1618904 (Refugee)

1618904 (Refugee) [2021] AATA 1457 (17 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1618904
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:P. Wood
DATE:17 March 2021
PLACE OF DECISION:  Melbourne, Victoria
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 March 2021 at 12:15pm
CATCHWORDS
REFUGEE – protection visa – Indonesia – race – Chinese Indonesian – threats of harm by native Indonesians – property destroyed – insufficient evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 26 October 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, a practising Christian, is a citizen of Indonesia (of Chinese heritage), applied for the visa on 23 November 2015, having arrived in Australia on a tourist visa. The delegate refused to grant the visa on the basis that they were not satisfied that the applicant was a person in respect of whom Australia has protection obligations. In their application for a protection visa, the applicant claimed to fear harm from native Indonesians on the basis of his Chinese ethnicity. However, after considering the applicant’s claims and country information from Indonesia, the delegate found that the applicant had not experienced any less favourable treatment as a result of discrimination that could amount to persecution.
The applicant applied to the Tribunal on 11 November 2016 for review of the delegate’s decision.
The applicant was represented in his review by his registered migration agent.
The Tribunal has also read and had regard to the following documentation which the applicant’s migration agent provided:
·     A signed statement from the applicant along with hyperlinks to nine media reports;
·     Six media reports (provided to the Tribunal at the conclusion of the first Tribunal hearing)
·     Four media reports (provided to the Tribunal after the second Tribunal hearing)
The applicant appeared before the Tribunal on 22 January 2020 and by telephone on 22 February 2021 to give evidence and present arguments on the issues arising in his case. The hearings were conducted with the assistance of an interpreter in the English and Indonesian languages. Resolution of the applicant’s review application was delayed due to the Covid-19 pandemic.
Criteria for a protection visa
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade 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 applicant has a well-founded fear of persecution. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s claims, as summarised by the delegate in their decision, were initially:
·     “The applicant claims he suffered racism in Indonesia for being a Chinese Indonesian. He left Indonesia to avoid harm from native Indonesians;
·     He witnessed his parents in trouble with native Indonesians because his parents refused to pay them money. His parents operated a business, but their financial condition was not well. Native Indonesian groups came to their house and destroyed everything. They beat him and his parents. They threatened to kidnap him;
·     He thinks if he returns to Indonesia, he will be kidnapped by Indonesian groups because they want money from his parents;
·     His parents called police several times. He does not think the Indonesian authorities can protect him every minute;
·     He did not try to relocate elsewhere because racism is a nationwide problem. He will suffer racism no matter where he goes”.
At the Tribunal, the applicant said that he is from [a named] village in East Java.
He also made the following claims:
·     Native Indonesians had threatened to kidnap his mother and younger sibling
·     Native Indonesians had destroyed his father’s [business] by gossiping about the business and stealing from it
·     Christians have been detained when they have complained that broadcasts originating from mosques were too loud
·     At Christmas, angry mobs would attend his church and attempt to pressure he and other Christians to change religion, forcing the church to engage security guards
·     At Chinese New Year, native Indonesians would come to his home and demand money and food. His front gate was damaged as a result of such an incident.
·     Native Indonesians get upset about Christmas rituals and local regulations prohibit the decoration of cakes with “Merry Christmas”
·     His family have felt the need to lock away their valuables on days of celebration due to their fear of such items being stolen in a home invasion/robbery
·     His dog had been beaten by native Indonesians
·     His family are fearful of leaving their house and time their entry and exit from their residence
The Tribunal asked the applicant if he had experienced any acts of violence. He said that windows had been broken and his motorcycle has been damaged. The applicant also claimed that he is fearful because of suicide bombings which have occurred in Christian churches.
The Tribunal questioned whether the applicant was of the opinion that he could move within Indonesia in order to avoid these circumstances. He said that he feared that it would still happen wherever he was to relocate to.
