3 on Race/Nationality that ‘Indonesia is one of the worlds’ most ethnically diverse countries. The government promotes racial and ethnic tolerance and legislation prohibiting racial discrimination and vilification has been in force since 2008’ (paragraph 3.1). Specifically in relation to Ethnically Chinese Indonesians, the report states (at paragraphs 3.5 to 3.13) that: ‘Successive waves of immigration to Indonesia from China over more than five centuries have resulted in an established ethnically Chinese 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 ethnicity are reportedly reluctant to self-identify due to past tensions… about 42 per cent [of the Indonesian Chinese population] are Christian… 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 expression, and many Chinese Indonesians were pressured to take Indonesian names… 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… Some anti-Chinese sentiment remains at a societal level… 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… 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…’ In paragraphs 3.14 to 3.19 on Religion, the report notes that the Indonesian Constitution guarantees citizens the freedom to choose and practise the religion of their choice and the freedom to believe their faith, and that ‘Religious pluralism is an established part of modern Indonesia and a wide range of local and international sources consider that inter-faith tolerance remains stong. Local sources do, however, report an increase in localised instances of religious intolerance over the past decade, including threats from hard-line Islamic organisations…’. The section on Blasphemy and Defamation of Religion (paragraphs 3.25 to 3.27) refers to the blasphemy trials of former governor Ahok (an ethnically Chinese Christian) in 2017, and of an ethnically Chinese Buddhist woman called Meiliana in 2018, both of whom were convicted. In the section on Christians, it is stated (at paragraphs 3.35 to 3.41) that ‘Christianity is Indonesia’s second-largest religion after Islam. Approximately 24 million Indonesians listed their religion as Christian in the 2010 census… Christian communities exist in every province and Christianity is the majority religion in some of the eastern provinces… About a million Christians lived in Jakarta at the time of the last census… Christians are generally able to practise their faith freely throughout Indonesia. High-level interdenominational and interfaith dialogues, especially between Muslims and Christians, and between Catholics and Protestants, occur regularly. Christians, residing in some areas, particularly where hard-line Islamists 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 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… 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…’ Finally, in the section on State Protection, it is stated at paragraph 5.7 that ‘many religious and ethnic minorities serve in the police. Chinese Indonesians and Christians, particularly Catholics, serve in both the national police and the military…;’
·US Department of States Country Reports on Human Rights Practices entry on Indonesia (2018): in particular, section 4 on Corruption and Lack of Transparency in Government, and section 6 on Discrimination (subsection on Other Societal Violence or Discrimination) in which it is stated that ‘The law provides criminal policies for official corruption, and the government generally enforced the law. Elements within the government, police, and the judiciary, however, tried to undermine efforts to prosecute corrupt officials. Despite the arrest and conviction of many high-profile and high-ranking officials, there was a widespread domestic and international perception that corruption remained endemic… KPK investigators were sometimes harassed, intimidated or attacked due to their anticorruption work…The KPK continued to investigate and prosecute officials suspected of corruption at all levels of government… On July 21, President Jokowi signed a presidential regulation outlining the administration’s updated national anticorruption strategy. The degree mandates the formation of a national team to implement the government’s anticorruption activities. The regulation further stipulates that anticorruption efforts should be aligned with KPK’s priorities and efforts and focus on state finances, governance and licensing, and law enforcement.’ In the section National/Racial/Ethnic Minorities, it is stated that ‘the government officially promotes racial and ethnic tolerance, but in some areas, religious majorities took discriminatory action against religious minorities, and local authorities made no effective response… In areas where they constituted a minority, Sunni Muslims and Christians were also victims of societal discrimination;’
