1619377 (Refugee)

1619377 (Refugee) [2020] AATA 4202 (7 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1619377

COUNTRY OF REFERENCE: Indonesia
MEMBER:Paul Noonan
DATE:7 August 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 7 August 2020 at 04:38pm

CATCHWORDS
REFUGEE – protection visa – Indonesia – political opinion – anti-corruption protests – particular social group – homosexuals – race – ethnic Chinese – religion – Buddhist – arrests – return visits to Indonesia – obtaining clearance to leave Indonesia – freedom of expression – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 24 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 25 May 2016. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia owes protection obligations.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic on 14 July 2020. 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. I am satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The hearing was assisted by an interpreter in the Indonesian and English languages. I was satisfied that the applicant understood the interpreter and my questions to him during the course of the hearing, and note that the applicant did not raise any concerns with respect to the interpreter or any difficulty in understanding my questions during the hearing and that the hearing was entirely conducted in English.
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.
Migration history and identity
In his application to the Department, the applicant declared he was born in Pontianak, Indonesia in [year], and that his ethnicity is Chinese and religion is Buddhist. The applicant stated he can speak, read and write Indonesian and English. He indicated that he has never been married or in a de facto relationship. The applicant stated he resided at a single address in Indonesia until departure. He did not declare any family members. The applicant stated he completed high school in Indonesia in [year] and most recently worked in sales in Jakarta, from July 2014 to February 2016.
The applicant first arrived in Australia [in] May 2015 as the holder of a [Tourist] visa and departed [in] July 2015. The applicant returned to Australia [in] September 2015 on another Tourist visa, leaving this time [in] November 2015. [In] March 2016, he arrived in Australia on a further Tourist visa. On 25 May 2016, the applicant lodged a Protection application and was granted a bridging visa in connection with this application.
Country of reference
The applicant provided the Department with a copy of his Indonesian passport, which satisfied the delegate as to his identity and Indonesian citizenship.
On the basis of such, and in the absence of evidence to the contrary, the Tribunal accepts that the applicant is a citizen of Indonesia and that his identity is as he claims it to be. The Tribunal accepts that Indonesia is his ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Claims for protection
In his written claim for protection, lodged with the Department on 25 May 2016, the applicant stated (in summary) that he left Indonesia to avoid arrest and harm from the Indonesian authorities. He stated police previously arrested him for joining anti-corruption protests. He states that he was forced to pay money to government officials as they threatened to close down his [product] sales business.
The applicant stated he was arrested in December 2014 and January 2016 for participating in the demonstrations, and that on each occasion he was detained for one week. He indicated he attended another demonstration in February 2016, which he ran away from after police arrived. The applicant fears arrest by police if he returns to Indonesia. He indicated he did not seek help in Indonesia as he did not know anywhere safe, and that he does not think the authorities can and will protect him. The applicant stated he did not relocate internally as he did not know where to go.
The applicant did not provide any further written submissions to substantiate his claims to the Department or Tribunal prior to the hearing with the Tribunal. The applicant was not offered a protection visa interview by the Department.
At the end of the hearing I noted that the applicant had made a new claim for protection during the course of the hearing. I noted that the applicant’s representative had informed me he had made a written submission to the Tribunal on 10 July however this had not come before me as at the time of the hearing. The applicant’s representative submitted to me that he had only recently been appointed by the applicant. I allowed the applicant’s representative more time to make a written submission and submit any further relevant country information. A written submission, with accompanying country information, was subsequently received by the Tribunal and the submissions of 10 July were also received and I have considered these during the course of my deliberations on this matter.
In his post-hearing submission the applicant’s representative submitted as follows:
“Dear Member,
Further to the Hearing on 14 July 2020, I am instructed to submit the following:
Relationship:
[The applicant] and his partner [Mr A] has kept their relationship basically to themselves for fear of humiliation and being subject of abuse in their community
in Melbourne and Indonesia.
[The applicant] did not join any gay club or association in Melbourne. I understand , his partner too kept their relationship private for fear of abuse and retaliation particularly by their community people.
While Gay relationship is not against the law in Indonesia, it is treated as " deviant sexual persuasions".
