1614025 (Refugee)

1614025 (Refugee) [2019] AATA 6418 (5 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1614025
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Anne Grant
DATE:5 September 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 05 September 2019 at 4:10pm
CATCHWORDS
REFUGEE – protection visa – Indonesia – Inter-ethnic relationship – Madurese – Chinese Sulawesi – Religion – Christian – social group – Chinese Christian women – manufactured claims – member of gang – credibility issues – not truthful witness – no direct persecution – no evidence of ethnic targeting – no police or government protection – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES

MIAC v SZQRB [2013] FCAFC 33
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 3 August 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of Indonesia, applied for the visas on 10 November 2015. The first applicant was the principal applicant for the visa. His wife, the second applicant, did not lodge her own claims for protection but applied as the member of a family unit of the first applicant. Nonetheless, she has now provided a statutory declaration in which she raised claims personal to herself and I have considered and addressed those claims below.
A hearing was conducted on 25 July 2019. Both applicants attended the hearing and gave evidence. The hearing was assisted by an interpreter in the Indonesian and English languages. At the conclusion of the hearing, the applicants requested time to consider whether they wished to make submissions about several concerns raised with them at hearing. It was agreed that they would be given until 9 August 2019 to provide any such submissions. As will be noted below, after seeking clarification, the applicants were reminded of my concerns in writing on 29 July 2019 and provided a written response to them on 5 August 2019.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B) of the Act.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration 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.
CLAIMS AND EVIDENCE
The issues in this case are whether either applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him or her being removed from Australia to Indonesia, there is a real risk that he or she will suffer significant harm.
In his written application, the first applicant made the following claims:
·     He is from Kalimantan.
·     He left his country because he was involved in gengsterism (sic) in Indonesia. The gangs are active in border Kalimantan and Malaysia. The activities include collecting protection fee and robbery. He decided to leave that group. They have an oath whereby this group can participate but cannot leave. Where a member exits or escapes they would be killed. He tried to look for a better life, with no further terms of fear and gengsterism (sic) in his life.
·     If he returns they will kill him and his wife. They are active all through the country.
·     He claims to have experienced harm in Indonesia. He claimed that one time the group knew about his decision, and caught and tried to kill him. He escaped from them. Nobody can help. This is the gengsterism (sic) issues.
·     This group is active everywhere in Indonesia. They will find him if he moves to another part of the country.
·     He can’t return to Indonesia because he will be harmed.
·     The authorities can do nothing. They only ‘see the money’. The groups give some money to authorities - they are unreliable.
·     If he relocates within his country his life is dangerous and of course he will die.
On 1 September 2016, the applicants lodged a request for review of the delegate’s decision. With their application for review, the applicants lodged a letter to the Tribunal as follows:
My wife and I did not receive any letter or email for our visas refusal and assessment summary. We don’t really know what are the reasons of the refusal of our visa. However we are real people in real danger therefore we really need to fight for our protection which will also affect our family safety.
The submission on our form 866 was written by a friend of mine because of my lacking in English language. For this appeal I also ask my friend to help me. Here I know that the department needed evidences and more details but our case is really in the record or list because I was involved in a black market gang in Kalimantan Timur area which also has link with black market in Malaysia as well.
I didn’t know there will be very dangerous consequences if I want to get out from the gang. I was young and I thought it was cool to be in a gang because it was a trend during that time and I can get a lot of money. I was young and I really enjoyed that kind of lifestyle without thinking about the consequences. I only knew it when I’m married and I don’t have time for my wife and my family because of my attachment with the gang. I want to get out but I was threatened by the gang leaders that they will make my life difficult. I was not allowed to get out because I know everything about the gang and they accused me going out from their gang to join other gang. I don’t have the joy and peace in working with the gang but I have to stay because I have a wife and a son already in 2012. I know the only way to get out is to be disappeared to a place far from Indonesia because if in Malaysia the gang still has many links and easy for them to find me and my wife.
If my wife and I return to Indonesia, they will surely kill me and my whole family. My son is just [age] years old now and he doesn’t know anything. I cannot let my wrong decision while I was young before, determined the future of my life. All we need is a second chance to live normal like other happy human being without feeling scared.
On 19 July 2019, the applicants each provided statutory declarations in which they specifically refuted any claims to have been involved with gangs in Indonesia. The new declarations contained the following claims and information:
The first applicant’s declaration, dated 19 July 2019:
- In the protection visa application that he submitted to the Department on 10 November 2015, the explanation he provided for why he was afraid to return to Indonesia was untrue.
- He fears that if he and his family are forced to return to Indonesia, they will suffer harm on the basis of their ethnicity and religion.
- He and his wife came to Australia on a [second temporary] visa. They were both afraid to return to Indonesia and so when the visas expired they remained in Australia for a period of almost 26 months without a valid visa. They did not apply for protection in Australia straight away as he was unaware that this was something that he could do. It was only through speaking with a friend who had already lodged a protection visa application that he found out about this option.
- A person they had known for about one year, who was from Malaysia, offered to help with the preparation for the protection visa application. He prepared the application and they signed it. The applicant claims he did not read what that person said in his application, as he did not understand the process of applying for a protection visa. He claims that at that time he did not understand that you need to include significant information about why you cannot return home. As a result he did not get the chance to check everything before it was lodged.
- Whilst his friend told him to check the online visa system, VIVO, he didn’t check his emails because he was ‘not expecting any important correspondence.’ He was assessed on the untrue claims. It was only when he found out about the rejection of his visa that he became aware of what his friend had written. He is now including the real reasons why he and his wife cannot return home to Indonesia.
- He was born in Situbondo in East Java. He moved to Tarakan in East Kalimantan in around 2007. His ethnicity is Madurese and he describes himself as a protestant Christian.
- He married the second applicant who is of Chinese Sulawesi ethnicity. They have two children, sons aged [age] and [age] old. The older son lives in Tarakan with the second applicant’s mother.
- Both his parents are deceased. He has [siblings], who all live in Surabaya, East Java. He is not in contact with any of them.