·US Department of State Indonesia 2018 Crime and Safety Report (25 June 2018), in particular, the section on Political, Economic, Religious and Ethnic Violence, in which it is stated under the heading ‘Civil Unrest’ that ‘… Political demonstrations are a daily occurrence in Indonesia… Religious/Ethnic Violence: Localised political violence and civil unrest due to ethnic, sectarian, religious, and separatist causes remains a possibility… In Jakarta and other cities with sizeable ethnic Chinese populations, there are occasional incidents related to latent anti-Chinese sentiment. Some of these incidents are reportedly motivated by economic jealousy or linked to the belief that Chinese nationals are entering the country and taking jobs from Indonesian citizens…;’
·Human Rights Watch World Report 2018: Indonesia; in which it is stated that ‘… But the Jokowi government has consistently failed to translate the president’s rhetorical support for human rights into meaningful policy initiatives. Religious minorities continue to face harassment, intimidation from government authorities, and threats of violence from militant Islamists… On May 9, a Jakarta court sentenced former Jakarta governor Basuki ‘Ahok’ Purnama, a Christian, to a 2 year prison sentence for blasphemy against Islam. That conviction followed the success of Islamist militant groups in making his blasphemy prosecution a centrepiece of efforts to defeat him in Jakarta’s gubernatorial election in April 2017…;’
·Freedom in the World 2017: Indonesia, Freedom House, in which it is stated that ‘Indonesia has made impressive democratic gains since the fall of an authoritarian regime led by President Suharto in 1998, establishing significant pluralism in politics and the media and undergoing multiple, peaceful transfers of power between parties. However, the country continues to struggle with challenges including systemic corruption, discrimination and violence against some minority groups, separatist tensions in the Papua region, and the politicised use of defamation and blasphemy laws;’
·‘What has lit the fuse in Jakarta?’ Michael Bachelard and Karuni Rompies, The Sydney Morning Herald, 24 May 2019, in which it is stated that ‘Defeated Indonesian presidential candidate Prabowo Subianto will take his appeal against the election result to Indonesia’s Constitutional Court today… but in the meantime, his supporters have created havoc on the streets of Jakarta over 2 days… 6 people died and hundreds were arrested… Twenty-one years after the downfall of the dictator Suharto, Indonesia has grown into a vibrant, fully fledged democracy – a largely peaceful transition… But the country is still racked by endemic corruption, inadequate infrastructure and insufficient environmental protections, and a huge gulf between rich and poor… Islam is playing an increasing role in defining political identity, and intolerance is on the rise in a nation that has for decades prided itself on its commitment to “unity in diversity”… What happens next? Predictions are difficult to make in this context. Indonesian authorities say there remains an increased risk of violence, including possible acts of terrorism. Demonstrations may continue throughout May… Prabowo has a limited time to launch a legal challenge and his supporters say he will do so. The Constitutional Court will hear and consider his case, and any further protests are likely to be timed to coincide with that decision. That is what happened in 2014, though the protests on that occasion were confined to 1 day… It is possible, though not likely, that Prabowo may be arrested if police can establish a direct link between him and these riots;’ and
·‘Jakarta’s riots reveal Indonesia’s deep divisions on religion and politics,’ Tim Lindsay in The Conversation, 27 May 2019, in which it is stated that ‘… the riots seem to have fizzled out, but they are the product of tensions over the place of Islam in Indonesian life and what is now a deep cleavage in Indonesian politics… Prabowo’s defeat does not spell the end of his supporters’ aspirations for a less tolerant Indonesia that privileges their brand of Islam. The election’s geopolitical polarisation is likely to be a continuing source of problems for Jokowi in the years ahead… Jokowi is a pragmatic politician who values stability and cohesion above most other things. Once the riots die down, Jokowi’s instinct will be to “buy in” the Muslim right and Prabowo’s core supporters. He may do this by offering them positions in the incoming administration or access to resources. If that doesn’t work, we can expect more trouble ahead.’
Findings on Identity and Credibility

The Tribunal is satisfied from the documentary evidence provided by the applicant that he is a citizen of Indonesia from Surabaya, as he claims. There is no evidence that he has the right to enter or reside in any other country, and he did not claim that he had. The Tribunal finds that Indonesia is the appropriate country against which to assess his claims against the refugee criteria, and that it is also the ‘receiving country’ for the purposes of assessing his claims.
Given his consistent written and oral evidence, the Tribunal is satisfied that the applicant was born and resided in Surabaya prior to coming to Australia in November 2014 (apart from a brief visit to [Country 1] in or about August 2014), that he is of Chinese ethnicity and Christian religion, and that he is unmarried, and that his immediate family (his parents and [sister]) remain in Surabaya.
