1720774 (Refugee)
[2023] AATA 3110
•21 June 2023
1720774 (Refugee) [2023] AATA 3110 (21 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Alim Lim
CASE NUMBER: 1720774
COUNTRY OF REFERENCE: Indonesia
MEMBER:Christine Cody
DATE:21 June 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 21 June 2023 at 6:28pm
CATCHWORDS
REFUGEE – protection visa – Indonesia – Race – Chinese – Religion – Christian – anti-Chinese riots of 1998 – mother’s rape – home robbed – attacked by school bullies – discrimination – credibility issues – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 423A, 499
Migration Regulations 1994 (Cth), Schedule 2CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155Any 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 dependants.
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 9 August 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, arrived in Australia [in] November 2008 holding a Subclass 572 (Student) visa. He then remained unlawfully present in Australia from [February] 2010 until [July] 2016. On 10 November 2016 he applied for the protection visa[1].
[1] Source: Delegate’s decision record provided to the Tribunal by the applicant. It is noted that the applicant first applied for protection on 1 July 2016, but his application was found to be invalid on 5 October 2016 for failure to provide personal identifiers.
The applicant was represented in relation to the review by his registered migration agent.
Departmental file
The applicant provided his protection visa application forms, lodged 10 November 2016, and a copy of some pages of his passport issued [2008].
Protection visa application forms
According to the protection visa application forms, the applicant was born in Jakarta to Indonesian parents, and he is [age] years of age. He is of Chinese ethnicity. He speaks, reads and writes in both Indonesian and English, and he does not need an interpreter. He lived at a single address all of his life in Indonesia. He attended and completed [Primary] School (July [year] to June [year]) and [High] School (July [year] to June [year]). He then obtained his passport [in] 2008. His student visa to Australia was granted on 19 November 2008[2].
[2] Source: passport.
He is unmarried. His parents reside in the same family home where he resided all of his life. He is not in contact with relatives outside Australia. His occupation is [deleted], although he is not currently working. He worked part-time in Australia from August 2008 to July 2013.
His claims are set out in his application form as set out below.
He left Indonesia because:
I am an Indonesian Chinese. I suffered racism in Indonesia. I came to Australia to seek protection. I was bullied in school since I was young. In high school a group of native Indonesian kids took my lunch and money away almost every day. They beat me and laugh at me because I am Indonesian Chinese. Some other Indonesian Chinese kids were also bullied. I had fight with those native Indonesian kids. One of them was injured. Their parents came to my home and beat my parents. They smashed everything. They threatened me to quit school and pay them large amount of money for compensation, otherwise they will continue hurting my family and me. My family didn't have the money they asked for. I came to Australia in 2008 to avoid being hurt by native Indonesians.
When asked what he thinks will happen to him if he returns, he repeated the above, adding:
If I return to Indonesia, native Indonesian will hurt me because I did not give money to them.
When asked if he experienced harm in that country, and if he would experience harm if he returned, his answer to both questions was identical:
Yes, I was bullied at school. Native Indonesians came to my home and beat my parents. They smashed everything. They threatened me to quit school and pay them large amount of money for compensation.
When asked if he sought help in the country he said yes:
I reported the racism to the school and police station. School asked to keep quiet. Police did not help him because I didn’t have the evidence of their abuse.
When asked if he moved or tried to move to seek safety, he said no:
I will suffer racism as long as I am in Indonesia.
When asked if he thinks the authorities will protect him if he returns, he said no:
I reported native Indonesian racism to my school and to police station. My school wanted me to keep quiet. Police station asked me for evidence which I don’t have.
When asked if he could relocate, he said no:
I don’t have the money to relocate. Also I will suffer racism as long as I am in Indonesia.
The delegate’s decision
The delegate refused to grant the visa. The delegate did not accept the available country information supported a finding that the applicant has a well-founded fear of persecution on account of his Chinese ethnicity.
The Tribunal
The applicant lodged an application for review with the Tribunal on 6 September 2017. A copy of the delegate’s decision record was provided to the Tribunal.
On 12 September 2017 the Tribunal wrote to the applicant, acknowledging the application, and saying that if he wishes to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible. Nothing was received.
On 15 June 2020 he sought a letter from the Tribunal confirming to Medicare that he had an application for review of his protection visa refusal pending. On 3 March 2023 the applicant was advised that his file was being prepared for a member and he should provide any evidence as soon as possible. He did not provide any evidence.
On 8 March 2023 he appointed his current representative to represent him in relation to the review.
On 10 May 2023 the Tribunal informed the applicant that it did not have sufficient information to make a positive decision, and invited him to attend a hearing on 24 May 2023. It requested that all documents upon which he relied be provided by 17 May 2023, and a written submission setting out all claims made and maintained by the applicant also be provided by that date, accompanied by a signed declaration from the applicant that the submission had been read and explained to them and that it accurately and completely presented their claims.
The agent sought an adjournment of the hearing date, which the Tribunal granted. The Tribunal postponed the hearing date to 31 May 2023.
Submissions made prior to the hearing
The applicant did not submit substantive supporting evidence for the claims put forward to the Department until after 2pm on 30 May 2023 when the Tribunal was forwarded by email submissions dated 24 May 2023 as well as documents. These are summarised below:
· The applicant came to Australia with a student visa on 29 November 2008 seeking to get an education and skills so that he could perhaps obtain permanent residency in Australia, as he suffered persecution in Indonesia.
· He commenced his studies in English, however, after a few months he had to drop out of school because he could not afford the school fees. He worked part-time to support himself while studying.
· In 2010 he became unlawful and he was still fearful of returning to his country, but he didn’t know what to do.
· The applicant learnt about protection visas through social media and on 10 November 2016 he applied for one.
· He experienced gross racial discrimination as an ethnic Chinese and Christian in Indonesia, to the extent he feels he was denied the freedom to be who he is as a person of Chinese descent and also denied the ability to profess or practise his religion. Reference was made to the past riots in 1998 [when he was aged [age] years]: “Many churches were closed which prevented him from practicing religion”.
· Some events also occurred that affected him personally.
· The applicant applied for a protection visa because he strongly believed that he would lose the freedom to practise his religion and the freedom to be who he is as a person of Chinese descent if he was to go back to Indonesia. He would not be able to live freely as someone of Chinese descent and would continuously be grossly discriminated against.
· It was asserted that his birth certificate is coded so all of the authorities would know that he is of Chinese descent, and this would lead to him being grossly discriminated against, as evidenced in Annexure A (this is a copy of his birth certificate, however, there is no evidence supporting the proposition that he is coded as a person of Chinese ethnicity). He was also not able to enrol in a good state school as his birth certificate is coded to indicate that he is a person of Chinese descent.