- He was educated to year [grade], then worked in [an] industry and in Kalimantan [in Occupation 1]. He stopped work in 2009.
- In or around 1996 in Situbondo, he witnessed the burning of a church. Local Muslims had been looking for someone who had been saying defamatory things about Islam. There was always tension. The priest and five parishioners were inside and all burned alive. The police stood by and didn’t intervene. The applicant saw five churches were burned and more than 20 churches were burned in the wider area around where he lived. There were no arrests and no repercussions. He was fearful for the remaining time in Indonesia of attending church.
- There are often bombings of churches that killed large numbers of worshippers.
- When he lived in Indonesia there were also ongoing tensions between the Dayaks and the Madurese. The worst was in 2001 when a conflict broke out between the two groups which led to hundreds of deaths and thousands of Madurese being displaced. His employer had heard about the growing tension there and had provided him with a ticket to go home just before the conflict broke out.
- He moved to Tarakan in 2007 to find work in [Occupation 1] and met the second applicant in 2008. In 2009, a conflict broke out in their town mostly between Dayak and Sulawesi. The second applicant and her mother are of Sulawesi ethnicity and lived in a Sulawesi neighbourhood. He claims ‘Dayak people came looking for the second applicant’s family in the neighbourhood her parents lived one night.’ The applicant said that he believes that they had just come there looking to inflict violence on any Sulawesi person. He believes that the Dayak people practise black magic and as a result can tell that someone is from Madura or Sulawesi. They saw them coming from the window of her parent’s house and hid there. Luckily they were not found. The applicant said he is convinced they would have killed them if they did. They were armed with a number of different types of weapons, and in the days surrounding that he saw the bodies of Sulawesi people who had been beheaded by the Dayaks. During the violence the police had done nothing to intervene or protect them and only took away the dead bodies.
- After that incident the applicant and his wife no longer felt safe in Indonesia. They immediately began making plans to leave Indonesia and come to Australia on a [Temporary Visa 1]. It took months for him to apply because services around Tarakan were closed after the conflict. It wasn’t until 2013 that the visa was approved.
- While he was waiting for the visa to be processed, he stopped working [certain locations] where he was required to be most of the time had mostly Dayaks working there, and he was concerned that he would be harmed if he continued going there. He had no other qualifications, and was worried that he would face questions about who he was in any job that he was qualified to do. He claims he was scared that people would figure out who he was and that he had married a Sulawesi woman which would lead to a repeat of the events described above.
- During the time waiting for a visa they lived with the second applicant’s mother. He had some savings and when they began to run out, they relied on her for food and accommodation. His wife and he did not go out often during this time. They no longer felt safe being out socially, and so only left the house when they needed to do shopping.
- As soon as their visas were approved they made plans to leave for Australia. At the time their first son was only eight months old and the airline would not let an infant under one year of age fly. They left him with the second applicant’s mother.
- He is afraid of being returned to Indonesia primarily because he and his wife are in an interethnic Sulawesi-Madurese relationship. The fact that many people view the second applicant as being Dayak adds to this fear of harm. The tensions between Dayaks and other ethnic groups are longstanding and established in Tarakan and across Kalimantan and he fears that they would be targeted again ‘as they were in the past.’
- He also fears returning to Indonesia on the basis of his religion because of what he observed many years ago. Those tensions have never gone away. Bombings of churches are a regular occurrence and they would be afraid to practice their religion. A year ago, three churches were bombed in Surabaya killing 28 people.
- The government and the police can’t effectively protect him.
- He fears that Madurese people will think his wife is a Dayak outside of Kalimantan due to the grudge against them.
The second applicant also made her own claims in a statutory declaration dated 19 July 2019: Those claims were, in summary:
·In the protection visa application that she submitted to the Department on 10 November 2015, the explanation provided for why she and her husband were afraid to return to Indonesia was untrue. She refers to her husband’s new declaration for the details of how that occurred.
·Her ethnicity is Chinese Sulawesi, and describes her faith as Christian Pentecostal. Her mother is Chinese from Sulawesi and father local Chinese from Kalimantan. The second applicant claims that she is often mistaken for a Chinese Dayak due to her fair complexion and high cheek bones, and due to the large Dayak community in and around Tarakan. She is at risk of being targeted for that reason.
·She and her husband ‘continue to attract negative attention’ because he is Madurese and she is considered Dayak. She lived in constant fear of future clashes between the Dayaks and the Madurese.
·Her father works in Tarakan on a casual basis [in an occupation] and her mother is a housewife. [One sibling] lives in Surabaya and her [other] siblings live in Tarakan with her parents.
·As an adult, she worked [for a company] [in a position] and then [for another company].
·An added concern is the increased resentment towards people of Chinese ethnicity and in particular hostility towards women of Chinese origin. She fears she will face danger and persecution being a Christian woman of Chinese origin no matter where she relocates to in Indonesia.
At hearing, the applicants were questioned about how they provided what they now say were wholly false claims to the Department with their application for protection visa and also in the letter written to the Tribunal in September 2016. They claimed that two different Malaysian men helped them with each of the documents and ignored their true claims and manufactured claims about gangs and gang violence in Indonesia. They claimed that they were unaware of the content of those claims.
At hearing, I also noted that they had applied for a [second temporary] visa when coming to Australia but it was clear from their statutory declarations that they intended to remain in Australia after that visa expired. The applicants agreed that they intended always to remain in Australia, saying that they had no idea what sort of visa they were applying for and also that they didn’t realise that it was important that they give truthful answers to questions in visa applications to foreign governments when seeking to travel overseas.
