1614367 (Refugee)

1614367 (Refugee) [2019] AATA 6558 (22 August 2019)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  1614367
COUNTRY OF REFERENCE:                  Indonesia
MEMBER:Scott Clarey
DATE OF DECISION:  22 August 2019
DATE CORRIGENDUM
SIGNED:23 August 2019
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:

The decision date '21 August 2019' on Decision Record cover page should be replaced with '22 August 2019'.
Scott Clarey
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1614367
COUNTRY OF REFERENCE: Indonesia
MEMBER:Scott Clarey
DATE:21 August 2019
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

STATEMENT MADE ON 22 AUGUST 2019 AT 9:40AM
CATCHWORDS
REFUGEE – protection visa – Indonesia – fear of physical harm or killing by ex-boyfriend –credibility – period as unlawful non-citizen – delay in applying for protection – vague and inconsistent evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kavan v MIMA [2000] FCA 370
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
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
Selvadurai v MIEA (1994) 34 ALD 347
Zhang v RRT [1997] FCA 423

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

This is an application for review of a decision made by a delegate of the Minister for Immigration 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 (Ms [A]) who claims to be a citizen of Indonesia, applied for the visa on 12 January 2016. The delegate refused to grant the visa on the basis that they were not satisfied there was a real chance of persecution for one or more of the reasons mentioned in s.5J(1)(a) of the Act.
Ms [A] applied to the Tribunal for review of this decision on 7 September 2016. The applicant provided the Tribunal with a copy of the delegate’s decision record.
Ms [A] appeared before the Tribunal on 14 May 2019 and on 16 August 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) 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), 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 policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Identity
Ms [A] claims to be a citizen of Indonesia and has 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
Ms [A] is a [age]-year-old woman who was born and raised in West Jakarta, Indonesia, where she lived until she departed for Australia in October 2013. She stated that she was the sixth of [number] siblings, one of whom had passed away. She stated that she is an ethnic Chinese Christian. She claimed that her parents and all of her siblings live in and around Jakarta. Ms [A] stated that she speaks to her family approximately once per month. She claimed to have graduated from university in or around 1999, with a [specified] degree. Ms [A] stated that following graduation, she worked in various administrative jobs for a number of companies in Jakarta. Ms [A] claimed that she met her ex-boyfriend, [Mr B], who at the time was her manager when she was working in an administrative role at a [workplace]. Ms [A] first arrived in Australia [in] October 2013 on a tourist visa. In January 2014 this visa ceased and Ms [A] remained in Australia unlawfully. She applied for the protection visa under review on 12 January 2016.
Claims from the protection visa application
Ms [A] set out her claims for protection in her application form as follows:
Why did you leave that country?
I left Indonesia because I was a woman at risk of being harmed by my ex-boyfriend. My name is [Ms A]. I was born in Indonesia on [date]. My ex-boyfriend, [Mr B[, wants to hurt me because I want to break up with him. I came to Australia to avoid his abuse. [Mr B] is a violent person. He always kicked me and slapped me on my face. I have no other way but to avoid him. We met when I was working in [employer] as a secretary. He is my manager. He treated me really well when we first met. I fall in love with him very quickly. We moved in together in end of 2012. Then he started to change. He took my salary every month for our living expenses. Later I found out that he addicted to gambling. He spent our money on gambling. I argued with him. Then he started to beat me around that time. His abuse got more and more frequent. At the same time he wanted to control me. He was all my money and he controlled my job. I felt like a prisoner. I came to Australia without letting him know. He was furious. He looked for me everywhere, including my parents’ place and my friends’ place. I can’t go back to Indonesia because he will harm me.
What do you think will happen to you if you return to that country?
My ex-boyfriend will harm me. He addicted to gambling. He spent our money on gambling. I argued with him. Then he started to beat me around that time. His abuse got more and more frequent. At the same time he wanted to control me. He has all my money and he controlled my job. I felt like a prisoner. I came to Australia without letting him know. He was furious. He looked for me everywhere, including my parents’ place and my friends’ place. I can’t go back to Indonesia because he will harm me.
Did you experience harm in that country?
Yes. My ex-boyfriend addicted to gambling. He spent our money on gambling. I argued with him. Then he started to beat me around that time. His abuse got more and more frequent. At the same time he wanted to control me. He has all my money and he controlled my job. I felt like a prisoner. I came to Australia without letting him know. He was furious. He looked for me everywhere, including my parents’ place and my friends’ place. I can’t go back to Indonesia because he will harm me.