Indonesia - country information
Relevantly, DFAT’s Country Information Report on Indonesia (25 January 2019) states:
“RACE / NATIONALITY
Indonesia is one of the world’s most ethnically diverse countries. The government promotes racial and ethnic tolerance and legislation prohibiting racial discrimination and vilification has been in force since 2008. Article 28I (2), among other articles, of the Constitution states that every person shall have the right to be free from discriminatory treatment based upon any grounds whatsoever and shall have the right to protection from such treatment.
For many decades the government pursued a ‘transmigration’ policy, whereby landless people were offered land and housing in less heavily populated locations in order to ease population pressures in densely populated islands such as Java. Critics of the program argued it failed to integrate arriving populations into host communities, and that subsequent segregation led in some cases to communal tensions in rural areas.
Overall, in spite of some problems discussed above, Indonesia is a successful multi-ethnic society. Friendships and even marriages between people of different ethnicities are not uncommon. Inter-religious marriage can cause difficulties (see Personal Status Laws). Larger cities in particular are more ethnically mixed and people live and work side-by-side with their peers of different ethnicities.
DFAT assesses that most Indonesians are unlikely to face official or societal discrimination on the grounds of race or ethnicity. Where clashes between different ethnic groups have occurred in recent times, they have often occurred along ethnic lines in areas with sizeable transmigrant populations. Disputes over land ownership and usage, perceptions of social and economic exclusion or cultural resentment have on occasion resulted in outbreaks of localised violence throughout the archipelago. DFAT assesses that, for the most part, Indonesian security authorities have effectively prevented such incidents and sought to resolve them quickly when they have occurred in recent years.
Ethnically Chinese Indonesians
Successive waves of immigration to Indonesia from China over more than five centuries have resulted in an established ethnically Chinese Indonesian community throughout the country. The 2010 census recorded 2.8 million ethnic Chinese living in Indonesia, comprising 1.2 per cent of the population. This figure may understate the actual number, as some Indonesians of Chinese descent are reportedly reluctant to self-identify due to past tensions. Many Chinese Indonesians who trace their history in Indonesia for many generations may no longer identify as Chinese and many do not speak Chinese. About half of the ethnically Chinese population are Buddhist and about 42 per cent are Christian. Fewer than five per cent are Muslim, compared with over 87 per cent of Indonesians generally.
The Suharto-era New Order regime implemented a range of measures that discriminated against Chinese-Indonesians. The law prohibited Chinese language newspapers, schools and cultural expressions, and many Chinese Indonesians were pressured to take Indonesian names. Some ethnic Chinese had difficulty obtaining citizenship and Chinese Indonesians were required to carry a document proving their Indonesian citizenship. As noted in Recent History, in May 1998 during the Asian financial crisis, rioters targeted the ethnic Chinese community due to their perceived wealth. As many as 1,000 Chinese Indonesians died in incidents related to the riots, women were raped, and businesses were burned or looted.
Since the end of the New Order regime in 1998, successive governments have removed most official policy measures discriminating against ethnically Chinese Indonesians. Chinese New Year is celebrated as a national public holiday, Confucianism is an officially recognised religion, Chinese cultural performances and languages are accepted, and the Constitution no longer distinguishes between ethnic Chinese and ‘indigenous’ Indonesians, with barriers to citizenship removed. In 2014, then-President Yudhoyono issued a regulation changing the Indonesian word used to designate ‘of Chinese descent’ from one which was often associated with racial slurs. A number of Chinese Indonesians have held high office and work in a range of sectors, including the police, clergy and the business community.
Some anti-Chinese sentiment remains at a societal level. Although many Chinese Indonesians are not wealthy, most of the country’s richest and most prominent businesspeople are ethnically Chinese Indonesian, which is a source of resentment for some non-Chinese Indonesians.