· He would also not be able to practise as Christian in Indonesia.
· The applicant was born into a single parent family and his family has suffered significantly because of their ethnicity. His family was targeted during the riots in Indonesia. His home was robbed and his mother was raped during the riot. He witnessed this and is traumatised by this. His mother was also targeted when seeking employment due to her ethnicity. They told them to leave the country because of their different coloured skin or they would be killed. To date he is severely traumatised by these incidents and does not wish to avail himself of the protection of the local authorities in Indonesia who never protected him or his family in the past.
· He was attacked and threatened through school bullying. Schoolmates demanded money from him when he was on the way to and from school and when he was unable to give them money, they would assault him. He suffered serious injury, including broken bones, as a result of school bullying. The school bullies continued to harass him despite him reporting to the schoolteachers (who dismissed his claim).
· He was also called names such as “Chinese”, which was said in a derogatory manner, and was not able to practise Christianity due to numerous church attacks in Indonesia. A church near his home, [Church 1], burned down.
· When he was attacked and robbed and tried to seek police assistance this was denied because of his skin colour or ethnicity.
· The applicant constantly lived in fear due to his Chinese ethnicity when he was in Indonesia. He has a genuine belief that there is a real chance of persecution if he is to return to Indonesia. His most significant claim is the failure of state protection due to his ethnicity. He will continue to be subjected to racial discrimination in Indonesia because of his Chinese ethnicity.
The representative referred to country information, submitting in support copies of reports regarding: a Chinese Buddhist woman being imprisoned in 2018 for 18 months for blasphemy after she complained about the volume of the call to prayer at a mosque near her home (Annexure B[3]); churches being attacked and closed down by Islamic extremists in 2015 and others being closed due to the lack of a permit (Annexure C); and churches being prevented from being built in the region of Cilegon (and elsewhere) to preserve Islamic identity (Annexures D & E). The representative argues that these illustrate that there is a real chance that the applicant will face persecution. Further, he is owed complementary protection. He will lose his human rights as a Chinese person and a Christian. He will be arbitrarily deprived of his life based on the history of riots as illustrated by the 1998 events. The death penalty will be carried out on him, not by a judge or the authorities but possibly by a group of rioters. The applicant and his mother could not relocate elsewhere in Indonesia due to the limited financial resources of his mother working as [an occupation]. In Jakarta, her employer was also a person of Chinese descent so it was not possible for them to relocate to another part of the country when he was there, and would be “near impossible” upon return, as she would be unable to find another job working for a person of Chinese descent. It was submitted that he will be subjected to torture, cruel and inhuman and degrading treatment/punishment/physical violence if he was to return to Indonesia. He believes that he will not be able to practise as a Christian or celebrate Chinese New Year in Indonesia. It was claimed that Chinese people are soft targets for extortion.
[3] The same 2018 article provided to the Department was also enclosed with and provided with the post hearing submissions.
In addition, at 9.48 am on 31 May 2023, just prior to the start of the 10.30 am hearing, the Tribunal member received a letter in varying fonts stated to be from “PS. [Mr A]”, not on letterhead, stating that he is a Pastor of [Church 1] and he has known the applicant for almost 12 years. He states that the applicant is a Christian, is a “blessing” and supports others in the church or community. A mobile phone number (also in a different font) was provided.
The hearing
The applicant appeared before the Tribunal on 31 May 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages. There was a person present from the agent’s office; the applicant had no objection to this.
Some of the evidence given at hearing is set out below:
· The applicant told the Tribunal that his application form was true and correct, and there was nothing missing, no errors and he had completed it himself.
· His father left when he was little, and he lost contact with his father at that time. He has [a] sister[who] is [age], but he didn’t see her when he was in Indonesia; he thinks she lived with his father, but his mother never told him.
· He lived with his mother who is [an occupation].
· He said that his religion is Pentecostal, which is the religion he was in Indonesia.
· His mother is Christian. When asked if he attended church in Indonesia he said yes, he and his mother attended a church in Indonesia called [Church 1], which was opposite their home. It is a house, not a church building. When asked why he didn’t attend an actual church building, initially he said his area was not rich; the Tribunal said it did not understand this response and he then said that other areas do have churches, but he was afraid to go out because he is Chinese Christian and in his neighbourhood there are local Muslims.
· People on the street would ask him for money and the Tribunal asked why. He said this is because his face is “Christian Chinese”; the Tribunal put to him that it did not understand his claim that his face indicated that he is Christian, noting that many Chinese in Indonesia are Buddhists[4]. He was unable to explain how his face suggested that he was a Christian. He then changed his evidence and suggested that because he attended the church across the road since he was small, he was known as a Chinese Christian. Whenever he went out, they would say he is Chinese.
· He arrived in Australia and studied English for 3 months, and he then studied a [diploma] in Sydney for 6 months. He said he stopped because he did not have enough money. The Tribunal put to him that in order to apply for a student visa he would have had to have shown that he had enough funds to support himself in Australia; he agreed and said that his mother borrowed money from a family friend. He came to Australia with $2,000, and he worked but it was insufficient. At hearing he did not otherwise explain how he obtained a student visa but did not have the funds to study. In the post hearing submissions, it was stated that his mother used an agent and paid for the first semester of studies and gave him $2,000.
· When asked what else he had done in Australia, he said that he worked [for] 5 years from his arrival until 2013, and then he worked at a [workplace] from 2013, where he continues to work to date.
· He said he also goes to church every Sunday; he helps prepare (by unpacking instruments) and then after the service is finished, he repacks them. He also sings. When asked what else he does, he said that he helps cook and distribute food on Sundays. He said he attends a prayer group near his house on Tuesdays in [Suburb 1] (it is in the grounds of a [venue]; he does not recall the address). The name of the church is [Church 1] and the Pastor is [Mr A]. He said he has been going on Sundays almost every week since his arrival.
· He has always been in contact with his mother, every week, since he has been here. They talk about how things are going: she says that things are just the same; people are still racist. When asked if she says anything else, he said she just asks about what he eats and his health; she tells him not to forget to pray and to always take the path God sets and to be strong. They have not talked about anything else. In the post hearing submissions, it was stated that he has relied upon his conversations with his mother to ask about the situation in Indonesia, which she has said is the same. He has not been back since arriving in 2008. His mother is still discriminated against and called names for being a person of Chinese descent and a Christian.