I attach an article " Indonesia could force LGBT people into rehabilitation under draft " family resilience " law ".
The authorities apply their own considerations as to what is considered deviant or not.
With a corrupt government system (addressed later below) gay relationships and gay people are subjected to abuse and persecuted unless police are paid corruption money.
A further article in the Jakarta Post on 27 May 2020 regarding " Recent cases of persecution set back LGBT rights advocacy" is attached. Gay people have been murdered in Indonesia.
' ... the North Jakarta Police even moved to absolve the suspects by saying they had no intention to kill." ' The stigma and discrimination is so deep rooted in our society ..."
The struggle the gay community faces in Indonesia is very clear.There is no real protection for the gay people.
The applicant will be subject to abuse, discrimination and persecution if he is required to return to Indonesia.
Corruption -Political:
The Applicant agrees that there are articles that say that the Indonesian government is taking positive steps towards corruption.
I attach an article in the Global,
" How the (once) Most corrupt Country in the World Got Clean(er). "
The Country introduced Corruption Eradication Commission (KPK). It runs parallel with the police and attorney general's office, with powers to investigate
and prosecute any public official for any type of corruption. The system is so corrupt that all departments so to speak work hand in glove.
They can wire-tap anyone without judge's order. The system if honoured is welcomed. However, corruption is so widespread at all levels that the KPK is used to make money
and cases prosecuted are those that the authorities at their sole discretion nominate.
It is just a front to show that they are cleaning up corruption. In summary,corruption is a way of life in Indonesia.
Country Information:
I refer to the submissions submitted on 10 JULY 2020 in relation to Country Information:
In essence, media reports are controlled by the Government. The article in Jakarta Post on 10 December 2009
in relation to " large but peaceful demonstrations" against corruption is inaccurate and incorrect and misleading.
There was no mention of people who were arrested and detained.
Ethnicity;
The Chinese in Indonesia are a minority and are discriminated.
The Chinese from China who are big business men are welcomed as they pay the authorities corruption money.
It is the average chinese that cannot afford to pay that suffers. Even the authorities treat them as lesser persons.
Attached an article on " Being Chinese"- Indonesia.Clearly there is discrimination against Chinese in Indonesia and the authorities do not protect them.
Travel to and from Indonesia:
The Applicant travelled in and out of Indonesia. He had to pay money/bribe to get his passport.
There is a real risk that he may be caught by the authorities, especially because of his involvement in demonstrations, being of a Chinese background and being a gay.
Summary;
For reasons aforesaid, the Applicant will face harm, abuse, discrimination and persecution if asked to return to Indonesia.
The Applicant has a genuine on-going relationship with [Mr A]. If he returns to Indonesia he will not be able to continue with the relationship for reasons stated above.
I submit that the Applicant will face significant harm if asked to return to Indonesia and should be granted a Protection Visa.
In the alternative, he should be granted a Complimentary Protection Visa, as he would be subjected to persecution, harassment, abuse and discrimination in Indonesia.
Thank you.
Kind Regards,
[Name]
[Migration Agents]”
CONSIDERATION OF CLAIMS AND EVIDENCE
Does the applicant have a well-founded fear of persecution should he be required to return to Indonesia?
At the commencement of the hearing I read the applicant’s written claims to him and asked him if they are a fair and accurate summary of his claims to which the applicant replied yes and he also confirmed that he had written his claims himself.
The applicant’s representative submitted that his client informed him that he was involved in demonstrations in Indonesia against political corruption at which he had been arrested. He then decided to make a few visits to Australia to assess the situation here and then decided to come down here and while in Australia a friend assisted him to compile a protection claim. He also disclosed to him that he was in a same-sex relationship. His client had not disclosed this as he did not know he could disclose that, he did not wish to tell his Indonesian friend who had assisted him in compiling his protection claim and he was also afraid he would be arrested in Australia if he disclosed this.
