1619231 (Refugee)

1619231 (Refugee) [2020] AATA 3203 (17 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1619231
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Anne Grant
DATE:17 June 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 June 2020 at 9:27am
CATCHWORDS
REFUGEE – protection visa – Indonesia – interfaith relationship – family disapproval – fear of being forced into an arranged marriage – fear of ostracism – potential inability to access required medical treatment – potential inability to have children – fear of contracting COVID19 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
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 and Border Protection on 27 October 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Indonesia, applied for the visa on 17 May 2016. The delegate did not interview the applicant and refused to grant the visa on the basis that her fear of harm was not for reason of any of the refugee reasons, and also that the harm feared by the applicant did not constitute significant harm.
I exercised the Tribunal’s discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. I determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. I also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The hearing proceeded on 27 March 2020, with the assistance of an Indonesian interpreter. A witness, Mr [A] (the applicant’s partner) also gave evidence separately by telephone with the assistance of the interpreter.
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 is a refugee and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her returning to Indonesia, there is a real risk that she will suffer significant harm.
Written Claims and evidence given at hearing
The applicant’s written claims were:
·she left Indonesia because she felt stressed and demoralised due to frustrations in a relationship there. She was previously engaged twice in Indonesia but both relationships ended.
·The applicant says that her parents arranged marriage for her and did not let her make her own decision even if it’s the wrong choice. She said that she came to Australia to clear the memories about what had happened to her to rebuild her self-esteem.
·The applicant claims that if she returns to Indonesia she will be forced into the arranged marriage and would have to relive her bad experiences.
·The applicant said that she could not relocate within Indonesia because the parents would find her wherever she went. She claims that her parents would easily be able to search for her in Indonesia and asked her to come home.
·The applicant said that she does not believe the authorities could protect her because their problems are personal problems.
On 5 May 2020 the applicant submitted a statutory declaration, accompanied by multiple photographs of the applicant with her partner, Mr [A]. In the declaration she made the following additional claims:
·She grew up in a very strict family with Muslim background. Her father used to beat her if she skipped a lesson to read the Q’ran.   He made her pray 5 times a day, fasting during Ramadan when she was only a child.
·Her father is a retired [Occupation 1] and [Caste 1] one of the castes in Lombok. Her name has [Caste 2] in it, representing a caste for women and it is preferred that they marry men from a higher caste or at least the same caste. In her culture, they practice a unique practice where, if your parents want to set you up they arrange for their chosen spouse to kidnap you, because if the man takes you and doesn’t return you before midnight the same day you will be pronounced married. If not, it will be big disgrace for their family and will be a bad woman, they said “who knows they have been used during kidnapping.” The applicant claims that sometimes they even will set you up with a relative, to ensure you marry a good man, they said.
·Her father was strict with a very bad temper. She refers to an occasion when she was still at school when he put a gun to her little sister’s head because she had sneaked out of the house to meet her boyfriend.    At that time, he also menaced the applicant, saying ‘just wait for your turn.’ The incident really scared her. Her sister has since married but divorced from a man her father thought best for her, though she was still very young. They were only married for a couple of months.
·The applicant describes having questions as a child about God and her faith, but never having the courage to question it to her parents.
·The applicant says she was a smart girl and rarely upset her parents, because she followed their rules. She got good grades at school. Her mother decided to send her to college in Bali. Bali was her mother’s home town.
·In Bali she met her boyfriend, [Mr A], who she describes as a good man but not a Muslim. They have been together for about 10 years. When in Bali she felt she was herself, making her own decisions, but her parents still came to check on her regularly and sometimes sent an uncle to check on her.
·Her relationship got more serious even though they are of different faiths.
·Her mother found out about the relationship, and asked if she was crazy, saying her father would kill her if he found out. She claims that if she goes back home, her father will either kill her or force her to marry a cousin or relative or someone they think best for her. He would rather see her with his choice because he would see her as having failed, because her boyfriend is not a Muslim.