[4] DFAT Report paragraph 3.5: about half of the ethnically Chinese population are Buddhist and about 42 per cent are Christian.
At the end of the hearing, the Tribunal asked whether the agent wanted to make oral submissions and the agent said he wanted to discuss this with the applicant. The Tribunal suggested a break, and thereafter the agent said that he wanted to make written submissions as there were a lot of concerns to address, and he would not agree to make submissions orally. He said that he needed to ask for more details and have all the relevant facts. The Tribunal noted that the hearing was the applicant’s opportunity to make sure that the Tribunal had all the relevant facts, and it asked the applicant whether he had provided all relevant facts to it. The applicant said that there are no other relevant facts. The agent said that there are no new issues to raise, they only intend to address concerns. The Tribunal agreed to delay making its decision, and asked whether it was suitable for submissions to be made by Friday 2 June 2023; this was agreed.
Further submissions, dated 31 May 2023, were received on 1 June 2023[5]. Information was repeated from the protection visa application form and from previous submissions. In addition, explanations for some of the Tribunal’s concerns were provided, as well as further evidence of claims, including:
· In relation to his claim that he is a Christian, it was stated that he attended church in [Suburb 1] when he arrived, and he was baptised in 2019. Attached were photos of the applicant apparently during a baptism, and a certificate dated [March] 2019 stating that he was baptised at [a] Church Australia.
· In relation to his claim of school bullying, it was stated that this occurred between 2004 and 2007 when his schoolmates demanded money from him because of his Chinese ethnicity and he sustained fractures around his elbow during the event as he was unable to give them money. He lost the X-ray report during his move to Australia but is willing to have another X-ray done if required.
[5] The Tribunal thereafter sought clarification that the applicant did not seek to make further submissions, and this was confirmed.
Further country information was provided including a 9 May 2017 article, “Jakarta governor Ahok sentenced to 2 years in prison for blasphemy”, stating that governor Ahok (a Chinese Christian) had referred to a passage of the Qu’ran during his re-election campaign in 2016. The President is stated to be an ally of Ahok’s but suggested that the legal process be respected (also noting that the governor was going to appeal). The article commented that this was a bad precedent and noted that more than 100 Indonesians in the last 10 years had been convicted of blasphemy. A 2019 article noted that this decision had been “hugely controversial”, and that he had been released from prison.
Relevant country information from the DFAT Report
More recent information (apart from the 2019 article referred to above) is located in the Department of Foreign Affairs And Trade (DFAT) Country Information Report issued on 25 January 2019 (the DFAT Report).
The DFAT Report states as follows:
The security situation
2.4.2 Recent terrorist attacks have focussed on state institutions as their primary target, in particular police. Churches have also been attacked (see Christians). Attacks against western interests occur but are currently less frequent, for example, the January 2016 attack at a Starbucks café in Jakarta, the bombings of the JW Marriot and Ritz Carlton hotels and the Australian embassy in 2004 and 2009 and the Bali bombing of 2002.
Communal Violence
2.4.5 As noted in Security Situation, the period immediately leading up to and following the fall of the Suharto New Order regime saw instances of large-scale violence between ethnic and religious communities in various locations in Indonesia. Severe violence occurred in Ambon city and Maluku province from 1999 to 2002, when clashes between Muslim and Christian communities caused many thousands of fatalities and internally displaced hundreds of thousands of people. …Most of the displaced have since returned to their homes. Analysts contend that local power struggles around the end of the Suharto regime accounted for much of the communal violence that occurred during the late 1990s and early 2000s. In many cases, local leaders seeking political gain incited existing religious and ethnic tensions, often related to the shortcomings of the transmigration program. Government and community groups have since undertaken peace-building efforts in Ambon and Maluku province to promote common values and build inter-faith links between communities. These areas have been largely peaceful for a number of years. However, ongoing communal tensions along religious and ethnic lines in some parts of the country retain the potential to lead to violence.
Employment
2.12 The official unemployment rate in 2017 was 6.34 per cent in urban areas and 3.72 per cent in rural areas.
Ethnically Chinese Indonesians
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…. 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. 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…. 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 ….. 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 …. 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. 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. Persistent anti-Chinese sentiment may lead to low levels of societal discrimination.
RELIGION
3.1.4 Article 28E (1) and (2) of the Constitution guarantees citizens the freedom to choose and practise the religion of their choice and the freedom to believe their faith; while Article 28I (1) includes freedom of religion as a human right that cannot be limited under any circumstances. Article 29 (1) and (2) stipulates that, while the state shall be based upon belief in One God, all persons are guaranteed the freedom of worship according to their own religion or belief. However, Article 28J (2) qualifies these protections by stipulating that, in exercising their rights and freedoms, every person has the duty to accept restrictions established by law. These restrictions are for the sole purposes of guaranteeing the recognition and respect of the rights and freedoms of others and of satisfying just demands based upon considerations of morality, religious values, security and public order in a democratic society.
3.15 Indonesia is home to the world’s largest Muslim population: … According to the 2010 census, Muslims comprise 87.2 per cent of the population; Protestant Christians 7 per cent; Roman Catholics 2.9 per cent; Hindus 1.7 per cent; others (including Buddhists) 0.9 per cent.
3.16 Indonesia’s government officially recognises only Islam, Catholicism, Protestantism, Buddhism, Hinduism, Confucianism (since 1999) and indigenous beliefs (‘aliran kepercayaan’ since 2017). The vast majority of Indonesians are categorised by the government as belonging to one of these religions. Other religions including Judaism or Daoism are not prohibited and have general protection under the Constitution described above. Religious groups outside the official religions must obtain legal charter as a civil society organisation from the Ministry of Home Affairs.
3.18 In order to obtain permission to build a new house of worship, registered religious groups must obtain 90 signatures of support from the users of the planned house of worship and at least 60 from members of the broader community. Approval is also required from the local (city or district-level) religious affairs offices (known as the Forum for Religious Harmony), comprised of religious leaders from the six recognised religions with responsibility for mediating inter-religious conflicts. Local opposition has often prevented minority religious groups from proceeding with construction of a house of worship. This has applied both to the building of churches or non-Sunni mosques in Muslim-majority areas, and to mosques in Christian-majority areas.
3.19 Religious pluralism is an established part of modern Indonesia and a wide range of local and international sources consider that inter-faith tolerance remains strong. Local sources do, however, report an increase in localised instances of religious intolerance over the past decade, including threats from hard-line Islamist organisations.
