1707410 (Refugee)

[2021] AATA 4864

1707410 (Refugee) [2021] AATA 4864 (13 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1707410

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Anne Grant

DATE:13 October 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 October 2021 at 3:46pm

CATCHWORDS

REFUGEE – Protection visa – Indonesia – involvement in protest against government corruption – prosecution by the Indonesian Government – fears harm from girlfriend’s family – applicant has no profile of interest to the Indonesian authorities – reasons for attacking him was personal anger – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5J, 36, 65, 424A, 499

Migration Regulations 1994, Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 10 March 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Indonesia, applied for the visa on 24 November 2016. The delegate refused to grant the visa on the basis that they were not satisfied that the applicant feared persecution for one or more of the reasons in paragraph 5J(1)(a) of the Act.   In addition, the delegate found that the applicant there were not substantial grounds for believing that there was a real risk that the applicant would suffer significant harm as a necessary and foreseeable consequence of him being returned to Indonesia. 

3. The applicant attended a hearing by video conference using the MS Teams application on 5 October 2021.  The hearing was assisted by an interpreter in the Indonesian language.  The connection was clear and the hearing proceeded without incident.  The applicant confirmed that he had been able to provide the information he wished to provide to the Tribunal during the hearing.  No communication difficulties were observed or reported.  

4. Prior to the hearing, the Tribunal became aware from documents on the departmental file that the applicant had lodged an earlier application for protection on 22 April 2014 (which was found to be an invalid application) but which application contained different claims which appeared unrelated to those in the application lodged in November 2016. On 19 August 2021, the Tribunal wrote to the applicant to give him notice that this information had been included in his departmental file and an opportunity to respond to that information under s.424A of the Migration Act. The relevant parts of the notice were as follows:

   I am writing on instruction from the Member conducting your review, in relation to the application for review made by you in respect of a decision to refuse to grant a Protection visa.

   In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

   Please note, however, that we have not made up our mind about the information.

   The particulars of the information are:

   The Departmental file contains an earlier application for a protection visa lodged by you on 22 April 2014. At folios 111-124 of the Departmental file in Part B of that application, you claimed to fear persecution in Indonesia by the Indonesian Government because of your political views and participation in protests against government corruption. You claimed to have left Indonesia to avoid arrest by the Indonesian government. This application was deemed invalid on 15 July 2014 because you did not comply with an information request from the Department. A copy of Part B of the application lodged on 22 April 2014 is attached to this notice for your consideration.

   This information in your earlier (invalid) protection application is relevant to the review because it raises claims that are completely different to those in your most recent application for protection and also did not include any reference to your current claims. On your 2016 application for protection (currently under review), you claimed that you left Indonesia to avoid being seriously harmed by a girlfriend’s family. You have declared on each of your applications that the claims you have made are complete, correct and up-to-date in every detail.    Consideration of the differences between the claims in the earlier 2014 application for protection and in the current application for protection may lead the Tribunal to conclude that you have not been truthful in some or all of your protection claims. This would be a conclusion which could lead to the Tribunal making an adverse finding about your credibility and therefore concluding that your claims should not be accepted. This would then be the reason or part of the reason for the Tribunal affirming the decision under review.   

   You are invited to comment on or respond to the information outlined above, in particular, the difference between the two protection claims and how that has arisen, and whether you continue to rely on the earlier claims for protection in this review.

   You are invited to give comments on or respond to the above information in writing.

5. On 19 August 2021, the applicant wrote to the Tribunal by email, attaching the following statement: 

   [Name deleted], with case number: 1707410, writing this letter to provide a detailed explanation on the reason as to why the two protection claims are different. This is because I personally experience both issues that make me leave my home country, Indonesia. Both reasons are, firstly, I am afraid of prosecution by the Indonesian Government due to my involvement in protest against government corruption, and secondly, I left Indonesia to avoid being seriously harmed by my girlfriend’s family.

   Furthermore, the reason as to why I applied and submitted both cases is because on the first case, I used a lawyer’s service to apply for a protection visa. The lawyer only proposed one reason as to why I left Indonesia, which is fear of being arrested by the Indonesian Government. The lawyer helped me to fill up the form on the first case as I could barely speak and understand English and I followed on the lawyer’s suggestion.

