1619741 (Refugee)

1619741 (Refugee) [2020] AATA 2917 (1 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1619741
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Joseph Lindsay
DATE:1 June 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 1 June 2020 at 3:21pm

CATCHWORDS
REFUGEE – protection visa – Indonesia – mental health issues – psychological harm – access to mental health services in Indonesia – race – ethnically Chinese Indonesian – religion – Christian – instability and riots and radicals in Indonesia – adverse economic effects of COVID-19 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 27 October 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Indonesia, applied for the visa on 5 January 2016.
The applicant appeared by audio before the Tribunal on 26 May 2020 with the assistance of an interpreter in the Indonesian and English languages.
The Tribunal notes that [Father A] of [an organisation] at [Suburb 1] was present by audio in the hearing. [Father A] explained that his only purpose in being present in the hearing was as a support person for the applicant. [Father A] made clear that he was not a witness and he had no evidence to give in respect to the applicant’s claims for protection.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)–(6) and ss.5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Protection claims
The claims from the applicant were contained in his 866 form and are stated below as they were written in the 866 form:
Q88:     I am seeking protection in Australia, so that I do not have to return to:
A:       Indonesia
Q89:     Why did you leave that country(s)?
AI leave my country because I felt mental and phsychological insecurity within my own family that caused by inharmonious marriage relationship of my parent, often harsh and violent verbal fights, authoritative coercion and intervention of my life and slander from my larger family due to past bad reputation of my father’s life and his marriage relationship with my mother.
So the reason I came to Australia was to find inner peace, independent, liberty and exclusion appart from my family.
Q90:     What do you think will happen to you if you return to that country(s)?
AI will facing family conflict, mental and phsychological stress and intervention from my family.
Mental trauma which can lead to depression.
I am feeling much better here in Australia and more secure. It’s hard for me to live happily in Indonesia with all the issue.
Q91:     Did you experience harm in that country(s)?
AYes. Mentally and phsychologically harm which lead me to depression. I lost a lot of jobs in Indonesia because of this matter.
I could not focus with my work and life in there. I have been running away to other places to start my new life, but every time I went back to Indonesia, same thing happened again.
Q92:     Did you seek help within the country(s) after the harm?
ANo. Because of the culture issue in Indonesia, family issue always taken lightly in society. I don’t know where to seek for help. I do have some friend to talk regarding my personal life but it does not really help. I also try to live in other place in Indonesia, but because of the same environment I still feel trauma.
Q93:     Did you move, or try to move, to another part of that country(s) to seek safety?
AYes. I stayed in Bandung City for about 1 month in my [friend’s] business workshop to see and decide if I can join the business franchise while trying to live separately from my family. But then I could not find passion, same stress environment and could not focus, so finally I applied visa for Australia.
Q94:     Do you think you will be harmed or mistreated if you return to that country(s)?
AYes. Yes, because I will go back to the same environment which put me in the same mental trauma and I don’t think my family will change or treat me better.
Q95:     Do you think the authorities of that country(s) can and will protect you if you go back?
ANo. Because of the culture, I cannot find any authorities that will help and protect me from my family as mental and phsychological issues as not being enforce in my country.
Q96:     Do you think you will be able to relocate within that country(s)?
ANo. For me going overseas is the best destination where I could find peace, release and relieve. I could live in totally different environment and culture as a stranger. Having retreat from my distress, family intervention and bondage. Finding inner peace to make solution of every situation, to formulate priority and life.
Hearing
At the hearing, the applicant gave evidence about his background. He said he was born in Purwokerto in Central Java, Indonesia, on [date].
He indicated that he grew up in Purwokerto and he went to school there. He indicated that he finished his primary and secondary schooling and then went to college to get a diploma. He indicated that he completed a diploma in [year] and that after finishing the diploma he worked until 2008. He indicated that he then went to [Country 1] to work, where he was employed in factory work. He indicated that he lived in [Country 1] for 5 years, from 2008 to 2013. He indicated that he then returned to Indonesia from September 2013 to December 2014. He indicated that, in that time, he stayed at home with his parents and also with his other family members. He said he did not work during this time and he lived off his savings. He said he then went to [Country 2] on a six-month business visa, and he stayed in [Country 2] for 5 months but he did not find a job. He said he then went back to Indonesia before coming to Australia in May 2015 on a three-month business visa. He indicated he then overstayed and went unlawful but then applied for protection. He indicated that he got advice from [an organisation]. He indicated that he worked [in specified occupation] and that he joined [a union], but that he has since resigned his membership of the [union].