Christians
3.3.5 Christianity is Indonesia’s second-largest religion after Islam. Approximately 24 million Indonesians listed their religion as Christian in the 2010 census. Protestants make up approximately 7 per cent of the total population and Catholics approximately 3 per cent of the total population. Christian communities exist in every province and Christianity is the majority religion some of the eastern provinces including the Papua provinces and North Sulawesi. East Nusa Tenggara, especially the island of Flores, is majority Catholic. About a million Christians lived in Jakarta at the time of the last census. A large number of Protestant churches operate in Indonesia including mainstream Protestants (especially those related to Lutheran denominations) and evangelical and Pentecostal churches as well as non-denominational independent churches. Christians are generally able to practise their faith freely throughout Indonesia. High-level inter-denominational and inter-faith dialogues, especially between Muslims and Christians and between Catholics and Protestants, occur regularly. Christians residing in some areas, particularly where hard-line Islamist groups are more influential (such as Aceh, and parts of East and West Java) have occasionally been prevented from worshipping, including through forced church closures and the disruption of church services, however this violence and discrimination appears to be localised. A small number of recent terrorist attacks have targeted Christians, although most recent terrorism events have targeted state institutions, especially police. The May 2018 Surabaya suicide bombings affected Catholic, mainstream Protestant and Pentecostal communities. Several churchgoers and a priest were injured in a sword attack on a Catholic church in Yogyakarta in February 2018, in which the perpetrator hacked at statues of Jesus and Mary before being shot by police. Christian communities have remained resilient in spite of recent violence and church attendance has not fallen as a result. Security at churches increased briefly after the May attacks and police provide extra protection at major festivals such as Christmas and Easter. Some Muslim groups also volunteer to assist or provide security at events and festivals. Conversion to and from Christianity is common. Some bureaucratic difficulties can be encountered in registering a change in religion with the government, but this is not a significant barrier to conversion, which commonly occurs without difficulty. Some Pentecostal Christians are involved in door-to-door evangelical activities, which have been known to upset religious sensitivities. Preaching by foreign missionaries is unlawful, but the US State Department reports that many foreign missionaries preach without official sanction. Christians do not generally experience discrimination in gaining access to health care, education or employment. DFAT assesses that Christians residing in areas where they are a majority do not face either official or societal discrimination. Christians residing in areas where conservative Islam is prevalent face a low risk of societal discrimination in the form of impediments to worship, although this risk is unlikely to include violence. DFAT assesses that Christians face a low risk of terrorism in spite of recent exceptional events
Further relevant evidence is set out below.
CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS AND REASONS
The issue in this case is whether or not the applicant meets the definition of refugee or is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Credibility
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded”, or that it is for the reason claimed. Similarly, the fact that the applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
Pursuant to s 5AAA of the Act, it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.
Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–70).
The Tribunal put to the applicant its concerns about inconsistencies and new claims, which undermined his credibility and claims about his circumstances in Indonesia and in Australia
Firstly, as put to the applicant at hearing, his protection visa application claims were significantly different to his claims made to the Tribunal, including the submissions received the day before and on the day of the hearing, and his evidence at hearing. The Tribunal put to the applicant the provisions of s 423A of the Act.
The Tribunal notes that his claims in his protection visa application form were that he was bullied and suffered at school because of his Chinese ethnicity and that this had escalated. The applicant’s claims before the hearing and at the hearing were numerous and varied, including:
· He was targeted because of his Christianity. The Tribunal put to the applicant that if he was a genuine Christian attending church regularly in Australia, and he had attended church in Indonesia and had suffered previous trauma relating to his religion, the Tribunal would expect that he would have mentioned his fears or past harm relating to religion in his protection visa application form. He did not, however, mention any harm suffered or any harm feared due to his Christianity.
· He and his mother were targeted in the riots in 1998: his mother was raped (which he witnessed, and this traumatised him); his home was attacked; and his church was destroyed, and he couldn’t attend church because it was destroyed. This was not previously mentioned.
· He will be prevented from attending church in Indonesia. This was not previously mentioned.
· He cannot get a job. This was not previously mentioned.
· He and his mother moved/relocated to avoid Muslims. This was not previously mentioned.
· As a school child he was forced to walk 7 kilometres home 4 to 5 days every week. The Tribunal put to the applicant that it is a significant claim that he was forced to walk 7 kilometres home 4 to 5 days every week. He was asked why he did not mention that in his protection visa application and his response was that it was the truth. The Tribunal put to him that this was not a reason for not mentioning it in his application form. In response, he said he did not mention it so that he could explain it to the Tribunal in detail. The Tribunal does not accept this explanation, given that he is referring to his protection visa application claims made to the Department (not the Tribunal) in 2017.
· People on the street (and once on the bus) took his money and harassed him.
The Tribunal noted that a lot of these claims were missing from his protection visa application form and asked if he could explain why he left out these serious and significant claims. His explanation was that in 2016 or 2017, he was scrolling on his Facebook page and saw someone had written about protection visas so he tried to find out more. There were people from Chinese groups; he gave the documents to them, and they did the rest for him, so he didn’t have to do anything. The Tribunal put to him that this is inconsistent with his earlier evidence that he completed his protection visa application form, and it was all true and correct and nothing was missing and there were no errors; however, he is now telling the Tribunal that a Chinese group did it for him. In response, he again changed his evidence, saying that he explained a little, but they did the rest. The Tribunal does not accept this explanation, given it is inconsistent with his initial evidence to the Tribunal that he completed his forms and there were no errors or anything missing. The Tribunal considers that he was prepared to change his evidence to respond to the Tribunal’s concerns.
Concerning the walking home claim, the Tribunal does note that the applicant claimed in his protection visa application that in high school a group of native Indonesian kids took his lunch and money away almost every day. While he did not include the significant claim that this meant that 4 to 5 days per week he had to walk 7 kilometres to get home because they took his transport money, the Tribunal has decided not to place weight on this omission.
However, as stated in paragraph 40, the Tribunal is not satisfied with the explanation for the omission of the remaining claims in his protection visa application form (which contradicted other evidence he had given). The Tribunal is therefore satisfied that the applicant does not have a reasonable explanation as to why these claims were not raised before the primary decision was made. Therefore, the Tribunal draws an adverse inference about these new claims as referred to in paragraph 39. Even if it did not draw an adverse inference by operation of s 423A of the Act, the Tribunal would, however, have drawn an adverse inference as to the credibility of these new claims because the applicant only made these claims to the Tribunal one day prior to the hearing and/or at the hearing, and not previously, despite having the opportunity to do so (and being requested by the Tribunal since his application for review was lodged to provide relevant evidence and information).