In 2012, President Widodo faced strong criticism from conservative Islamist groups in his campaign for the Governorship of Jakarta for having a Chinese Indonesian and Christian running mate, Basuki Tjahaja Purnama, popularly known as ‘Ahok’, who later succeeded him. After succeeding Widodo as governor, some of Ahok’s policies were controversial and politically divisive, such as slum-clearing, which was perceived as anti-poor. Later, after he was accused of blasphemy in late 2016, a range of groups with complex agendas united to use Ahok’s ethnic and religious background as a means to mobilise large crowds of demonstrators (see Blasphemy and Defamation of Religion). Ahok was later convicted of blasphemy and imprisoned.
Anti-Chinese sentiment in Indonesia intersects with religious and economic issues. Islamic organisations blamed China for a supposed upsurge in communist sentiment, a politically sensitive subject (see also Recent History), in mid-2016. Increased Chinese investment in Indonesia has also caused local critics to express concerns about imported Chinese labour and Chinese control over national assets.
Small-scale local riots took place in a town in North Sumatra in 2016, following an allegation of blasphemy against a Chinese Indonesian woman (see Blasphemy and Defamation of Religion). While the riots were ostensibly anti-Buddhist, most Indonesian Buddhists are ethnically Chinese and local media described the riots as anti-Chinese and stated that some Chinese families had fled the region. A number of youths were arrested, prosecuted and imprisoned in the wake of the riots.
DFAT is aware of reports of Chinese Indonesians facing discrimination in relation to buying land in Yogyakarta. Yogyakarta is a special administrative region run as a sultanate, in which the sultan is also the governor. In March 2018, a regional court upheld a 1975 law that only allows ‘native Indonesians’, which has been construed to exclude ethnic Chinese, to own land in Yogyakarta.
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.
RELIGION
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.
The Ministry of Religious Affairs (MoRA) oversees the activities of registered religious groups from officially recognised religions. Permits from MoRA are required (and generally granted) to hold religious events, services or other public events. MoRA allows the publication of religious materials, the use of religious symbols, and the delivery of religious speeches provided that the dissemination of such information is to believers already registered as belonging to the religious group. Registered religious groups require MoRA approval to receive funding from overseas donors.
In order to obtain permission to build a new house of worship, registered religious groups must obtain 90 signatures of support from the users of the planned house of worship and at least 60 from members of the broader community. Approval is also required from the local (city or district-level) religious affairs offices (known as the Forum for Religious Harmony), comprised of religious leaders from the six recognised religions with responsibility for mediating inter-religious conflicts. Local opposition has often prevented minority religious groups from proceeding with construction of a house of worship. This has applied both to the building of churches or non-Sunni mosques in Muslim-majority areas, and to mosques in Christian-majority areas.
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.
Blasphemy and Defamation of Religion
Indonesia’s Criminal Code prohibits acts or words that insult religion or prevent a person from adhering to one of the official recognised religions The Electronic Information and Transaction Law also makes it an offence to deliberately disseminate information aimed at inciting hatred towards individuals or groups based on ethnicity, religion or race.
Since the end of the Suharto era, Indonesia has seen a rise in the number of blasphemy cases. Between 2005 and 2014, 106 people were convicted and imprisoned for blasphemy. The majority of these cases involved blasphemy against Islam. Commentators have identified a range of reasons for the rise in blasphemy cases. These include political utilisation of religion, a general trend towards legal regulation of religion and an increased legitimacy of blasphemy laws.
Indonesia’s highest profile recent blasphemy case involved former governor of Jakarta, Basuki Tjahaja Purnama (‘Ahok’), an ethnically Chinese Christian, in 2017. Ahok received a two-year prison sentence in May 2017 for suggesting in September 2016 that some Islamic clerics had deceived people by claiming a Koranic verse prohibited Muslims from electing a non-Muslim leader. An edited video of his speech made him appear to insult the Koran. This led to a series of mass demonstrations across the country in following months demanding Ahok’s arrest; up to 500,000 people assembled in Jakarta at the largest of these in December 2016. Several hard-line groups played a prominent role in organising the rallies.