   As time goes by, on 2016, I tried to apply another protection visa as I thought that my first application was unsuccessful. A friend of mine, [helped] me to apply the visa for the second time. As I thought and afraid that my first visa application was unsuccessful, I decided to include another reason as to why I have to leave Indonesia, in hope to make my stand and successfully obtain the visa. Therefore, I have to say that both reasons are true and become reasons as to why I left Indonesia and decide to start a new life in Australia.

   Furthermore, I will strongly rely on the second reason as I am truly afraid of my girlfriend’s family and they are still in Bali, Indonesia. I will not be safe and secure to live in Indonesia as I am afraid that the family will eventually wait and come at me.

   Pease consider my application for a protection visa as I am afraid of my safety and well-being. I truly appreciate your time reviewing this application. Please do not hesitate to contact me again if more explanation is required.

6. On 30 August 2021, the applicant sent to the Tribunal an email advising that he also intended to respond to the matters raised in that letter at the hearing scheduled for 5 October 2021. 

   CRITERIA FOR A PROTECTION VISA

7. 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.

8. 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.

9. 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).

10. 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.

11. 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

12. 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

13. The applicant has provided his Indonesian passport as part of his review, and clearly stated at every stage of the review that he is an Indonesian citizen.  There is no suggestion that his nationality and citizenship is in issue.  The Tribunal accepts that the applicant is a citizen of Indonesia and that Indonesia is the country of his nationality and the receiving country in considering his protection application.  There is no suggestion in this case that the applicant is entitled to any third country protection and the Tribunal finds that he is not.

14. At the hearing it was noted that the applicant did not have the opportunity to discuss his claims with the delegate, and that the delegate had only considered the written claims raised in the second of his protection claims.  Consequently, the applicant was notified that all aspects of both sets of claims were in issue and the Tribunal would need to be satisfied that he faced a real chance of serious harm for one or more of the claimed reasons or alternatively that he satisfied the complementary protection provisions in relation to one or more of his claims.  The applicant said that he understood. 

15. The issue in this case is therefore whether the applicant is a refugee and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Indonesia, there is a real risk that he will suffer significant harm.

16. As can be noted above, in the response to the notice sent to him under s.424A, the applicant said that he continued to rely on both the claims in his first and second applications.

17. The applicant’s written claims in the first application dated 22 April 2014 were that he feared persecution in Indonesia at the hands of the Indonesian government due to his having participated in anti-corruption protests in Indonesia.  He claimed that he had been arrested in Indonesia and feared being arrested and tortured again if he returned. 

18. In the second application, the written claims were that the applicant left Indonesia to save his life from his girlfriend’s family.  He had a girlfriend from a Muslim family, and they lived together - but after her family knew, they were angry and wanted to kill him because living together was not allowed in the Muslim faith.  He claims that he met an agent who arranged for him to come to Australia.  He claimed he will be killed if he returns to Indonesia and that he was beaten ‘half to death’ by his girlfriend’s family.  If the public had not helped him, he may be dead. He claimed that he went to Jakarta (from Bali) but they found him and again he was beaten half to death.  He claimed to fear harm and mistreatment from his girlfriend’s family and the ‘Muslim extremists’ associated with them if he returns to Indonesia. 

19. At hearing, the applicant gave more information about his claims.  The applicant gave the following evidence at hearing about his reasons for seeking protection: 