·She doesn’t want to change her faith, but wants to live a Muslim life in her own way and not how society or her parents want.   She doesn’t believe she will ever win against Indonesian society.
·Their ID cards show what their religion is. The society is divided like that. At school Muslim and Non-Muslims were separated when religious instruction took place.
·The applicant doesn’t want her children to have the same confusion and wants them to believe whatever they want to believe (even if it is neither Muslim nor Hindu). She sees herself as fighting for their future even before they are born.
·The applicant says she feels Australia is the best country for her, she feels safe here, accepted mentally and unconditionally.
·The applicant has worked in food manufacture for a couple years already, and referred to paying tax happily because she knows it is properly used.
·The applicant noted that Indonesia might have declared that they accept different married couples, but they can’t change the people’s mindset. She believes she will always be judged, and mentally harmed. Indonesians will enquire about the faith of the children, how they will be raised, how they will hold a wedding, and other questions about their faith. She doesn’t want her children to grow in that environment.
·She recently got diagnosed with [Medical Condition 1], and she and her partner have been trying to have a baby ever since they arrived in Australia, but have not been successful to date. She has been told she needs further specialist treatment but due to the pandemic it has been postponed.
·She claims it would never be possible to receive treatment in Indonesia ‘unless she has tons of money’.
·The applicant claims that the health system in Indonesia is really bad, and to get the help they need is really hard, and they will not have technology as Australia has. If she goes back in this condition - as a women who can’t have kids - she will be shamed in their culture, and she might not get help that she needs because it will be very expensive.
·The applicant refers to the pandemic, stating that it would be very hard for her if she goes back not only due to her condition but also because the pandemic has attacked Indonesia as well. She fears the virus will spread in Indonesia.
At hearing, the applicant gave evidence that her partner [Mr A] had already come to Australia about one year prior to her leaving Indonesia. Their relationship had been difficult because of their different faiths and they had lost touch before he left for Australia. She initially came to Australia via [City 1] but later contacted him and moved to [City 2]. She confirmed that he is a Hindu and she is a Muslim and that their relationship started in 2010. She gave evidence that they intend to marry in Australia in August 2020.
The applicant described how, after she had finished her studies in Bali in 2013, her father asked her to return to Lombok. She did so, and at that time she and Mr [A] stayed in touch, but they weren’t really in a relationship at that time. However, she couldn’t find work in Lombok, so her father agreed that she return to Bali where she got a job as a [occupation]. Meanwhile her father found a man he wanted her to marry – a man with a good [job] in Lombok. She never met him. She didn’t dare to tell her parents about Mr [A] because of his faith, but they resumed their relationship when she returned to Bali from Lombok.
The applicant described how she and Mr [A] always lived separately in Bali as her parents and relatives would often check on her. Eventually, her mother discovered the relationship and told her that her father would never approve and ‘would kill her’. Mr [A]’s family was also not in agreement. Even when she returned to Lombok, she maintained contact with Mr [A]. When her parents had suggested her new marriage partner, she told them she was not ready to marry at that time. She went back to her job in Bali. She worked there until she came to Australia in 2015. Mr [A] had come a year earlier. She did not tell her parents that she was coming to Australia, she merely said she was gong to Thailand and Malaysia on holiday.
The applicant said that she has lied to her family about what she is doing in Australia. She only has limited contact (via Facebook) with them. She suspects, nonetheless, that they know about the relationship. She still believes that if she goes back to Indonesia, her parents will force her to marry the man they chose for her. She loves Mr [A], and they have plans to marry in August. It was put to her that she is an adult, does not have to return to Lombok and could not be forced to marry against her will. Whilst she agreed in principle, the applicant said her father is a retired [Occupation 1] so he is used to getting his way and would try to force her, perhaps with violence. She said if she returned to Lombok, he would try to force her to comply with his wishes.
The applicant agreed that it is possible that, practically speaking, she could live in other parts of Indonesia outside of Lombok or even Bali, given that Indonesia is a populous and vast country. However, she said that throughout Indonesia, their differing faiths would be of interest to people and it is likely they will be asked intrusive questions about how they are managing the faith of each other and the children. She wants to avoid the intrusion of that society but believes it will occur throughout Indonesia.