Secondly, the Tribunal was concerned that the applicant made a significant number of new claims on the day before the hearing, and at hearing, but that he appeared unaware of, and did not make at hearing, the serious claim in his protection visa application form that: the problems at school had escalated to him attacking a student who became injured; that this student’s parents came to his home and attacked his parents; that he was told to quit the school and pay compensation; and that if he returned to Indonesia he would face harm as the native Indonesians would hurt him because he did not pay the compensation.
In this regard:
· The Tribunal asked the applicant what was the worst thing that happened to him, and he said he and his mother were targeted during the riots. They came and robbed his home, and he was scared and traumatised and his mother was raped. In addition, he experienced a lot of bullying when he left home, and this happened whenever he was at school. Whenever he left his home, he was called “Chinese”.
· When asked if anything else happened, he said local Muslims on the street also yelled that he had to leave Indonesia.
· When asked if anything else happened, he said his mother reported what happened to the police, but she was ignored as Chinese people don’t have a voice.
· When asked if anything else happened, he said the school bully was the principal’s son so he couldn’t do anything either. He needed to pay the police but didn’t have money at the time. That is why his mother borrowed money from relatives so that he could leave.
· When asked if anything else happened, he said when he was bullied his bone was fractured.
· When asked again if anything else happened, he said during the riots the church burned down.
· When asked further if anything else happened that he had not told the Tribunal about, he said no.
The Tribunal then put to the applicant that something else had happened according to his application form that he had failed to mention in his evidence, which causes concern. The Tribunal read out to him that part of his application form relating to the claimed fight he had, which referred to: the injury to the Indonesian child; his parents being beaten; everything being smashed; him being told to quit school; the demand for a large compensation payment that his parents did not have; and threats to continue to hurt him and his family if the compensation was not paid (however, it was not paid).
The Tribunal asked if there was a reason why he didn’t mention this in his evidence, and he said words to the effect of “that happened one day and my mother did not explain to me what the reason was; she just said, ‘we did something’”. The Tribunal put to him that his explanation did not make sense and asked whether there was anything else he wanted to say about that; he said no.
The Tribunal considers that the applicant has not offered a credible explanation for failing to recall the significant claim in his protection visa application form noting that, according to the form, this was the reason he fled, and the reason why he will be harmed if he returns (because he did not pay the compensation demanded). The Tribunal considers that this undermines this claim and the applicant’s credibility.
Thirdly, the applicant’s changing and inconsistent evidence about 2 issues that became related caused concern: his church attendance in Indonesia, and whether or not he relocated in Indonesia.
The Tribunal noted that the applicant did not mention any church attendance or Christian activities in Indonesia in his protection visa application form; further he did not claim that he had faced harm as a Christian, or would face harm for being a Christian, in his application form.
However, in his prehearing submissions, there were substantial new claims made relating to Christianity, which were: that he had faced harm for being a Christian (his church had burnt down in the riots in 1998, which had prevented him from practising his religion and he had to stop attending church); and that he would face harm for reasons of his religion upon return.
The Tribunal asked him about his church attendance in Indonesia, and he said that he had attended church with his mother; they had attended the church across the road since he was small (as noted above he claimed that his ongoing attendance at this church was the reason why he was known to be a Chinese Christian (when people were demanding money from him)).
He later said at hearing that during the riot (in 1998) his church was burnt down so he was not able to attend church anymore. The Tribunal put to him that he had earlier said that he had attended church in Indonesia. He then responded, yes, before the riots (that is, before 1998, when he was [age] years old); he did not attend church between 1998 and 2008. The Tribunal put to him that he had said that he was known as the person who attended the church across the road, but now he is saying that he had not attended that church for 10 years because it had burned down. In response, he said that after the riot of 1998 he was not able to attend church and he had to practise his religion at home. Then, in around 2006 to 2008, he did attend the rebuilt church. The Tribunal put to him that his evidence was changing, and he said that he felt the trauma and he was very nervous. The Tribunal was not persuaded that this explains his changing evidence as to whether or not he did attend church/his church was burned down, especially when also considering his evidence concerning relocation.
In this regard, as noted above, in his application form he provided a single address where he had resided in Indonesia. In addition, he stated in that form that he had not relocated when he was in Indonesia. This was also confirmed in the pre-hearing submissions: it was stated on a number of separate occasions that the applicant had not relocated, and that he and his mother were not able to relocate because of the impossibility of doing so, having regard to his mother’s work.
However, when the Tribunal asked the applicant at hearing whether his mother still lives in the same home, he said that they had moved to [address] in 2007 (about 45 minutes away from the family home by airplane). They moved because the local Muslims in his previous area were mean. He asserted that the Muslims are still the same where they lived in Surabaya. He said his mother has remained living there since 2007. The Tribunal put to him that this was inconsistent with:
· Two aspects of his protection visa application form, namely when he claimed to have had a single address in Indonesia his whole life, and when he stated that he had not relocated; and
· The prehearing submissions stating that he and his mother were unable to relocate.
He initially responded to the inconsistency raised by the Tribunal by saying “yes”. When the Tribunal put to him that he had stated different things, he said that he was [age range] at the time, he did not really know about relocating, but they did relocate to Surabaya. The Tribunal does not accept this explanation, given that he was very specific in both his application form and in the prehearing submissions. The Tribunal considers that this inconsistency undermines his credibility and a number of his claims, including that he needed to relocate because of harm caused by/attitudes of local Muslims, and that he and his mother could not relocate because, as Christian Chinese people, it is too difficult to get work.
The Tribunal also noted another difficulty with the applicant’s evidence that they had moved in 2007, related to his changing evidence about his attendance at the church across the road from his (main) family home. His changed evidence was that he didn’t attend church from 1998; then he said that he did attend the rebuilt church from 2006 to 2008. The Tribunal put to him that he could not have attended the church across the road from his previous home given his new evidence that in 2007 he relocated to an area that was a plane ride away.
The applicant did not explain this, except to say that he did move in 2007. He did not offer any explanation relating to the inconsistent evidence concerning his attendance at church (nor in regard to his inconsistent evidence concerning whether or not he moved). The post hearing submissions simply restated that: the church was burned down in 1998 and he could not go to church from 1998 to 2006; he practised at home during those years; and he continued to practise until he relocated to Surabaya in February 2008 (which is different to the applicant’s new claim at hearing that he relocated in 2007).