Based on his detailed evidence at the 2 Tribunal hearings, the Tribunal generally found the applicant to be a credible witness who was able to outline his history in Indonesia and Australia in detail and without embellishment. The Tribunal had concerns about whether the applicant had worked in Indonesia between being dismissed from [Company 1] and leaving for Australia, and whether he had genuine connections in Australia whom he planned to visit in 2014, given the information to this effect on his visitor visa application file. However, having put this information to the applicant at the second hearing, and received his response, the Tribunal is satisfied that the letter from another employer indicating that the applicant was employed in Indonesia as of November 2014 and had a job to return to, and that he was invited to visit Australia by a close family friend, were produced by the applicant’s agent, without his knowledge, to bolster his visitor visa application. While not condoning such actions, the Tribunal does not consider the applicant was personally aware of what was submitted in his name in connection with his visitor visa application (although it accepts he expected his agent to get him the visitor visa using whatever means the agent considered necessary). Overall, the Tribunal does not consider that the above detracts significantly from the applicant’s claimed fear of harm if returned to Indonesia.
Accordingly, the Tribunal accepts the core of the claims in the applicant’s written protection visa application, as expanded in his oral evidence at his 2 Tribunal hearings under detailed questioning from the Tribunal. Specifically, the Tribunal accepts that:
·the applicant worked in as [a Position 1] at [Company 1] in Surabaya until June 2014, when he was dismissed from this employment;
·prior to being dismissed, the applicant identified what he considered to be corrupt work practices in the business, being collusion between the applicant’s manager and a taxation officer within the business, and suppliers, to inflate the prices of goods bought by the business. The applicant made a detailed written report setting out his concerns to his director;
·the applicant’s Muslim manager found out about the report and told him not to make trouble and that he was lucky to have a job as an ethnic Chinese;
·prior to being dismissed, the applicant was harassed on 3 occasions within as many days at his rental accommodation by a gang of men, who abused him as a stupid Chinese on 3 occasions and who physically assaulted him on 1 occasion. The applicant did not seek medical treatment as his injuries were not severe and he was concerned about the cost of doing so. He rang the police on the first occasion but the gang had dispersed before the police arrived, and he did not report subsequent occasions as he had no faith that the police would protect him;
·the applicant believed the gang was sent to harass him by his manager at [Company 1] as payback for having made the report against the manager and/or to dissuade him from taking further action;
·the applicant feared that he would still be at risk from the managers whom he named as corrupt in his report to the director of [Company 1] if he now returned to Indonesia;
·the applicant feared as an ethnic Chinese Indonesian and/or a Christian, he would be subject to violence in Indonesia as Indonesian society is hostile towards Chinese Indonesians and/or Christians, as demonstrated by the blasphemy trials of former Jakarta governor ‘Ahok’ and a woman named Meiliana, and by recent church bombings in Surabaya, and pro-Prabowo riots after the May 2019 election won by President Widono (‘Jokowi’); and
·the applicant arranged to obtain a visitor visa to Australia through an Indonesian travel agent to get away from such tensions in late 2014.
Assessment Against Refugee Criteria
Fears arising from having reported corrupt superiors
The Tribunal accepts that the applicant reported corruption within the company for whom he worked in or about mid-2014 and was subsequently dismissed from that employment. The applicant strongly maintains that he was dismissed because he made the report (although the official reason given to him was related to the need for his work within the business), and further maintains that he was harassed by a gang of thugs on 3 occasions (including one occasion on which he was physically assaulted) at the behest of one of the managers he named as corrupt, who was Muslim. The Tribunal accepts that the applicant has a genuine subjective belief that he lost his job and was harassed due to having made a report about his corrupt manager(s), and that his Chinese ethnicity and/or Christianity may have played a part in acts against him.
The Tribunal accepts that physical violence and/or significant economic hardship which threatens a person’s ability to subsist would amount to persecution or serious harm within the terms of s.5J(1), (4) and (5).