I discussed with the applicant the country information which suggests that mixed faith marriages are not illegal (or uncommon) in Indonesia, that there are means by which such marriages can be facilitated by sympathetic faith leaders, and that marriages overseas can be recognised (and therefore can bypass Indonesia’s requirements for religious observance) and registered. Whilst the applicant agreed generally, she said that her main concern is that even though interfaith marriages are legal, people will be judgemental and intrusive about the status of their marriage, and she wants to avoid Indonesia’s divisive religious approach for the health and wellbeing of not just herself but of their future children.
The applicant said that the fear of being ‘annoyed by’ Indonesians about their mixed faith marriage and the disapproval of her father were really the main reasons why she does not wish to return to Indonesia. She also expressed a fear of the COVID19 virus, which she believed would spread freely in Indonesia. In answer to my question about whether she has any health conditions which make her vulnerable to the virus, the applicant said she was being investigated for being susceptible to bruising; but has not been diagnosed with any illness related to that. She has no faith in the Indonesian government to control the spread of the virus.
The applicant’s fiancé, Mr [A], also gave evidence by telephone, in the applicant’s (telephone) presence. He was in a private room at his workplace. He gave evidence that he is a Hindu, that the applicant is a Muslim and that he had lodged an application for protection which had been refused and his appeal was currently waiting to be heard in the Federal Circuit Court. He confirmed that he and the applicant had been in a relationship since 2010 though they have had periods apart, and that they plan to marry in August. When asked the reasons for his own application for protection, Mr [A] said that he just really wants to live in Australia. He said it would be difficult for them in Indonesia. They might find it hard to find a celebrant, and it is difficult to manage two different faiths, and it can be harder for the children they may have. I noted that they each practice their faiths in Australia (and presumably due to religious freedoms in Indonesia could continue to do so) and he agreed; but said that in Indonesia people would talk and not approve of their marriage.
Mr [A] said that they want protection because it would be very hard to adjust to life back in Indonesia. He said that he did not fear that he or the applicant would be harmed in Indonesia – but they would be uncomfortable. He said his own family had never threatened him, but the applicant’s family don’t want her to marry a Hindu.
Mr [A] expressed a view that the applicant could obtain treatment in Indonesia for [Medical Condition 1], but the treatment would be very expensive.
Country information
According to Department of Foreign Affairs and Trade’s most recent country information report on Indonesia[1], Indonesia’s constitution enshrines fundamental human rights, such as the right to life, freedom from torture, freedom of religion, freedom from enslavement, freedom of expression, association and freedom from discrimination.
[1] Country Information Report, Indonesia, Department of Foreign Affairs and Trade, 25 January 2019 at 2.37.
DFAT’s report notes that in the late 1990’s severe violence occurred in parts of Indonesia which killed many and displaced hundreds of thousands of people. This violence was between Muslim and Christian communities in different parts of the country. DFAT notes that:
2.46 Analysts contend that local power struggles around the end of the Suharto regime accounted for much of the communal violence that occurred during the late 1990s and early 2000s. In many cases, local leaders seeking political gain incited existing religious and ethnic tensions, often related to the shortcomings of the transmigration program.
2.47 Government and community groups have since undertaken peace-building efforts in Ambon and Maluku province to promote common values and build inter-faith links between communities. These areas have been largely peaceful for a number of years. However, ongoing communal tensions along religious and ethnic lines in some parts of the country retain the potential to lead to violence.

DFAT also notes that Indonesia is one of the world’s most ethnically diverse countries, and the government promotes racial and ethnic tolerance (supported by law prohibiting racial discrimination and vilification since 2008). DFAT assesses that Indonesia is a successful multi-ethnic society. Friendships and marriages between people of different ethnicities are not uncommon. Inter-religious marriage can cause difficulties, but larger cities are more ethnically mixed and people live and work side-by-side with peers of different ethnicities.