His client has been in a relationship with an Indonesian man named [Mr A] since 2015 when they met in Indonesia. They are now both living in Melbourne together. He submitted that, if his client is forced to return to Indonesia, he would face persecution because of his political opinion which manifested as demonstrating against corruption and also because of his sexuality. Further his client will have difficulty obtaining protection from the authorities because he is not a Muslim. He is a Buddhist and he faces discrimination from the authorities because of his religion.
The applicant’s sexuality
The applicant’s representative noted that he had recently lodged written submissions from friends of the applicant that vouched for the authenticity of his homosexual relationship with his claimed partner [Mr A]. I noted that, as at the date of the hearing these submissions had not been received by the Tribunal. The applicant’s representative outlined the contents of these submissions for me. I have further considered these submissions post hearing.
I put to the applicant that he had not made a written claim for protection in respect to his sexuality to the Department and his representative submitted that he had advised him that he had been afraid to do so. I noted also that he had disclosed that he had not received assistance in completing his written claim. The applicant then stated that he had in fact received assistance from a friend who he had met at a hostel in [another city]. He did not know him very well. His friend had advised him that maybe he could apply for protection after he had told him about his past political activities. I also noted that the applicant had been to Australia on two prior occasions. I put to the applicant that I may find it difficult to accept as reasonably plausible that he was unaware of the situation in Australia for homosexual people and therefore I may find it difficult to accept that he was afraid to put this written claim in his original protection claim because he was afraid of the reaction of the authorities in Australia. The applicant simply stated that he was not aware of the situation in Australia when he did so.
In respect to his homosexuality the applicant informed me that he has always known he was homosexual and that he had met [Mr A] in Indonesia in 2015. He has been in a relationship with [Mr A] ever since. They met on [social media] when he was living and working in Jakarta. He was working in [product] sales. He came out to Australia alone and [Mr A] came in May 2016. He enjoys good relations with his family in Indonesia, they are not really close but they do talk on the phone. I invited the applicant to tell me about his experiences in Indonesia as a homosexual man. The applicant submitted that he has been careful in Indonesia in disclosing his sexuality. At one point in the past he was accosted by the police for holding hands with a man in 2014. When I asked him to elaborate on what had happened the applicant confirmed that he had not been detained by the police. He clarified that the police had taken him to the station and asked for money to be released, they had asked for around the equivalent of AU$50 to avoid them taking the matter further which he paid immediately and was released. The man he was with was not detained but was asked for money. They had been holding hands on the road and the police had stopped and begun asking them for money to avoid publicising his details. I invited the applicant to tell me about anything else with respect to his personal experience in Indonesia as a homosexual and the applicant stated that that was all he could say.
I put to the applicant that his evidence seems to indicate that he has lived his life as a homosexual man without serious harm. I also put to the applicant that he had experienced one incident in Indonesia related to his sexuality when he had been required to pay a small amount of money to secure the police not publicising his case. He confirmed that was the only incident of harm he had suffered as a result of his sexuality. I asked the applicant what he feared should he return to Indonesia as a result of his sexuality. The applicant stated that he feared persecution from the authorities and potentially the general population. I asked the applicant if he had ever experienced harm from the general population previously. The applicant then stated that he had, when he was living with his parents and he was [age]. He was hanging out with an older man and tried to book a hotel room with him but was refused. He also suffered some peer isolation due to his sexuality when he was younger.
In respect to his life in Indonesia with [Mr A] the applicant noted that they had travelled to [another country] to holiday in the past. They had not lived together but had met up at least twice a week. I asked the applicant to describe the conditions for homosexual men in Jakarta. The applicant stated that you cannot socialise openly there. He stated that you needed to be careful as a homosexual man. He has seen in the news that a homosexual person may have been imprisoned for a week or so in the past. He does not know anyone personally that has been treated badly by the authorities.

I noted that since 2014 the applicant had travelled to Australia on at least two occasions as a tourist and voluntarily returned to Indonesia, which may indicate to me that he did not fear harm in Indonesia with respect to his political protest, his ethnicity, religion and sexuality. The applicant stated that when he came to Australia he was just looking for peace and a holiday. He had gone back to spend time with his boyfriend and he did not know about protection options in Australia. When he came here he had seen homosexual people holding hands and looking free and this is not something that happens in Indonesia.