    • He was aged [age] when he arrived in Australia.  He was born in Badung, Bali and lived there with his parents his whole life except for a few weeks he spent in Jakarta shortly before coming to Australia.  In Jakarta he stayed with a friend of his who was originally from Bali. 
    • He had a girlfriend, whose name was [Ms A]. She was from a nearby part of Denpasar.  They had only been going out for about two months.   He had not been introduced to her family, because she is a Muslim and he a Hindu.  The applicant agreed that because of their different faiths, they wanted to be sure about the relationship before they made it public.  However, after a couple of months, [Ms A] told him she was pregnant and that she needed to tell her family so she could get help.  She asked him if she should keep the baby or have an abortion.  His response was that she should tell her family, of course; but as to the abortion he felt it was her decision and not his.   He said that he is aware that [Ms A] did decide to have an abortion and that she went through with that.   
    • However, when [Ms A] told her family about her pregnancy, they were very angry.  They found the news unacceptable because the applicant was not a Muslim.  He got a text from her saying they were looking for him, and recommended he get away.  As soon as he got that message he left the house and when he did, there was a group of people there already outside the house.  This mob made an attempt to grab him and beat him up but he managed to escape and got free of them.  He had a friend nearby and he went there to hide.  That friend suggested he should go with her to Jakarta for an anti-corruption protest and that the applicant could stay with her in Jakarta for a while.   He agreed and they travelled to Jakarta. On the way there, he got in touch with [Ms A] and she said that her parents were still upset and had gone to his home, spoken to his parents (who said he had gone away,) and then left.  The applicant said after the pregnancy, he had not straight away told his parents about the troubles he was having as there was nothing they could do and it was all too new.  In any event, [Ms A]’s family told them about what had happened.  He does not know the details of the parents’ discussions but knows it was ‘not good’.  His parents told [Ms A]’s parents that he no longer lived there and would not be returning, so they left. His parents then called the applicant and told him to stay away.
    • The applicant fears that [Ms A]’s family and their friends and associates will never forgive him and that they will attack him if they see him, particularly if he returns to Bali.   He had described them as ‘Muslim extremists’ in his written claims - however his oral evidence suggests that they were friends and family from the Muslim community of [Ms A]’s family.  His evidence did not suggest that they were ‘Muslim extremists.’  He believed that they were very angry with him due to [Ms A]’s pregnancy and wanted to kill him.
    • The protest he attended (there was only one) was a commemoration rally against corruption and in favour of the anti-corruption commission.  He went to the rally as requested by his friend who had helped him out by getting him safety to Jakarta. He really didn’t know much about the politics. While they were at the protest, a group of people all dressed in black ran out and started to attack them.  They managed to grab him and hit him a few times and he became fearful, broke away and ran home with his friend. 
    • After these exciting and scary events at the protest, they were exhausted.  He fell asleep and overnight [Ms A] texted him a warning that her family knew where he was and were coming to get him.  He didn’t know that, because he slept through the messages; and the next morning there was a knock on the door and when he answered it, a group of men started beating him up.  His friend heard the commotion, came out and screamed for help, startling the men who thought he was alone, and they ran away. He believes that if she had not intervened, he would have been killed for sure.  
    • After this, his friend became more fully aware of his dire circumstances and helped him to find an agent to assist him to leave Indonesia.  She met all of the costs, and they were considerable - (around [amount] $AUD).  The agent arranged for the visa to come to Australia, for a representative to help him to lodge the first protection claim and even to find work in Australia.  He just went along with what was arranged. 
    • The applicant was asked if [Ms A]’s family or the men related to them had returned to his friend’s house seeking to harm the applicant in the period before he fled Indonesia.   He said he did not think so.  He also gave evidence that as far as he knew, they had not returned even after he had left; but in any event his friend left Indonesia for [Country 1] herself shortly afterwards anyway as that had always been her intention.  He has since lost contact with her.  When asked, he said that he has not repaid her the money she gave him and that she told him to consider it a gift and not a loan. He acknowledged her generosity but said he thinks she felt bad for what had happened at the rally and nearly getting him hurt and arrested.  After she saw his attackers in the flat, she knew what trouble he was in with [Ms A]’s family.
