1619522 (Refugee)

1619522 (Refugee) [2020] AATA 5507 (30 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1619522
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Scott Clarey
DATE:30 November 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 30 November 2020 at 4:38pm
CATCHWORDS

REFUGEE – protection visa – Indonesia – corruption inside the workplace – fear of harm from relatives of claimed former girlfriend – contradictory evidence – credibility issues – seeking better paying employment – extramarital affair – delay in seeking protection – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 423A, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kavan v MIMA [2000] FCA 370
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Zhang v RRT & Anor [1997] FCA 423
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 25 October 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act). The delegate refused to grant the visa on the basis that they were not satisfied the applicant was owed protection in Australia.
The applicant (Mr [applicant’s full name], herein Mr [A]), who is a citizen of Indonesia, applied for the visa on 1 August 2016. On 25 October 2016, a delegate of the Department of Immigration and Border Protection, now the Department of Home Affairs (the Department), refused to grant the visa. On 20 November 2016, Mr [A] applied to the Tribunal for review of this decision. He provided the Tribunal with a copy of the delegate’s decision record.
Mr [A] appeared before the Tribunal via teleconference on 9 September 2020 to give evidence and present arguments. The Tribunal was assisted by an interpreter in the Indonesian and English languages.
At the hearing, Mr [A] confirmed that he is a [age]-year-old Indonesian national born (on [date]) and raised in North Sulawesi, Indonesia. He is the youngest of [number] siblings and both of his parents are deceased. Mr [A] is a qualified [Occupation 1], having graduated with a [degree], and is a former [Occupation 2]. He has previously worked in a number of [workplaces], including in [different cities]. Mr [A] stated he is a Catholic and belongs to the Minahasan ethnic group. Mr [A] is married to [Ms B] and has two children. I note that Mr [A] stated at the hearing that he travelled to Australia in August 2016 with [Ms B] (issues related to Mr [A]’s marriage are discussed further below). I accept these biographical details to be true.
Mr [A] first arrived in Australia [in] August 2011, having departed Indonesia legally, on a [temporary] visa granted on 16 August 2011 valid until 30 November 2011. When Mr [A]’s visa expired on 30 November 2011, he remained in Australia unlawfully. On 1 August 2016, after being unlawful for four years and eight months (1 December 2011–1 August 2016), he lodged the protection visa application that is the subject of this review.
On the basis of the copy of Mr [A]’s Indonesian passport provided to the Department, I accept that he is a citizen of Indonesia and that his identity is as he claims it to be. I accept that Indonesia is Mr [A]’s country of nationality for the purposes of the refugee assessment and the receiving country for the purposes of the complementary protection assessment.
The issues in this review are whether Mr [A] has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) of the Act and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Indonesia, there is a real risk he will suffer significant harm.
For the following reasons, I have concluded that the decision under review should be affirmed.
Claims and evidence
Evidence before the Department
9. Mr [A] set out his claims for protection in his application form as follows:
Q89:     Why did you leave the country(s)?
A:I got many pressure from the director board in [Workplace 1] that I work before. I work as [Occupation 2] from 2000 to 2010. On 2008, the director board changed into new one, and the new one is very tricky. They forced me to fake all the receipt, all the financial detail of [Workplace 1] and many things. I refuse them and I try to reveal this on to [a specified government official]. But I got many bullying, they terrorizing me and my family. They can do whatever they like because [City 1] is far and small city in Sulawesi, Indonesia main island is Java, and Sulawesi is far north from Java and [City 1] is small city in Sulawesi as well, so the government hardly reach them. I’m 2010, i resigned from [Workplace 1], but I still trying to contacting the government. But they know so they send “debt collector” to my house and destroying everything. I was so scared so i take all my family to my wife’s dad’s house, and i fled to Bali then i fled into Australia. And I hope I got the residency here so I can start a new life with my family
Q90:What do you think will happen to you if you return to that country(s)?
