1614366 (Refugee)

1614366 (Refugee) [2019] AATA 6687 (19 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1614366
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Scott Clarey
DATE:19 November 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 November 2019 at 10:05am
CATCHWORDS
REFUGEE – protection visa – Indonesia – particular social group – women – victim of domestic violence – homosexual – religion – family violence – physical assault – threats of killing – delay in applying for protection – misleading information and documents – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 423
Migration Regulations 1994, Schedule 2
CASES
Kavan v MIMA [2000] FCA 370
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437 at 451
Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348
Zhang v RRT & Anor [1997] FCA 423
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 11 August 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant ([named]), who claims to be a citizen of Indonesia, applied for the visa on 6 July 2015. [The applicant] applied to the Tribunal for review of this decision on 7 September 2016.
[The applicant] appeared before the Tribunal on 31 October 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bahasa Indonesia and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Identity
[The applicant] claims to be a citizen of Indonesia and provided a copy of her passport to the Department with the application. I find that [the applicant] is a citizen of Indonesia, which is also the receiving country for the purposes of the refugee and complementary protection assessments.
Relevant background
In her protection visa application, [the applicant] claimed she was born on [date] on the outskirts of Jakarta. She stated that she belongs to the Chinese ethnic group, is a Muslim and speaks, reads and writes English and Indonesian. She claimed to have [specified] siblings, [details deleted]. [The applicant] claimed to have been married in March 2005 to a man named ‘[Mr A]’ (which was the subject of some contention and will be discussed further below). She claimed to have one child from this marriage, a son named [name] born on [date], who remains in Indonesia. [The applicant] first arrived in Australia [in] November 2013 on a [temporary] visa having departed Indonesia legally. Her [temporary] visa expired [in] February 2014 and she remained in Australia unlawfully for more than 12 months.
Claims from the protection visa application
[The applicant] set out her claims for protection in her application form as follows:
Why did you leave that country(s)?
I left Indonesia because my husband [Mr A] want to kill me. I married with him on [a date in] March 2005. After we married I found he is very violent. He is very easily to be angry. Every day he swear me, slap me, kick me, hit me all of my body. I really wanted to divorce with him, but he threaten to kill me. One evening in October 2009 [Mr A] asked me to slap myself because he thought I cood a terrible dinner for him. I slapped myself many times. He slapped me until my mouth started to blood. One of neighbors called police. [Mr A] was detained for three days. He tortured me terribly after he was released. I believe I would be tortured to death by him if I still stay in Indonesia.
What do you think will happen if you return to that country(s)?
I believe I would be tortured to death by my husband [Mr A] if I still stay in Indonesia.
Did you experience harm in that country(s)?
Yes, I experienced harm in Indonesia. I married with my husband [Mr A] [in] March 2005. After we married I found he is very violent. He is very easy to be angry. Every day he swear me, slap me, kick me, hit me all of my body. I really wanted to divorce with him, but he threaten to kill me. One evening in October 2009 [Mr A] asked me to slap myself because he thought I cood a terrible dinner for him. I slapped myself many times. He slapped me until my mouth started to blood. One of neighbors called police. [Mr A] was detained for three days. He tortured me terribly after he was released.
Did you seek help within the country(s) after the harm?
One evening in October 2009 [Mr A] asked me to slap myself because he thought I cood a terrible dinner for him. I slapped myself many times. He slapped me until my mouth started to blood. One of neighbors called police. [Mr A] was detained for three days. He tortured me terribly after he was released.
Did you move, or try to move, to another part of the country(s) to seek safety?
I believe [Mr A] can find me if I stay in Indonesia.
Do you think you will be harmed or mistreated I you return to that country(s)?
Yes, I will be harmed if I return to Indonesia. I married with him [in] March 2005. After we married I found he is very violent. He is very easily to be angry. Every day he swear me, slap me, kick me, hit me all of my body. I really wanted to divorce with him, but he threaten to kill me. One evening in October 2009 [Mr A] asked me to slap myself because he thought I cood a terrible dinner for him. I slapped myself many times. He slapped me until my mouth started to blood. One of neighbors called police. [Mr A] was detained for three days. He tortured me terribly after he was released. I believe I would be tortured to death by him if I still stay in Indonesia.
Do you think the authorities of that country(s) can and will protect you if you go back?