The post hearing submissions assert that they could not relocate “earlier” due to his mother’s employment, but that they did relocate in February 2008 “because the trauma from the events was too terrifying and they wanted to start a new life”. He only lived in Surabaya for “a few months”, and considered Jakarta, where he had lived for [number] years, to be his primary residence; “thus he did not mention his Surabaya address in his protection visa application”. The Tribunal considers that if this was the case, the applicant could have told the Tribunal this at hearing; he did not. This also does not explain why he claimed that he did not and could not relocate in his protection visa application, nor does it explain why in the prehearing submissions it was stated that relocation was and would be almost “impossible”. The Tribunal does not accept this explanation.
The Tribunal considers that the above information undermines the applicant’s claims about relocation/inability to relocate and his credibility.
Fourthly, additional details of some of these new claims, and the initial claims, were inconsistent or not credible, including:
· In his protection visa application form he claimed that his parents were beaten up and threatened, yet in the Tribunal submissions and at hearing he claimed to be from a single parent family. He did not explain this inconsistency, just saying that he only had his mother.
· The applicant’s evidence was vague as to his claimed fracture. As noted above, he said that when he was bullied, he had a fracture in his bone, however, he was unable to say what bone had been fractured. He pointed to his left arm but did not even say that his arm was fractured until a number of questions had been asked, when he said that he couldn’t fold his arm. The Tribunal considered his evidence to be vague in this regard.
· The applicant told the Tribunal that money was taken from him every day. The Tribunal asked why he didn’t stop taking money to school and he said that he needed to pay for his transport and buy his lunch every day. The Tribunal put to him that this was inconsistent with his statement that he took his lunch to school, and it was taken off him. He then changed his evidence and said that he only took his lunch in occasionally, which was inconsistent with his application form, in which he claimed that his lunch was taken every day. The Tribunal also found his claim that he continued to take money to school but was unable to use it as it was always taken off him, somewhat difficult to accept. Although this could be possible, having regard to the other concerns with his evidence, it considers his claims unlikely.
Although these matters were not significant, the Tribunal considered that they represented further concerns with the applicant’s claims.
Finally, the Tribunal said to the applicant that it was concerned with the explanation he had given for his delay in lodging a protection visa application, and the long period of time he spent unlawfully present in Australia. In his protection visa application, he claimed that he came to Australia for protection. The Tribunal noted that he had arrived in Australia with a student visa, and he claimed to have studied English for 3 months and then to have studied a [diploma] for 6 months and then to have dropped out. The Tribunal put to him that he could communicate in English, and he could have made enquiries of the Department or looked at the website on the internet and claimed protection, but for years he did not do so; this may indicate that he did not have a need for protection. He responded that he didn’t know about the option of applying for a protection visa. The Tribunal put to him that he was a student in a foreign country who was able to survive in that country, and if he had been a genuine Christian attending church, who had suffered persecution for reasons of his faith and feared returning to Indonesia for that reason, it would be reasonable to expect that he would mention this to the church members, who could have helped him make enquiries about protection. He said he found out about the option of applying for protection from Facebook in 2016 and although he told the church about his suffering, they just listened to him. The Tribunal does not find his responses to be satisfactory. The Tribunal considers that his failure to claim asylum for 8 years after his arrival, and his unlawful presence in Australia for 6 years undermines that he was a person who considered he was in need of protection, as it is of the view that this applicant was resourceful enough to have been able to find out about protection if he needed it.
Summary
Having regard to the above, the Tribunal is not satisfied that the applicant is a credible witness in relation to his claims for protection.
Other matters
The applicant suggested, as noted above, that he was nervous/traumatised. The Tribunal does not accept, on the basis of his assertion, that he has been traumatised, although it accepts that he may have been nervous when giving evidence. The Tribunal does not accept that this can explain the difficulties in his evidence.
The Tribunal does not consider that it is necessary to see an X-ray of the applicant’s elbow, as there was no suggestion that this could support his claims regarding how the fracture was sustained when he was young. The Tribunal is prepared to accept that the applicant had previously fractured his arm, but this does not mean it was sustained in the manner claimed. The Tribunal does not accept that a past fracture in his arm supports his claims regarding how the fracture occurred.
The Tribunal has considered the country information provided in support of the applicant’s claims, including in relation to: the events surrounding the riots; the perception that some Chinese people are wealthy and can be a target for extortion; churches being destroyed or having difficulties with permits being granted and opposition to their building; and some anti-Chinese/anti-Christian sentiment. However, the fact that these events occurred does not mean that they occurred to this applicant. The Tribunal does not consider that the country information supports that his claims are true.
Credibility summary
Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility as discussed above lead the Tribunal to conclude that he has not been a witness of truth when making claims in these proceedings. The Tribunal considers that the applicant is prepared to make up claims and change his evidence in order to be granted a protection visa.
Findings on the applicant’s claims
The Tribunal accepts that the applicant is of Chinese ethnicity and that he identifies as Christian because this is how he was brought up by his mother. It notes that he identified his ethnicity and his religion in his protection visa application form. It accepts that he lived with his mother and would return to live with her, and that she worked and is still working in Indonesia.
The Tribunal does not otherwise accept that he is a witness of truth. On the basis of its adverse credibility finding, the Tribunal does not accept that the applicant was bullied at school, had items including money and lunch taken from him, was forced to walk home as his transport money was taken, got in fights as claimed, nor that the parents of a schoolchild beat his parents, sought compensation from them, smashed their home, and demanded that he quit school. The Tribunal does not accept that he experienced racism or discrimination, was assaulted or harassed or extorted, and it does not accept that he (or his mother) approached, and did not receive help from, the school or the police. The Tribunal does not accept the assertions that flow from those claims, including that he felt he had to flee Indonesia.
The Tribunal does not accept that the applicant experienced gross racial discrimination and was targeted as an ethnic Chinese and Christian in Indonesia, including for extortion or called names or that he was denied the ability to be himself or practise his religion. It does not accept that he did not go out because of a fear of Muslims. While the Tribunal accepts that there were riots in Indonesia when he was [age] years old and that people of Chinese ethnicity were targeted, the Tribunal does not accept the new claims made by the applicant that he and his mother were targeted and harmed during the riots and at other times, for reason of either ethnicity or religion, including that his mother was raped, that he witnessed this and was traumatised and was threatened with being killed and was in hiding, or that their church (or building that was used as a church) was burnt down, nor does it accept that the applicant and his mother were prevented from practising their religion or any assertions flowing from these claims. The Tribunal does not accept that the applicant was unable to go to a good school because of a code on his birth certificate or for any other reason, nor does it accept that his mother was a victim of discrimination or racism and that she was discriminated against in employment nor that they were threatened to leave the country because of their different skin colour. The Tribunal does not accept that his mother was bullied or asked for money or could not relocate or could not get a job or was subject to derogatory names or discriminated against or could not get state protection while he was in Indonesia or since he has been in Australia. The Tribunal does not accept that the applicant (or his mother) was ever a victim of extortion.