    • When he was in Australia in April 2014, the applicant said that he told the agent about the protest and they said that they would use that to make a protection application. He did not know what details were put in the original application.   He also told them about his fear of harm from his girlfriend’s family, but the representative said it was best to stick to one issue. 
    • After the first application was lodged, he then travelled to a rural area and [did specified work] as arranged by the agent.  He never heard from Immigration.  He thought his application had not been successful, but knew nothing about the process.  After a few years, a new friend helped him to lodge the second application.  That friend said that, since the first one had not been successful, it made sense to give the second application a different emphasis – focussing on the problems he had with his girlfriend’s family.
    • The applicant had finished school the year before his troubles arose and he had not found a job.  He was finding it difficult to get work as he only had a school certificate.
    • The applicant confirmed that he was not arrested for participating in the rally (or ever) in Indonesia.  He sustained minor injuries from the beating but he got away and escaped without being detained by police or military forces.  The applicant said he was ‘not sure’ if the government of Indonesia has any interest in him.  The protesters had been attacked by someone at the rally and it seemed likely those attackers were government forces.  At the time of his first application for protection, the applicant said that he did still have some fear about his safety from the Government of Indonesia.   He was asked if he had any reason to fear harm from the government if he returned to Indonesia now or in the foreseeable future.  In response the applicant said that ‘as far as government officials are concerned, I’m not sure they would be looking for me.  What I am sure of is my girlfriend’s family would still continue to look for me.’
    • As far as the applicant knows, his parents have had no further contact with [Ms A]’s family. He understands (though he hasn’t personally been there) that [Ms A]’s family home is [not far] from his parent’s home.  He has not spoken to or texted [Ms A] since he left Indonesia – in fact the last communication he had with her was the texts attempting to warn him in Jakarta.  He has always assumed her parents cut off all communication with him when she tipped him off.  In the first year he was in Australia, he received one anonymous text warning him not to ever return to Indonesia.  He got a fright and changed his phone.  He has heard nothing else, and neither has his family. 
    • The applicant claims that because of what happened, [Ms A]’s family and her community would never forgive him because getting a girl pregnant is against their faith, it is shameful and unforgivable. 
    • The applicant said that he would not feel safe returning to Bali.   He said that if [Ms A]’s family ever saw him he felt he would be beaten again.  He had never lived outside of Bali in Indonesia and said he was worried about obtaining work and accommodation if he moved to a different part of Indonesia.  He would prefer to remain in Australia.
    • The Tribunal noted that it had significant concerns about whether there was a real chance that the applicant would face serious harm from either the government of Indonesia or [Ms A]’s family (and their associates) if he were to return to Indonesia.  The Tribunal’s concerns arose because of the passage of a significant amount of time since the incidents occurred and the fact that there is no suggestion that either the government or [Ms A]’s family have been looking for, nor even had any interest in him for many years (in particular, they have not even contacted his family to ask about or seek to find him).  Apart from one anonymous text message in around 2015, he provided no information capable of suggesting that the applicant continues to face any risk of harm at the hands of [Ms A]’s family or their associates.   The applicant responded that it may be so; but he doesn’t want to return because he fears that he will experience an overwhelming incident of being attacked again.
    • The applicant said he never reported the attempts to beat him up made by [Ms A]’s family and their associates, because he had no faith that the police would do anything to protect him.  He noted that the police in Indonesia do not have a good reputation.  He was asked if, in the event he returned to Indonesia and was threatened and attacked again, he would report it and might receive some protection.  He said that he continues to have a low opinion of the criminal justice system in Indonesia.  In his view, they may look into it superficially but abandon him anyway. 
    • He agreed that he was not ‘beaten half to death’ as in his written claims – what he meant to say was that they tried to beat him to death.  He referred to his limited English skills.  
    • The applicant agreed that he has a current Indonesian passport which he renewed without incident whilst in Australia.