In relation to the matter of the Indonesian health system, DFAT reports:
2.21 Article 28H of the Constitution guarantees citizens the right to obtain medical care, while Article 34 obliges the state to provide medical and public service facilities. Responsibility for health service delivery in Indonesia has been devolved to the district level since the early 2000s and health services vary in quality and availability between districts.
2.22 In January 2014, Indonesia began the implementation of a National Health Insurance Scheme (JKN), aimed at providing universal health coverage by 2019. The scheme experienced considerable cost over-runs in its early stages. In spite of implementation problems, health care coverage for the poor expanded rapidly and analysts expect it to reach universality, on target, in 2019.
2.23 People living in the poorer eastern provinces and urban slums are covered by the universal health system, but health facilities in these areas have lower capacity to treat people with chronic diseases, who may have to travel to larger cities to gain access to health services. Patients must contribute a small co-payment for health services.
2.24 Indonesia has made a major commitment to universal health coverage by strengthening its health insurance system with special attention to the poor. At the same time, non-communicable diseases, such as cardiovascular disease, have increased significantly. Non-communicable diseases were the cause of 71 per cent of deaths in 2012. This will have a major economic impact on the health system. Maternal and neonatal mortality is high compared with comparable neighbouring countries. Tuberculosis remains the second highest cause of premature deaths and HIV prevalence is continuing to rise
I have also considered the following information from DFAT’s report as it pertains to women (emphasis added):
3.94 Women participate in all areas of Indonesian society. However, societal, cultural and religious barriers limit the extent of that participation. Indonesia ranked 113th (out of 188) on UNDP’s 2016 Gender Inequality Index, which is a composite measure reflecting inequality in achievement between women and men in relation to reproductive health, ‘empowerment’ (in political spheres and in relation to education) and the labour market. The government has made efforts to promote women’s rights and Indonesia has ratified the Convention for the Elimination of Discrimination Against Women.
3.95 Although a 2008 law requires that 30 per cent of a political party’s candidates and board members must be women, the proportion of seats held by women in the national parliament has remained steady over the past five years at around 17 per cent. In part, this reflects a popular view that politics is a male occupation: female candidates face considerable difficulties in gaining financial support to campaign, and in securing winnable positions on party lists.
3.96 Despite steady economic growth and increased urbanisation, the participation of women in the workforce has stagnated in recent decades at just over 50 per cent. Employers may prevent women from working at night, ostensibly for their own safety. Participation is lowest for married women and women with children. Cultural norms play a part in the strong gender segregation of industries. A large percentage of women who work are in the informal sector, particularly in low paying and low-skilled sectors such as agriculture, trade, retail (including as street vendors) and domestic service. Migration to foreign countries for employment opportunities is an important source of income for Indonesian women. Local sources say sexual harassment in the workplace occurs, but that the situation is improving as awareness of the issue grows.
3.97 A nationwide survey carried out by Indonesia’s Central Statistics Agency in 2017 revealed that a third of Indonesian women had experienced either physical, sexual, emotional or economic violence in their lifetime. Over 33 per cent of women aged 15 to 64 years had experienced physical or sexual violence in their lifetime, and approximately a quarter of married women had experienced violence at the hands of their husbands. The survey found that women living in urban areas and with higher levels of educational attainment were more likely to report experiencing violence than those in rural areas. This may reflect a greater willingness and capacity to report, and does not necessarily mean that they experience more violence than poorer and rural women.
3.98 Domestic violence safe houses exist, but are few in number. The availability of facilities varies between local government areas. Rules in these facilities are strict, including time limits for stays of approximately a week. NGOs or village heads may make local arrangements to protect women on a temporary and ad hoc basis. Police protection is inconsistent. Some police encourage women to return to their abusers. Men will sometimes report a woman fleeing violence to police for abandoning her children. Women who are financially dependent on their husbands are unlikely to report abuse for fear that he will be arrested and she will thus be left without an income.