I put to the applicant that at the commencement of the hearing that he submitted to me he had not written his homosexual claim down because he was afraid that he would be arrested by the authorities and he had now given contradictory evidence that he had in fact visited Australia on two occasions and been impressed by how free and sexual homosexual men’s lives were in Australia. The applicant claimed that he had not written it down because he did not want to tell his friend about the claim. The applicant’s representative stated that the applicant did not raise his sexuality in his application because he did not want to disclose it to his friend and further he had kept quiet until now about his relationship for fear of general repercussions in society and in his community and because he was not aware of the laws in Australia.
I then took evidence from the applicant’s witness [Ms B] and the applicant’s claimed partner [Mr A]. The applicant’s witness [Ms B] informed me that she was a manager of the applicant and his partner [Mr A]. She manages a [business] in [Melbourne] at which [Mr A] now works and which the applicant used to work. Since she has known them she has seen them as partners who live together and spend much time together and she has seen that they holiday together and are very affectionate towards each other. I asked the witness her understanding of why the applicant had made this application and she said it was in relation to his sexuality. She informed me that the applicant had not discussed any other reasons for fearing returning to Indonesia with her.
I then took evidence from the applicant’s other witness, his claimed partner [Mr A]. The witness confirmed he has been in a relationship with the applicant since 2015. I found his evidence to be strongly correlated with the applicant’s evidence with respect to his relationship. He noted that he came to Australia because he wanted to visit the applicant. He is a student here. I asked the applicant’s witness if he had experienced any difficulties in Indonesia and he stated no they were just very cautious.
I put to the applicant that country information indicates that homosexual people face a high risk of societal discrimination and this applies particularly to areas outside of Jakarta and Bali.[1] Those perceived to be homosexual may face particular risk in rural areas or strongly Muslim areas. They face a moderate risk of official discrimination generally and a high risk in Aceh. Further there are well documented incidences of police detaining homosexual people on the basis of their sexuality and homosexual people generally try to avoid the police wherever possible.[2]
[1] DFAT Country Information Report – Indonesia, 25 January 2019, p. 33
[2] DFAT Country Information Report – Indonesia, 25 January 2019, p. 32
However, I also put to the applicant that the Indonesian penal code does not criminalise homosexual activity.[3] I put to the applicant that, while there are certainly concerns for homosexual people reflected in the country information I may consider that, on the basis of his evidence and the country information, that there are less concerns in Jakarta where he lived and would return to. Further his evidence indicates that he has not suffered serious harm in the past because of his sexuality. Further, the fact that he did not come to Australia to make that claim and did not make that claim when he did make his original claim, may indicate to me that, if I accept his sexuality as credible, that in fact there is no real risk of him suffering serious harm should he return to resume his life as he had been doing in Jakarta. The applicant submitted that he believes there are many cases not reported of people of his sexuality suffering serious harm.
[3] DFAT Country Information Report – Indonesia, 25 January 2019, p. 31
I accept, on the basis of the significant witness evidence and the consistency of that evidence, that the applicant is homosexual. However, I do not consider there is a real chance that the applicant will suffer serious harm should he be required to return to Jakarta where he was previously living. I make this finding on the basis of the following reasoning:
·     I do not accept as reasonably plausible that the applicant was afraid or otherwise reluctant to disclose his sexuality in his written claim for protection because he was afraid of the Australian authorities’ reaction, his community or society’s reaction more generally. This is because it is clear that the applicant had made two trips to Australia prior to making his claim and was well acquainted with conditions in Australia for people who are homosexual. He noted to me that he had been impressed with the level of openness and freedom that homosexual people are able to enjoy in Australia. I do not accept that he was therefore afraid of the reaction of the Australian authorities, his community or society in general in Australia.