At hearing, the applicants reiterated the historical clashes outlined in their statutory declarations, which they relied on to explain why they feared persecution in Indonesia. The first applicant fled from one interethnic clash in Kalimantan in 2001 (between Madurese and Dayak), observed the burning of Christian churches in Situbondo as a young man in around 1998, and then in 2009 was in Tarakan when violent clashes occurred between Dayak and Sulawesi (Butese). They are not sure what triggered the violence in 2009 but heard that a Butese man had murdered a Dayak, but was not charged, angering the local Dayak community. The applicants were not confronted by any local community members directly during the clash, but one night there were a number of Dayaks ‘loitering’ around their area. No one came to the house, because they had turned off the lights and pretended they weren’t home. Many people had fled the area but it had got too late for them to leave. The second applicant relies on each of those potential clashes occurring again and was with the first applicant and her family in Tarakan in 2009. The applicants also claimed that Chinese citizens faced discrimination and potential for violence throughout Indonesia, and the second applicant was vulnerable to sexual violence as a Chinese woman.

At hearing, the applicants gave evidence that they supported themselves between 2009 and 2013 with their savings and also with help from the second applicant’s mother when that money ran out.
They married at the end of 2010. They decided their life was not safe in Kalamantan nor in Indonesia. They organised documents to leave the country. The visa process was long.
The applicants said they did not move within Indonesia to somewhere like Java to find work and escape the fear of harm. The applicants agreed that the first applicant might find work there, but they were afraid that the second applicant would be perceived as a Dayak and subjected to attack, even in big cities where there are groups of different ethnicities. For example, many Madurese were forced out of Kalimantan due to the violence and they bear a grudge against Dayaks. If they thought the second applicant was a Dayak, she would be vulnerable to harm. I noted that the country information suggested that after the riots, people moved back to their homes and got on with their lives, and that no further riots had occurred in the years since then. The applicants agreed that people did, but insisted that they felt vulnerable and scared. They felt it was too dangerous for the first applicant to return to [Occupation 1] because there were many Dayaks working there and he feared harm from them as a Madurese. The first applicant was also reluctant to leave his wife.
In relation to the anti-Christian violence, the applicants referred to the 1996 violence in which many Christians and Chinese people were murdered, churches were burned down (some with priests and people inside them). The applicants said that they practiced their faith in Indonesia, which involved attending weekly services, and the first applicant assisted with collection of donations and participated in the Choir. They confirmed there is a significant Christian community in Kalimantan. They referred to attacks on churches in Indonesia, including Surabaya over recent years.
I asked if the applicants had experienced any personal discrimination or harm because of their religion. Neither of them had done but the first applicant said that, due to the things he saw as a young man, he was always anxious attending church and sat near the back in fear that someone may come and attack them.
The applicants confirmed that their older son now lives in Surabaya with the second applicant’s sister, where he attends school. Her parents remain in Tarakan. Their family members have not experienced harm or any other types of threats in the period since they left the country, though they described them as being careful and at times (like when there were bombings in Surabaya in 2016) they would stay at home. They described ‘simmering’ tensions and feeling uneasy.
Before the end of the hearing, I informed the applicants that I had several concerns with their applications. I advised them that I had concerns related to the false claims in their initial application for protection and in the letter lodged with the tribunal and also with their evidence that they intended to stay in Australia permanently even though they obtained a short term [Temporary Visa 1]. I had concerns about their evidence about how and why these false claims and information had been provided. I informed them that I had serious concerns and doubt about the reliability of their evidence that they were unaware that they had to provide true information to the Government of Australia in visa applications, and that they didn’t knowingly do so. I told them that the fact of the false claims may lead me to consider that they are not truthful witnesses and that their new claims were similarly unreliable. I also informed them that I had concerns whether the information and evidence before me had established that they had been specifically targeted in the past for any reason or that there was a real chance of them being persecuted for any of the five refugee reasons if they return to Indonesia. I noted that I had concerns whether, even if I found there was a real chance of persecution in their home area, whether that would relate to all areas of Indonesia and if not, whether it was reasonable for them to relocate within Indonesia to an area where they would not face a real risk of suffering harm. The applicants requested some time to respond in writing to these concerns, and were given 14 days.
After the hearing, the Tribunal received an emailed letter from [an organisation] at 5:27 on the afternoon of the hearing (assisting not representing the applicants) seeking clarification what further information was ‘required’ by the tribunal. The tribunal wrote to the applicants on 29 July 2019 reiterating the several areas where I had concerns, but confirmed that I did not require further evidence but merely had given them time to respond to my concerns raised at hearing. I reiterated those concerns in the letter to assist them to provide a response, if they so wished.
On 6 August 2019, the applicants wrote to the tribunal as follows:
We seek to consider further the reason we provide.
Because we don’t feel safe to stay in our place or our country.
So we asked for protection in Australia.
We always feel threatened and always feel the fear.
Other than that, we feel safe to stay in Australia country that we love.
We would like to apply for a chance to live in Australia with our [son].
And if there less information about our reason, we are always ready at all times to assist you and give you the information that needed.
CONSIDERATION
I am satisfied from the evidence before me that the applicants are citizens of Indonesia. There is no evidence that they have the right to enter and reside in any other country. I find that Indonesia is the country of nationality in relation to the refugee criteria and also the ‘receiving country’ for the purposes of assessing their claims.
Taking into account the history of their claims for protection, their evidence at hearing and their response to the concerns I raised with them, I found some aspects of the applicant’s evidence to be unreliable and lacking in credibility. I found the applicants’ explanation of how the false claims came to be made with their application for a protection visa and then repeated in the letter accompanying their application for review (about the first applicant being a former gang member at risk of harm from gang members in Indonesia) to be wholly lacking in plausibility and credibility. As noted above, in his written declaration lodged on 19 July 2019, the first applicant claimed that he discovered the false claims only when his visa application was refused. If that were true, it is then completely implausible that he would allow fresh claims in almost the same terms to be restated in the letter accompanying his application to the tribunal for review, effectively reinforcing those false claims.
