1615898 (Refugee)

1615898 (Refugee) [2019] AATA 4757 (26 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1615898
COUNTRY OF REFERENCE:                  Indonesia
MEMBER:Tamara Hamilton-Noy
DATE:26 July 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 26 July 2019 at 11:28am
CATCHWORDS
REFUGEE – protection visa – Indonesia – race – ethnic Chinese Indonesian – religion – Christian – treated with contempt by colleagues – delay in payment of wages – property damage to business – no physical assault – risk of low level discrimination – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 2 September 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of Indonesia, applied for the visas on 24 March 2016. The delegate refused to grant the visas on the basis that the applicants were not persons to whom Australia owes protection obligations.
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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicants meet any of the alternative criteria in s.36(2)(a), (aa), (b) or (c), that is whether they are persons in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or are a member of the same family unit of such a person. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Country of nationality

The applicants travelled to Australia on apparently genuine Indonesian passports. They have at all times maintained that they are citizens of Indonesia. The Tribunal finds the applicants are Indonesian citizens and has assessed their claims against Indonesia as their country of nationality.

The applicants’ personal backgrounds

The applicants are a married couple and their child from Jakarta, Indonesia. The [first named applicant] was educated in Indonesia to [specified] level and who worked in a factory and then owned a restaurant while in Indonesia. He gave evidence that his mother, [and a number of siblings] continue to reside in Indonesia. The [second named applicant] is a Chinese Christian who was educated in Indonesia to [specified] level and who worked in [Industry 1] prior to leaving Indonesia.
The Tribunal accepts each of the above matters to be true.

Claims for protection

[The first named applicant] claimed in his protection application that he came to Australia in December 2015 with his wife and son and applied for protection because he suffered racism in Indonesia; the safety of his family and himself were at risk. He had suffered racism at work when he was working in [Company 1] and his manger refused to pay him from 2010 and owed him half a year’s salary. Then they were angry with him and gathered other native Indonesians to come to his home. They smashed his home; the applicant was injured and they threatened him with a knife that they would kill him if he wanted to get his salary back. They wanted him to move out. They painted “kill Chinese” on his home wall in red paint.
[The first named applicant] stated in his protection application that he moved to Mempawah, Kalimantan province, in 2011 and opened a small restaurant called [Restaurant 1]. In 2012 several native Indonesians came to his restaurant to eat and refused to pay. They said he stands on their land and has to pay them and they argued. The same thing happened again. They came with other native Indonesians and the applicant asked them to pay in advance when they ordered food and they then smashed the restaurant. He called the police station but the police did not attend. From that time he let native Indonesians eat without paying. They hit his wife and him whenever they felt like it. In [year] his son was born and he came to Australia with his family to find a safe place for his family.