When asked how long he was in Australia before he applied for protection, the applicant indicated that he was in Australia from May 2015 to January 2016 before he applied for protection. When asked if there was a reason for the delay in applying for protection, the applicant indicated that he did not have anyone to advise him.
The applicant referred to his religion and ethnic background. He indicated that in respect to his religion, he was both Christian and Catholic. He indicated that in respect to his ethnic background, his mother is Chinese and his father is Javanese Chinese.
When asked if the claims he made in 2016 were still the same, he said they were but that he wanted to add to his claims. He said that his new claims were that there is religious fanaticism in Indonesia as well as riots and political instability. He also indicated that COVID-19 would cause the Indonesian economy to go into recession.
In respect to his written claims in the form 866, the applicant indicated he completed the application himself.
When asked if he could recall what claims he made in 2016, he indicated that he said he experienced depression and mental health issues, and that he felt uncomfortable living in Indonesia, especially with his parents. He indicated that he left Indonesia because of his mental health situation. He also indicated his parents did not have a harmonious marriage.
When asked what he thought would happen to him if he went back to Indonesia, the applicant said he would have mental stress.
The Tribunal put to the applicant that Indonesia was a big country and asked him why he thought he would go back and live with his parents noting he was a mature man. In response, the applicant said he would not have to live with his parents. He indicated he thought that living in a foreign country would give him liberty and independence.
When the Tribunal asked the applicant if he experienced harm in Indonesia, he said “yes” and said he experienced psychological harm. When asked if he had any reports from any mental health professionals about his claim that he experienced psychological harm, he said “no.” When asked if he was saying that he did not have access to mental health professionals in Indonesia, the applicant said there might be psychologists there but he does not know. The applicant then said that Indonesian people were “introverted.” When asked what he meant by that, he indicated that Indonesian people generally do not use psychologists and worked out their problems themselves.
When the Tribunal put to the applicant that he had indicated that no person in Indonesia had ever hurt him, he agreed that no person in Indonesia had ever hurt him. He then said that his sister and family saw he was irritated and felt uncomfortable with the situation in Indonesia when he was there. The applicant indicated that he never sought any help in Indonesia for his situation.
When the Tribunal asked the applicant whether he had accessed mental health support in Australia, he said “no.” When asked why not, the applicant said he was an introvert and that because he is religious he preferred to rely on bible scripture and spiritual support from the church to help him.
When asked if he thought he would be harmed or mistreated if he went back to Indonesia, he said “yes.” The applicant indicated that if he went back to Indonesia, he would be caused psychological stress and tension from his family.
When asked who would harm him if he went back to Indonesia, he said that he would be stressed. When the Tribunal put to the applicant that he had indicated that no person would harm him if he went back to Indonesia, he responded that only psychologically he would feel harmed.
The Tribunal put information from the DFAT Country Information Report for Indonesia dated 25 January 2019. The Tribunal discussed the information in the report about mental health services in Indonesia, and put to the applicant that the Tribunal may find that he would reasonably have access to mental health services should he return to Indonesia in the foreseeable future. In response he indicated that he accepted the information in the report that mental health services are available in Indonesia.
The Tribunal also discussed the information in the report about the situation for Chinese Indonesians and put to the applicant that the Tribunal may find that he would be at low risk of harm should he return to Indonesia in the foreseeable future.
In response, the applicant said that his family was not wealthy. He said that law enforcement in Indonesia is poor, and indicated that despite laws and regulations this would not prevent some Indonesians becoming anarchists and racists. He said that there is no guarantee of stability.
The Tribunal also discussed the information in the report about the situation for Christian Indonesians, and put to the applicant that the Tribunal may find that he would be at low risk of harm should he return to Indonesia in the foreseeable future. In response, he indicated that there had previously been bombings in churches and, in addition, that some areas in Indonesia did not get permission to build a church.
When the Tribunal asked the applicant what he would do if he returned to Indonesia in the foreseeable future, he said he did not know and he did not have any plans.
The Tribunal also discussed the information in the report about the economic situation in Indonesia. The Tribunal put to the applicant that there was some positive information about the economic situation in Indonesia as the situation existed in 2019. However, the Tribunal noted that the economic effects of COVID-19 may have some adverse effect on the Indonesian economy but it was probably too early to have any clear certainty as to how much of an effect COVID-19 would have on the Indonesian economy.
In response, the applicant indicated that if COVID-19 would have an adverse economic effect on countries like the United States, Australia and European countries it would certainly have a worse effect on a country like Indonesia.
The applicant indicated that he was currently working as a [Occupation 1], and he had previously been working as a [Occupation 2].