Did you seek help within the country(s) after the harm?
Yes. I asked help from family and friends, but he threatened them not to help me. Then I asked help from police officers. They didn’t want to help me because I don’t have enough evidence of his violence.
Did you move, or try to move, to another part of that country to seek safety?
No. I can’t move because he has my money and he controlled my job too.
Do you think you will be harmed or mistreated if you return to that country?
Yes. My ex-boyfriend addicted to gambling. He spent our money on gambling. I argued with him. Then he started to beat me around that time. His abuse got more and more frequent. At the same time he wanted to control me. He has all my money and he controlled my job. I felt like a prisoner. I came to Australia without letting him know. He was furious. He looked for me everywhere, including my parents’ place and my friends’ place. I can’t go back to Indonesia because he will harm me.
Do you think the authorities of that country can and will protect you if you go back?.
No. Authorities in Indonesia don’t help woman like me who suffered domestic violence..
Do you think you would be able to relocate within that country?
No. I can’t.
On 21 May 2019, Ms [A] sent an untranslated email to the Tribunal that included a number of links to YouTube clips that appear to be in the Bahasa Indonesia language. The clips appear to relate to general country information on issues including Indonesian politics and religion. As both the email and the clips are untranslated, I place no weight on this submission. On 16 August 2019, Ms [A] sent an untranslated email to the Tribunal that included a number of links to what appear to be Indonesian news articles about issues including domestic violence. As both the email and the clips are untranslated, I place no weight on this submission.
On 14 May 2019, Ms [A] submitted a document from [Health Service Provider 1] titled ‘[provider name] Imaging Request’ that appears to be a referral for a CT scan. The document was stamped and signed by Dr [C] on 1 May 2019. The document contains very little intelligible information but includes a handwritten note of ‘CT abdopelvis’ under the ‘Examination Requested’ heading and another hand written note of ‘pelvic pain + LIF pain’ under the ‘Clinical Details’ heading. The document appears to make no other comment or reference to Ms [A]’s medical history or health status. Given the dearth of information it provides, I place little weight on this document. On 16 August 2019, Ms [A] submitted an appointment receipt from [Health Service Provider 1] indicating that Ms [A] has an upcoming appointment with a named GP on 27 August 2019. The document makes no other comment or reference to Ms [A]’s medical history or health status. Given the dearth of information it provides, I place little weight on this document.
Findings and reasons
The issues in this review are whether Ms [A] 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 Ms [A]’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).
Ms [A] first arrived in Australia in October 2013 on a tourist visa. This visa ceased on 8 January 2014 and Ms [A] remained in Australia unlawfully. I note that Ms [A] applied for a protection visa on 12 January 2016, more than two years after she had become unlawful. At the time she applied for the protection visa, she had limited options to remain in Australia.
I give weight to the timing of Ms [A]’s application for protection in considering the genuineness of her claims to fear serious harm in Indonesia. When considered in conjunction with my other concerns relating to Ms [A]’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 the extended delay in seeking protection 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 realised she had few other options to remain in Australia.
Assessment of claims
Ms [A] claims to fear that if she returns to Indonesia, she will be physically harmed or killed by her ex-boyfriend. During the hearing, I also discussed with Ms [A] issues related to her religion (she claimed to be a Christian) and her Chinese ethnicity.
Fear of harm from ex-boyfriend
In the protection visa application, Ms [A] claimed that her ex-boyfriend [Mr B] initially treated her ‘really well’ but that their relationship deteriorated after she moved in to live with him at the end of 2012. She claimed he was physically and verbally violent toward her on multiple occasions and he had made threats to kill her. She claimed that she had reported [Mr B]’s actions to police but the authorities had taken no action because of a lack of evidence.
At the hearing, Ms [A] claimed that she met her ex-boyfriend, [Mr B], who at the time was her manager, when she was working in an administrative role at a [workplace]. She claimed at the hearing that their relationship turned romantic in 2011. She claimed she and [Mr B] were dating for several months before she decided to move in to live with him in 2011. She claimed that at the beginning of their relationship [Mr B] was kind and treated her well, although after she moved in with him she realised his true nature. Ms [A] claimed that [Mr B] became physically and verbally abusive toward her. She claimed that he threatened to kill her.