Evidence at first hearing

At the first hearing, held on 31 May 2019, [the first named applicant] told the Tribunal that he had completed the application for protection form with a friend who was from Indonesia, who he didn’t know well but met by chance. [The first named applicant] stated that he had written down the content and his friend had assisted with the description on the form. As to which part his friend had assisted him to fill in, he stated that he had written down the content. He had written his own statement and his friend had not assisted with this. In response to further questions by the Tribunal he stated that the contents of his claims were correct, there were no mistakes in the documents and he had nothing else to add about his reasons for leaving Indonesia.
[The first named applicant] stated to the Tribunal that he had met his wife at a factory over ten years ago, at [Company 1] and that they had been married for over ten years but he could not recall when they were married. The Tribunal noted that in his written application [the first named applicant] had stated he was married in 2013 in Jakarta and he said that this was based on the document of marriage, but that they had lived as a married couple with a child before that. The Tribunal noted that their child had not been born until [year] and asked which child they had been living with before 2013 and [the first named applicant] stated that this was not before 2013. [The first named applicant] then stated that the formal marriage certificate had been given in 2013 but before that they had had a wedding ceremony.
[The first named applicant] stated that he and his wife are both Chinese Indonesians and of the Christian faith. He completed schooling to Year [year] and could not recall when he finished school but said it was when he was [age] or [age] years of age. As to why he was this old when he finished school, he said it was because he had failed to graduate beforehand. The Tribunal noted that on the application for protection the applicant had said he had finished school in [year] when he would have been [age] years of age and [the first named applicant] stated that the year in the application form is correct. He said that when he finished school he didn’t immediately find a job, this happened a few years later. He worked in [Company 1] from 2010 for one year and after that worked in a restaurant from 2011 for three to four years. The restaurant was under his name and one of his siblings assisted; [the first named applicant]’s job was to control the finances and meet any extra needs and his brother did the cooking. His wife’s role was to help look after the place.
The Tribunal noted that in the written application for protection [the first named applicant] had said he had worked in [Company 1] for six years, which was different to the evidence he gave at the hearing of having worked there for one year. [The first named applicant] stated that the error may have been in filling out the form. He didn’t read the form before it was signed. The Tribunal observed during the hearing that the differences in the time he estimated he had worked for [Company 1] appeared to be significant and [the first named applicant] stated in response that he worked for one year at [Company 1] and then went to work for a branch associated with [Company 1]. The Tribunal observed during the hearing that [the first named applicant]’s evidence regarding the years of education he undertook was also significantly different and that because of these differences the Tribunal may have difficulty accepting [the first named applicant]’s stated background. [The first named applicant] did not want to comment on this observation.
[The first named applicant] stated that he arrived in Australia [in] December 2015. He came to Australia as he was seeking a secure and safe place for his wife and child. He had had problems with the indigenous population of Indonesia, who treated someone with a foreign background unfairly and unjustly. When he was working at [Company 1] he was treated with contempt and wasn’t paid for half a year. The Tribunal asked how long the employer paid him for, before ceasing his payments, and he stated that while he was at [Company 1] he was paid a year on time. When he moved to the branch they delayed payments to him. The Tribunal asked how long the branch paid before it stopped paying and he said for the first two to three months. The Tribunal noted that [the first named applicant] had said he had worked for the branch for a number of years, and sought clarification as to whether he was saying the branch paid him for a couple of years before stopping payments, and he stated in response that it occurred quite early. He worked for the branch for four to five years and frequently they would delay the payments for three to four months. They would only pay him when he said he would have to leave the employment. The Tribunal noted that this was different to the account given in the written statement and [the first named applicant] stated that there was a delay of two to three months when he was working there, and the final six months was the last straw and then he quit.
[The first named applicant] stated that he asked to be paid and his employer gathered a mob of locals to go to his house to give him a warning, and that if he insisted on being paid he might be murdered. The mob that turned up included people from his work and some locals and the one who threatened him with murder was a local. In response to questions by the Tribunal, [the first named applicant] stated that he was married to his wife by then and she was there during this incident. During the incident the locals beat him up and he got cuts above his eye from this. His wife was not injured. The mob also wrote “kill Chinese” on the wall in red. This was in 2010.
[The first named applicant] stated that after that he quit his job and opened a restaurant. He quit about half a year after the incident. The Tribunal clarified that this meant he had stayed there for another six months and he stated that immediately he had moved to Mempawah. The Tribunal observed that the applicant had told the Tribunal that he quit half a year later and he stated he quit and half a year later moved. The Tribunal again noted that the applicant had given evidence that he quit half a year later and he stated in response in 2010 he quit his job and moved to Mempawah after six months. The Tribunal asked how long after the incident had he quit his job and he said six months. The Tribunal asked whether there had been any other incidents in that six month period and the applicant stated no and the employer kept paying him. As to why he had quit six months later, he stated he was scared this would be repeated.
[The first named applicant] stated that he moved to Mempawah in 2011 and opened a restaurant. He insisted to the local indigenous customers that they pay, otherwise everybody else would request not to pay as well, but as far as they were concerned he was living on their land. They brought in a mob and damaged the restaurant and beat him up. He was blue and swollen in places. As to why he hadn’t put in his original protection application that he had been blue and swollen from a beating, he stated there was no reason. The Tribunal noted that the law provided for the Tribunal to draw an inference unfavourable to the credibility of the applicant if the Tribunal was satisfied that the applicant did not have a reasonable explanation why the claim was not raised before the primary decision was made. The Tribunal finds that the applicant did not provide a reasonable explanation for not having raised this aspect of his claim earlier.
The Tribunal asked whether there were any other reasons for the applicant leaving Indonesia and he said no. The restaurant damage had occurred in 2012 and he agreed he had remained in Indonesia for another 3 ½ years. He said there were no other issues during this time. As to why he had left 3 ½ years after the last incident, he said that he had a son and wanted to find a safe and secure place for him. The Tribunal asked the applicant about his concerns if he returns to Indonesia and he said that because of the history of incidents, he is worried his child will experience these things.
[The second named applicant] spoke to the Tribunal and stated that she is Chinese Indonesian and Christian. She married the applicant in Jakarta in 2013 and they had started living together in 2011. At the time [the first named applicant] was working in [Company 1] and she was also working there in administration. The Tribunal asked about the family’s experiences in Indonesia and [the second named applicant] stated that there were problems with native Indonesians; she did not witness the incidents herself but [the first named applicant] worked in the warehouse where indigenous workers recognised him as Chinese.
The Tribunal asked about the incident at [the first named applicant]’s house that had occurred while he was working at [Company 1] and asked whether [the second named applicant] had been there. She stated this incident was probably outside the house while she was inside. She was scared to go out but heard the story. The Tribunal asked what happened and [the second named applicant] said that many times the workplace had delayed payments to her husband and she believes this occurred because he is a fair person. The Tribunal asked again about the incident at the house and [the second named applicant] said that she was inside the house and it happened outside. The Tribunal asked what was done to the house and [the second named applicant] stated there was damage to the front door and people threatened they might commit murder. The Tribunal asked whether anything was done to [the first named applicant] and [the second named applicant] said he was beaten; the Tribunal asked where and [the second named applicant] said on the cheek, and he was maybe bleeding on his hand. The Tribunal asked whether, apart from the damage to the front door, anything else was done to the house and [the second named applicant] said no, not that she was aware of.
The Tribunal noted that [the first named applicant] had said this incident happened in 2010 but [the second named applicant] had said they were not living together until 2011. [The second named applicant] said in response that at the time she was in administration and he was in the warehouse, so they were living in accommodation the workplace provided, a mess room, and she lived in the female section and often visited [the first named applicant]. The Tribunal asked whether the incident had happened at the mess or [the first named applicant]’s home, and [the second named applicant] stated in response that she was in the mess but her accommodation was close by.
The Tribunal asked about the move to Mempawah and [the second named applicant] stated that this was in 2012 but she wasn’t helping because they were not formally married yet. She was in Jakarta and after their marriage she moved to Mempawah. The Tribunal sought clarification of when [the second named applicant] had started living with [the first named applicant] and she stated that she was in accommodation while working in [Company 1] with him and he was nearby, and when he moved to Mempawah they were not married and she stayed with her parents because they wouldn’t let her move there. She stated that she had said earlier they started living together in 2011 because it was the same workplace accommodation.
The Tribunal noted that [the first named applicant] had stated there was an incident with the restaurant in 2012 which appeared to occur while she said she was in Jakarta and [the second named applicant] stated that she had visited his restaurant to check the damage. The tables, chairs and food were all messed around.
[The second named applicant] agreed that they had stayed in Indonesia for another 3 ½ years before leaving for Australia. The Tribunal asked whether any other incidents had occurred in this time and [the second named applicant] said that she practiced the Christian belief and local indigenous Indonesians who lived in her neighbourhood didn’t like that she walked to church carrying a bible and threw insults at her, for example, commenting that her God has no clothes. Since that time she stopped wearing a cross. She was attending [a specified] church, of Protestant denomination. Since being in Australia she joined, last year, [Church 1] in [Town 1]. The Tribunal observed that she had been in Australia for some three years before joining a church and [the second named applicant] said that she had tried other churches and one was too far away; this one was more convenient. As to what she is worried about if she returns to Indonesia, she stated that her concern is for her child; she left because she didn’t want him to experience what they had experienced.