A:They will keep bullying us because they think I will reveal their corruption inside [Workplace 1]. And my wife told me that they make me scapegoat and fake my signing so i was the one who signed all the financial receipt and decision. I am too scared to face that, and my wife advised me to stay away from Indonesia for a while.
Q91:     Did you experience harm in that country(s)?
A:Yes. On 2010, my house got destroyed and I got some punch and kick.
Q92:     Did you seek help within the country(s) after the harm?
A:Yes. i report to local police in [location], but indonesian police is mostly corrupt as well, so they won’t move without money. And i don’t have that much money, especially if i want to oppose big mafia inside [Workplace 1].
Q93:Did you move, or try to move, to another part of that country(s) to seek safety?
A:Yes. i moved to bali for a while, and then I decide to fled to Australia.
Q94:     Do you think you will be harmed or mistreated if you return to that country(s)?
A:Yes. They will keep harassing me and slandering me.
Q95:Do you think the authorities of that country(s) can and will protect you if you go back?
A:No. indonesian police is mostly corrupt, its hard to trust them
Q96:     Do you think you would be able to relocate within that country(s)?
A:No. I don’t know where I can start my life over again
Evidence before the Tribunal
At the hearing, when asked why had had decided to depart Indonesia for Australia in 2011, Mr [A] stated that he was unable to keep working as [an Occupation 1] in Sulawesi, and had moved to Jakarta for around nine months before moving to Bali for a few months. He then returned to Jakarta for approximately six months before arriving in Australia. Mr [A] stated that he was told by friends that he could get work in Australia and change his circumstances, so he came here seeking better paying employment. He stated that he arrived in Australia in August 2011 with his wife [Ms B] and found work around a month later in September and began working illegally (at a [specified workplace]), knowing he did not have work rights at the time. He said he worked various jobs up until 2015 when he learned through friends that he could formalise his migration status and get work rights. Mr [A] stated that in 2016 ‘I got assistance from a friend to look at bridging’. When asked to clarify what he meant by this, he said that he learned he could get a bridging visa that had work rights attached to it. When asked what his knowledge was of the visa he had applied for in August 2016, Mr [A] stated that he knew it was called a protection visa, but he really didn’t understand anything about it or know what was really being applied for. He said his primary intention of applying for the protection was to formalise his migration status and to gain access to work rights.
When asked at the hearing if he held fears if he were to return to Indonesia in the foreseeable future, Mr [A] raised new claims for the first time. I note that I found Mr [A]’s account of these claims to be at times vague, confused, hesitant and internally inconsistent (discussed further below). He stated in 2005 his marriage (to [Ms B]) was going through difficulties and he had commenced an extramarital affair with another woman (named [Ms C]) who he claimed was actually the mother of his daughter. Mr [A] claimed that when [Ms C] had fallen pregnant in 2006 he separated from [Ms B], and moved in to live with [Ms C]. When I clarified the timeline of his relationship with [Ms C], Mr [A] confirmed that had moved in with [Ms C] as soon as he found out she was pregnant with his child in 2006 and had lived with her continuously up until he had departed Indonesia for Australia in 2011. Mr [A] stated although he wanted to divorce [Ms B], but claimed could not do so even though the relationship had ended in 2006 because his religion (Catholicism) would not allow it under these circumstances. I note that Mr [A] made vague and unspecific references to being pressured and threatened to marry [Ms C] because he was living with her and in a relationship, and she had given birth to his daughter (discussed further below).
When asked if he had ever gone to the police in relation to these threats and harm he claimed to have faced, Mr [A] stated that he had not because doing so might sully his good name in the community. When asked why he had claimed in his protection visa application that he had reported threats to police, Mr [A] stated that he had told his friend who claimed had helped him fill out the form that he had not reported it to the police.