Whilst I accept that part of their evidence which acknowledges the original claims to be false, I do not accept any part of their explanation of how those false claims came to be lodged and then restated in the letter to the Tribunal. The applicaton and the letter to the tribunal (summarised above) contain remarkably similar claims even though the applicants now claim that they did not tell either person to make the claims that were made. I reject the applicant’s submissions that the original claims and those made with the application for review (all claims about the first applicant’s involvement with gangsters and the fear of harm from Indonesian gangs) were made ‘without their knowledge’. I consider that those claims were made with their full knowledge. I also reject their evidence before me that they ‘didn’t know’ that they had to provide truthful information to the Australian government in applying for both their [second temporary] visa and the protection visa. I find that the applicants have knowingly lodged false claims in applying for a protection visa. I reject as baseless and false the claim that the first applicant was involved in a gang or gangs in Indonesia, that he decided to leave the gang, or that he feared he would be killed because of that decision. I do not accept the applicants’ claims that they will be killed by gangs in Indonesia if they return. I do not accept that the first applicant was ever ‘caught’ or that they ‘tried to kill him’ or that he ‘escaped from a gang in Indonesia. I therefore do not accept that the applicants face a real chance of persecution (such as being assaulted and killed) by Indonesian gangs, now or in the foreseeable future, in any part of Indonesia. Those claims have been repudiated by the applicants and I do not intend to address them further.
In their most recent declarations, the applicants claim that they fear persecution in Indonesia:
·Because in Kalimantan there has been inter-ethnic violence between the Dayak and Madurese ethnicities, and also between the Dayak and Sulawesi ethnicities. The applicants claim they will be targeted by both the Dayak community and the Madurese and Sulawesi communities because of this historical ethnic tension;
·Because they are in an inter-ethnic marriage;
·Because Christians and their churches have been targeted in Indonesia. The applicants claim they will be targeted as Christians;
·Because they are of Chinese heritage and they will be targeted because of anti-Chinese sentiment in the Indonesian community. Both applicants are of Chinese heritage;
·The second applicant claims that she is at risk of harm as a Chinese woman of Christian faith;
I have considered the applicant’s new claims carefully. Based on their written claims and the evidence they gave during the hearing, I do not accept that the applicants have faced any persecution in Indonesia prior to coming to Australia for any of the reasons given in their new claims. Although not required to found a real chance of persecution, evidence of past persecution can be highly relevant in assessing whether an applicant faces a well-founded fear of persecution, now or in the reasonably foreseeable future in their home country. Bearing in mind the widely reported instances of communal violence in Indonesia over the past twenty five years, I consider it plausible that they have been close to and observed acts of communal violence and the aftermath of same, such as the burning of churches and rioting. I accept that they have a fear of being involved more directly in such incidents if they return to Indonesia, and of being targeted for the various reasons given in their new claims.
Based on their evidence, however, I do not accept that they were specifically targeted in any of those acts of violence, that anyone has targeted them particularly at any point for any of the reasons they claim, or that they are of any interest to any agents of persecution who would target them if they return due to their ethnic group or faith or to any combination of those reasons. The applicants claim that, due to past acts of general ethnic and communal violence in Indonesia against members of their ethnic and religious groups, (and against Chinese women in the second applicant’s case) there is a real chance that they will be targeted in future if such anti-Chinese, anti-Christian, and inter-ethnic violence erupts again.
The Department of Foreign Affairs and Trade (DFAT) “Country Information Report, Indonesia” dated 25 January 2019 includes the following pertinent information confirming the historical events referred to by the applicants and the security situation more generally:
2.3 Under Suharto’s military-based ‘New Order’ government, political stability returned to Indonesia and the country’s economy grew substantially. Indonesia formally incorporated the former Netherlands New Guinea in 1969 and incorporated East Timor in 1975. Popular discontent with the New Order government throughout Indonesia over limited political freedom, human rights abuses, large disparities in income and wealth, and corruption came to a head in 1997 when the Asian financial crisis hit Indonesia. High inflation and unemployment levels, and numerous bank and company collapses caused widespread economic hardship. Looting and rioting occurred in Jakarta, much of which targeted the minority ethnic Chinese Indonesian community (see Ethnically Chinese Indonesians). A number of serious incidents of communal violence (both ethnic and religious-based) also occurred across the archipelago. Suharto resigned the presidency in May 1998, ending the New Order era.
2.4 In the post-New Order period (‘the democratic era’), Indonesian presidents have faced political, security, social, and economic challenges but these challenges have lessened over time. Elections in Indonesia in the democratic era have been mostly free of violence. After a strong pro-independence vote in 1999, a violent backlash by pro-Indonesia militia groups, and international intervention, Timor Leste became an independent nation in 2002. Terrorist attacks in Jakarta, Bali and elsewhere have killed hundreds, and terrorism remains a persistent threat, as in much of the world.
2.5 The democratic era has, overall, been marked by political stability and improvements in the material well-being of most citizens. Indonesia held free and fair general elections in June 1999, and its first direct presidential election in 2004. Indonesia has largely recovered from the economic difficulties of the late 1990s, greatly improved its human rights record, and peacefully ended a long-running separatist conflict in Aceh. Large-scale communal violence has not occurred for many years. Indonesia’s current president, Joko Widodo, was inaugurated in October 2014, after campaigning on a platform to fight inequality and to improve the living standards of the poorest. Indonesia’s next presidential and general elections are scheduled in 2019…
2.45 As noted in Security Situation, the period immediately leading up to and following the fall of the Suharto New Order regime saw instances of large-scale violence between ethnic and religious communities in various locations in Indonesia. Severe violence occurred in Ambon city and Maluku province from 1999 to 2002, when clashes between Muslim and Christian communities caused many thousands of fatalities and internally displaced hundreds of thousands of people. In the late 1990s, major violence in West Kalimantan province between the indigenous (and largely Christian or animist) Dayak community and (Muslim) Madurese transmigrants resulted in at least 500 fatalities and the internal displacement of up to 75,000 people. Most of the displaced have since returned to their homes.
2.46 Analysts contend that local power struggles around the end of the Suharto regime accounted for much of the communal violence that occurred during the late 1990s and early 2000s. In many cases, local leaders seeking political gain incited existing religious and ethnic tensions, often related to the shortcomings of the transmigration program.
2. 47 Government and community groups have since undertaken peace-building efforts in Ambon and Maluku province to promote common values and build inter-faith links between communities. These areas have been largely peaceful for a number of years. However, ongoing communal tensions along religious and ethnic lines in some parts of the country retain the potential to lead to violence.