She claimed to have changed jobs due to issues in their relationship while they were still living together, prior to moving out of the house she shared with him, although the timing of these events was the subject of some confusion at the hearing (which will be discussed in further detail below). Ms [A] claimed that she broke off the relationship and moved in with a friend prior to departing for Australia in October 2013. Ms [A] could not recall how long she had lived with [Mr B], exactly when she had moved in or when she had moved out. She had trouble remembering what years her claimed relationship and cohabitation with [Mr B] had taken place; she at first claimed it was 2011 when she had moved out of the house she shared with him but then changed her answer and stated they were still living together in 2012. Ms [A] claimed that although she had no contact with [Mr B] after she moved out of the house she shared with him, people told her that he was looking for her and making threats against her life.
I have serious concerns about the credibility of Ms [A]’s evidence about her claims relating to her fear of harm from her ex-boyfriend. I note that Ms [A] provided hesitant, vague and at times contradictory evidence when questioned about specific details of her claims. Key aspects of her story are inconsistent between the oral and written evidence. For example, in the protection visa application (as noted above) Ms [A] stated that she had reported her ex-boyfriend’s behaviour to the police but they had not taken any action. When asked at the hearing if she had reported her boyfriend’s behaviour to the police, Ms [A] contradicted her statement in the visa application, stating that she did not report [Mr B]’s behaviour to the authorities because she thought that if she did, it may make the situation worse. She stated that she thought that even if she did report it to the police it would not resolve the issue and she feared that it may damage her good name and reputation because people may become aware of her situation.

At the hearing I explained to Ms [A] my concerns relating to this inconsistency about the police report and gave her an opportunity to comment. Ms [A] provided a vague and confused explanation. She eventually stated that reporting to the police would have been pointless because these matters were not resolved. She then changed her answer and stated that she did report [Mr B]’s behaviour to the police after her friends encouraged her to, but the police did not help her and the issue was not resolved.
I am also concerned by the highly vague and undetailed oral evidence Ms [A] provided about the general timeline and details of her claimed relationship with [Mr B]. I note that Ms [A] provided hesitant, vague and at times highly confused evidence relating to the timeline of the claimed relationship with [Mr B]. For example, she could not remember any specific (or even estimated) dates relating to the timeline of the relationship, and was very unsure even about what year she had moved into and out of the house with [Mr B]. She initially stated it was 2011 when she moved out of the house, then claimed that she still lived with him in 2012. She then stated that she had decided to change jobs because of issues in the relationship (she claimed that [Mr B] was her manager in her administrative job at the [workplace]) prior to moving out of the house. When asked why she would change jobs because of the relationship issues but remain living in the same house as [Mr B], she said it was because [Mr B] wanted her to live with him. Ultimately Ms [A] could not remember how long she lived with [Mr B], nor was she certain of the year she moved out. She stated that because it was a long time ago she could not remember specific details. Ms [A] claimed that she did ultimately move out to live with a friend in another part of Jakarta prior to moving to Australia in October 2013. She stated that she has had no contact with [Mr B] since she moved out of the house she shared with him.
I am mindful that memories can be dimmed by the passage of time, and I understand that Ms [A] may have been nervous at the hearing. I accept that Ms [A] may feel uncomfortable talking about certain elements of her past, including her unhappy relationship with her ex-boyfriend. I accept that it is not always possible or necessary for an applicant to remember specific details or exact dates. Even when making allowances for such factors, given the highly significant nature of the events being discussed regarding the serious threat she claimed to have been subjected to, I have formed the view that it could be reasonably expected that Ms [A] would have had a more coherent, consistent and plausible recollection of specific details relating to the relationship and her life circumstances during the period in question. At the hearing, I explained to Ms [A] my concerns relating to specific inconsistencies in her written and oral evidence. Ms [A] said that she did not like recalling past traumatic events and as a consequence found it hard to remember details of what happened. I have considered Ms [A]’s explanations of these inconsistencies but I am not convinced by them.
Considering all of the evidence cumulatively, and having regard to Ms [A]’s personal circumstances and narrative as a whole, I do not find her to be credible. I note that there is very little documentary evidence to corroborate any of Ms [A]’s claims. I find Ms [A]’s evidence in relation to her claimed fear of harm from her ex-boyfriend to be at various times vague, incoherent, illogical and inconsistent. I find her explanation of these inconsistencies unsatisfactory and I do not accept them. For these reasons I have not accepted key aspects of her claims. While I am prepared to accept that Ms [A] was in a relationship with [Mr B], and that the relationship and/or its breakdown may have been an acrimonious one, on the basis of the evidence before me I do not accept that Ms [A]’s life has been threatened by her ex-boyfriend as claimed. I do not accept that Ms [A] was a victim of violence at the hands of her ex-boyfriend as claimed. I do not accept that her ex-boyfriend threatened her life as claimed. I do not accept that her ex-boyfriend has an intention to kill or physically assault Ms [A] as claimed. I note that, by her own admission, Ms [A] has not seen or had any contact with her ex-boyfriend for nearly seven years.