Mr [A] told the Tribunal that [Ms B] had helped him organise his trip to Australia and had accompanied him to Australia in 2011 but had returned to Indonesia weeks after their arrival in August. When asked why he would have travelled to Australia with [Ms B], when by his own evidence his marriage had broken down in 2006 and he had been in a relationship with another woman from that time, and was still in that relationship at the time of his departure from Indonesia in August 2011, Mr [A] gave a vague and hard to follow response. He said that [Ms B] did not want him to be near the mother of his daughter and when she found out he had not been working, she had helped him to organise the visa to Australia because she had been to Australia herself in the past and she decided to come with him. He claimed that [Ms B] told him that she would help him get away from [Ms C], and the claimed threats that were being made to him. When asked if he was still in a relationship with [Ms C] at the time of the hearing, Mr [A] gave a vague response, stating that he was no longer in a relationship with her but that he maintained some contact over the phone so he could get updates on their claimed daughter’s welfare. When asked why [Ms C] was never mentioned in his visa application, Mr [A] stated that he had tried to explain it to the friend who had helped him fill out the form. When asked why this was still an issue, given he had not seen [Ms C] for nearly 10 years and by his own admission was no longer in a relationship with her, Mr [A] gave a vague response, stating that it was for these reasons that he had to leave Indonesia and he still held these concerns.
When I questioned Mr [A] about the claimed fear of harm relating to his employment at [Workplace 1], as outlined in his protection visa application, he said that he no longer held any fear of harm relating to [Workplace 1] and/or his former employment. He said that he’d heard from a friend that [Workplace 1] had since been sold and was now under new management and ownership. When I asked Mr [A] to explain the issues he claimed to have had at [Workplace 1], he gave vague and hard to follow answers. He said that [Ms B] had reported his affair with [Ms C] to the [Workplace 1] management when she had found out about it. He said that [Workplace 1]’s management had viewed an extramarital affair as immoral. He intimated that [Workplace 1]’s management had fabricated a story that he had mismanaged funding within [Workplace 1] as a pretext for ending his employment there. He said that he had never misused funds or committed any crimes, but he thought this may have been alleged when the real reason related to punishment for his perceived immoral behaviour relating to his claimed relationship out of wedlock with [Ms C]. He stated that unspecified people had come looking for him at his wife’s home but he wasn’t living there at the time. Mr [A] gave a vague response, stating that he was not sure about the exact nature of these threats, and he didn’t know exactly who was looking for him or why, but he’d heard that it was in relation to the problem at [Workplace 1]. He said it was around this time that he asked his friend to help him to apply for the visa to come to Australia.
When asked why there was such a long delay between him arriving in Australia and applying for protection, Mr [A] stated that when he arrived he didn’t really know how the system worked. He repeated that in 2015 his Indonesian friends had started to make arrangements to formalise their migration status and obtain visas with work rights so he decided to do the same. He said that as it turned out, because he had been unlawful, although he was granted an associated bridging visa in 2016 when he had lodged the protection visa application, it did not have work rights attached to it. He had only gained work rights recently in August 2020. When asked why he wanted to stay in Australia, Mr [A] stated that he had no work in Indonesia and that Australia had a much better economy and that if he could get residency and permanent work rights he could better support his family. He said he’d be better off working in Australia and sending money for his children’s schooling in Indonesia. Mr [A] also stated that he had a friend in Australia who was receiving treatment for cancer who he was worried about and wanted to help.
When I asked Mr [A] why he had signed a declaration in the protection visa application form, stating that all of the information in it was complete, correct and up to date, when by his own account at the hearing it was not, Mr [A] said that he was in a hurry at the time and he had not been thorough. When I discussed the inconsistencies between the claims made in his protection visa application and his claims at the hearing, Mr [A] acknowledged that his oral evidence was significantly different from what was contained in the form but claimed that he hadn’t really understood what was written in the form when he’d signed it.