In 2018, courts have so far convicted six people for blasphemy. Notably, in August 2018, an ethnically Chinese Indonesian Buddhist woman called Meiliana received an 18 month prison sentence for blasphemy, after complaining about the volume of the call to prayer broadcast from speakers at a local mosque in North Sumatra. In response to the perceived affront to Islam, a mob attacked Meiliana’s home, Buddhist temples and several other ethnically Chinese Indonesians’ homes. In January 2017 several of the rioters were sentenced to prison, the majority for under four months. A later decision to prosecute Meiliana in August 2017 came after sustained community pressure, including from hard-line Muslim groups, and coincided with the high-profile Ahok case.
In the wake of the Ahok verdict, some civil society organisations renewed calls for the government to repeal the blasphemy laws. However, past challenges to blasphemy laws have failed in the Constitutional Court, and there is no evidence to suggest the government will seek to abolish the laws in the near future.
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Christians
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.
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Police
The Indonesian National Police (INP) has more than 400,000 police officers and civilian employees (including 13,000 women), deployed to 32 regional police forces across the archipelago. The INP was formally separated from the military in 2000. The Law Concerning the State Police of the Republic of Indonesia (2002) gives the INP the lead role in handling non-defence related security matters. The president appoints the national police chief, subject to confirmation by parliament.
Many religious and ethnic minorities serve in the police. Chinese Indonesians and Christians, particularly Catholics, serve in both the national police and the military. Human rights organisations have criticised the INP for including virginity testing and assessments of physical beauty in recruiting female police.
A semi-independent government advisory body (KOMPOLNAS) maintains oversight of the INP and acts as an alternative advisor to the president on policing matters. KOMPOLNAS has limited investigative powers and can recommend (but not order) follow-up actions.
The INP does not enjoy the same high public esteem as the TNI: a 2013 poll by Transparency International found that the police ranked as the least trusted public body in Indonesia. Professionalism varies across the police. Shortages of equipment, a lack of training, a low investigative capacity, and corruption limit the effectiveness of the police. Reports of police abuses are common, including unnecessary or excessive use of force while dispersing protests and the abuse of suspects in detention.
An elite counter-terrorism unit known as Densus-88 was formed in June 2003 the wake of the October 2002 Bali bombings, in which 202 people including many Indonesians and Australians died. Local and international observers regard Densus-88 as high performing. Officers, who are highly trained in intelligence gathering, have successfully intervened to prevent numerous attacks. Densus-88 also investigates terrorist activity. Human rights organisations have expressed concerns over the number of terrorism suspects the unit has killed rather than brought to trial.
Human rights organisations claim police are rarely held to account for abuses. While police can be tried under criminal jurisdiction, impartial criminal investigations into police actions are uncommon. The usual practice is for police to conduct their own investigation, which often results in minor disciplinary actions. Such actions, usually against junior or mid-ranking officers, include short periods of detention, demotions and deferral of training opportunities. Details of investigations, court proceedings and verdicts are rarely made public.
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INTERNAL RELOCATION
Indonesian citizens are legally able to move and reside freely within all territories of the Republic of Indonesia, and Indonesians can and do relocate for a variety of reasons. Major cities, particularly Jakarta, offer Indonesians greater opportunities for employment. Presidential Decree No.25 (2008), based on Law No.23 (2006) requires Indonesian citizens who relocate within Indonesia to register with the relevant local authority within one year of relocation. Registration information is passed to higher authorities. DFAT assesses that practical factors such as income and lack of family connections are the primary obstacles preventing an Indonesian from relocating within the country, rather than concerns over religion or ethnicity.”
FINDINGS AND REASONS
Claimed discrimination and fear of returning to Indonesia

The Tribunal accepts that the applicant is an Indonesian citizen and of Chinese heritage and ethnicity. The Tribunal accepts his claimed Christianity.