I note that President Widodo was returned to power in the 2019 election despite a post- election challenge by one of his rivals, (Prabowo Subianto) who claimed victory despite reports that he had lost the election, alleging corruption. Some protests occurred in the aftermath but Widodo was officially announced as the successful candidate on 30 June 2019. In August 2019, I also note that some civil unrest has occurred in Papua linked to the simmering tensions in the region as observed by DFAT. I also observe and accept DFAT’s report that the riots in 1998 were at least partially related to and triggered by the political and economic stability of the period, but nonetheless have left a lasting sense of vulnerability within the Chinese community in Indonesia.
The 2019 DFAT report also contains the following information about the Chinese community:
3.5 Successive waves of immigration to Indonesia from China over more than five centuries have resulted in an established ethnically Chinese Indonesian community throughout the country. The 2010 census recorded 2.8 million ethnic Chinese living in Indonesia, comprising 1.2 per cent of the population. This figure may understate the actual number, as some Indonesians of Chinese descent are reportedly reluctant to self-identify due to past tensions. Many Chinese Indonesians who trace their history in Indonesia for many generations may no longer identify as Chinese and many do not speak Chinese. About half of the ethnically Chinese population are Buddhist and about 42 per cent are Christian. Fewer than five per cent are Muslim, compared with over 87 per cent of Indonesians generally.
3.6 The Suharto-era New Order regime implemented a range of measures that discriminated against Chinese-Indonesians. The law prohibited Chinese language newspapers, schools and cultural expressions, and many Chinese Indonesians were pressured to take Indonesian names. Some ethnic Chinese had difficulty obtaining citizenship and Chinese Indonesians were required to carry a document proving their Indonesian citizenship. As noted in Recent History, in May 1998 during the Asian financial crisis, rioters targeted the ethnic Chinese community due to their perceived wealth. As many as 1,000 Chinese Indonesians died in incidents related to the riots, women were raped, and businesses were burned or looted.
3.7 Since the end of the New Order regime in 1998, successive governments have removed most official policy measures discriminating against ethnically Chinese Indonesians. Chinese New Year is celebrated as a national public holiday, Confucianism is an officially recognised religion, Chinese cultural performances and languages are accepted, and the Constitution no longer distinguishes between ethnic Chinese and ‘indigenous’ Indonesians, with barriers to citizenship removed. In 2014, then-President Yudhoyono issued a regulation changing the Indonesian word used to designate ‘of Chinese descent’ from one which was often associated with racial slurs. A number of Chinese Indonesians have held high office and work in a range of sectors, including the police, clergy and the business community.
3.8 Some anti-Chinese sentiment remains at a societal level. Although many Chinese Indonesians are not wealthy, most of the country’s richest and most prominent businesspeople are ethnically Chinese Indonesian, which is a source of resentment for some non-Chinese Indonesians.
3.9 In 2012, President Widodo faced strong criticism from conservative Islamist groups in his campaign for the Governorship of Jakarta for having a Chinese Indonesian and Christian running mate, Basuki Tjahaja Purnama, popularly known as ‘Ahok’, who later succeeded him. After succeeding Widodo as governor, some of Ahok’s policies were controversial and politically divisive, such as slum-clearing, which was perceived as anti-poor. Later, after he was accused of blasphemy in late 2016, a range of groups with complex agendas united to use Ahok’s ethnic and religious background as a means to mobilise large crowds of demonstrators (see Blasphemy and Defamation of Religion). Ahok was later convicted of blasphemy and imprisoned.
3.10 Anti-Chinese sentiment in Indonesia intersects with religious and economic issues. Islamic organisations blamed China for a supposed upsurge in communist sentiment, a politically sensitive subject (see also Recent History), in mid-2016. Increased Chinese investment in Indonesia has also caused local critics to express concerns about imported Chinese labour and Chinese control over national assets.
3.11 Small-scale local riots took place in a town in North Sumatra in 2016, following an allegation of blasphemy against a Chinese Indonesian woman (see Blasphemy and Defamation of Religion). While the riots were ostensibly anti-Buddhist, most Indonesian Buddhists are ethnically Chinese and local media described the riots as anti-Chinese and stated that some Chinese families had fled the region. A number of youths were arrested, prosecuted and imprisoned in the wake of the riots.
3.12 DFAT is aware of reports of Chinese Indonesians facing discrimination in relation to buying land in Yogyakarta. Yogyakarta is a special administrative region run as a sultanate, in which the sultan is also the governor. In March 2018, a regional court upheld a 1975 law that only allows ‘native Indonesians’, which has been construed to exclude ethnic Chinese, to own land in Yogyakarta.
3.13 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 relation to race and nationality, DFAT’s report includes the following information:
3.1 Indonesia is one of the world’s most ethnically diverse countries. The government promotes racial and ethnic tolerance and legislation prohibiting racial discrimination and vilification has been in force since 2008. Article 28I (2), among other articles, of the Constitution states that every person shall have the right to be free from discriminatory treatment based upon any grounds whatsoever and shall have the right to protection from such treatment.
3.2 For many decades the government pursued a ‘transmigration’ policy, whereby landless people were offered land and housing in less heavily populated locations in order to ease population pressures in densely populated islands such as Java. Critics of the program argued it failed to integrate arriving populations into host communities, and that subsequent segregation led in some cases to communal tensions in rural areas.
3.3 Overall, in spite of some problems discussed above, Indonesia is a successful multi-ethnic society. Friendships and even marriages between people of different ethnicities are not uncommon. Inter-religious marriage can cause difficulties (see Personal Status Laws). Larger cities in particular are more ethnically mixed and people live and work side-by-side with their peers of different ethnicities.
3.4 DFAT assesses that most Indonesians are unlikely to face official or societal discrimination on the grounds of race or ethnicity. Where clashes between different ethnic groups have occurred in recent times, they have often occurred along ethnic lines in areas with sizeable transmigrant populations. Disputes over land ownership and usage, perceptions of social and economic exclusion or cultural resentment have on occasion resulted in outbreaks of localised violence throughout the archipelago. DFAT assesses that, for the most part, Indonesian security authorities have effectively prevented such incidents and sought to resolve them quickly when they have occurred in recent years.