When the Tribunal asked the applicant if there were any further claims the Tribunal had not considered that he thought the Tribunal needed to consider, the applicant indicated that he did not have any further claims. He indicated that he has never been a burden to the Australian government, and he has never done anything to disadvantage Australia. He indicated that he has abided by the law and he has tried to be a good member of society.
When the Tribunal put to the applicant that the Tribunal may find that based on the information before the Tribunal there may not be a real chance of serious harm or a real risk of significant harm to him if he returned to Indonesia in the foreseeable future, he said that he would feel psychologically harmed and depressed to return to a very uncomfortable situation for him. He also expressed his concerns about instability, religious fanatics, riots, persecution of the Chinese and Christian minority and the economic effects of COVID-19.
Country information
The relevant information from the DFAT Country Information Report for Indonesia dated 25 January 2019 in respect to mental health services is as follows:
3.124 A lack of understanding about mental and intellectual disabilities including autism or schizophrenia can lead to pasung or ‘shackling’, where people with disabilities are restrained in chains, cages or other restraints. While the practice has been illegal since 1977, it continues to occur where families hide their disabled relatives in, for example, a shed. Shackling of people with mental disabilities persists, though gains have been made to reduce the practice. Human Rights Watch reports decline in the number of people locked in confined spaces from 18,800 in 2016 to 12,800 in July 2018 based on government data. The government rolled out a programme in January 2017 to visit families to collect data about the problem and to raise awareness and educate families. However, it noted documenting shackling is difficult as it often occurs in remote areas and families may be reluctant to admit the practice. While some argue that shackling is a form of traditional treatment, families also use it to hide family members with mental health conditions who may bring social shame. This view is more common among poorer people and rural communities.
3.125 Mental health services are available in Indonesia, but are limited (emphasis by Tribunal). General health facilities including local hospitals may provide basic mental health services. Specialised mental health facilities are also used to treat general health and their capacity is often stretched. People with mental health problems may face stigma in seeking access to services.
3.126 DFAT assesses that people with mental health issues, particularly the poor and those in rural areas, face a moderate risk of societal discrimination and violence. Wealthy people, especially in large cities, face a low risk of societal or official violence or discrimination.
The relevant information from the DFAT Country Information Report for Indonesia dated 25 January 2019 in respect to ethnically Chinese Indonesians is as follows:
3.5 Successive waves of immigration to Indonesia from China over more than five centuries have resulted in an established ethnically Chinese Indonesian community throughout the country. The 2010 census recorded 2.8 million ethnic Chinese living in Indonesia, comprising 1.2 per cent of the population. This figure may understate the actual number, as some Indonesians of Chinese descent are reportedly reluctant to self-identify due to past tensions. Many Chinese Indonesians who trace their history in Indonesia for many generations may no longer identify as Chinese and many do not speak Chinese. About half of the ethnically Chinese population are Buddhist and about 42 per cent are Christian. Fewer than five per cent are Muslim, compared with over 87 per cent of Indonesians generally.
3.6 The Suharto-era New Order regime implemented a range of measures that discriminated against Chinese-Indonesians. The law prohibited Chinese language newspapers, schools and cultural expressions, and many Chinese Indonesians were pressured to take Indonesian names. Some ethnic Chinese had difficulty obtaining citizenship and Chinese Indonesians were required to carry a document proving their Indonesian citizenship. As noted in Recent History, in May 1998 during the Asian financial crisis, rioters targeted the ethnic Chinese community due to their perceived wealth. As many as 1,000 Chinese Indonesians died in incidents related to the riots, women were raped, and businesses were burned or looted.
3.7 Since the end of the New Order regime in 1998, successive governments have removed most official policy measures discriminating against ethnically Chinese Indonesians. Chinese New Year is celebrated as a national public holiday, Confucianism is an officially recognised religion, Chinese cultural performances and languages are accepted, and the Constitution no longer distinguishes between ethnic Chinese and ‘indigenous’ Indonesians, with barriers to citizenship removed. In 2014, then-President Yudhoyono issued a regulation changing the Indonesian word used to designate ‘of Chinese descent’ from one which was often associated with racial slurs. A number of Chinese Indonesians have held high office and work in a range of sectors, including the police, clergy and the business community.
3.8 Some anti-Chinese sentiment remains at a societal level. Although many Chinese Indonesians are not wealthy, most of the country’s richest and most prominent businesspeople are ethnically Chinese Indonesian, which is a source of resentment for some non-Chinese Indonesians.