3.99 According to the National Commission on Violence against Women, most sexual violence occurs in remote areas and villages, including gang rapes. Many victims are reluctant to report rape due to cultural stigma, while a high burden of proof and weak legal definitions make prosecutions of rapists and other sex offenders difficult. Police reportedly often focus on the victim’s dress and behaviour when investigating cases of sexual assault.
3.100 Indonesia has made significant gains in reducing child marriage, which disproportionately affects girls, over the past three decades. Notwithstanding such gains, at least one in six girls still marries before the age of 18, while in Sulawesi and Kalimantan the figure is one in three. Girls in rural areas and from poor backgrounds are particularly vulnerable to early or forced marriages. National data likely underestimates figures due to the high rate of unregistered marriages among the poor. There is an inconsistency between the Marriage Law, which places the legal age of marriage with parental consent for girls at 16 (19 for boys) and the Child Protection Law (2014), which prohibits marriage before 18 under any circumstance. Parents can petition district-level religious judges or marriage officials for permission to marry their daughters at any age, with judges usually granting such petitions.
3.101 The Marriage Law designates the husband as the head of the family. The Marriage Law considers property acquired during the marriage as joint marital property, but property brought into the marriage by one party or acquired separately as either a gift or inheritance is deemed to remain the property of the person concerned. The consent of both parties is required in relation to any decision affecting joint marital property. Debts and obligations incurred by one party during marriage are generally considered a joint obligation, and claims must be satisfied out of the joint property. Debts acquired prior to marriage continue as personal debts. Children are considered minors up to the age of 18 or until they are married (in the case of women marrying before the age of 18).
3.102 Divorces must be heard in court. Religious courts have jurisdiction over Muslim marriages and divorce. ‘Triple talaq’ divorces, in which the husband may unilaterally divorce his wife, have been banned since 1991. According to the Marriage Law, the husband and father of children is responsible for his children’s wellbeing until the age of 21. A court can order that he pays spousal maintenance after divorce.
3.103 Polygamy is legally allowed, but is uncommon. According to the law, a man must seek judicial approval, which includes an assessment about whether he can equally maintain more than one wife and that an existing wife is incurably ill or incapacitated or that she is unable to have children. Permission from existing wives must also be sought. Polygamous marriages that are not approved by courts also exist in the form of unregistered religious marriages.
3.104 Women who are not married or who are divorced may legally be head of a household in their own right. A birth can be registered in the absence of a marriage certificate. In-country contacts report that these processes are bureaucratic and can be slow on a case-to-case basis. Women who are not married may face social stigma or harassment, including sexual harassment, especially if they are divorced. Some women may choose to move to Jakarta for more independence. This option may not be available to women who are financially dependent on their families or lack work connections in their hometown and in Jakarta. Marriages that are not formalised by the state, which constitute up to 70% of marriages in some districts, also continue to be a major barrier to women and children in accessing services and exercising their legal rights.
Consideration
In her original written claims, the applicant referred to ‘broken’ engagements and relationships in Indonesia as one of the reasons she came to Australia. I consider that she has provided full details in her oral evidence and in her declaration about her relevant relationship history and I consider that the written claims are not accurate. I do not accept that she was twice engaged in Indonesia before coming to Australia. I accept that she was in a relationship with Mr [A] from around 2010 and that this relationship was kept secret by the applicant from her family for some years. I accept that her parents selected a ‘suitable’ marriage partner for her but she was able to avoid marriage by telling them that she was not yet ready and also by removing herself at the time from Lombok, where her family lives.
I accept that the applicant is in a genuine relationship with Mr [A] and that they plan to marry in August 2020. I accept that her parents, who are Muslims, do not and would never approve of her marrying Mr [A], who is a Hindu. I accept also that she is from a caste where women are expected to marry within or above their caste and that would never (according to cultural expectation) involve marrying a person of the Hindu faith.