For these reasons I find remote the chance that Ms [A] would be seriously harmed by her ex-boyfriend on return to Indonesia due to the nature of their relationship, or for any other reason, even taking into account the fact that I accept that they are estranged and that the relationship and/or breakup may have been acrimonious. I find that Ms [A]’s fears of persecution on this basis are not well founded.
Issues relating to religion
Although Ms [A] had not previously raised any specific claims relating to her religion, I discussed with her at the hearing issues relating to her Christian faith arising from the facts of her case and her specific circumstances. I put to Ms [A] country information that suggested there is a significant degree of religious pluralism and tolerance in Indonesia, supported by various laws intended to protect the right to religious expression and belief. Specifically, the DFAT country information report for Indonesia stated[1]:
[1] Department of Foreign Affairs and Trade, Country Information Report – Indonesia, 25 January 2019, Sect. 3.14, 3.15, 3.19 and 3.35-3.41.
Article 28E (1) and (2) of the Constitution guarantees citizens the freedom to choose and practise the religion of their choice and the freedom to believe their faith; while Article 28I (1) includes freedom of religion as a human right that cannot be limited under any circumstances. Article 29 (1) and (2) stipulates that, while the state shall be based upon belief in One God, all persons are guaranteed the freedom of worship according to their own religion or belief. However, Article 28J (2) qualifies these protections by stipulating that, in exercising their rights and freedoms, every person has the duty to accept restrictions established by law. These restrictions are for the sole purposes of guaranteeing the recognition and respect of the rights and freedoms of others and of satisfying just demands based upon considerations of morality, religious values, security and public order in a democratic society.
Indonesia is home to the world’s largest Muslim population: over 207 million Indonesians identified as Muslim in the 2010 census. The country hosts two of the largest Islamic organisations in the world, Nahdlatul Ulama and Muhammadiyah, both of which have millions of followers and are socially and politically influential. Most Indonesian Muslims are Sunni, although up to 3 million are Shi’a and approximately 200,000 to 400,000 are Ahmadi. According to the 2010 census, Muslims comprise 87.2 per cent of the population; Protestant Christians 7 per cent; Roman Catholics 2.9 per cent; Hindus 1.7 per cent; others (including Buddhists) 0.9 per cent. Indonesia’s government officially recognises only Islam, Catholicism, Protestantism, Buddhism, Hinduism, Confucianism (since 1999) and indigenous beliefs (‘aliran kepercayaan’ since 2017). The vast majority of Indonesians are categorised by the government as belonging to one of these religions. Other religions including Judaism or Daoism are not prohibited and have general protection under the Constitution described above. Religious groups outside the official religions must obtain legal charter as a civil society organisation from the Ministry of Home Affairs.
…
Religious pluralism is an established part of modern Indonesia and a wide range of local and international sources consider that inter-faith tolerance remains strong. Local sources do, however, report an increase in localised instances of religious intolerance over the past decade, including threats from hard-line Islamist organisations.
…
Christianity is Indonesia’s second-largest religion after Islam. Approximately 24 million Indonesians listed their religion as Christian in the 2010 census. Protestants make up approximately 7 per cent of the total population and Catholics approximately 3 per cent of the total population. Christian communities exist in every province and Christianity is the majority religion some of the eastern provinces including the Papua provinces and North Sulawesi. East Nusa Tenggara, especially the island of Flores, is majority Catholic. About a million Christians lived in Jakarta at the time of the last census. A large number of Protestant churches operate in Indonesia including mainstream Protestants (especially those related to Lutheran denominations) and evangelical and Pentecostal churches as well as non-denominational independent churches.
Christians are generally able to practise their faith freely throughout Indonesia. High-level inter-denominational and inter-faith dialogues, especially between Muslims and Christians and between Catholics and Protestants, occur regularly. Christians residing in some areas, particularly where hard-line Islamist groups are more influential (such as Aceh, and parts of East and West Java) have occasionally been prevented from worshipping, including through forced church closures and the disruption of church services, however this violence and discrimination appears to be localised.
A small number of recent terrorist attacks have targeted Christians, although most recent terrorism events have targeted state institutions, especially police. The May 2018 Surabaya suicide bombings affected Catholic, mainstream Protestant and Pentecostal communities. Several churchgoers and a priest were injured in a sword attack on a Catholic church in Yogyakarta in February 2018, in which the perpetrator hacked at statues of Jesus and Mary before being shot by police.