3.9 In 2012, President Widodo faced strong criticism from conservative Islamist groups in his campaign for the Governorship of Jakarta for having a Chinese Indonesian and Christian running mate, Basuki Tjahaja Purnama, popularly known as ‘Ahok’, who later succeeded him. After succeeding Widodo as governor, some of Ahok’s policies were controversial and politically divisive, such as slum-clearing, which was perceived as anti-poor. Later, after he was accused of blasphemy in late 2016, a range of groups with complex agendas united to use Ahok’s ethnic and religious background as a means to mobilise large crowds of demonstrators (see Blasphemy and Defamation of Religion). Ahok was later convicted of blasphemy and imprisoned.
3.10 Anti-Chinese sentiment in Indonesia intersects with religious and economic issues. Islamic organisations blamed China for a supposed upsurge in communist sentiment, a politically sensitive subject (see also Recent History), in mid-2016. Increased Chinese investment in Indonesia has also caused local critics to express concerns about imported Chinese labour and Chinese control over national assets.
3.11 Small-scale local riots took place in a town in North Sumatra in 2016, following an allegation of blasphemy against a Chinese Indonesian woman (see Blasphemy and Defamation of Religion). While the riots were ostensibly anti-Buddhist, most Indonesian Buddhists are ethnically Chinese and local media described the riots as anti-Chinese and stated that some Chinese families had fled the region. A number of youths were arrested, prosecuted and imprisoned in the wake of the riots.
3.12 DFAT is aware of reports of Chinese Indonesians facing discrimination in relation to buying land in Yogyakarta. Yogyakarta is a special administrative region run as a sultanate, in which the sultan is also the governor. In March 2018, a regional court upheld a 1975 law that only allows ‘native Indonesians’, which has been construed to exclude ethnic Chinese, to own land in Yogyakarta.
3.13 With the notable exception of the 2016 riots, which may have been partly motivated by racial tensions, anti-Chinese violence has been low since events in 1998 (emphasis by Tribunal). Although memories of the crisis have caused continued anxiety amongst many members of the Chinese Indonesian community, exacerbated by events such as the Ahok blasphemy trial and the 2016 riots, DFAT assesses that Chinese Indonesians currently face a low risk of violence (emphasis by Tribunal). Persistent anti-Chinese sentiment may lead to low levels of societal discrimination.

The relevant information from the DFAT Country Information Report for Indonesia dated 25 January 2019 in respect to Christians is as follows:
3.35 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.
3.36 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.
3.37 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.
3.38 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.
3.39 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.
3.40 Christians do not generally experience discrimination in gaining access to health care, education or employment (emphasis by Tribunal).
3.41 DFAT assesses that Christians residing in areas where they are a majority do not face either official or societal discrimination (emphasis by Tribunal). 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 (emphasis by Tribunal). DFAT assesses that Christians face a low risk of terrorism in spite of recent exceptional events (emphasis by Tribunal).
The relevant information from the DFAT Country Information Report for Indonesia dated 25 January 2019 in respect to the Indonesian economy is as follows:
2.8 The Indonesian economy is the largest in Southeast Asia and sixteenth largest globally in nominal GDP terms. Indonesia has experienced sustained economic growth for a number of years. Year on year real GDP growth averaged 5.12 per cent between 2013 and 2018. Services, including transport, communications, tourism, financial and business services, increasingly drive Indonesia’s economic growth, accounting for 46.7 per cent of Indonesia’s GDP in 2016. Industry and resources sectors, including petroleum and natural gas, textiles, automotive, electrical appliances, apparel and footwear, mining, cement, medical instruments and appliances, handicrafts, and chemical fertilisers, accounted for 39.6 per cent of GDP. Agriculture, including rubber, palm oil, poultry, beef, coffee, fish products, spices, and forest products, accounted for 13.7 per cent.
2.9 The Widodo government’s main economic policy priorities are inequality, poverty reduction and regional development. Since President Widodo’s election in 2014, the government has launched high-profile initiatives on infrastructure development and social assistance programs related to education and health care. Reforms of long-standing energy subsidies have enabled re-prioritisation of public spending in favour of increased investment in programs that directly affect the poor. Indonesia’s trade policy continues to focus on self-sufficiency and reducing dependence on foreign imports, which has led to higher domestic prices for basic commodities and contributed to limiting the impact of other economic reforms. Indonesia continues to face considerable economic challenges. Economic growth is below levels required to meet Indonesia’s ambitious poverty reduction goals or to absorb new entrants to the labour market each year.
2.10 Poverty is falling. The poverty rate fell to 9.8 per cent in July 2018, the first time it has been below 10 per cent. The national poverty line represents expenditure of less than the equivalent of USD 2.20 (PPP) per person per day. A further 24 per cent of the population is considered to be vulnerable to falling into poverty, which is measured as a one-in-ten chance of falling below the poverty line in the next year.