Section 5J(1)(a) requires that the harm feared be for one or more of the reasons specified within that subparagraph. The Tribunal is satisfied that the applicant’s fear is for potentially for reasons of for being a member of a particular social group within Indonesian society (whistleblowers), and possibly contributed to by his Chinese ethnicity and/or Christianity. The Tribunal will deal with the applicant’s ethnicity and religion separately in another section below.
Although it is possible that the applicant was genuinely dismissed for business reasons, the Tribunal elects to give him the benefit of the doubt and to accept that his membership of a particular social group of whistleblowers was the essential and significant reason he was dismissed, as required by s.5J(4)(a). Again, although there is no concrete evidence that this is so, the Tribunal is prepared to give the applicant the benefit of the doubt and accept that he was harassed and assaulted by thugs after making his corruption report for reasons of his membership of the particular social group of whistleblowers. Section 5L provides that to be a member of a particular social group, a person must have a characteristic shared by each member of the proposed group, he or she share (or must be perceived to share) that characteristic, and that characteristic must either be an innate or immutable characteristic, and/or a characteristic so fundamental to that person’s identity or conscience that he or she should not be forced to renounce it, and/or the characteristic distinguishes the group from society. Moreover, the shared characteristic cannot be fear of persecution. In the applicant's circumstances, the Tribunal is prepared to accept that he is a member of a particular social group of whistleblowers and that they are a sufficiently cognisable group within Indonesian society.
However, the Tribunal must be satisfied that there is a real chance that the applicant would suffer serious harm amounting to persecution if he were to return to Indonesia. Based on the applicant’s own evidence, the Tribunal is not satisfied that there is a real chance of the applicant facing serious harm amounting to persecution at the hands of his former manager(s) or agents acting on their behalf, now or for the foreseeable future.
As discussed with the applicant at hearing, and without downplaying the effect on him of having been unfairly dismissed and harassed (including physically assaulted on one occasion), the Tribunal gives weight to the fact that these incidents occurred in mid-2014. This is now some 5 years ago. Although the applicant maintained that he might still be at risk from the people he named as corrupt at that time if he now returned to Indonesia, the Tribunal finds this to be implausible. The Tribunal does not accept that, having dismissed the applicant from his job as a means of dealing with his corruption report, the applicant’s employers would now have any interest in harming him 5 years after he was dismissed. The Tribunal assumes that the applicant’s report was most likely ignored or dismissed after the applicant’s employment was terminated, without consequence to the people within the company whom he identified, but even if those people incurred some kind of disciplinary action in 2014, the Tribunal does not accept that they would still wish to seek revenge on the applicant some 5 years after the event, even assuming that they were aware of the applicant returning to Indonesia (which it is by no means certain that they would).
Nor does the Tribunal accept that the applicant would seek to re-agitate these matters if he returned to Indonesia. His evidence at hearing was that he made the report as he was uncomfortable seeking to be promoted in a company which had corrupt practices. He did not given any indication that he would take the matter up again if he returned to Indonesia, and the Tribunal notes that he did not take the matter further immediately after he was dismissed, either with the company or with any anti-corruption agencies. Given this, the Tribunal does not accept that the applicant would seek to reopen his report or crusade against corruption generally if he now returned to Indonesia (or that he would do so in the foreseeable future). The Tribunal does not accept that this is a case in which the applicant is modifying his behaviour in order to avoid harm, and that by doing so, the modification conflicts with a characteristic fundamental to his identity or conscience. Rather, the Tribunal assesses that the applicant would have no motivation to take up anti-corruption activities against his former employer (or anyone else) if returned to Indonesia, now or in the foreseeable future.
While the Tribunal has accepted that the applicant lost his job due to reporting corruption in his workplace, it does not accept that his capacity to subsist would be threatened if he now returned to Indonesia. On his own evidence, the applicant told the Tribunal he believed that he would be able to find work again in his [field], although he might miss out on government jobs as a Chinese Indonesian, and the Tribunal notes that he did in fact do some contract work for a friend after having been dismissed and before coming to Australia. In Australia, he has been employed in a variety of different fields. While the Tribunal accepts that the applicant might earn less in Indonesia than he has been able to in Australia, it does not accept that his capacity to subsist would be threatened to a degree that constitutes serious harm within the terms of f.5J(4)(d) or (f).