Christian communities have remained resilient in spite of recent violence and church attendance has not fallen as a result. Security at churches increased briefly after the May attacks and police provide extra protection at major festivals such as Christmas and Easter. Some Muslim groups also volunteer to assist or provide security at events and festivals.
Conversion to and from Christianity is common. Some bureaucratic difficulties can be encountered in registering a change in religion with the government, but this is not a significant barrier to conversion, which commonly occurs without difficulty. Some Pentecostal Christians are involved in door-to-door evangelical activities, which have been known to upset religious sensitivities. Preaching by foreign missionaries is unlawful, but the US State Department reports that many foreign missionaries preach without official sanction.
Christians do not generally experience discrimination in gaining access to health care, education or employment.
DFAT assesses that Christians residing in areas where they are a majority do not face either official or societal discrimination. Christians residing in areas where conservative Islam is prevalent face a low risk of societal discrimination in the form of impediments to worship, although this risk is unlikely to include violence. DFAT assesses that Christians face a low risk of terrorism in spite of recent exceptional events.
When this country information was discussed with Ms [A] at the hearing, she stated that she did not agree with it. She said that in her opinion there are a lot of rules but the evidence showed that what happened had not been in line with those rules. She cited an example of a Buddhist woman who complained that her local mosque was too loud and her comments were twisted as being offensive. She claimed that the women’s temple was burned down and that her house was beset by a mob.
Given the country information outlined above, and after considering the evidence before it relating to Ms [A]’s Christian faith, I find that she does not face a real chance of suffering persecution involving serious harm on return to Indonesia from society, the Indonesian authorities or anyone else as a consequence of her Christian faith, her status as a Christian woman or for any other reason.
Issues relating to Ms [A]’s Chinese ethnicity
Although Ms [A] had not previously raised any specific claims relating to her Chinese ethnicity, I discussed with her at the hearing issues relating to her ethnicity arising from the facts of her case and her specific circumstances. I put to Ms [A] country information that suggested Chinese Indonesians face low levels of societal discrimination and a low risk of violence due to their ethnicity. Specifically, the DFAT country information report for Indonesia stated[2]:
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.
[2] Department of Foreign Affairs and Trade, Country Information Report – Indonesia, 25 January 2019, Sect. 3.13.
When this country information was discussed with Ms [A] at the hearing, she stated that in her view the country information was not correct. She said that since childhood she had suffered when other kids had mocked and insulted her for being Chinese, and for eating pork and other ‘unholy’ foods. She said that these attitudes extended to the broader society and she was always reminded by people that she was Chinese.
Given the country information outlined above, and after considering the evidence before the Tribunal relating to Ms [A]’s Chinese ethnicity, I find that she does not face a real chance of suffering persecution involving serious harm on return to Indonesia from society, the Indonesian authorities or anyone else as a consequence of her Chinese ethnicity or for any other reason.
Other issues
I note that at the hearing Ms [A] made some general claims about her health. She stated that she was nervous and that recalling traumatic past events, such as her relationship with her ex-boyfriend, made her feel sick in the stomach. I asked Ms [A] if she was able to continue with the hearing and told her that the hearing could be rescheduled to another time if she preferred. She stated that she was able and willing to continue and the hearing proceeded. Given the highly generalised description of her claimed symptoms, and the fact that there is very little medical information before the Tribunal relating to Ms [A]’s medical history or health status, I am not satisfied that Ms [A] has a medical condition (including any condition relating to her mental health) that is relevant to the review at hand. I also note that Ms [A] has not made any claims that she would not be able to access appropriate medical support in Indonesia if required for any reason, including one of the five reasons set out at s.5J(1)(a) of the Act.
Conclusion – refugee grounds
Having considered Ms [A]’s claims both individually and cumulatively, all of the available evidence and relevant country information, I find that Ms [A] 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 Ms [A] is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore Ms [A] does not satisfy the criterion set out in s.36(2)(a).
Complementary protection
Having concluded that Ms [A] 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 Ms [A] would suffer persecution involving serious harm from her ex-boyfriend, society, the Indonesian authorities or anyone else as a consequence of her former relationship, her status as an ethnically Chinese Christian woman 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.[3]
[3] 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].
Ms [A] 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 Ms [A] 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 Ms [A] 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-boyfriend 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 Ms [A] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that Ms [A] 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, Ms [A] 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.
…
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 6558

21 August 2019

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