In relation to Christians in Indonesia, DFAT’s report includes the following information:
3.14 Article 28E (1) and (2) of the Constitution guarantees citizens the freedom to choose and practise the religion of their choice and the freedom to believe their faith; while Article 28I (1) includes freedom of religion as a human right that cannot be limited under any circumstances. Article 29 (1) and (2) stipulates that, while the state shall be based upon belief in One God, all persons are guaranteed the freedom of worship according to their own religion or belief. However, Article 28J (2) qualifies these protections by stipulating that, in exercising their rights and freedoms, every person has the duty to accept restrictions established by law. These restrictions are for the sole purposes of guaranteeing the recognition and respect of the rights and freedoms of others and of satisfying just demands based upon considerations of morality, religious values, security and public order in a democratic society.
3.15 Indonesia is home to the world’s largest Muslim population: over 207 million Indonesians identified as Muslim in the 2010 census. The country hosts two of the largest Islamic organisations in the world, Nahdlatul Ulama and Muhammadiyah, both of which have millions of followers and are socially and politically influential. Most Indonesian Muslims are Sunni, although up to 3 million are Shi’a and approximately 200,000 to 400,000 are Ahmadi. According to the 2010 census, Muslims comprise 87.2 per cent of the population; Protestant Christians 7 per cent; Roman Catholics 2.9 per cent; Hindus 1.7 per cent; others (including Buddhists) 0.9 per cent.
3.19 Religious pluralism is an established part of modern Indonesia and a wide range of local and international sources consider that inter-faith tolerance remains strong. Local sources do, however, report an increase in localised instances of religious intolerance over the past decade, including threats from hard-line Islamist organisations.
3.35 Christianity is Indonesia’s second-largest religion after Islam. Approximately 24 million Indonesians listed their religion as Christian in the 2010 census. Protestants make up approximately 7 per cent of the total population and Catholics approximately 3 per cent of the total population. Christian communities exist in every province and Christianity is the majority religion some of the eastern provinces including the Papua provinces and North Sulawesi. East Nusa Tenggara, especially the island of Flores, is majority Catholic. About a million Christians lived in Jakarta at the time of the last census. A large number of Protestant churches operate in Indonesia including mainstream Protestants (especially those related to Lutheran denominations) and evangelical and Pentecostal churches as well as non-denominational independent churches.
3.36 Christians are generally able to practise their faith freely throughout Indonesia. High-level inter-denominational and inter-faith dialogues, especially between Muslims and Christians and between Catholics and Protestants, occur regularly. Christians residing in some areas, particularly where hard-line Islamist groups are more influential (such as Aceh, and parts of East and West Java) have occasionally been prevented from worshipping, including through forced church closures and the disruption of church services, however this violence and discrimination appears to be localised.
3.37 A small number of recent terrorist attacks have targeted Christians, although most recent terrorism events have targeted state institutions, especially police. The May 2018 Surabaya suicide bombings affected Catholic, mainstream Protestant and Pentecostal communities. Several churchgoers and a priest were injured in a sword attack on a Catholic church in Yogyakarta in February 2018, in which the perpetrator hacked at statues of Jesus and Mary before being shot by police.
3.38 Christian communities have remained resilient in spite of recent violence and church attendance has not fallen as a result. Security at churches increased briefly after the May attacks and police provide extra protection at major festivals such as Christmas and Easter. Some Muslim groups also volunteer to assist or provide security at events and festivals.
3.39 Conversion to and from Christianity is common. Some bureaucratic difficulties can be encountered in registering a change in religion with the government, but this is not a significant barrier to conversion, which commonly occurs without difficulty. Some Pentecostal Christians are involved in door-to-door evangelical activities, which have been known to upset religious sensitivities. Preaching by foreign missionaries is unlawful, but the US State Department reports that many foreign missionaries preach without official sanction.
3.40 Christians do not generally experience discrimination in gaining access to health care, education or employment.
3.41 DFAT assesses that Christians residing in areas where they are a majority do not face either official or societal discrimination. Christians residing in areas where conservative Islam is prevalent face a low risk of societal discrimination in the form of impediments to worship, although this risk is unlikely to include violence. DFAT assesses that Christians face a low risk of terrorism in spite of recent exceptional events.
In relation to violence against women (not specific to the Chinese community), DFAT’s report includes the following information:
3.94 Women participate in all areas of Indonesian society. However, societal, cultural and religious barriers limit the extent of that participation. Indonesia ranked 113th (out of 188) on UNDP’s 2016 Gender Inequality Index, which is a composite measure reflecting inequality in achievement between women and men in relation to reproductive health, ‘empowerment’ (in political spheres and in relation to education) and the labour market. The government has made efforts to promote women’s rights and Indonesia has ratified the Convention for the Elimination of Discrimination Against Women…
3.97 A nationwide survey carried out by Indonesia’s Central Statistics Agency in 2017 revealed that a third of Indonesian women had experienced either physical, sexual, emotional or economic violence in their lifetime. Over 33 per cent of women aged 15 to 64 years had experienced physical or sexual violence in their lifetime, and approximately a quarter of married women had experienced violence at the hands of their husbands. The survey found that women living in urban areas and with higher levels of educational attainment were more likely to report experiencing violence than those in rural areas. This may reflect a greater willingness and capacity to report, and does not necessarily mean that they experience more violence than poorer and rural women.
The first and second applicant’s fear of harm due to their Chinese heritage, and the second applicant’s fear of harm due to being a woman of Chinese heritage.
The applicants’ evidence was that, although they were not impacted directly by the 1998 violence and had never experienced persecution because of their Chinese heritage, they fear that anti-Chinese elements including prominent political aspirants such as Prabowo, persist and are active in Indonesian society and that fresh violence may erupt at any time, targeting them due to their Chinese heritage. The second applicant added at hearing that she fears that sexual violence perpetrated in past riots against Chinese women may occur again, and that as a member of that social group, she is vulnerable to such harm.