Finally, the Tribunal notes that s.5J(1)(c) requires that the real chance of persecution must relate to all areas of the receiving country. As discussed with the applicant at hearing, the Tribunal is not satisfied that his former manager(s) (or their agents) would have the willingness or ability to harm the applicant outside his home area in Surabaya, and he did not suggest that they did. While the Tribunal acknowledges that the applicant’s response to the question of relocation within Indonesia was that it would be difficult for him to do so (either with or without his family) and would not solve the problem because of attitudes throughout Indonesia against ethnic Chinese and/or Christians, these considerations are irrelevant for the purposes of assessing s.5J(1)(c).
Fears arising from Chinese ethnicity and/or Christian religion
The applicant has consistently raised concerns he would face harm because of his Chinese ethnicity and/or Christianity. In particular, he told the Tribunal that he was afraid that the election in 2019 might lead to another anti-Chinese riot similar to those that he witnessed as a child in 1998, and he was concerned about the safety of himself and his family. He also pointed to recent blasphemy cases against Christians and other non-Muslims, and to recent bombings of churches in Surabaya by hardline Islamist groups, and expressed the view that hardline Islamic sentiment was on the rise in Indonesia.
The 2019 DFAT report indicates that there are 2.8 million ethnic Chinese living in Indonesia, about 42 % of whom are of the Christian faith.
The Tribunal acknowledges that in 1998, widespread riots (leading up to the fall of President Suharto) led to over 1,000 mostly ethnic Chinese being murdered. The applicant has not claimed that he or his immediate family were personally caught up in these riots, although the applicant described being housebound for several days in Surabaya during this time, and said that his uncle’s business in Jakarta was burned down. Given these childhood experiences, the Tribunal considers it understandable that the applicant has a subjective fear of something similar reoccurring. However, as discussed at the hearing, DFAT reports that since the end of the Suharto era, the most discriminatory anti-Chinese aspects of Indonesian public policy have been dismantled. Chinese New Year is now celebrated as a national public holiday; Chinese cultural performances and language are encouraged; and the Constitution no longer differentiates between ethnic Chinese and 'indigenous' Indonesians.
The Tribunal accepts that, as discussed with the applicant, anti-Chinese sentiment remains present at a societal level in Indonesia. In 2012, President Widodo faced strong criticism from conservative Islamist groups for running for Governor of Jakarta with a Chinese Indonesian (and Christian) running mate, Basuki Tjahaja Purnama, popularly known as 'Ahok', who later succeeded him. Such groups used Ahok's ethnic and religious background as a means to mobilise large crowds of demonstrators after accusing him of blasphemy in late 2016. Ahok was subsequently sentenced to two years for blasphemy.
The Tribunal accepts that the applicant is concerned by the treatment of Ahok in 2017, who is of Chinese ethnicity, and believes that this case illustrates that the law is not strong enough to protect minorities. However, with respect to the applicant’s personal experiences in Indonesia, it was put to him that he had been able to live and work in Surabaya for most of his life until he was dismissed from his employment. It also noted that Ahok was a high profile politician, whereas the applicant had no political profile. The applicant acknowledged this but reiterated that he was traumatised because of what happened; he was afraid of going home, that something like the 1998 riots would happen to him and his family. He also referred to the case of Meiliana, a Buddhist woman prosecuted for blasphemy for complaining about the noise at a nearby mosque in 2018, and to church bombings by Islamic hardliners in Surabaya in May 2018. The applicant also pointed to the riots after the May 2019 election by supporters of Prabowo (the losing candidate) as concerning and an indication of a rise in Islamic hardline views that would put ethnic Chinese and/or Christians at risk of communal violence again.
The Tribunal considers that it is understandable that the applicant has these subjective concerns given the past incidents he outlined. It also acknowledges that there has been some unrest post the 2019 election. However, the Tribunal is not satisfied that any of this indicates that there is a real, as opposed to a remote, chance that the applicant will face serious harm for reasons of his Chinese ethnicity and/or Christianity if he returns to Indonesia now, or in the reasonably forseeable future.