2.11 Inequality divides Indonesia geographically: the densely populated western islands of Java and Sumatra are hubs for employment and investment. In comparison, eastern Indonesia has higher rates of poverty, in large part due to lack of connectivity with larger growth centres.
Identity findings
The Tribunal finds that the applicant is [name] born [date]. The applicant is a citizen of Indonesia and Indonesia is his receiving country, and he does not have a right to enter and reside in any third country.
Analysis and findings
The Tribunal has carefully considered the claims and evidence from the applicant.
In respect to his mental health claims, the Tribunal accepts with great reservation that the applicant may have mental health issues. However, the Tribunal finds that while his mental health was a significant basis of the applicant’s claims, the applicant has never sought mental health treatment in Indonesia or Australia. The evidence supporting the applicant’s claims that he has mental health issues is not supported by any documentation because the applicant has never sought mental health treatment in Indonesia or Australia. Based on the evidence before it, the Tribunal finds that if the applicant does have mental health issues, those issues did not prevent him from international travel or living abroad or getting an education or getting employment in his life. The Tribunal finds that the severity of any potential mental health conditions the applicant may have is highly questionable. In any event, the Tribunal finds that based on country information the applicant would have access to mental health treatment in Indonesia should he return to Indonesia in the foreseeable future. The Tribunal finds that the applicant’s clams in respect to his mental health are not one or more of the reasons mentioned in s.5J(1)(a) of the Act and therefore, in respect to his mental health claims, the applicant is not a refugee as defined in s.5H of the Act. In respect to complementary protection, the Tribunal does not accept that the applicant would face a real risk of significant harm on the basis that he may have mental health issues because the country information is clear that mental health services are available in Indonesia.
In respect to his apparent claims in respect to his Chinese status, the Tribunal accepts he is a Chinese Indonesian. However, the Tribunal accepts the country information that Chinese Indonesians currently face a low risk of violence. Accordingly, the Tribunal does not accept that the applicant would face a real chance of serious harm or a real risk of significant harm on the basis that he is a Chinese Indonesian should he return to Indonesia in the foreseeable future.
In respect to his apparent claims in respect to his Christian faith, the Tribunal accepts he is a Christian. However, the Tribunal accepts the country information that Christians do not generally experience discrimination in gaining access to health care, education or employment. The Tribunal accepts the country information that Christians residing in areas where they are a majority do not face either official or societal discrimination. The Tribunal accepts the country information that 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. The Tribunal accepts the country information that Christians face a low risk of terrorism in spite of recent exceptional events. In applying the country information to the applicant’s status as a Christian, the Tribunal does not accept that the applicant would face a real chance of serious harm or a real risk of significant harm on the basis that he is a Christian should he return to Indonesia in the foreseeable future.
In respect to his concerns about instability and riots and radicals in Indonesia, the Tribunal does not accept that there is sufficient information to support any reasonable finding that the applicant would face a real chance of serious harm or a real risk of significant harm on the basis of instability and riots and radicals in Indonesia should he return to Indonesia in the foreseeable future.
In respect to his concerns about the adverse economic effects of COVID-19 on the Indonesian economy, the Tribunal accepts that as of 2019 there was positive economic news in Indonesia with a relatively high GDP growth rate and falling poverty. However, the Tribunal of course notes that COVID-19 is a present issue that is likely to have an adverse impact on Indonesia’s economic growth although it is premature to speculate on exactly how much of an impact it will have. However, the Tribunal finds that given the applicant’s demonstrated education and consistent employment history, the Tribunal does not accept that the applicant would face a real chance of serious harm such that there would be a denial of his capacity to earn a livelihood of any kind, or that would threaten his capacity to subsist. In addition, the Tribunal also finds that given the applicant’s demonstrated education and consistent employment history, the Tribunal does not accept there is a real risk of significant harm on the basis of any concern about his ability to find employment or support himself should he return to Indonesia in the foreseeable future.
The Tribunal also finds that the applicant was unlawful for a period of about four months before he ultimately applied for protection about six months after he first arrived in Australia on 12 June 2015.
In considering and balancing the above findings, both individually and cumulatively, the Tribunal is not satisfied that the applicant faces either a real chance of serious harm or a real risk of significant harm should be return to Indonesia in the reasonably foreseeably future.
Having carefully considered the available evidence, and for all the reasons given above, the Tribunal is not satisfied that the applicant satisfies the criterion in s.36(2)(a) of the Act. Therefore the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa) of the Act. For the same reasons already articulated above the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia there is a real risk he will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Joseph Lindsay
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 2917

1 June 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Natural Justice

Jurisdiction

Appeal