The Tribunal does not accept that he only learned about protection visas through social media in 2016 and that this was the reason for his delay and unlawful presence in Australia. It finds that he did not claim protection earlier, and spent many years unlawfully present in Australia, because he wanted to stay in Australia, not because he had a need for protection.
The applicant’s fears of what will happen if he returns to Indonesia
When asked what would happen to him if he returned to Indonesia, the applicant said that it is “the same as before”. He said that even his birth certificate states that he is Chinese Christian, via the code 1917. The Tribunal put to him that while this is submitted in the pre-hearing submissions, there is no evidence, and it is not written on his birth certificate, that he is identified as a Chinese Christian. He then changed his evidence to say his Chinese ethnicity (not religion) is indicated in the code. The Tribunal put to him that the translation does not suggest this. He said that the code 1917 indicates Chinese ethnicity. The Tribunal confirmed that it did not have any independent evidence of this. It asked him what the consequence of having a birth certificate with this code on it is if he returns and he said with that code he would not be able to get a good education or good employment. The Tribunal put to him that it is his evidence that he did not get an education in Australia although he had that opportunity; it also asked whether he considered his work in Australia to be “good employment”. He responded that if he can work, that is good employment. The Tribunal put to him that he should be able to get a job (noting he has work experience and an education). He responded that he can’t because of his Chinese ethnicity. The Tribunal put to him that country information indicates that people of Chinese ethnicity can work and have businesses, and they can have wealth. It noted that this was one of the reasons they were targeted in the riots. He said that “people like me” can’t get jobs. The Tribunal asked him what he meant by that, and he said that he is not from a rich family, he is from a family that just gets by. The Tribunal put to him that it does not see why he could not get a job if he goes back; he can work just like his mother can find work. He then said that because of the code on his birth certificate and his Chinese face it is very difficult to get a job. The Tribunal said that it does not have country information in this regard (concerning the effect of the birth certificate), and it had already put to him that people of Chinese ethnicity have been able to work and support themselves in Indonesia. He said that he has articles to support that this is only for people with money. The Tribunal asked him why he would not have provided such articles if he had them (and notes that he did not provide them after the hearing). He responded that he saw what happened to the Mayor of Jakarta and the Chinese Mayor of Basuki 3 years ago. The Tribunal asked if he is proposing to be a mayor. He said no, if he goes back, he can’t fight back because even a governor cannot fight back against Muslims. The Tribunal asked what he has to fight against, and he said they will ask him for money, and he will be bullied. The Tribunal put to him that this does not occur to his mother; she is not bullied, and Muslims do not ask her for money (noting he had made no such claim although he speaks to her every week). He then said that Muslims occasionally ask her for money.
The Tribunal asked him whether he is saying he will be targeted for his ethnicity or his religion and he said in Indonesia Chinese and Christians are similar. The Tribunal asked him what harm he thinks he will face because he is a Christian and he said he will become a target in the area he lives in. The Tribunal asked why, and he said he will be targeted whatever he tries to do. The Tribunal put to him that country information does not say all Christians are targeted, and it has considered the DFAT Report, which says that there is some societal discrimination but does not say that he will not be able to do anything because he is a Christian.
The applicant’s evidence about his religion
The Tribunal had concerns about the applicant’s new claim to be devoted to Christianity, and to have experienced harm and fear harm in the future because of his Christianity. In addition to the concerns raised above in the credibility section, the applicant’s evidence about his religion was somewhat vague and evasive, given the claim at hearing that he has always been a church-attending Christian protestant who is “very devout to Lord Jesus Christ”, who reads the bible every night, even before meals, and who prays and attends church and prayer group.
In this regard, when the Tribunal asked him to tell it about his religion, he said he prays, he reads the bible, and he says thanks. The Tribunal asked him to say something more detailed or deep about his religion. He said he just goes to church and worships and prays and does collection. The Tribunal asked him to talk about his worship and he said normally he raises his hands and closes his eyes and sings church songs. The Tribunal asked what songs he sings, and he said Hosanna. The Tribunal asked him for some words to that song and he said “Hosanna in the name of Jesus... God will provide me everything and I will praise the lord”. He then said he doesn’t recall the words.
The Tribunal put to him that it was not getting the sense that he is a regular practising Christian so it would like to give him the opportunity to talk about his religion, and asked if he could tell the Tribunal anything else about it. He responded, “in Christianity I have to appreciate what I have right now and I have to bless everyone around me”.
The Tribunal asked if he could say anything else and he said, “I bless the church by providing service”. The Tribunal gave the applicant numerous other opportunities to talk about his religion, however, he was only able to say limited words. When asked what he meant when he said he is devout, he said “I feel that God has given me the best I can receive”. When asked if there was anything else, he said he is able to live in Australia and he is able to bless the people around him by giving witness or becoming a witness, and telling people what happened in Indonesia. He then started to repeat what he had said, and the Tribunal said that it was trying to give him a chance to show the Tribunal his devotion to Christianity. He said you have to go to church every week. When prompted again, he said that when his mother was in hospital, he prayed she would be cured and the next day she was cured. So, he felt that God is real.
When the Tribunal noted that he was not giving any details about the religion, he said that he can remember God’s Commandments. When the applicant referred to the Commandments, the interpreter said that she is not a Christian. The Tribunal asked her to just translate them as he said them, which she did. The Tribunal did not consider any difficulty arose in this respect (from the interpreter not being a Christian herself) and this was not raised by the applicant or agent as a concern during the hearing or afterwards. The applicant said that the Commandments were: don’t let there be any other God; remember and keep the Sabbath as a holy day; respect your mother and father; don’t commit adultery; don’t kill; don’t steal; don’t give false testimony; don’t be greedy; and don’t say the Lord’s name recklessly. He could not recall the other one, but he said he was aware that there were 10 Commandments, and the Tribunal accepts that he had knowledge of these. However, when the Tribunal asked if there was anything else he could tell the Tribunal about his religion apart from the 10 Commandments, he said no, those are the most important things in his life.