The Tribunal acknowledges that the applicant believes that part of the reason that he was attacked after making his corruption report in mid-2014 was because of his Chinese ethnicity and/or Christian religion. He told the Tribunal he based this belief on insults about being a ‘kafir’ delivered by the thugs, and to comments from the Muslim manager whom he reported to the effect that the applicant, as an ethnically Chinese Indonesian, was lucky to have a job and to be alive.
While the Tribunal accepts that these comments may have been made to the applicant, it does not consider that his ethnicity and/or religion was the essential and significant reason for the harm he experienced in mid-2014. Rather, the Tribunal is satisfied that he was targetted at that time due to having reported a superior at work. The Tribunal has dealt with that claim above.
The Tribunal finds that the applicant has not personally experienced serious harm or significant harm because of his Chinese ethnicity. The Tribunal accepts DFAT's advice which indicates that, while some historical biases against ethnic Chinese Indonesians persist, the situation has improved since 1998. The Tribunal further accepts that ethnic Chinese are at low risk of official discrimination and, while occasional cases of prejudice persist, they overall face low levels of societal discrimination.
Similarly, the Tribunal finds that the applicant has not personally experienced serious harm or significant harm because of his Christianity. While the Tribunal accepts that there have been blasphemy prosecutions against Christians, the Tribunal is satisfied that these largely relate to high profile politicians (such as Ahok), and that the applicant does not have this profile. It finds that the chance of him being prosecuted for blasphemy is remote, not real.
While there have been attacks on Christian churches in recent years, notably in the applicant’s home town of Surabaya in 2018, the Tribunal is nevertheless not satisfied that this points to there being a real, rather than remote, chance of the applicant suffering serious harm for reasons of his Christianity. The Surabaya attack, while concerning, has not been repeated. While some of the country information speculates that there may be a rise in hardline Islamists after Prabowo’s election loss and subsequent demonstrations/riots, the Tribunal considers the possibility of systematic or widespread anti-Christian violence or harm to be just that: speculative. There is insufficient evidence for the Tribunal to be satisfied that the applicant would face a real risk of serious harm by reason of his religion.
The Tribunal notes the applicant’s belief that the police did not, and would not, assist him against thugs because they will not protect Chinese Indonesians and/or anyone who cannot afford to pay for protection. The Tribunal notes that the applicant’s evidence at hearing was that he called the police on the first occasion he was harassed, and they came but it was too late as the thugs had dispersed and the applicant could not identify them. The applicant did not call them on the 2 subsequent occasions. Accordingly, the Tribunal is not satisfied that the applicant would be unable to obtain police assistance if required, for reasons of his religion or race.
Having considered the country information and the applicant’s evidence about personal circumstances and experiences, the Tribunal considers that the chance that any discrimination he may face for reasons related to his Chinese ethnicity and/or Christianity will amount to serious harm or significant harm is remote. The Tribunal finds there is no real chance that the applicant will face serious harm if he returns to Indonesia now or in the foreseeable future because of his Chinese ethnicity and/or Christianity.

Having considered the applicant’s claims individually and cumulatively, and 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).
Assessment Against Complementary Protection Criteria
In Minister for Immigration and Citizenship v SZQRB (2013) 2010 FCR 505, the Full Federal Court held that a 'real risk' test imposes the same test as the 'real chance' test applicable to the assessment of 'well-founded' fear' in the Refugee Convention definition.
The Tribunal has considered whether on the evidence before it, that there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Indonesia.
In the circumstances and for reasons set out above, the Tribunal does not accept that the applicant will suffer significant harm if he returns to Indonesia. There is no evidence that he would be arbitrarily deprived of his life; or the death penalty will be carried out on him, that he would be subject to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment as defined in s.5(1) of the Act.
It follows that the Tribunal does not accept that there is a real risk the applicant will suffer significant harm of a kind defined in s.36(2A) from any person or for any of the reasons set out above or for any other reason evident on the claims or material as a necessary and foreseeable consequence of him being removed from Australia to Indonesia.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Alison Mercer
Member

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

[2019] AATA 5875

30 June 2019

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