1. The Tribunal notes that the applcant had not mentioned [Ms A] being pregnant in his written claims and that, despite his written claims saying they were living together, this was not the case, because his evidence was that he was living with his parents until he fled.  Taking into account the frankness of the applicant’s oral evidence at hearing, the Tribunal does not place any weight on this inconsistency, and considers it is reasonably explained by taking into account his limited language skills and a reluctance to describe his full embarrassing circumstances to the woman who helped him with the second written claim.

2. The applicant’s explanation for his failure to outline both of his claims in each of his applications is plausible and the Tribunal accepts it.  The Tribunal accepts that when he first arrived in Australia, he was a very young man, had poor English skills and everything was arranged for him by the Indonesian agent.  The Tribunal accepts that he just went along with the first application despite not knowing the actual content of the claims.  In relation to the second application, he readily acknowledged that some of what he said was a poor choice of words, probably due to his own limited language skills, and he thought that his first claims about the protest had been unsuccessful, so did not include them again.  The Tribunal places no weight on the applicant’s failure to mention both claims in both applications and accepts that he has explained why that occurred.

3. In general, the Tribunal found the applicant to be a credible and coherent witness.  Whilst he provided new and different information in some cases during the hearing to what he had advanced in his written claims, the Tribunal considers that it was the first opportunity he had to put his claims with the assistance of an excellent interpreter and found his evidence at hearing to be frank and honest.  Where there is a lack of congruity between the applicants’ written and oral claims, the Tribunal prefers and accepts his evidence given at hearing and considers that his poor command of English, his agent’s actions and his lack of familiarity with the process of applying for protection does explain any disparities.  To be clear, the Tribunal considers that the applicant has fully outlined the circumstances of his claims in his verbal evidence during the hearing, and the detail and frankness with which he provided that information leads the Tribunal to prefer that evidence to his written claims and to give minimal weight to any inconsistencies between the written claims and his oral evidence.  

   Is the applicant a refugee? 

   Claim to fear persecution by the Government of Indonesia due to participation in an anti corruption rally protest in late 2013 or early 2014.

4. Based on the applicant’s direct evidence at hearing, the Tribunal rejects the applicant’s claim that he was arrested for participating in anti-corruption protests at any stage in Indonesia.   The Tribunal accepts that the applicant participated in one rally in late 2013 or early 2014, was poorly informed by his friend about the reason for the protest, and ran away when they faced anti-protest forces.  The Tribunal accepts that the applicant is still unaware if the men they encountered were police or military forces, but assumes they were.  The Tribunal accepts that the applicant did experience some harm during that scuffle, but it was minor in nature, comprising of scuffle type injuries and bruising.  The Tribunal accepts that he and his friend escaped from the protest and ran home.  The Tribunal finds that the applicant was not arrested, and based on his evidence, finds that there is no reason to suspect that his identity was ever known by the police or that he is of any interest to the Government of Indonesia, the military or police due to his participation in this one rally in 2014. The applicant has also confirmed that he had renewed his Indonesian passport whilst in Australia without incident, and the Tribunal considers this to be a factor which might add some minor weight to the Tribunal’s finding that the applicant has no profile of interest to the Indonesian authorities for any reason.

5. During the hearing, the Tribunal informed the applicant that based on his evidence, the Tribunal had serious concerns that he would be of any interest to or was even known by the authorities in Indonesia as a participant in one anti-corruption rally in late 2013 or early 2014.   (The applicant said he thought the rally took place in December not long before he came to Australia but was not certain of the date.)  The applicant did not provide any evidence or information in response to this concern when it was expressed, merely responding he ‘didn’t really know’. 

6. The Tribunal considers that the applicant’s claim that he is of interest to the Indonesian Government, or that he faces a real chance of harm from the Indonesian government or its’ police and armed forces because of one protest in late 2013 or early 2014 is far-fetched.  The evidence does not suggest that he was ever identified or that his participation in the rally is even known by the Indonesian government.   Country information suggests that public protests are common in Indonesia, particularly about anti-corruption.[1] 

   [1] According to Department of Foreign Affairs and Trade’s most recent Country Information Report on Indonesia, at 3.71:  Protests about corruption and democracy are common. Activists and NGOs are generally able to operate freely and without significant barriers to registration. In particular, the anti-corruption body, KPK, is very popular and receives public support (see Corruption). A permit is generally required to hold a public demonstration, however most peaceful public demonstrations are unhindered. Social media is popular and expression on social media is generally unhindered.

7. After considering all of the information and evidence before it, the Tribunal finds that this claim is not established.  The Tribunal finds that the applicant has not established that there is a real chance that the applicant will suffer arrest or detention or any harm whatsoever from the Indonesian Government, the Military of Indonesia or the Indonesian police now or in the foreseeable future if he returns to Indonesia due to his participation in one protest in late 2013 or early 2014.

   Claim to fear harm from former girlfriend’s family and their associates and or ‘Muslim extremists’ due to their relationship and her pregnancy.

8. As noted above, the Tribunal found the applicant to be a frank and credible witness and accepts his oral evidence about the circumstances of his relationship, [Ms A]’s pregnancy and the violent reaction of her family and their friends to the news.

9. The Tribunal accepts that the applicant was in a short relationship with [Ms A], that she is a Muslim and he a Hindu and that her family may not have approved of the relationship, leading to them keeping it secret.  The Tribunal accepts that she became pregnant and told her family who responded by seeking out the applicant, intending to harm him by public beating.  The Tribunal accepts that he was warned of their intentions and managed to get away from them when they confronted him outside his home and escape to a friend’s house.  It is accepted that his friend suggested and he agreed that he travel to Jakarta with her, and that, once there, he should participate in an anti-corruption rally and could stay with her. He agreed as he thought this plan would give him some distance from [Ms A]’s family and their associates.  It is accepted that [Ms A]’s family and associates found out where he was (from [Ms A]) and attacked him there but were frightened off when his friend screamed for help.  It is accepted that in the aftermath of [Ms A]’s pregnancy disclosure, her family and associates from their Muslim community demonstrated an intention to punish and physically harm the applicant in retaliation for the shame he had caused her and her family.