Consideration of claims and evidence
The relevant law
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis of evidence and findings
Credibility
I acknowledge the importance of adopting a reasonable approach when making findings of credibility.[1] However the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, or that it is ‘well-founded’, or that it is for the reason claimed. Rather it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to accept uncritically any and all of the allegations made by an applicant.[2]
[1] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 the Full Federal Court, Foster J at 482
[2] MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169–70
I note that there were significant credibility issues arising from specific information provided by Mr [A]. As a result, I have serious concerns about the reliability of Mr [A]’s evidence about his claims relating to his fear of harm from relatives of his claimed former girlfriend and/or issues related to his former employer. I note that Mr [A] provided hesitant, vague and at times contradictory evidence when questioned about specific details of his claims. His responses were often off-point, highly generalised and hard to follow. This included evidence related to the specific harm he feared in Indonesia, who he feared harm from, and why the harm was directed at him. I also consider a number of aspects of his evidence to be internally inconsistent, including his explanations about his claimed extramarital affair with [Ms C] and his relationship with his wife [Ms B]. I also have concerns regarding the nearly five-year delay in him making a claim for protection after arriving in Australia. I have further concerns about the timing of his claims relating to threats regarding his claimed relationship with [Ms C], and the fact that they were first raised at the Tribunal hearing and not prior. At the hearing, I explained to Mr [A] that I had significant, specific concerns about his credibility and various aspects of his evidence and gave him an opportunity to respond (further detailed below).

For the following reasons I do not accept Mr [A]’s claims related to a relationship with a woman named [Ms C] to be true. Firstly, I note that Mr [A]’s claims relating to threats from relatives of [Ms C] due to their claimed relationship were first raised at the Tribunal hearing on 9 September 2020, despite having various prior opportunities to raise this issue (Mr [A] lodged his protection visa application in August 2016 and lodged his application for review with the Tribunal in November 2016). As noted above, these new claims were further discussed with Mr [A] at length at the hearing. As discussed above, I found these claims to be vague, hesitant, at times inconsistent, and ultimately, unpersuasive. I note that s.423A of the Act requires the Tribunal to draw an adverse inference as to the credibility of an applicant’s claim or evidence where an applicant raises a claim or presents evidence that was not put forward before the primary decision was made.
When asked why he had not sought to raise these claims relating to his relationship with [Ms C] earlier, Mr [A] gave a vague response, stating that he had tried to explain it to the person who he claimed had helped him to fill out the protection visa application form and intimated that the person had failed to include this issue in the form.
After reviewing all of the evidence before me, including Mr [A]’s explanation for the delay with these new claims relating to his relationship with [Ms C], I am not satisfied that Mr [A] has a reasonable explanation as to why these claims were not raised with, or evidence was not presented to, the primary decision maker and/or the claim was not put forward prior to the Tribunal hearing in September 2020. When considered in the context of my other concerns relating to Mr [A]’s general credibility (as discussed above and below), I do not accept Mr [A]’s explanation that he had told the person he claimed helped him fill out the form but they had neglected to include this information on the application. Due to the delay in making this claim, and when considered in the context of my other concerns relating to Mr [A]’s general credibility (as discussed above and below), I have drawn adverse inferences regarding the credibility of Mr [A]’s claims and evidence relating to his claimed relationship with [Ms C] and the claimed threats associated to it.
Secondly, I found various aspects of Mr [A]’s claims related to his claimed relationship with [Ms C] to be vague, and/or highly generalised in nature, and/or internally inconsistent and, ultimately, unconvincing. For example:
·As outlined above, Mr [A] claimed at the hearing to have moved out of his marital home and in to live with [Ms C] when he found out [Ms C] was pregnant with his child in 2006. He stated that he had wanted to divorce [Ms B] but was unable to because he was Catholic. I note that Mr [A] claimed to have been in a relationship (and living with) [Ms C] continuously from this time and immediately prior to him departing for Australia in August 2016. Despite giving evidence that his relationship with [Ms B] had broken down in 2005, I note that Mr [A] stated that he had been assisted in coming to Australia by [Ms B] and had initially travelled to Australia with [Ms B] in August 2016. I found Mr [A]’s explanation about why he had been assisted and travelled to Australia with [Ms B], given his other evidence relating to the breakdown in their relationship 10 years prior, to be vague, contradictory, and internally inconsistent. I find Mr [A]’s evidence about his relationship with [Ms C] incongruent with his decision to travel to Australia with [Ms B] in 2016. When considered in conjunction with my other concerns about Mr [A]’s credibility (discussed above and below), it has raised serious doubts about the credibility of Mr [A]’s claims about his relationship with [Ms C] and his claimed fears of harm related to it.