·     I also reject the applicant’s representative’s submission that the applicant relied upon the assistance of a friend, whom he met in a hostel he was staying at and did not make this claim because he did not want to discuss it with this friend. I reject this evidence because it directly contradicts the applicant’s declaration, and his evidence at the commencement of the hearing, that he did not receive the assistance of anyone else in completing his claim. I consider that this significant contradiction in evidence seriously undermines the credibility of this latter claim to have received assistance in making out the written claim. As such I find that the applicant did not receive assistance in completing his written claim and I reject his claim that he was reluctant to disclose his sexuality as a claim in his written claim because he did not want to discuss it with his friend as having no credibility. Rather I am satisfied, on the basis of reasonable plausibility, that the applicant simply did not consider making a claim for protection prior to the hearing on the basis of his sexuality because he had no past experience of serious harm in Indonesia, and it had simply not occurred to him to do so until he was advised by his newly appointed representative that this may be a basis for claiming protection.
·     Further, the applicant gave evidence that he has experienced some low-level harassment in the past due to his sexuality from the police asking for a bribe when he was found holding hands with another man and when he was denied a hotel room. As noted at the hearing, I do not consider this harassment constitutes serious harm. I have considered the possibility that the applicant acted with discretion for fear of harm as claimed. I note that a person must not be required to conceal his true sexual orientation pursuant to s.5J(3)(vi). However, in the circumstances of this case, I do not accept that the applicant has concealed or modified his sexual behaviour to avoid harm in Indonesia. I am satisfied that the applicant has carried out his life as a homosexual man in Jakarta freely and without serious harm, and that he will continue to live in the same manner, should he be required to return to Jakarta in Indonesia.
·     I also find that the country information reflects that discrimination and the risk of serious harm for homosexual people is significantly less in Jakarta than in other areas of Indonesia such as rural areas and Aceh. Further that the penal code, as it applies in Jakarta, does not criminalise homosexual intercourse. I acknowledge country information, including that submitted by the applicant, indicates that there are significant issues of societal and official discrimination for homosexual men. However, I must balance this against the applicant’s evidence that he has only experienced some very sporadic low-level harassment in the past due to his sexuality; the fact that he resides in Jakarta and would return to live in Jakarta; and my finding that it had not occurred to him to make a claim for protection on the basis of his sexuality until it was suggested to him in Australia.
·     I have also considered the applicant’s claim that the DFAT country information cited is based upon biased local media reporting aimed at projecting the country in a good light. As noted, the DFAT report is based upon DFAT’s on-the-ground knowledge and discussions with a wide range of sources in Indonesia. It also takes into account relevant and credible open source reports, including from the United Nations, the US Department of State, Amnesty International, Human Rights Watch, and local and international media.[4] I reject the applicant’s claim that the country information, as put to him during the hearing, is based entirely upon biased media reporting and I continue to place significant weight on that country information.
[4] DFAT Country Information Report – Indonesia, 25 January 2019, p.7
Overall, I am satisfied that the applicant has carried out his life as a homosexual man in Jakarta freely and without serious harm in the past. I am satisfied that he will continue to act as he has in the past, should he be required to return to Indonesia, and that he will be able to continue his life as a homosexual man without facing a real chance of serious harm due to his sexuality from the authorities or any other person, now or in the reasonably foreseeable future.
The applicant’s religion and ethnicity
I put to the applicant that he had not disclosed his concerns about persecution because of his Buddhist religion in his original written claims and asked him why this was the case. The applicant stated that he did not know about that claim at the time.
I asked the applicant if he has suffered harm as a result of his religion in the past. The applicant said that he had because when he attended a demonstration the authorities saw him as a Chinese person, and he believes this may be the reason they put him in detention although this is clearly speculation by the applicant. He has also suffered abuse for being Chinese in the past and he feels sad about that. This happened to him maybe 10 years ago on public transport in Jakarta. I asked the applicant to clarify whether he was claiming fear of persecution due to his ethnicity or his religion. The applicant confirmed it was in respect to his ethnicity.
In respect to the applicant’s concerns around his ethnicity I put to the applicant that country information indicates that overall Chinese Indonesians may be subject to low levels of societal discrimination.[5] Further that about half of the ethnic Chinese Indonesian population are Buddhist and the rest Christian.[6] Country information indicates that the Suharto regime did discriminate against Indonesia Chinese and there were riots in the past and Chinese Indonesians had suffered as a result. However, since the end of the new water regime in 1988 there have been many reforms resulting in significant improvements in the conditions for Chinese Indonesians.[7] I noted there is very little country information with respect to discrimination against Buddhists. Such discrimination appears to actually be anti-Chinese sentiment.[8] I again asked the applicant to confirm that his concern is in respect to his Chinese Indonesian ethnicity, rather than his religion, to which the applicant replied yes. The applicant stated that his belief is that discrimination against Chinese Indonesians is not reported.