The applicant claims that he continued to experience the same degree of societal discrimination. His claimed experience is not, in the Tribunal’s opinion, supported by information outlined in DFAT’s Country Information Report on Indonesia dated 25 January 2019. Relevantly, DFAT reports that while the ethnic Chinese community was targeted by rioters in 1998 due to their perceived wealth, with the notable exception of small scale local riots in North Sumatra in 2016, anti-Chinese violence has been low since the events in 1998. Notably, DFAT reports that since the end of the Suharto-era New Order regime in 1998, successive governments have removed most official policy measures discriminating against ethnically Chinese Indonesians. Significantly, the Constitution no longer distinguishes between ethnic Chinese and ‘indigenous’ Indonesians and in 2014 then President Yudhoyono issued a regulation changing the Indonesian word used to designate ‘of Chinese descent’ from one which was often associated with racial slurs.
It is accepted that there are some anti-Chinese sentiments on a social level, but given the changes reported since 1998 and the unconvincing nature of the evidence of the applicant, the Tribunal is not satisfied that the applicant is subject to what he asserts.
Is there a real chance the applicant will suffer serious harm if he returns to Indonesia now or in the reasonably foreseeable future?
The Tribunal has considered the country information outlined above in respect of the applicant’s race/ethnicity and religion, and the applicant’s responses to the information which was discussed with him. The Tribunal is satisfied that the DFAT report is a reliable source and is based upon on the ground knowledge and discussion with a wide range of sources, including credible open source reports as well as protected sources. The Tribunal considers the DFAT report provides a credible and balanced assessment of the situation faced by ethnic Chinese Indonesians. Based on DFAT’s report, while some historical biases against ethnic Chinese Indonesians persist, the situation has improved markedly since 1998 and ethnic Chinese are assessed by DFAT to have only a low risk of official discrimination and overall face low levels of societal discrimination.
The Tribunal concludes that there is not a real chance the applicant will be subjected to ethnically motivated violence or otherwise targeted for extortion or physical harm or other forms of harassment on return to Indonesia for reason of his race/ethnicity.
As to whether the applicant will face difficulties finding employment on account of his race/ethnicity and/or religion, as noted in the country information section above, most official policy measures which previously discriminated against ethnically Chinese Indonesians have now been removed. Also, freedom to choose and practice a religion of choice is guaranteed by the Constitution. In addition, DFAT reports 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 despite some localised instances of religious intolerance over the past decade.[1]
[1] DFAT Country Information Report, Indonesia, 25 January 2019
While the Tribunal does not discount the possibility that the applicant could encounter some discrimination in private employment on account of his race/ethnicity and/or religion, Indonesia’s Constitution enshrines freedom from discrimination and Discrimination Law is in place to safeguard individuals’ rights. In any event, Chinese Indonesians have a significant stronghold in business and options for finding employment in Chinese run businesses would very likely be available to him.
The Tribunal concludes that there is not a real chance the applicant will suffer persecution involving serious harm on the grounds of his race/ethnicity and/or religion. The Tribunal is also satisfied that there is not a real chance the applicant will suffer persecution in the course of practicing his faith in Indonesia.
CONCLUSION
The Tribunal finds that the applicant has failed to provide sufficient evidence to demonstrate his claims to fear harm on return to Indonesia.
The applicant was unable to further explain any of the claims made. The Tribunal finds the applicant has not provided sufficient evidence to demonstrate he meets the relevant tests. He has provided such little detail that the Tribunal has come to a positive state of disbelief that he fears harm or believes he will be harmed on return to Indonesia for the reasons he claims or any other reason.
Taking the applicant’s claims at their highest, the Tribunal finds that he has not provided enough to establish he will be harmed for any of the reasons claimed, or for any reason evident, or any reason that can be discerned.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
P. Wood
Senior 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.
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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.
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5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
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5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 1457

17 March 2021

Key Legal Topics

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction

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Natural Justice

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