·Mr [A]’s evidence relating to the particular threats he claimed to have received relating to his relationship with [Ms C], and in particular the harm that he claimed to fear if he was to return to Indonesia in the future, was brief, highly generalised and, ultimately, unconvincing. When questioned about these specific fears and threats at the hearing, Mr [A] first stated that ‘relatives’ of [Ms C] had beaten him. He then changed this answer and said he was talking about friends of [Ms C] and relatives. He then stated that he wasn’t sure of the exact relationship between [Ms C] and the people who are making the claimed threats. He said that he knew they weren’t her siblings. He claimed that he was physically assaulted twice by three people and indirect threats were made on several occasions. He said that his house had been destroyed and that people had thrown stones at his house but he was not sure who had done this or if this was related to the [Workplace 1] issues or directly to his issues related to his claimed relationship with [Ms C]. Mr [A]’s vague, contradictory and confused descriptions of these threats have caused me to doubt the genuineness of Mr [A]’s claims about his relationship with [Ms C] and his claimed fears of harm related to it.
Thirdly, I note that aspects of Mr [A]’s claims are inconsistent between the written and oral evidence he submitted. For example:
·In his protection visa application, Mr [A] stated that he had reported threats related to his claims about [Workplace 1] to police but that no action had been taken. At the hearing, when asked if he had reported any of these threats that he claimed to face to the police, he said that he had not. When asked if he wanted to comment on this inconsistency between his written and oral evidence related to police reports, Mr [A] stated that he had told his friend who he claimed helped him with the application form that he had not reported it to police.
·In his protection visa application, Mr [A] stated that he had been forced to fabricate receipts and misappropriate funds by the [Workplace 1] management but that he refused which led to threats and harassment. At the hearing, Mr [A] stated that [Ms B] had reported his claimed extramarital affair with [Ms C] and that [Workplace 1]’s management had viewed the affair as immoral behaviour. He intimated that [Workplace 1]’s management had fabricated a story that he had mismanaged funding within [Workplace 1] as a pretext for ending his employment there. I note that Mr [A] said that he had never misused funds or committed any crimes, but he thought this may have been alleged when the real reason related to punishment for his perceived immoral behaviour relating to his claimed relationship out of wedlock with [Ms C]. I note that Mr [A] stated at the hearing that he no longer held any fear of harm relating to [Workplace 1] for any reason because [Workplace 1] had since been sold and was under new management and ownership. The discrepancy between Mr [A]’s evidence between his written and oral evidence about his claims related to his employment at [Workplace 1] have caused me to doubt the genuineness of Mr [A]’s claims and his credibility as a witness in general.
Delay in seeking protection
I also have concerns relating to the timing of the application for protection in considering the genuineness of Mr [A]’s claims to fear serious harm in Indonesia. I note that a delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm (see Zhang v RRT & Anor [1997] FCA 423; Kavan v MIMA [2000] FCA 370). Mr [A] first arrived in Australia in August 2011 on a [temporary] visa. This visa expired on 30 November 2011 and Mr [A] remained in Australia unlawfully. I note that Mr [A] applied for the protection visa under review on 1 August 2016, nearly five years after he had become unlawful. At the time he applied for the protection visa, he had limited options to remain in Australia. I note that by his own admission, his primary motivation for applying for the protection visa in 2016 was to gain access to formal work rights in Australia.