I donot think Indonesian authorities can protect me if I go back. One evening in October 2009 [Mr A] asked me to slap myself because he thought I cood a terrible dinner for him. I slapped myself many times. He slapped me until my mouth started to blood. One of neighbors called police. [Mr A] was detained for three days. He tortured me terribly after he was released. I believe I would be tortured to death by him if I still stay in Indonesia.
Do you think you would be able to relocate within that country(s)?
I do not believe I would be able to relocate within Indonesia because I believe [Mr A] can find me if I stay in Indonesia.
[The applicant’s] claims are set out in a statutory declaration dated 3 June 2019. Her claims are summarised as follows:
·     [The applicant] claimed to have developed a same-sex attraction to a female friend when she was approximately [age] years old. As a practising Muslim, she claimed she would be isolated and prosecuted under shari’a law for pursuing these feelings. She claimed that she has been attracted to women since this instance but has never acted upon these desires as an adult.
·     [The applicant] submitted to the Tribunal that her marriage with [Mr A] was abusive and she believed he had used ‘black magic’ practices to coerce her into marriage. She claimed that [Mr A] would physically and mentally abuse her frequently and threaten her if she attempted to report him to authorities or the neighbourhood chief.
·     She stated in the hearing that she was frightened to return to Indonesia for fear of [Mr A] murdering her using the aforementioned black magic practices. She further claimed that she was fearful of [Mr A’s] ex-wife harming her upon return.
·     It was claimed by [the applicant] that she had suffered significant trauma due to her upbringing and abusive marriage, which had left her feeling ‘senile’ and ‘forgetful’. She stated that she frequently feels fearful and is often triggered when she talks to her son and he mentions his father.
Findings and reasons
The issues in this review are whether [the applicant] has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) of the Act and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to her receiving country of Indonesia, there is a real risk she will suffer significant harm.
For the following reasons, I have concluded that the decision under review should be affirmed.
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
Care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’ (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants, the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547).
Delay in seeking protection
I have concerns relating to the timing of the application for protection in considering the genuineness of [the applicant’s] claims to fear serious harm in Indonesia. I note that a delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm (see Zhang v RRT & Anor [1997] FCA 423; Kavan v MIMA [2000] FCA 370). [The applicant] first arrived in Australia in November 2013 on a [temporary] visa. This visa expired [in] February 2014 and [the applicant] remained in Australia unlawfully. I note that [the applicant] applied for the protection visa under review on 6 July 2015, more than one year after she had become unlawful. At the time she applied for the protection visa, she had limited options to remain in Australia.
When considered in conjunction with my other concerns relating to [the applicant’s] evidence and claims detailed below, I find that this delay in applying for a protection visa is not indicative of someone who fears for their physical safety. When considered in conjunction with my other credibility concerns I find that it suggests that she did not have a well-founded fear of persecution for the reasons claimed and that she made the protection visa application only when she had few other options to remain in Australia.
Assessment of claims
[The applicant] claims to fear that if she returns to Indonesia that she will be physically harmed or killed by her claimed husband, [Mr A]. During the hearing, I also discussed with [the applicant] issues related to sexuality and Chinese ethnicity.
Fear of harm from ex-husband
At the hearing, [the applicant] confirmed elements of her life story and claims for protection that were outlined in her statutory declaration of 3 June 2019. She claimed that she first met [Mr A] in 1998 but they did not start spending time together until 2001. She said that he did her a lot of favours, including driving her to work and this made her positively disposed toward him. She claimed [Mr A] asked her to marry him in 2003 but she delayed responding because she did not love him. She said that she felt obligated to marry him because of the help he had given her, including after her mother died of cancer. [The applicant] also stated that [Mr A] was a practitioner of what she described as ‘black magic’ and said that she believed that he used his supernatural powers to change her behaviour and make her believe that she loved him and wanted to marry him. She said that she believed she was under the spell of [Mr A’s] magic when she agreed to marry him. [The applicant] claimed to have married [Mr A] [in] March 2005.
[The applicant] said that she gave birth to a son on [date], although I note that information before the Tribunal indicates that [the applicant] had one child, a daughter born on [date] (discussed further below). She claimed that [Mr A] continued to abuse her after the birth of her son but she was too afraid to report the abuse to the authorities. She said the abuse became worse as the years went by and that she eventually worked up the courage to ask [Mr A] for a divorce, an idea that he mocked and that made him angry. [The applicant] stated that [Mr A] was once reported to the authorities by a neighbour who had witnessed his abusive behaviour and that he was detained for three days.