In discussions during the hearing, the applicant conceded that mixed faith marriages are not illegal in Indonesia and that they could legally marry there, (or that they could register a marriage in Australia (if that had taken place) on return. She also conceded that, as an adult, she had the legal right to choose her own partner and could not be forced by her parents to marry someone else. However, the applicant said that if she returned to Lombok, she was afraid her father may force her to marry in accordance with his wishes using violence. However, she conceded that he couldn’t force her to marry someone else if she was already married according to law, regardless of caste preferences or her family’s disapproval.
Whilst I may accept that the applicant’s father has a strong will and is prone to violence in managing his family, I do not consider that the applicant would give him any opportunity to control or harm her in any way (let alone to make decisions about her relationship) if she was to return to Indonesia. She has been, practically speaking, independent of her family since at least 2015, and in fact was largely independent whilst living in Bali, given that she was able to conduct her relationship with Mr [A] whilst living there. She was able to refuse to marry in 2013 or 2014 when her father ‘chose’ someone for her. Her evidence before me was that she was not threatened by her father, nor was she prevented from leaving Lombok and her parents’ ‘control’ even though she had refused to marry as her father wished at that time. She also gave evidence on several occasions during the hearing that she would not return to Lombok by choice if she returned to Indonesia.
Whilst I accept that the applicant has a fear that her father may use force to abduct her and force her to marry, I am not satisfied that there is a real chance that he would do so or that he would in fact be in any position to do so, if she returns to Indonesia. This is because the applicant is not dependent on her family and would presumably be already married to Mr [A]; or would choose to marry him as soon as possible on return – and also because she would not return to live in Lombok where her father is in a position of some authority. The applicant did not suggest that her father had power or capacity to track and abduct her throughout Indonesia. She repeatedly referred to her concern about his ability to harm her or force her to marry if she returned to Lombok. She said she will not return to Lombok. I consider that whilst it is likely that they will strongly disapprove of her marriage, I do not accept as plausible her claim that her family would take violent steps to extricate her from her current relationship and force her to marry someone else now or in the reasonably foreseeable future. I do not accept that there is a real chance that the applicant will be harmed by her family or forced to marry against her will if she returns to Indonesia.
The applicant also claims that she and her partner will experience harm in the form of intrusive questions and potential ostracism by some members of Indonesia’s general community, due to their interfaith marriage. She claims that, if they have children at some point in the future, community members will question them about their faith intentions for their children and try to direct them on how to raise them. The applicant does not have any children currently. In the past when she was in a relationship with Mr [A] in Bali, the applicant said she felt she could ‘be herself’ and felt free, even though she had to keep the relationship secret from her family. Based on that past experience, I question whether ‘societal judgement’ and intrusion that she fears is necessarily likely to occur in future. Nonetheless, I accept that she has a genuine resentment of what she sees as a divisive Indonesian culture along lines of race and faith, and that she genuinely fears being annoyed by rude and intrusive behaviour of community members once she and Mr [A] are married (and when they have children). I cannot rule out that such comments may occur. However, as I noted in discussing this aspect of her claims with the applicant at hearing, such rudeness, whilst annoying and frustrating, appears to be unlikely to amount to causing the applicant serious harm.
I have considered the applicant’s evidence that she fears being questioned and judged about her relationship and choices in how she raises her children and the distress this would cause her emotionally; and the inclusive definition of ‘serious harm’ in s.5J(5). ‘Social intrusion’ or ‘disapproval’ (were it to occur) because of a mixed faith relationship would not, on any reasonable assessment, amount to a threat to the applicant’s life or liberty or to significant physical harassment or ill-treatment of the applicant. It would not cause the applicant significant economic hardship nor amount to a denial of access to services or a capacity to earn a livelihood. Her capacity to subsist would not be affected by such conduct. Although I note that the examples in s.5J(5) are ‘inclusive’, I find that the social intrusion and disapproval feared by the applicant would not be at a level which would involve causing the applicant serious harm, if it were to occur on her return to Indonesia or in the reasonably foreseeable future.