When considered in conjunction with my other concerns relating to Mr [A]’s evidence and claims detailed above, I find that this delay in applying for a protection visa is not indicative of someone who fears for their physical safety. I asked Mr [A] at the hearing why there was such a long delay between him arriving in Australia and applying for protection. He gave a vague response, stating words to the effect that he did not understand the system and had learnt through friends that he could formalise his status in 2015 and gain access to work right in Australia. I have considered Mr [A]’s response but I am unconvinced by it and do not accept it. When this issue is considered in conjunction with my other credibility concerns, I find that it suggests that Mr [A] did not have a well-founded fear of persecution for the reasons claimed and that he made the protection visa application only when he had few other options to remain in Australia.
As noted above, I outlined each of these concerns to Mr [A] throughout the hearing and gave him an opportunity to comment on them. I have considered the explanations Mr [A] gave for these inconsistencies, discrepancies and/or concerns. I found Mr [A]’s explanations for the inconsistencies between his written evidence to be unconvincing and I do not accept them. In relation to aspects of his narrative and claims that I found to be incongruent, unspecific and/or internally inconsistent, I found Mr [A]’s explanation for them to be unconvincing and I do not accept them. I note that Mr [A] is a tertiary educated and literate man, who had many years of professional employment including as a [Occupation 2] in Indonesia. I do not accept Mr [A]’s general explanation that he was unaware of what was written in the application and/or that he had not been ‘thorough’ enough to check the contents of the application form before he signed a declaration stating that its contents were complete, correct and up to date. I do not accept that these inconsistencies, discrepancies, generalities and/or concerns can be explained by mistakes made by a person Mr [A] claimed to have helped him complete the form.
Conclusion on the claimed fear of harm relating to [Ms C] and/or employment at [Workplace 1]
As noted above, I have serious concerns about the credibility of Mr [A]’s evidence relating to his claimed fear of harm from ‘relatives of his claimed ex-girlfriend or in relation to his former employment. I note that Mr [A] provided evidence that was at various times vague, confused, inconsistent, and/or highly generalised when questioned about specific details of his claims.
I am mindful that memories can be dimmed by the passage of time. I accept that it is not always possible or necessary for an applicant to remember specific details or dates. Even when making allowances for such factors, given the highly significant nature of the events being discussed regarding the serious threats he claimed to have been subjected to (and taking into account that Mr [A] is a tertiary educated man), I have formed the view that it could be reasonably expected that Mr [A] would have had a more precise and coherent recollection of the specific details relating to his claimed fear of harm in Indonesia.
Considering all of the evidence cumulatively, and having regard to Mr [A]’s personal circumstances and narrative as a whole, I do not find him to be credible. I note that there is very little documentary evidence to corroborate any of Mr [A]’s claims. For the reasons outlined above, I do not accept Mr [A] had an extramarital affair with a woman named [Ms C], or that she is the mother of his daughter. I do not accept Mr [A] was threatened, harassed, targeted or otherwise pursued by her relatives or friends due to their relationship or for any other reason. I do not therefore accept that he was threatened and/or harmed and/or put under duress for moral and/or religious reasons relating to this relationship or for any other reason. I find that Mr [A]’s fears of persecution on this basis are not well founded.
I do not accept that Mr [A] was threatened, harassed and/or targeted for any reason in relation to his former employment as a [Occupation 1] and/or [Occupation 2] at [Workplace 1]. I do not accept that he was ever involved in financial fraud or deception at [Workplace 1]. I note that by Mr [A]’s own admission, he no longer claims to fear harm in relation to his former employment at [Workplace 1]. I find that Mr [A]’s fears of persecution on this basis are not well founded.