[5] DFAT Country Information Report – Indonesia, 25 January 2019, p.17
[6] DFAT Country Information Report – Indonesia, 25 January 2019, p.16
[7] DFAT Country Information Report – Indonesia, 25 January 2019, p.16-17
[8] DFAT Country Information Report – Indonesia, 25 January 2019, p.17
I consider that the applicant has clearly made this claim, on the basis of advice to do so, after he had lodged his written claim for protection as he informed me he had not known about making a claim of this type at the time. Nevertheless, I accept he is an Indonesian Chinese who follows the Buddhist religion.
The only incident of past harm that he could cite for these reasons as having experienced was in relation to his claimed arrest at a political demonstration which he noted may have been due to his ethnicity, however I find this to be speculative as it was never made clear to him that this was the reason for his arrest. I would expect that if his ethnicity was the reason for his claimed arrest this would have been made known to him and I reject this evidence on this basis.
Overall, I am satisfied that the applicant has not suffered past harm due to his ethnicity or religion in Indonesia. I am satisfied, on this basis and the country information, that there is no real chance of the applicant suffering serious harm should he return to Indonesia for these claimed reasons from the authorities or any other person, now or in the reasonably foreseeable future.
Political Opinion Claim
I asked the applicant why he had given such scant detail about the demonstrations he had attended and his reasons for being there in his written claim. The applicant stated that he could give more detail now if required. He confirmed that he had attended demonstrations about political corruption. I asked him what corruption he was concerned about and he said about money and everything being siphoned by politicians. He cited several politicians who had since been arrested for corruption. He confirmed that he had just joined in generally in the demonstrations and that he had never been formally involved in any form of politics. He did not know who the demonstrations were organised by and he just joined in.
I asked the applicant what the most well-known anti-corruption group is in Indonesia and he did not know. I note that country information reflects that the anti-corruption body KPK is very popular and receives public support.[9] After the demonstration the applicant claimed that the police had asked him for money he believes because he looked Chinese. They took him to the police station and then forced him to give them money and his phone and they had detained him for a week. They had just let him go after a week. I put to the applicant that his evidence does not indicate that the harm he suffered could be characterised as serious harm and I put to the applicant that this lack of serious harm in the past may indicate he would also not be a real risk of serious harm in the future from the authorities. The applicant claimed that the police had threatened him with serious harm should he participate in future demonstrations and this makes him fear serious harm.
[9] DFAT Country Information Report – Indonesia, 25 January 2019, p.25
The applicant informed me that the second time he came back from Australia he attended another demonstration against corruption and he felt scared because the police had threatened him that if he was found at another demonstration he would be arrested and tortured. He left the demonstration feeling traumatised and went home and told his boyfriend that he intended to move to Australia permanently.
I spoke to the applicant’s witness [Mr A] who stated that he had personally never been involved in politics. He confirmed that the applicant had talked to him about his concerns about domestic political corruption in Indonesia and that he had been detained by the police in the past due to his participation in such demonstrations. When he travelled to Australia the applicant had told him that he really enjoyed the country and it had made him want to travel to Australia with him.
I put to the applicant concerns, that were also raised in the decision under review, that the fact that he was released by the authorities after the demonstrations and then was able to obtain clearance to leave the country on several occasions during that period may indicate he is of no interest to the authorities. The applicant stated that he bribed officials with money to obtain his passport and exits. I accept that the applicant may have paid bribes in this regard as country information indicates that petty corruption is common and low level bribery in the public service is common.[10] Country information reflects that bribery is such a commonplace occurrence that people who are of no interest to the authorities would commonly pay bribes to facilitate services rendered for themselves. However, I consider that it is highly implausible that, if the applicant was of interest to the authorities, such that he is in danger of serious harm for reason of his political opinion, that the payment of a simple bribe would have been sufficient to secure his passage from Indonesia on three separate occasions. I further put to the applicant that many years have now passed and, given his apparent very low-level involvement in demonstrations in the past, he would likely not be of any interest to the authorities or have any profile with the authorities should he return. The applicant simply stated that he fears detention and torture should he return.