[The applicant] said that by 2013 she felt that she had to leave Indonesia and did so quietly, without [Mr A’s] knowledge. She arranged for an agent to apply for the [temporary] visa using fraudulent information (discussed further below) in secret and did not tell [Mr A] because she was afraid he might kill her if he found out. She said that she left her son in the care of her father and stepmother before leaving Indonesia in November 2013.
When asked why she had decided to leave Indonesia, [the applicant] stated it was to save her life. She said that if there was any other suggestion about her motivation for leaving it would be wrong. Unprompted, she stated that if her motivation was money she could have easily gone to Hong Kong, Singapore or Taiwan to work. She said the difference was that if she went to one of these countries all she would be expected to do was work, whereas in Australia, she had heard that women in her situation were protected.
I asked [the applicant] what she feared if she were to return to Indonesia in the future. She stated that if she were to return, nothing would likely happen in the first few weeks but after that she believed [Mr A] would become aware of her whereabouts and seek to kill her. She said that [Mr A] had a large professional and social network and that information about her whereabouts would certainly reach him. He would likely be very angry given the length of time she had been gone and the circumstances under which she left. She said that if she was ‘on the same island’ as [Mr A], he would be able to use his black magic powers to kill her using a photo, and would not even need to be in her presence.
I put the following information to the applicant for comment or response in accordance with the requirements of s.424AA of the Act:
·In a [temporary] visa application signed and lodged by [the applicant] in 2013, she claimed that she was married to a man named [Mr B], a marriage that was registered in Subang [in] March 2005.
- In the same application [the applicant] claimed she had one child, a daughter named [name], born on [date].
·The same [temporary] visa application also included a signed original letter from a [named person], who claimed to be the branch manager of the business [the applicant] claimed to be her employer. The letter stated in part ‘[the applicant], will be going to Sydney for holiday with her husband [Mr B] for about seven days’.
- Departmental travel records indicate that both [the applicant] and [Mr B] arrived in Australia on the same day, [in] November 2013, on the same flight from Jakarta.
·Information before the department indicates that both [the applicant] and [Mr B] were living at the same [suburban] address in Australia at the time of their respective protection visa applications ([Mr B] has a separate review relating to the refusal of a protection visa application currently before the Tribunal) and both [the applicant] and [Mr B] appear to have listed the same former address of residence in Jakarta.
·Information from the department shows that [the applicant] arrived in Australia [in] November 2013 on a [temporary] visa. That visa expired [in] February 2014 and she remained in Australia unlawfully for more than 12 months, until she applied for the protection visa in question on 6 July 2015.

I advised [the applicant] that the Tribunal considered this information was relevant to the review because the information appeared to contradict and/or be inconsistent with various aspects of her claims and that it may cast doubt on the general credibility of her evidence. [The applicant] indicated that she understood why the information was relevant to the review, and the consequences of the information being relied upon in affirming the decision under review. She said that she did not need additional time to comment on or respond to the information but wished to respond immediately.
[The applicant] stated that had wilfully provided false and/or misleading information to the Department in 2013, with the intent of successfully acquiring a [temporary] visa to travel to Australia. She stated that she was not married to [Mr B] and that she had only stated she was in order to improve her chances of being granted a [temporary] visa. She said that she did not have a daughter, and that this detail was fabricated. She said the letter of endorsement from her claimed employer must have also been a forgery, although she claimed not to be aware of the letter. She said that she was only explicitly aware of the forged marriage certificate not the other forged documents submitted with the application. [The applicant] said that her migration agent had fabricated these details and had filled out most of the form on her behalf. She said she had not bothered to read the form before she signed her name to it. While she claimed she was not aware of some specific details in the application form, she said she was aware of, and engaged in, the general fraud to deliberately provide false information and misrepresent her circumstances to the Department for the purposes of securing a positive migration outcome. [The applicant] said that she and [Mr B] had travelled to Australia together ‘like husband and wife’, but that this was only a charade to accord with the false information they had provided in the visa application to ensure they gained entry into Australia. She said that she and [Mr B] had not actually lived together in Jakarta or Australia. [The applicant] confirmed the general details of her visa history in Australia as put to her.