Issues relating to religion and ethnicity
I discussed with Mr [A] at the hearing general issues relating to his Catholic faith arising from the facts of his case and his specific circumstances. I put to Mr [A] country information that suggested there is a significant degree of religious pluralism and tolerance in Indonesia, supported by various laws intended to protect the right to religious expression and belief. I discussed with him aspects of the DFAT country information report for Indonesia,[3] which included the following information:
[3] Department of Foreign Affairs and Trade, Country Information Report – Indonesia, 25 January 2019, Sect. 3.1 and 3.4
· Article 28E (1) and (2) of the Constitution guarantees citizens the freedom to choose and practise the religion of their choice and the freedom to believe their faith; while Article 28I (1) includes freedom of religion as a human right that cannot be limited under any circumstances.
…
·     Religious pluralism is an established part of modern Indonesia and a wide range of local and international sources consider that inter-faith tolerance remains strong. Local sources do, however, report an increase in localised instances of religious intolerance over the past decade, including threats from hard-line Islamist organisations.
…
·     Christianity is Indonesia’s second-largest religion after Islam. Approximately 24 million Indonesians listed their religion as Christian in the 2010 census. Protestants make up approximately 7 per cent of the total population and Catholics approximately 3 per cent of the total population. Christian communities exist in every province and Christianity is the majority religion some of the eastern provinces including the Papua provinces and North Sulawesi. East Nusa Tenggara, especially the island of Flores, is majority Catholic. About a million Christians lived in Jakarta at the time of the last census. A large number of Protestant churches operate in Indonesia including mainstream Protestants (especially those related to Lutheran denominations) and evangelical and Pentecostal churches as well as non-denominational independent churches.
·     Christians are generally able to practise their faith freely throughout Indonesia. High-level inter-denominational and inter-faith dialogues, especially between Muslims and Christians and between Catholics and Protestants, occur regularly. Christians residing in some areas, particularly where hard-line Islamist groups are more influential (such as Aceh, and parts of East and West Java) have occasionally been prevented from worshipping, including through forced church closures and the disruption of church services, however this violence and discrimination appears to be localised.
·     A small number of recent terrorist attacks have targeted Christians, although most recent terrorism events have targeted state institutions, especially police. The May 2018 Surabaya suicide bombings affected Catholic, mainstream Protestant and Pentecostal communities. Several churchgoers and a priest were injured in a sword attack on a Catholic church in Yogyakarta in February 2018, in which the perpetrator hacked at statues of Jesus and Mary before being shot by police.
·     Christian communities have remained resilient in spite of recent violence and church attendance has not fallen as a result. Security at churches increased briefly after the May attacks and police provide extra protection at major festivals such as Christmas and Easter. Some Muslim groups also volunteer to assist or provide security at events and festivals.
·     Conversion to and from Christianity is common. Some bureaucratic difficulties can be encountered in registering a change in religion with the government, but this is not a significant barrier to conversion, which commonly occurs without difficulty. Some Pentecostal Christians are involved in door-to-door evangelical activities, which have been known to upset religious sensitivities. Preaching by foreign missionaries is unlawful, but the US State Department reports that many foreign missionaries preach without official sanction.
·     Christians do not generally experience discrimination in gaining access to health care, education or employment.
·     DFAT assesses that Christians residing in areas where they are a majority do not face either official or societal discrimination. Christians residing in areas where conservative Islam is prevalent face a low risk of societal discrimination in the form of impediments to worship, although this risk is unlikely to include violence. DFAT assesses that Christians face a low risk of terrorism in spite of recent exceptional events.
I also discussed with Mr [A] country information relating to Indonesia’s ethnic pluralism and tolerance. I discussed with him aspects of the DFAT country information report for Indonesia,[4] which included the following information:
· Indonesia is one of the world’s most ethnically diverse countries. The government promotes racial and ethnic tolerance and legislation prohibiting racial discrimination and vilification has been in force since 2008. Article 28I (2), among other articles, of the Constitution states that every person shall have the right to be free from discriminatory treatment based upon any grounds whatsoever and shall have the right to protection from such treatment.