The applicant claimed that she was at risk of harm if she returns to Indonesia by being shamed because of an inability to have children. There is no medical evidence before me which establishes that the applicant is unable to conceive or give birth. Whilst she has provided some proof that she suffers from [Medical Condition 1], this does not establish that she is ‘unable’ to have children. According to [an online forum]; [Medical Condition 1] can affect conception and childbirth but:
[Most] women with [Medical Condition 1] do go on to have [children]. [2]
[2] [Information deleted]
I do not accept that the applicant has established with acceptable medical information that she is ‘unable to have children’. Even if I were to accept that it is possible that she is unable to have children, for the same reasons as noted above when discussing her claim to fear social intrusion and judgement due to her mixed faith relationship, I do not consider that ‘being shamed’ by unknown people, if it turns out that she cannot have children, would amount to causing the applicant serious harm.
The applicant also expressed a belief that treatment for [Medical Condition 1] that she requires may not be available to her in Indonesia due to the cost of such treatment. I have considered DFAT’s advice about the improvements to the Indonesian health system from January 2014. The applicant’s evidence was framed as ‘potential’ and ‘possible’ inability to access due to a high cost, and it is not clear what is the basis for that belief, particularly in light of the general country information which suggests that Indonesia has taken steps to implement a National Health Insurance Scheme aimed at providing universal health coverage by 2019. I also note that the applicant has provided no medical evidence establishing the required treatment or any evidence about the cost of such treatment in Indonesia. I am not satisfied that the applicant has established that she would be unable to access necessary health care on return to Indonesia, including for [Medical Condition 1] - whether or not she is required to pay for that treatment. If I am wrong about that, and the cost of treatment is prohibitive, I am not satisfied that her inability to access that treatment (temporarily or over the long term) due to the cost would involve systematic and discriminatory conduct, as required by s.5J(4)(c).
The applicant also expressed a concern with the current COVID19 epidemic, stating that she fears that Indonesia will be badly affected by the pandemic and worrying that she is vulnerable to catching the virus on her return. At the time of making my decision, the pandemic is still of concern worldwide. Current information on the situation in Indonesia suggests that the pandemic is not under control and case numbers are increasing. According to the Australian Government’s ‘smart traveller’ website as at 10 June 2020:
COVID-19 has spread widely throughout Indonesia, including Bali. Critical medical care is significantly below the standard available in Australia. Testing rates are low given the size of the population and accurate data about the actual transmission of the virus is unclear. Health services are under significant strain. The Australian Government cannot guarantee your access to hospital and other health services in Indonesia.
If you’re an Australian visitor in Indonesia leave now – don’t delay. If you’re a long-term Australian resident of Indonesia, consider whether you have the support and access to effective health services you and your family will need. If in doubt, we recommend you return to Australia. Flight options to Australia are very limited and may reduce further (see 'Travel' for details on boarding requirements). Indonesian authorities require a negative PCR COVID-19 test result for all foreign arrivals. This test must have been conducted within the 7 days prior to travel. Extensive restrictions on domestic travel within Indonesia on all forms of land, sea and air transport remain in place until early June.[3]
[3] type="1">
The applicant expressed a fear of contracting COVID19 if she returns to Indonesia, and although she suggested that she may be particularly vulnerable to the virus, the applicant has not provided any medical evidence which establishes any particular vulnerability. In any event, catching this virus (or any other illness) would not involve systematic and discriminatory conduct on the part of any person or authority in Indonesia. I do not consider that the applicant’s claim of harm due catching the COVID19 virus (even if she were to do so on return and suffer severe illness) can be considered ‘persecution’ as required by ss 5J(1) and 5J(4)(c) because it does not involve systematic or discriminatory conduct by any person or authority in Indonesia.