10. In his written application, the applicant said that he feared ‘Muslim extremists’ who would attack him because he (a Hindu) was living with a Muslim girl.  In fact, as noted above, he was not living with a Muslim girl. Even so, the Tribunal notes that  they were clearly in a relationship which would not be approved by her Islamic community, given that they were engaging in extra marital sex.  Apart from the written claims, the applicant has not suggested that his faith or that of [Ms A]’s family and friends was the motivating reason for their attacks on the applicant.  The applicant’s faith was the reason their relationship might not be approved – and why they waited to disclose it until they thought it was likely to be a serious relationship. But as described by him, it was not the reason for the violent attacks on him.  Rather, they were an angry family who felt the applicant had ruined [Ms A]’s life by getting her pregnant outside of marriage and acted on their anger, seeking to punish the applicant for his transgressions.  On balance, and taking into account his evidence as a whole, the Tribunal is not satisfied that the applicant has established that he faced or faces any chance of harm from ‘Muslim extremists’  in Indonesia due to him being a Hindu or because he was in a relationship with a Muslim woman for one or two months in 2013 or early 2014, now or in the reasonably foreseeable future.  The family of [Ms A] and her associates who did attack him may have been Muslims; and may even have disapproved of his faith as a Hindu.  But his evidence suggests that the reasons for them attacking him was personal anger at his perceived immoral behaviour, and the destruction of [Ms A]’s life -  not due to his (or their) faith.

11. Based on the applicants’ oral evidence, it is accepted that he has had no ongoing contact with [Ms A] since she last texted him warning of her family’s intentions to attack him in Jakarta. He knows nothing about her current situation or personal circumstances. The Tribunal accepts as plausible his explanation that her family ‘cut off contact’ with him when they discovered that she had tipped him off about their intentions to assault him.   The Tribunal  accepts the applicant’s evidence that [Ms A]’s family or associates have not contacted nor threatened him through his parents and have not questioned them about his whereabouts since the time these events transpired in late 2013.   Neither he nor his parents have had any contact with [Ms A]’s family since that occasion in Jakarta when they attempted to assault him. 

12. The Tribunal accepts that in the first year after he left Indonesia, the applicant received a text warning him not to return, implying that he would be harmed if he did return to Bali.  The text was anonymous but he believes it was from someone related to or associated with [Ms A]’s family. He immediately changed his number and has had no further threats, direct or indirect. 

13. At hearing, the Tribunal discussed with the applicant that it had concerns that, given the passage of several years since his troubles occurred, the fact that [Ms A] underwent a termination of the pregnancy, that he has not had any contact with her or her family, (and that neither have his parents); the chance that he would face serious harm from them now if he were to return to Indonesia appeared to be remote.  The applicant responded that it was his belief that they would never forget what he had done and said that as far as he knows, they remain in Bali.  If he were to return to Bali and they ever encountered him in the future, he believes they would try to kill him.

14. Whilst the Tribunal accepts that the applicant holds a subjective fear that [Ms A]’s family and associates would seriously harm him now, even some 7 years after the events above, the Tribunal notes that this fear is, in his own words, based on them ‘encountering’ him in Bali on his return and not because they were searching for him or had any interest in tracking and harming him now or in the reasonably foreseeable future.  On his own evidence, they did not return to attack him in Jakarta after they were scared off by his friend.  They have not returned to his family home. Taking all of these factors into consideration, the Tribunal is not satisfied that the applicant has established that there is a real chance that he would in fact face harm of any kind from [Ms A]’s family and or their associates if he were to return to Bali or to Indonesia.  The Tribunal places some weight on the fact that they were scared away in Jakarta so easily and did not return.  Further, common sense suggests that once the initial shock, anger and outrage at the situation has waned, [Ms A]’s family has every reason not to highlight her predicament within their community so many years after it occurred, by attacking the applicant and bringing up old family shame.   Put another way, whilst the family responded violently at the time of the revelation of [Ms A]’s pregnancy, the Tribunal considers that the anger occasioned by the perceived shame of the situation must have, waned with the passage of time.  Additionally, and again, the Tribunal has borne in mind that the people who sought to harm him when these events transpired in late 2013 or early 2014 have made no efforts to locate him since 2014, even though his parents continue to live quite close to (and are therefore accessible to) [Ms A]’s family.    As noted above the Tribunal does not accept that the applicant has been targeted by or faces any real chance of being seriously harmed by ‘Muslim extremists’ due to a short and disastrous relationship with a Muslim woman in 2013.