The country information, as discussed generally with the applicants at hearing, suggests that anti-discrimination laws and gradual changes in society’s attitude to the Chinese community over the ensuing 20 years have made some positive change and that large scale riots such as occurred in 1998 have not recurred. The country information suggests that the Chinese community members of Indonesia retain anxiety about the risk of those events occurring again. Nonetheless, I accept and rely on DFAT’s assessment that Chinese Indonesians currently face a low risk of violence, and that persistent anti-Chinese sentiment may lead to low levels of societal discrimination, as discussed with the applicants at hearing. I also rely on their own described experience in Indonesia where they did not experience discrimination based on their Chinese ethnicity. I am not satisfied that the applicants face more than a remote chance of discrimination or violence amounting to serious harm due to their Chinese heritage if they return to Indonesia.
I also note that violence against women (including sexual violence) does occur in Indonesia, but the country information does not support the second applicant’s claim that Chinese women face a real chance of harm throughout the country due to their Chinese heritage. The second applicant did not claim to fear harm due to her being a woman in Indonesia. Due to the nature of her claims, I have nonetheless considered that aspect of her claims alone and with the added aspect of her heritage. The second applicant confirmed that she had not been subjected to violence or harm of any kind, (due to her Chinese heritage or as a woman, regardless of her heritage) apart from her experience living through and observing the riot in Tarakan in 2009.
I consider that it is understandable that the applicants have subjective concerns about their safety as Indonesians of Chinese heritage given the historical incidents they have described and confirmed in the country information. I acknowledge that there has been some unrest after the recent election. However, I am not satisfied that the information and evidence before me indicates that there is a real, as opposed to a remote and speculative, chance that the applicants will face serious harm for reasons of their Chinese ethnicity or that the second applicant will face serious harm as a woman of Chinese heritage (or as a woman regardless of her heritage) if they return to Indonesia now, or in the reasonably foreseeable future.
Taking all of the applicants’ claims, the country information and evidence into account, I do not accept that the applicants have established that there is a real chance that they will suffer persecution in Indonesia because of their Chinese heritage, (or in the second applicant’s case because she is a woman of Chinese heritage or because she is a woman regardless of her ethnicity) now or in the reasonably foreseeable future.
The first and second applicants’ fear of harm due to their Christian faith.
I accept that the applicants are Christians and that they will continue to practice that faith if they return to Indonesia. The practice of their faith was described as attending regular church and participating in collections of donations and choir. As noted above, the applicants did not claim that they had ever experienced persecution due to their Christian faith, and I have found that they did not. I note that they provided no information which suggests that members of their family living in Indonesia have experienced harm due to acts of violence perpetrated sporadically against churches throughout the country. I note and accept DFAT’s assessment (as discussed with the applicants during the hearing) that Christians residing in areas where conservative Islam is prevalent face a low risk of societal discrimination in the form of impediments to worship, although this risk is unlikely to include violence, and that Christians face a low risk of terrorism in spite of recent exceptional events.
As in the case of their Chinese ethnicity, I consider that it is understandable that the applicants have subjective fears given the past incidents that have been outlined, and due to the fact that anti-Christian violence does occur in Indonesia. However, I note that they have not directly been persecuted in the past for reasons of their faith, and that members of their family remaining in Indonesia have also not been harmed for reason of their faith. I am not satisfied that the historical occurrence of anti-Christian violence in Indonesia indicates that there is a real chance (as opposed to a remote chance) that the applicants will face serious harm for that reason in Indonesia.
Taking the applicants’ claims and evidence and the country information into account, I do not accept the applicants’ claim that there is a real chance that they will suffer persecution in Indonesia because of their Christian faith, now or in the reasonably foreseeable future.
The first applicant’s fear of harm due to his ethnic background as Madurese and the second applicant’s fear of harm due to her ethnic background as Sulawesi. The second applicant’s fear of harm due to a perception that she is of Dayak ethnicity.
In relation to the applicants’ respective ethnic backgrounds, I accept that the first applicant is of Madurese ethnic background and the second of Sulawesi ethnicity. The applicants’ evidence at hearing was that, after the violent riots in Tarakan during 2009, they decided to leave Indonesia permanently because of a fear of harm. They claimed that they stopped work and lived in seclusion at the second applicant’s family home, living on their savings and with financial support from the second applicant’s mother. They travelled to Australia in June 2013. Their evidence was that in the supervening period, they did not experience any targeted discrimination or harm because they ‘hardly went out’.
The first applicant’s evidence was that he had narrowly avoided an inter-ethnic conflict in 2001 when his boss sent him out of the region on hearing that clashes might occur between Madurese and Dayak citizens in Kalimantan. He believed that if he has stayed, he would have been killed in the conflicts. After that period he stayed with his parents before they died in 2004 and 2005. He then found work in East Kalimantan [working in Occupation 1]. The applicants met and they became engaged in 2008. Then in 2009 there were inter-ethnic conflicts between the Dayaks and the Sulawesi groups where they were living in Tarakan. They described a frightening experience of being trapped in their home for several days until the rioting had eased, noting that six people were killed. The aggressors were the Dayaks, and they were searching and seeking to harm people of Sulawesi origin. The applicants confirmed that they did not particularly target the second applicant’s home, but because the applicants lived in a Sulawesi populated area and the second applicant and her mother were of Sulawesi origin, and also because of the first applicant’s Madurese ethnicity, they would potentially have been targeted and harmed if they had encountered any Dayaks.
I accept that the applicants experienced this incident and that it has affected their ongoing sense of safety in Indonesia. I find, nonetheless, and based on their own evidence, that the applicants have not experienced persecution on account of their ethnicity in Indonesia either before or after that incident, and despite remaining in the same area for nearly four years after the riot.