When asked why she did not just apply for a [temporary] visa to get to Australia without engaging in fraud, [the applicant] stated that she was confused and stressed by her situation relating to her claimed actual husband ([Mr A]), and she was acting on her agent’s advice. She said the agent had told her the visa application was more likely to succeed if it appeared that she was married to a ‘wealthy person’. [The applicant] stated that because of her situation with who she claimed was her ‘real’ husband ([Mr A]), she did not have access to original documents relating to the relationship. I note however that [the applicant] had earlier stated that the claimed forged marriage certificate (to [Mr B]) was a modified version of her actual marriage certificate (to [Mr A]) and that the agent had transposed [Mr B’s] photo and personal particulars on top of [Mr A’s].
[The applicant], by her own admission, has shown that she is willing to provide false and/or misleading information (including actively forging documents) to the Department when she considers it in her interests to do so. I am deeply concerned by this and it has caused me to doubt the general credibility of [the applicant’s] evidence relating to her claims for protection. I have formed the view that [the applicant] has not been truthful in her evidence to the Tribunal. I have formed the view that [the applicant] has fabricated elements of her evidence in order to secure a positive migration outcome. I note that there is no documentary evidence to corroborate any of [the applicant’s] claims. Considering all of the evidence cumulatively, and having regard to [the applicant’s] personal circumstances and narrative as a whole, I do not find her to be credible.
I find [the applicant’s] evidence in relation to her claimed fear of harm from her husband to be improbable and unconvincing. For these reasons I have not accepted key aspects of her claims. I do not accept that [the applicant] is married to a man named ‘[Mr A]’ or that she was a victim of violence at the hands of ‘[Mr A]’ as claimed. I do not accept that [the applicant] has a child to [Mr A] as claimed. I do not accept that [the applicant’s] life has been threatened by ‘[Mr A]’ as claimed. I do not accept that he has an intention to kill or physically assault [the applicant] as claimed. I find, therefore, that [the applicant] does not face a real chance of suffering serious harm or a real risk of suffering significant harm from [Mr A] or anybody else for this or any other reason. I find that [the applicant’s] fears of persecution on this basis are not well founded.
Fear of harm relating to sexuality
In a pre-hearing submission dated 3 June 2019, under the heading of ‘My sexuality’, [the applicant] raised for the first time issues relating to an attraction she claimed to have had for a childhood female friend when she was in grade [number]. She stated: ‘I have found women attractive since then but I have not been in a relationship with a woman since then’. I explained to [the applicant] that it was not clear what she meant by this part of her statement and I asked her to explain how and why it was relevant to her claims for protection. [The applicant] gave a vague, undetailed and at times confusing response. She stated: ‘…there was a question about my life story so I thought okay I have to disclose my life story. That incident refers to when I was [age range] years old. I don’t know why, that may be the first line in my life story. I don’t know why I suddenly became interested in other women’. She said she did not know why she had these feelings. When asked if she considered herself same-sex attracted, that is, attracted to other women, [the applicant] gave a confused response stating ‘that was in the past ... I think I was saved by my religion’ and that her religion stopped her from having feelings toward women. She then said the ‘short answer’ was no and that her mother and her religion ‘saved’ her from this desire because otherwise, because of her history with men, she might have decided to continue with that desire.
I note that [the applicant’s] claims relating to her sexuality were first raised in her statutory declaration of 3 June 2019, despite having various prior opportunities to raise this issue. They were further discussed with [the applicant] at the hearing. I found these claims to be vague and unreliable. I note that Section 423A of the Act requires the Tribunal to draw an adverse inference as to the credibility of an applicant’s claim or evidence where an applicant raises a claim or presents evidence that was not put forward before the primary decision was made. In this case, after discussing the issue with her at the hearing, I am satisfied that [the applicant] does not have a reasonable explanation as to why the claim was not raised with, or evidence was not presented to, the primary decision maker and/or the claim was not put forward prior to her statutory hearing despite having had opportunities to do so.