15. The Tribunal has weighed all of the applicant’s evidence carefully and has also considered the lengthy passage of time and the lack of any evidence presented by the applicant that anyone is searching for or continues to intend to harm him in Indonesia.  Whilst it is plausible that [Ms A]’s family and their associates continue to harbour ill will towards the applicant, the Tribunal finds that the weight of the information and evidence before it does not establish that there is a real chance that the applicant will suffer serious harm at the hands of [Ms A]’s family or their associates (or from ‘Muslim extremists’ in the event that he returns to Indonesia (whether he returns to Bali or to another part of Indonesia.) This claim is not established.    

16. The Tribunal has found that the applicant has not established that there is a real chance that he will suffer serious or any harm because of his involvement in an anti corruption protest in late 2013 or early 2014 (at the hands of the Indonesian Government, its’ police or armed forces), or because of his girlfriend’s pregnancy (at the hands of her family or people associated with them, or from ‘Muslim extremists’) if he returns to Indonesia, now or in the reasonably foreseeable future.  The Tribunal has not accepted that there is a real chance that the applicant will suffer serious harm from ‘Islamic extremists’ because of a relationship he (a Hindu) had for a short period in late 2013 or early 2014 with a Muslim woman.  None of the applicant’s claims are established. No other claims arise on the information or evidence before the Tribunal.  

17. The Tribunal has considered the applicant’s claims individually and cumulatively, but even considered cumulatively, the applicant has not established that there is a real chance of him being persecuted now or in the reasonably foreseeable future for any reason if he returns to Indonesia. The Tribunal concludes that the applicant does not have a well-founded fear of persecution in Indonesia.

18. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    Complementary Protection Provisions

19. The Tribunal has found that there is not a real chance that the applicant will face persecution (arrest and torture or any other type of harm) from the Government of Indonesia, it’s military or police if he returns to Indonesia.    The Tribunal has also found that there is not a real chance that the applicant will face serious harm from [Ms A]’s family or their associates (or from ‘Muslim extremists’) due to him being involved in an inappropriate relationship with [Ms A] which unfortunately resulted in a terminated pregnancy in late 2013 or early 2014.

20. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.

21. The Tribunal refers to and relies on its’ reasoning above in relation to each of the applicant’s claims.  The applicant claims to fear that he will be arrested and subjected to imprisonment and possible torture by the Government or its’ agents.  It is accepted that the harm he claims to fear would involve ‘significant harm’ as it would involve him being tortured.  However for the same reasons as given above, the Tribunal finds that the applicant has not established that there is a real risk that the applicant will suffer significant or any harm if he is returned to Indonesia from the Indonesian government, its’ military or its’ police because of his involvement in a political protest in late 2013 or early 2014.

22. The applicant claims that he will be arbitrarily killed or seriously harassed at the hands of [Ms A]’s family or their associates, or from ‘Muslim extremists’.  It is acknowledged that the harm he fears would constitute ‘significant harm.’   However, for the same reasons as given above, the Tribunal finds that there is not a real risk that the applicant will suffer significant or any harm (being killed, seriously harassed or beaten) from [Ms A]’s family or their associates or from Muslim extremists if he is returned to Indonesia due to his short and disastrous relationship with [Ms A] in late 2013 or early 2014.

23. No other claims arise or are suggested on the material before the Tribunal. The Tribunal has considered the applicant’s claims individually and cumulatively but is not satisfied that he has established any grounds for believing that there is a real risk that he would suffer significant harm in Indonesia.

24. The Tribunal concludes that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Indonesia, there is a real risk that he will suffer significant harm

25. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

26. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

27. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Anne Grant
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …