1717414 (Refugee) - [2023] AATA 4554

1717414 (Refugee) [2023] AATA 4554 (1 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Katrina Feghali (MARN: 1174363)
CASE NUMBER:  1717414
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Paul Noonan
DATE:1 November 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 1 November 2023 at 9.48am

CATCHWORDS
REFUGEE – protection visa – Indonesia – religion – Pentecostal Christian – freedom of religion – proselytising – Indonesia’s Criminal Code – particular social group – single women in Indonesia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
FCS17 v MHA (2020) 276 FCR 644
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 July 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Indonesia, applied for the visa on 28 July 2016. The delegate refused to grant the visa on the basis that there is not a real chance of serious harm or a real risk of significant harm to the applicant for reason of her claim to be a born-again Christian should she be required to return to Indonesia and that accordingly her fear of harm is not well-founded. The applicant was not offered an interview by the delegate.
The applicant provided the Tribunal with a copy of the delegate’s decision. The applicant appeared before the Tribunal on 25 October 2023 to give evidence and present arguments.
The applicant was represented in relation to the review. The Tribunal had regard to the Department file and submissions made to the Department by the applicant as well as submissions made by the applicant and her representative both prior to and after the hearing.
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 (Cth) (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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1717414 (Refugee)

Details

AGLC: 1717414 (Refugee) [2023] AATA 4554
Case: [2023] AATA 4554
Decision Date: 1 November 2023

CaseChat Overview and Summary

The applicant, an Indonesian citizen, sought a protection visa in Australia. The dispute concerned whether Australia had protection obligations towards her, primarily based on her adherence to the Pentecostal Christian faith and her desire to proselytise. The case was heard by the Tribunal.

The central legal issues before the Tribunal were whether the applicant met the criteria for being a refugee under section 36(2)(a) of the Migration Act 1958, specifically whether she had a well-founded fear of persecution for reasons of her religion in Indonesia. Additionally, the Tribunal considered whether she met the complementary protection criterion under section 36(2)(aa), which requires a substantial ground for believing there is a real risk of significant harm as a necessary and foreseeable consequence of removal to Indonesia.

The Tribunal found that while the applicant was a genuine follower of the Pentecostal Christian faith, her past experiences in Indonesia did not demonstrate a well-founded fear of persecution. She had previously spread the gospel in Indonesia without suffering serious harm, and the Tribunal noted that her desire to spread the gospel more widely was a personal aspiration rather than a basis for persecution. The Tribunal applied the principles of section 5J of the Migration Act regarding well-founded fear of persecution, considering whether the fear was for a Convention reason, whether there was a real chance of persecution, and whether it involved serious harm. The Tribunal concluded that the applicant could continue her religious practices in Indonesia without facing persecution or significant harm, and therefore, Australia did not have protection obligations towards her.

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

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The applicant travelled to Australia on an apparently genuine Indonesian passport, a copy of which is contained on the Departmental file. She has at all times stated that she is a citizen of Indonesia and she has been assessed on that basis by the Department. The Tribunal finds she is an Indonesian citizen and has assessed her claims against Indonesia as the country of nationality and the receiving country.The applicant’s background The applicant was born in [year]. She told the Tribunal that she was born into a Christian family of the Lutheran denomination. Her family are all practising Christians and reside in the Indonesian capital of Jakarta. The applicant stated that she was always a regular church attendee in Indonesia. In the year 2000 she became a born-again Christian and joined the local Pentecostal church known as [Church 1], which she was introduced to by her cousin. She stated that she had made this move when she was “in a dark place” which she attributed to the divorce of her parents and “partner problems”. Since joining [Church 1] she has remained an adherent to the Pentecostal faith. In 2004 she spent a year in [Country 1] living with her cousin. She attended a local Pentecostal church while there. She first came to Australia in 2011 to attend [Church 2] events. She explained that [Church 2] is an Australian Pentecostal church which [Church 1] is aligned to. After this first trip of one month she again travelled to Australia on five other occasions to attend [Church 2] events. Before the Tribunal are a great many third-party written testimonies with respect to the applicant’s long history of attending Pentecostal churches and events in Indonesia and Australia, including testimony from priests from such churches. There are also many photos of her attending such events. The Tribunal accepts the above to be true and finds that the applicant is a follower of the Pentecostal Christian faith.Does the applicant have a well-founded fear of persecution?The applicant’s Pentecostal faith The applicant confirmed that her written claim to fear persecution for reason of her religion still correctly reflects her reason for fearing persecution in Indonesia. When asked to discuss what she fears and why, should she be required to return to Indonesia, she stated that she now enjoys widely sharing the gospel in Australia and she fears the reaction of Indonesian society should she do the same in Indonesia and she fears that the police will arrest her as a result. The Tribunal noted that in her application for protection she had stated that she had spread the word of the gospel for many years in Indonesia as a member of the church and that, while there were some objections, there was no suggestion she had suffered serious harm. The Tribunal noted that this may reflect she could continue to do so should she return there. The applicant stated that she now wishes to spread the word of the gospel to “all mankind” and this would not be possible in Indonesia.

Evidence

Evidence Before The Court

In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether Australia has protection obligations to the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Country of nationality The applicant travelled to Australia on an apparently genuine Indonesian passport, a copy of which is contained on the Departmental file. She has at all times stated that she is a citizen of Indonesia and she has been assessed on that basis by the Department. The Tribunal finds she is an Indonesian citizen and has assessed her claims against Indonesia as the country of nationality and the receiving country.The applicant’s background The applicant was born in [year]. She told the Tribunal that she was born into a Christian family of the Lutheran denomination. Her family are all practising Christians and reside in the Indonesian capital of Jakarta. The applicant stated that she was always a regular church attendee in Indonesia. In the year 2000 she became a born-again Christian and joined the local Pentecostal church known as [Church 1], which she was introduced to by her cousin. She stated that she had made this move when she was “in a dark place” which she attributed to the divorce of her parents and “partner problems”. Since joining [Church 1] she has remained an adherent to the Pentecostal faith. In 2004 she spent a year in [Country 1] living with her cousin. She attended a local Pentecostal church while there. She first came to Australia in 2011 to attend [Church 2] events. She explained that [Church 2] is an Australian Pentecostal church which [Church 1] is aligned to. After this first trip of one month she again travelled to Australia on five other occasions to attend [Church 2] events. Before the Tribunal are a great many third-party written testimonies with respect to the applicant’s long history of attending Pentecostal churches and events in Indonesia and Australia, including testimony from priests from such churches. There are also many photos of her attending such events. The Tribunal accepts the above to be true and finds that the applicant is a follower of the Pentecostal Christian faith.Does the applicant have a well-founded fear of persecution?The applicant’s Pentecostal faith The applicant confirmed that her written claim to fear persecution for reason of her religion still correctly reflects her reason for fearing persecution in Indonesia. When asked to discuss what she fears and why, should she be required to return to Indonesia, she stated that she now enjoys widely sharing the gospel in Australia and she fears the reaction of Indonesian society should she do the same in Indonesia and she fears that the police will arrest her as a result. The Tribunal noted that in her application for protection she had stated that she had spread the word of the gospel for many years in Indonesia as a member of the church and that, while there were some objections, there was no suggestion she had suffered serious harm. The Tribunal noted that this may reflect she could continue to do so should she return there. The applicant stated that she now wishes to spread the word of the gospel to “all mankind” and this would not be possible in Indonesia.

Decision

Reasons for decision

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 any of the criteria in s 36(2).DECISION The Tribunal affirms the decision not to grant the applicant a protection visa.Paul NoonanMemberATTACHMENT – Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether Australia has protection obligations to the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Country of nationality The applicant travelled to Australia on an apparently genuine Indonesian passport, a copy of which is contained on the Departmental file. She has at all times stated that she is a citizen of Indonesia and she has been assessed on that basis by the Department. The Tribunal finds she is an Indonesian citizen and has assessed her claims against Indonesia as the country of nationality and the receiving country.The applicant’s background The applicant was born in [year]. She told the Tribunal that she was born into a Christian family of the Lutheran denomination. Her family are all practising Christians and reside in the Indonesian capital of Jakarta. The applicant stated that she was always a regular church attendee in Indonesia. In the year 2000 she became a born-again Christian and joined the local Pentecostal church known as [Church 1], which she was introduced to by her cousin. She stated that she had made this move when she was “in a dark place” which she attributed to the divorce of her parents and “partner problems”. Since joining [Church 1] she has remained an adherent to the Pentecostal faith. In 2004 she spent a year in [Country 1] living with her cousin. She attended a local Pentecostal church while there. She first came to Australia in 2011 to attend [Church 2] events. She explained that [Church 2] is an Australian Pentecostal church which [Church 1] is aligned to. After this first trip of one month she again travelled to Australia on five other occasions to attend [Church 2] events.