…
· DFAT assesses that most Indonesians are unlikely to face official or societal discrimination on the grounds of race or ethnicity.
[4] Department of Foreign Affairs and Trade, Country Information Report – Indonesia, 25 January 2019, Sect. 3.1 and 3.4
In response to this information, Mr [A] stated that the issues related to religion were correct but that the information was general in nature. He stated that it is not considered good to get a divorce and that he may be exiled from his family if he were to pursue this.
Conclusion on Issues relating to religion and ethnicity
I accept that Mr [A] is an Indonesian man of Minahasan ethnicity who is of the Catholic faith. I accept that some reports suggest there has been ‘an increase in localised instances of religious intolerance over the past decade, including threats from hard-line Islamist organisations’ in Indonesia generally. I accept that Indonesian Christians, including Catholics, have, in the past, been targeted by extremist groups, including in a small number of recent terrorist attacks. I note, however, country information in the DFAT country report states that:
Christians residing in areas where they are a majority do not face either official or societal discrimination. Christians residing in areas where conservative Islam is prevalent face a low risk of societal discrimination in the form of impediments to worship, although this risk is unlikely to include violence. DFAT assesses that Christians face a low risk of terrorism in spite of recent exceptional events.[5]
[5] Department of Foreign Affairs and Trade, Country Information Report – Indonesia, 25 January 2019, Sect. 3.41
I acknowledge and accept that Mr [A] may face some discrimination relating to his Catholic faith and/or his ethnicity in the future if he were to return home to Indonesia. Given the available country information outlined above (and discussed with Mr [A] at the hearing), and after considering the evidence before me relating to his life history and personal circumstances (including what I have accepted in relation to his claims), I am not satisfied that this would arise to the level of serious or significant harm as envisaged by the Act. I find that any fears of persecution Mr [A] may hold on this basis are not well founded.

As Mr [A] has not claimed to fear harm for any other reason, I do not not accept that he has a well-founded fear of persecution if he returns to Indonesia, now or in the reasonably foreseeable future.
Conclusion – refugee grounds
Having considered Mr [A]’s claims both individually and cumulatively, all of the available evidence and relevant country information, I find that Mr [A] does not face a real chance of persecution on return to Indonesia for any reason in the reasonably foreseeable future and that his fear of persecution is not well-founded.
For the reasons given above, I am not satisfied that Mr [A] is a person in respect of whom Australia has protection obligations. Therefore Mr [A] does not satisfy the criterion set out in s.36(2)(a).
Complementary protection
Having concluded that Mr [A] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
In considering whether there is a real risk that the applicant would suffer significant harm if returned to Indonesia, I have noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[6]
[6] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342]
Mr [A] has not advanced any claims indicating that he considers he would face a real risk of significant harm if returned to Indonesia other than for the reasons discussed above relating to his claims under the refugee criterion. Given I do not accept that Mr [A] faces a real chance of suffering persecution involving serious harm if he returns to Indonesia, I also find, having regard to the findings of fact set out above, that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of Mr [A] being removed from Australia to Indonesia, there is a real risk that he would: suffer significant harm in the form of being arbitrarily deprived of his life; having the death penalty carried out on him; being subjected to torture; being subjected to cruel and inhuman treatment and punishment; and/or being subjected to degrading treatment or punishment by anybody for any reason.
Consequently, I am not satisfied that Mr [A] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that Mr [A] satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, Mr [A] does not satisfy the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Scott Clarey
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)   pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)    that is not inconsistent with Article 7 of the Covenant; or
(d)   arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)    that is not inconsistent with Article 7 of the Covenant; or
(b)   that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)    for the purpose of obtaining from the person or from a third person information or a confession; or
(b)   for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)    for the purpose of intimidating or coercing the person or a third person; or
(d)   for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)    for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)    a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)   if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
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 5507

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