[10] DFAT Country Information Report – Indonesia, 25 January 2019, p.10
I also put to the applicant that country information states that the Indonesian constitution enshrines freedom of expression and freedom of association. Further that protests about corruption and democracy are common in Indonesia and that activists and NGOs are generally able to operate freely without significant barriers to registration. Further that most demonstrations are unhindered and that social media is unregulated.[11] I put to the applicant this country information suggests that he will not be at real risk of harm due to his past participation in political demonstrations and any future such participation. The applicant stated that he believed this country information is not true. He believes this is sourced from biased media which is focused on attracting tourists and investment to the country. I noted that the country information is compiled from a number of sources not just media (as also set out earlier in these reasons). I also noted that country information is that social media and the media is largely unrestricted and open.[12] The applicant stated his belief that this is not the case and the police always come to demonstrations.
[11] DFAT Country Information Report – Indonesia, 25 January 2019, p.25
[12] DFAT Country Information Report – Indonesia, 25 January 2019, p.25
The evidence before me reflects that the applicant participated in three demonstrations against political corruption as a general participant, which I accept. I am satisfied that the applicant has never been formally involved in any organised anti-corruption movement or association. Further, I consider that, as the applicant was unable to name the main anti-corruption body KPK when asked, that his overall interest and involvement in anti-corruption activities is very low level. I am prepared to accept that the applicant may have been arbitrarily detained at some of these events and required to pay a bribe to facilitate his release and that he may have been threatened with violence, as country information indicates that arbitrary arrests can occur and police abuses are common.[13]
[13] DFAT Country Information Report – Indonesia, 25 January 2019, p.39, 41
However, as put to the applicant, it has been many years since he last participated in a protest. Further, country information indicates that in general political protests and expressions of political views are allowed to occur unhindered and that the general political environment is open and unhindered by the authorities. This country information simply does not reflect in any way the applicant’s suggestion that the media does not report police crackdowns and that all demonstrations are broken up by the police. In addition, I place significant weight on the fact that the applicant has been able to travel to and from Indonesia on several occasions after his first protest participation. This strongly suggests the applicant is of no interest to the authorities.

Overall, I am satisfied that the applicant has no political profile with the authorities and will be of no interest to the authorities for reason of his political opinion should he return to Indonesia. Further, should he participate in further protests, country information indicates the real chance of him being targeted for harm at such a protest are extremely remote such that it is negligible. I am therefore satisfied, on the basis of my reasoning above, and the relevant country information, that there is not a real chance of the applicant suffering serious harm should he return to Indonesia for these claimed reasons from the authorities or any other person, now or in the reasonably foreseeable future.
Conclusion – Refugee Claims
Having considered the applicant’s claims, and in light of my findings earlier in these reasons, I find that the applicant does not have a well-founded fear of persecution should he be required to return to Indonesia.
Complementary protection
In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), I have considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that she will suffer significant harm.
For the reasons set out above I have not accepted there to be a real chance, that if he returns to Indonesia, the applicant will be targeted by the authorities or anyone else for reason of his sexuality, his political opinion, his ethnicity or his religion, now or in the reasonably foreseeable future.
In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the refugee definition.[14] For the same reasons the Tribunal does not accept there to be a real risk that the applicant would face significant harm on this basis.
[14] MIAC v SZQRB [2013] FCAFC 33 per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297] and Flick J at [342]
For these reasons I do not accept there to be a real risk that the applicant would face significant harm as a necessary and foreseeable consequence of being returned Indonesia.
OVERALL CONCLUSIONS
For the reasons given above, I am 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), I have considered the alternative criterion in s.36(2)(aa). I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Paul Noonan
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 4202

7 August 2020

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Immigration

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Procedural Fairness

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