I have carefully considered the applicant’s claims to fear harm from various sources. I have considered those claims individually and found that there is not a real chance that she will be persecuted by her family and be forced to marry against her will now or in the reasonably foreseeable future.   I have found that her claim to fear harm in the form of disapproval, rejection and intrusive comments from unknown members of the Indonesian community due to her interfaith relationship or due to her potential inability to have children would not involve causing the applicant serious harm as required by s.5J(4)(b). I have found that her fear of harm from the pandemic cannot meet the requirement for persecution because it does not involve systematic and discriminatory conduct on the part of any person or authority. In relation to her claim that she will be unable to access necessary treatment for her health conditions, I have not accepted that she has established that there is a real chance that she will be unable to do so – and have found that if I am wrong about that, her financial incapacity to afford necessary treatment would not involve systematic or discriminatory conduct by any person or authority in Indonesia. I have also considered her claims cumulatively. I find that the applicant does not have a well-founded fear of persecution in Indonesia for any reason, regardless of whether her claims are considered individually or cumulatively. She is not a refugee as defined in s.5H.
Complementary Protection
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
I refer to and rely on my discussion of the applicant’s claims above. Bearing in mind that the real risk test imposes the same standard as the real chance test, I conclude that the applicant has not established her claims in relation to her fear of harm from her family and being forced to marry against her wishes in Indonesia. I find that there is not a real risk that the applicant will suffer significant harm in Indonesia due to her relationship with (and or marriage to) a non-Muslim. I find that there is not a real risk that the applicant will suffer significant harm due to the disapproval of her family (and including due to her refusing to marry in accordance with their wishes and to her ‘caste’) if she is returned to Indonesia.
In relation to her claim to fear harm due to intrusiveness and rejection by members of the Indonesian community due to her interfaith marriage and her potential incapacity to have children, I have noted the definition of ‘significant harm’ outlined above, and the specific definitions in relation to each of the five harms which constitute significant harm. I find that being annoyed, frustrated or embarrassed (or even distressed) by intrusion on her private life as described by the applicant does not amount to the arbitrary deprivation of her life or being subject to the death penalty or to torture.
I have considered whether the conduct feared by the applicant could be considered cruel or inhuman treatment or punishment; or degrading treatment or punishment. I refer to and have considered the definition of those provisions (provided at the end of this statement.) As noted above, I accept that having to deal with intrusive questions and opinions about her private life would no doubt be annoying and frustrating. However, I do not consider that being subject to intrusive questions or social disapproval about one’s faith, relationship or children (or about whether one can have children) amounts to or would amount to causing a person cruel or inhuman treatment or punishment. Nor do I consider that taking such action amounts to an act or omission which causes a person ‘extreme humiliation.’
I am not satisfied that the potential harm caused by social intrusiveness, disapproval and even social rejection on account of her interfaith marriage, or due to her potential incapacity to have children (if any of those things transpire) would amount to causing the applicant significant harm as defined in the Act.
I do not accept that the applicant has established that there is a real risk that the applicant will be denied medical treatment or be unable to access medical treatment for [Medical Condition 1] in Indonesia. I have accepted that she may need some medical treatment in future (though the nature of that treatment is unknown) for [Medical Condition 1]. I do not consider that having to obtain treatment and negotiate the Indonesian health system (even if it requires or involves some financial cost) amounts to or would amount to causing the applicant significant harm as defined in the Act.
In relation to the COVID19 pandemic, I accept that there is a real risk that the applicant may contract the virus in Indonesia if she returns, particularly given current information about the ongoing spread of the virus and attempts to manage it.    However, the contraction of the virus would not be due to any act or omission by any person or authority in Indonesia whereby severe pain or suffering (or extreme humiliation) was intentionally inflicted on the applicant. The harm from contracting the virus cannot meet the definition, in my view, of ‘significant harm’ for the purpoes of considering the application of the criteria in s.36(2)(aa). I also consider that the real risk of contraction of COVID19 faced by the applicant is one which is faced by the Indonesian community generally and not by the applicant specifically (s.36(2B)(c)).
I have considered the applicants claims individually and cumulatively. I find that there are not substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of her being returned to Indonesia. She does not satisfy the criteria in s.36(2)(aa).
Decision
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 either s.36(2)(a) or 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.
Anne Grant
Member

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

[2020] AATA 3203

17 June 2020

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