The applicants also claimed to fear that the second applicant would be ‘perceived’ to be a person of Dayak ethnicity and would be targeted for that reason throughout Indonesia. At hearing, the second applicant gave evidence that she has high cheekbones and pale colouring, which is less common in Sulawesi people and are physical features which are perceived to be Dayak features. I note that this claim is at odds with the applicants’ claims that they would be identified and targeted by Dayaks in their home area because of their Sulawesi and Madurese ethnicity. If the second applicant is perceived as a person of Dayak origin due to her appearance, in my view, this then weakens the claim that she would be targeted by Dayaks in her home region due to her Sulawesi ethnicity. In any event, the second applicant confirmed that she has not been targeted for persecution in the past by any other community group or ethnicity due to her being perceived to be of Dayak ethnicity. Whilst I accept that it is plausible there may be persisting anti-Dayak sentiments in Indonesia amongst the Madurese community, the country information does not reflect ongoing ethnic targeting such as that suggested by the second applicant. The applicants were vague about what sort of harm they feared due to a perception that the second applicant was a Dayak, simply saying they might be ‘targeted’. I find this claim to be implausible and I reject it.
I do not accept the applicants’ written claim that the second applicant’s family were ‘targeted’ specifically in the 2009 riots. Their evidence reflects that a violent riot took place between young people and that they hid in their home until the violence had passed. I do not accept the claims in their statutory declarations that ‘Dayak people came looking for the second applicant’s family’, because at hearing they confirmed that they were actually not sure what triggered the riots but it seemed to relate to a clash of rival groups of youngsters or to be about land disputes, none of which involved them directly. The applicants suggested that the rioters were looking for Sulawesi people to attack generally, not targeting the applicants’ family specifically or directly. I have taken into account their evidence that the second applicant’s family have lived in the same home for many years, continue to live in that home, and that they and their family have not encountered any harm from Dayak or Madurese attackers (or from any other group) since the incident in 2009. The applicants themselves lived there until 2013 without any further reported incidents of targeted discrimination or harm of any kind. I have considered their evidence that they ‘stayed home’ and didn’t work or go anywhere unless absolutely necessary after the riots for nearly four years whilst they waited for a visa to enable them to leave the country. If this evidence related to a short period of time, it might have had some weight. However in light of their youth, their marriage in 2010 and the fact (on their evidence) that neither they nor their family faced any other incidents of violence or harm, I find their assertion that they lived ‘in hiding’ (despite never being directly targeted either before or after the 2009 riots) for almost four years until they left the country to be wholly implausible and I reject it.

After considering the applicants’ claims and evidence and the country information referred to above, I do not accept the applicants claim that they face a real chance of persecution in Indonesia due to their ethnicity as either (or both) Madurese and Sulawesi or because the second applicant may be perceived to be Dayak.
The first and second applicants’ fear of harm due to their inter-ethnic marriage.
The applicants claim that their marriage, which is between ethnic communities, would place them at risk of harm in Indonesia. This claim was repeated at hearing. The principal reason for this fear appeared to be based on the applicants’ claim that the second applicant might be perceived to be a Dayak who had married a Madurese (even though she is actually not a Dayak) and that, due to the historical tensions between the ethnic groups, this would be disapproved of. The applicants’ evidence was that they had not faced such disapproval or any harm due to their inter-ethnic marriage or their ‘perceived’ Dayak/Madurese marriage in Indonesia prior to their travel to Australia. I have not accepted the applicants’ claim that the second applicant would be at risk of harm due to being perceived as a Dayak due to her physical appearance. I note, as discussed during the hearing, the country information does not support the applicant’s claims, and that inter-ethnic marriages are common in Indonesia, that the country is generally a successful multi-ethnic society, and that friendships and even marriages between people of different ethnicities are not uncommon. Larger cities in particular are more ethnically mixed and people live and work side-by-side with their peers of different ethnicities.
After taking their evidence, claims and the country information into account, I do not accept the applicants’ claim that there is a real chance of persecution in Indonesia due to their inter-ethnic marriage (Madurese/Sulawesi) or due to the perception that they are in a Dayak/Madurese interethnic marriage.
After considering the country information referred to above, the applicant’s claims and their evidence before me, I have not accepted their claims that there is a real chance that they will be persecuted in Indonesia because of the second applicant’s ethnicity as a Sulawesi, because of the first applicant’s Madurese ethnicity, because the second applicant is perceived as a Dayak, because of their Chinese heritage, because the second applicant is a woman of Chinese heritage, or because they are of Christian faith. I have also considered whether the various aspects of their ethnic backgrounds and faith have a cumulative effect to increase the chance or risk of harm they face. I do not accept that either applicant faces a real chance of persecution in Indonesia now or in the foreseeable future because of any of their claims, whether considered individually or cumulatively. It follows that the applicants do not satisfy the criterion in s.36(2)(a).
Complementary Protection
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
I have considered whether on the evidence before me, there would be a real risk that the applicants will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Indonesia.
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
I have not accepted any of the applicant’s claims that they face a real chance of persecution in Indonesia. I refer to and rely on my findings above. I do not accept that there is a real risk that either applicant will be arbitrarily deprived of his or her life, that the death penalty will be carried out on him or her, or that they would be subjected to cruel or inhuman or to degrading treatment or punishment if they are returned to Indonesia for any of the reasons raised in their claims.
The evidence before me does not raise any other reason why the applicants would suffer significant harm as a necessary and foreseeable consequence of their return to Indonesia. Their older son resides in Surabaya with the second applicant’s sister. Their younger son resides with them here and would return with them to Indonesia. The evidence before me does not suggest that he is at risk of any harm in Indonesia. Their older son attends school, and the applicants confirmed that he has not experienced any discrimination or harm. Their parents continue to reside (as they did when the applicants were in Indonesia) in Tarakan without experiencing any harm. Whilst I accept that they would prefer to remain in Australia, I am not satisfied that they have established any reason why they would be at risk of suffering significant harm if they were to return to Indonesia. I find that there are not substantial grounds for believing that there is a real risk that the applicants will suffer significant harm as a necessary and foreseeable consequence of them being removed to Indonesia. The applicants do not satisfy the criteria in s.36(2)(aa) of the Act.
Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Anne Grant
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 6418

5 September 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Appeal

Natural Justice