The Tribunal asked [the first named applicant] about the different injuries he stated he had received in 2010 compared to [the second named applicant]’s evidence and he stated in response that people exchanged blows. The Tribunal also noted that he had said the house was painted in red and [the second named applicant] said the door was smashed, and observed that it could not understand why [the second named applicant] wouldn’t have known what had happened to the house if she was there, and [the first named applicant] stated in response that when the application was completed [the second named applicant] didn’t know the details. He stated that because he was filling in with the help of a friend, there might be some exaggeration in the story. The Tribunal asked which bits were exaggerated and he stated that the writing in the wall on red didn’t happen. The Tribunal asked what else had been exaggerated and [the first named applicant] stated nothing else other than when they exchanged blows, he might have exaggerated the bleeding. The Tribunal asked in what way had he exaggerated the bleeding and he stated in response that the only exaggeration was the red writing.
The Tribunal noted that it had considered the most recent DFAT report for Indonesia, dated 25 January 2019, which states that there are 2.8 million Chinese Indonesians in Indonesia, comprising 1.2% of the population; that since the end of the Suharto government, the government has removed most official policy measures discriminating against ethnic Chinese Indonesians, that Chinese new year is celebrated, Chinese cultural performances and languages are accepted that barriers to citizenship have been removed; that some anti-Chinese sentiment remains and that rich and prominent businesspeople who are Chinese Indonesian face resentment from some non-Chinese Indonesians; that apart from riots in 2016, anti-Chinese violence has been low since 1998; and that DFAT has assessed that Chinese Indonesians face a low risk of violence, and anti-Chinese sentiment may lead to low levels of societal discrimination.
The Tribunal noted it had also considered the most recent Country of Origin Information Services Section (COISS) report dated 27 February 2019, which states that Chinese Indonesians generally live free from official discrimination; that anti-Chinese sentiment typically results from economic resentment rather than racism; and that this is from the perceived prosperity of Chinese Indonesians relative to the broader community, rather than for religious or ethnic concerns.
Both reports were described to the applicant during the hearing and he stated he did not want to comment on either. In response to the question of whether he could live in any other part of Indonesia, [the first named applicant] stated that for them, the place that is secure and safe is Australia.
The Tribunal asked [the second named applicant] why her experiences about practicing her religion had not been included in [the first named applicant]’s application and she stated this was because of her lack of English and there were so many incidents and so many reasons to worry and the decision was to submit a summary. The Tribunal asked the applicants about any other incidents or reasons that they wanted to raise and [the second named applicant] stated that their concern is that if they live among many indigenous Indonesians they’d suffer similar threats. [The first named applicant] stated that they most they can provide is to seek a secure and safe place for their child.