When considered in the context of my other concerns relating to [the applicant’s] general credibility (as discussed above), I do not accept that [the applicant] is homosexual or same-sex attracted. I have formed the view that [the applicant] has fabricated this evidence. I find, therefore, that [the applicant] does not face a real chance of suffering serious harm or a real risk of suffering significant harm due to issues relating to her sexuality, should she return to Indonesia now or in the foreseeable future. I find that [the applicant’s] fears of persecution on this basis are not well founded.
Fear of harm relating to political instability and/or Chinese ethnicity
At the hearing, [the applicant] briefly raised some concerns she held relating to a fear of violence stemming from political instability including the tensions surrounding the recent presidential election in Indonesia. I discussed with her at the hearing related country information, including information contained in the DFAT Indonesia country information report. [The applicant] stated in response that: ‘If anybody tried to work in Jakarta, there is no sense of security there. There are too many incidents where people were using stones and even weapons to commit violence in that area. Even if I try to exit myself from that area I think the level of security is not sufficient. All of this is secondary to my main fear which is my husband’. Although [the applicant] had not previously raised any specific claims relating to her Chinese ethnicity, I have considered issues relating to her ethnicity arising from the facts of her case and her specific circumstances. I note country information, contained in the DFAT report, that suggests Chinese Indonesians face low levels of societal discrimination and a low risk of violence due to their ethnicity. Specifically, the DFAT country information report for Indonesia stated[1]:
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.
[1] Department of Foreign Affairs and Trade, Country Information Report – Indonesia, 25 January 2019, Sect. 3.13.
I have also reviewed more recent country information relating to the recent election-related violence in Indonesia. I do not consider that the recent events demonstrate that the situation in Indonesia has significantly changed since DFAT reported that Chinese Indonesians face a low risk of violence and low levels of societal discrimination. Given the country information outlined above, and after considering the evidence before the Tribunal relating to [the applicant’s] Chinese ethnicity, I find that she does not face a real chance of suffering persecution involving serious harm or a real risk of suffering significant harm on return to Indonesia from society, the Indonesian authorities or anyone else as a consequence of her Chinese ethnicity and/or due to the political instability surrounding the recent election or for any other reason. I find that [the applicant’s] fears of persecution on this basis are not well founded.
Issues related to [the applicant’s] health
I note that [the applicant] raised some brief and undetailed issues relating to her mental health in her statutory declaration of 3 June 2019. I note that the Tribunal has no medical evidence before it relating to any health conditions suffered by [the applicant]. Given the available evidence, I am not satisfied that [the applicant] has a medical condition (including any condition relating to her mental health) that is relevant to the review at hand nor am I satisfied that [the applicant] would be unable to access medical services and obtain medical treatment in Indonesia for any reason if it were required. I do not consider that [the applicant] was hindered by her health in her ability to give evidence at the hearing.
Conclusion – refugee grounds
Having considered [the applicant’s] claims both individually and cumulatively, all of the available evidence and relevant country information, I find that [the applicant] does not face a real chance of persecution on return to Indonesia for any reason in the reasonably foreseeable future and that her fear of persecution is not well-founded.
For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, [the applicant] does not satisfy the criterion set out in s.36(2)(a).
Complementary protection
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
For the reasons given above, I have found there is not a real chance that [the applicant] would suffer persecution involving serious harm from her ex-husband, society, the Indonesian authorities or anyone else as a consequence of a former marriage, her status as an ethnically Chinese woman, her sexuality or for any reason.
In considering whether there is a real risk that the applicant would suffer significant harm if returned to Indonesia, I have noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[2]
[2] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
[The applicant] has not advanced any claims indicating that she considers she would face a real risk of significant harm if returned to Indonesia other than for the reasons discussed above relating to her claims under the refugee criterion. Given I do not accept that [the applicant] faces a real chance of suffering persecution involving serious harm if she returns to Indonesia, I also find, having regard to the findings of fact set out above, that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Indonesia, there is a real risk that she would: suffer significant harm in the form of being arbitrarily deprived of her life; having the death penalty carried out on her; being subjected to torture; being subjected to cruel and inhuman treatment and punishment; and/or being subjected to degrading treatment or punishment by her ex-husband or the Indonesian authorities, or anyone else, as a necessary and foreseeable consequence of her being removed from Australia to Indonesia.
Consequently, I am 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 criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Scott Clarey
Member

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

[2019] AATA 6687

19 November 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Appeal

Natural Justice