At hearing the Tribunal put to him that it has concerns about his credibility and his claims, and although it had not made up its mind, he did not appear to be a devout Christians as newly claimed. The Tribunal put to him that he may have gone to church sometimes in Indonesia with his mother, and he may have sometimes attended church in Australia, but that it may find that he will not be a devout Christian in Indonesia if he returns. The Tribunal considered the baptism certificate (his name is underneath the line instead of on it, which caused concern) and the letter from the pastor (which contained different fonts and no letterhead and which also caused concern), and if it gives those documents some weight, and gives the applicant the benefit of the doubt, it would be prepared to accept that he has attended church sometimes in Australia and would sometimes attend if he returns to Indonesia. However, it notes he never claimed in his protection visa application that this would be a source of harm to him, and the Tribunal would have expected that if he genuinely feared harm for reason of his religion, this would have been mentioned in his protection visa application form.
Does the applicant have a well-founded fear of persecution?
The Tribunal acknowledged the country information he provided, which refers to some one-off events, some instances of permits not being granted and some churches being destroyed, and that there were some riots in 2016, but the country information does not support the assertion that he faces a real chance of serious ham or a real risk of significant harm because of his religion and/or ethnicity. It put to him that it was not sure that it would accept that he is, as claimed, a devout Christian who will attend church in Indonesia. He said that if he goes back to Indonesia, he won’t be able to practise his religion freely. The Tribunal put to him that this did not appear to be supported by country information; there are many churches in Indonesia and although there have been some problems, for the most part this is not the case. He said that he had previous trauma and he doesn’t want to experience that again. As noted above, the Tribunal has not accepted this claim. When the Tribunal put to him at hearing that it may not accept that he faces a real chance of serious harm or a real risk of significant harm for the reason of his ethnicity or religion, and it asked for his comments, he said he had no comment.
The Tribunal accepts that the applicant is a male who is of Chinese ethnicity who will return to live with his mother. The Tribunal does not accept his assertion that his face looks “Christian”, however it accepts that he is a Christian who will sometimes go to church.
The applicant alleged, without providing information in support, that a number on his birth certificate identified him as Chinese Christian; he then changed his evidence to say that it just identified him as “Chinese”. The Tribunal informed the applicant that it did not have country information supporting this assertion, and he did not provide any after the hearing. Even if there was such a code on his birth certificate identifying him as Chinese (which the Tribunal does not accept), the Tribunal is unsure as to how this would adversely affect him given his claim that he is recognisable as being of Chinese ethnicity through his face. The Tribunal is not satisfied that, even if there was such a code on his birth certificate, he would face a real chance of serious harm or a real risk of significant harm for this reason.
The Tribunal finds that the applicant has not been truthful about where he lived. It notes that his passport states that he was born in Jakarta and that the issuing office (July 2008) was [deleted]. The Tribunal accepts this, however, it remains difficult to know where the applicant resided, and thus to where he will return, given that he is prepared to make up claims about his place of residence. It considers his claim that he and his mother moved from one area to the other, but that anti-Christian sentiment was the same, to have been made up in order to support the grant of a protection visa. It does not accept that he and his mother would have moved to an area where conservative Islam was prevalent. It considers that he and his mother most likely resided in an area where Christians were the majority (probably in an area within Jakarta where about one million Christians lived as at 2010); it accepts that he will return there, and it accepts the DFAT assessment that Christians residing in areas where they are a majority do not face either official or societal discrimination. While it accepts that there have been instances of blasphemy charges for people who have been vocal, it does not accept that the applicant will seek to be a vocal Christian in Indonesia, noting it does not accept that he has been vocal or particularly active in Australia, nor when he previously resided in Indonesia. It does not accept that this is because of fear, but rather because of a lack of interest/motivation. It also accepts that there have been difficulties for some churches but as the Tribunal put to the applicant, there are many churches in Indonesia, and it does not accept that there is a real chance or a real risk his occasional attendance at church will be interfered with or prevented.
The Tribunal accepts the DFAT assessment that, with the notable exception of the 2016 riots, which may have been partly motivated by racial tensions, anti-Chinese violence has been low level since events in 1998, and Chinese Indonesians currently face a low risk of violence. Persistent anti-Chinese sentiment may lead to low levels of societal discrimination. The Tribunal accepts that there is some anti-Chinese sentiment at a societal level, which can also be for reasons of perceived wealth; the applicant says that he will not be (and does not suggest he will be) perceived as wealthy. The Tribunal is prepared to accept that the applicant may occasionally face some anti-Chinese sentiment; it does not accept that this will occur often or to a serious or significant extent, and it is not satisfied that he faces a real chance or a real risk of being a victim of violence in Indonesia. It is not satisfied that he faces a real chance or a real risk of threats, extortion, discrimination or harassment or violence, for any reason or combination of reasons.
The Tribunal does not accept that he believes or actually faces a real chance or real risk of not being able to practice his religion, express himself as a Christian or as a person of Chinese ethnicity, nor of being grossly discriminated against or extorted or any of his claimed fears.
The Tribunal also does not accept that he faces a real chance of serious harm or significant harm for reasons of being subject to the death penalty by a group of rioters or an inability to celebrate Chinese New Year, nor because of torture or other forms of mistreatment. The Tribunal noted at hearing that it did not appear that the country information supported such claims, and he said he did not wish to make any comment.
The Tribunal has considered the applicant’s claims individually and on a cumulative basis, in the context of its findings that the applicant is not a credible witness concerning past events or future harm feared, as well as the relevant country information, and, apart from those claims accepted above, the Tribunal rejects all the various claims made and finds that he does not have a well-founded fear of persecution as a refugee for any of the reasons put forward by him or on his behalf.
Complementary protection
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) (see Attachment A, which provides a summary of the relevant terms). The Tribunal has accepted that the applicant will return to Indonesia as a working age male with education and work experience and that he has a home to return to in a Christian area. It is not satisfied that he faces a real risk of not getting a job, and it does not accept that he is interested in any further education. It has accepted that the applicant may occasionally face some anti-Chinese sentiment, however, it does not accept that this will rise to the level of significant harm. It considers that he will sometimes attend church however it does not accept that he faces a real risk of difficulty in relation to practising his religion or as a Christian.
The Tribunal has found that the applicant is not a witness of truth concerning his claims that he faces a real risk of significant harm.
The Tribunal is not satisfied that he faces a real risk of experiencing significant harm for any reason.
On the evidence presently before it, 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 a receiving country, in this case Indonesia, there is a real risk that he will suffer significant harm for the purposes of s 36(2)(aa) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Conclusion
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).
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).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Christine Cody
MemberATTACHMENT A – 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). 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 below.
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 below.
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.
Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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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.
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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.
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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.
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36 Protection visas – criteria provided for by this Act
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(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.
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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Standing
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