Evidence at second hearing

The applicants were invited to a second hearing to discuss [the second named applicant]’s claims relating to her religion. The hearing was held on 10 July 2019 and at the hearing [the second named applicant] was asked by the Tribunal about her past experiences as a Christian in Indonesia. She stated that when walking to church she could feel people staring at her, with cynical looks, and could see that they felt uncomfortable looking at her cross on her necklace. She could feel that they felt it was not appropriate for her to live in that environment.
The Tribunal observed that, while there had been bombings of churches in Surabaya in mid-2018, this was some distance away from Mempawah where she had resided. She stated that when she was growing up she had experienced on public transport having to conceal her bible. As to any specific concerns in Mempawah, she stated that the place was remote. She had attended [a specified] church, a Protestant church, every Sunday and had otherwise participated in religious celebrations. She was baptised at [age] years of age and her parents are practicing Christians.
[The second named applicant] told the Tribunal that, since arriving in Australia, she and [the first named applicant] have been attending [Church 1] in [Town 1]. They last attended in May 2019 and before that, she could not really recall when they had last attended, as her husband has been working on Sundays. They tried one church when they arrived but didn’t feel like they belonged. They then tried attending a Catholic church.
The Tribunal asked about the applicant’s concerns about attending church if she returned to Indonesia and she stated she doesn’t really have any concerns; it is more about the environment itself that she feels scared.
[The first named applicant] stated to the Tribunal that he is baptised and is of the Protestant faith. He has been working on Sundays and so has not attended church for several weeks. He does not have any concerns about attending church in Indonesia.
The Tribunal noted during the second hearing the most recent DFAT report (25 January 2019) indicated there were church bombings in Surabaya in May 2018, however, this was 1200 kilometres away from where the applicants had been residing. The DFAT report noted that Indonesia’s government recognises Protestantism as one of the official religions; that religious pluralism is an established part of modern Indonesia and a wide range of local and international sources consider that inter-faith tolerance remains strong; and that local sources report an increase in instances of religious intolerance over the past decade but this appears to be sporadic. The applicants did not want to respond to this information during the hearing.
The Tribunal also noted the COISS report (27 February 2019) stated that rates of religious violence are generally low; and that the wave of intercommunal violence that broke out after Suharto in 1998 has subsided, although occasional attacks continue against minorities such as Shi’a and Ahmadi Muslims. The applicants did not want to respond to this information during the hearing.

Claims relating to race

[The first named applicant] gave evidence during the hearing that he was treated with contempt by colleagues while working in Indonesia and that there had been delays in receiving his income from employment. The Tribunal accepts this evidence.
[The first named applicant] gave evidence during the hearing that he had exaggerated the account of his reasons for leaving Indonesia, including that there had not been words written in red paint on his house. [The second named applicant] gave different evidence to the Tribunal about the injuries [the first named applicant] sustained during the incident in 2010. The Tribunal found that the incident had not occurred, based on these discrepancies and based on [the first named applicant]’s evidence that had exaggerated parts of the account. The Tribunal finds that [the first named applicant] did not leave his employment because he was assaulted by co-workers or because racist words were painted on his house.
The Tribunal accepts that [the first named applicant] subsequently worked in a restaurant. He first raised during the hearing that he had been physically assaulted during his time at the restaurant and did not provide a plausible reason for not having raised the information earlier in his claim for protection. The Tribunal finds that [the first named applicant] did not experience a physical assault while working in a restaurant in or around 2012. The Tribunal is prepared to accept that [the first named applicant] may have experienced property damage from locals while working at the restaurant. He remained in Indonesia for a further 3 ½ years, however, without any further damage or incidents occurring.
The Tribunal accepts that the applicants are Chinese Indonesian, however, found that there is nothing in their past experiences in Indonesia that give them a higher profile than other Chinese Indonesians in Indonesia. The country information considered by the Tribunal states that Chinese Indonesians are at risk of low level discrimination. The Tribunal accepts that the applicants may face a level of discrimination if they return to Indonesia but finds that this does not amount to serious harm. The Tribunal finds that the property damage experienced by the applicant in the past is an instance of discrimination and does not amount to serious harm. The Tribunal finds that the applicants do not face a real chance of serious harm in Indonesia in the reasonably foreseeable future for reasons of their race.

Claims relating to religion

The Tribunal accepts that [the second named applicant] is a practicing Christian and that [the first named applicant] is also of the Christian faith. The Tribunal accepts that [the second named applicant] attended church while living in Indonesia and that she has joined a church since arriving in Australia. This has been on a sporadic basis. The Tribunal finds that, if the applicants return to Indonesia, they are likely to resume attending a local church on an ad hoc basis. Both [the second named applicant] and [the first named applicant] gave evidence at the second hearing that they do not have specific concerns about attending church if they return to Indonesia.
This evidence was consistent with the country information considered by the Tribunal, which states that Christians in Indonesia are generally free to practice their faith without interference. The Tribunal accepts that there were church bombings in Surabaya in 2018 however has not identified any information suggesting that the bombings are part of an ongoing pattern of churches being targeted. The Tribunal finds that the chance of harm to the applicants if they return to Indonesia to practice their religion is remote. The Tribunal finds that the applicants do not face a real chance of serious harm in Indonesia in the reasonably foreseeable future for reasons of their religion.
For the reasons stated above, the Tribunal is not satisfied that the applicants face a real chance of persecution in Indonesia in the reasonably foreseeable future for any of the reasons cited in s.5J(1)(a) of the Act.

Complementary protection

The Tribunal also considered the alternative criteria in s.36(2)(aa). The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
‘Significant harm’ is defined at s.36(2A) to include arbitrary deprivation of life, imposition of the death penalty, torture, cruel or inhuman treatment or punishment and degrading treatment or punishment.
No additional matters were raised by the applicants in relation to this consideration. The instance of discrimination faced by the applicant previously in Indonesia, namely the property damage to a restaurant in or around 2012, does not amount to significant harm. The Tribunal finds that the discrimination that the applicants may face on their return to Indonesia does not amount to significant harm. The Tribunal is not satisfied on the evidence before it that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Indonesia, there is a real risk that the applicants will suffer significant harm, including arbitrary deprivation of life, torture, the death penalty, cruel or inhuman treatment or punishment or degrading treatment or punishment.
The Tribunal concluded that the applicants are not persons in respect of whom Australia has protection obligations under s.36(2)(aa).
The Tribunal accepted that the applicants’ son is Chinese Indonesian. No claims were raised specifically with respect to [the third named applicant] and the Tribunal finds that he does not have a risk of serious harm, or a risk of significant harm, if returned to Indonesia in the foreseeable future on the basis of being a Chinese Indonesian or a Christian Indonesian.
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Tamara Hamilton-Noy
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 4757

26 July 2019

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Immigration

Statutory Interpretation

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Standing