1721008 (Refugee)

1721008 (Refugee) [2022] AATA 5050 (14 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICATION FOR REVIEW: Application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Protection XA subclass 866 Visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’)
APPLICANTS’ REPRESENTATIVE:Self-represented
CASE NUMBER: 1721008

COUNTRY OF REFERENCE: Indonesia
MEMBER:Kate Chapple
DATE:14 December 2022
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants a protection visa.

Statement made on 14 December 2022 at 8:34am
CATCHWORDS
REFUGEE – protection visa – Indonesia – race – ethnic Chinese – political opinion – historic anti-Chinese riots – fear of ethnic violence – perceived as wealthy – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
OVERVIEW

The primary applicant, the father of the secondary applicant, did not engage with the Tribunal and did not attend the scheduled hearing.
The secondary applicant, a man aged [age], of Chinese ethnicity, was born in Indonesia and grew up in Jakarta with his parents and [specified family members]. The parents ran small businesses in Jakarta, which ended in bankruptcy. They then had some success with their illegal [business 1] over a number of years until the government started to crack down on operators. The secondary applicant completed his schooling in Jakarta. He completed [number] years of [a subject 1] degree at university, however preferred to get work experience and experiment with his own business ideas while being mostly supported by his parents.
Eventually, it became too difficult to make money from the [business 1], so the primary applicant took the secondary applicant to Australia in early 2015. In the following four years, they worked on farms in Victoria, Queensland and New South Wales. In June 2016, more than a year after their tourist visas expired, the primary applicant applied for a protection visa, with the secondary applicant making no additional claims. Referencing the 1998 riots in Jakarta and beyond, the primary applicant claimed he would be harassed and discriminated against on the basis of his Chinese ethnicity if returned to Indonesia.
The secondary applicant and his now wife first met in Indonesia, and again when she came to Australia in mid-2016. They soon became a couple and she joined the applicants doing farm work. In 2019, they moved to Darwin for work and later had a child, a boy, who is now aged [age], with [medical conditions]. The secondary applicant is estranged from the primary applicant; they have not had any contact for three years.
The secondary applicant’s [specified siblings] live in [Country 1], and his mother is also currently there for a few years, working in a factory. [Other specified siblings] remain in Indonesia, the older running [a] business, and the younger studying; both receiving financial support from their mother.
EVIDENCE BEFORE THE TRIBUNAL
Timeline
Departmental and Tribunal records disclose these key dates:
6.1.Applicants’ arrival in Australia: [February] 2015.
6.2.Application for protection visa: 5 June 2016.
6.3.Delegate’s decision to refuse protection visa application: 31 August 2017.
6.4.Application for review: 8 September 2017.
Protection visa application
The primary applicant made the following written protection claims (no additional claims made by the secondary applicant):
On 13th - 15th May 1998, there were riots in Jakarta, Indonesia, where are we (me and my son) lived which was ended with killings, cars, shops and houses burned down. There was persecution, rape and slaughter/massacre to the Chinese ethnics by local rioters. I don't know what caused all the troubles on that day but I am sure there was and will be happen again in Jakarta. The riots is not only happen in Jakarta, but it’s also happen in Medan (West of Indonesia), Surakarta (Middle Java) and Surabaya (East Java).
We owned one of the shop and we saw everything happened on that day. I witnessed almost everything that happen in front of our shop and in my shop too. Thousands rioters poured into the streets and did killings, mass gang rape to ethics Chinese women, torture, cars, shops and houses burning through the late night. We ran out from our shop through back door and ask help and protection from our indigenous neighbours whose stay not far from our shop. Our shop is also our house, as we stay on second floor. On that day more than a thousand people died and more than one hundred Chinese ethics women raped, cars, shop and houses burned down.
This tragedy May 1998, we believe has been controlled and driven by a groups organisation to create the riots and chaos with the main purpose to take over the government.
Violence to the Chinese ethnic in Indonesia with issues economic gaps which is almost 80% controls by Chinese ethnic, strongly could be happening again. The Chinese ethics itself only consists of 20% from Indonesia population. There is indicative that the tragedy May 1998 will be happening again cause until now Indonesian government have not taking any serious decision to search and judge the mastermind and actors of the riots. Although after that the riots, there are 2 organisation has been moulded that is KOMNAS HAM (Human Rights National Commission) and TGPF (Tim Gabungan Pencari Fakta - Fact Search Conjoint Team) to search and report to Government. But seems until now, the report about the riots from this 2 organisation never been following up and take serious decision to bring it to higher level.
Concerns with all the treats without any assurance from the Indonesian government, we decide to make our move to Australia. Desperate, on Feb 2015 we applied for Australian Visa. We took off with all our savings and made our runaway to Melbourne. We don't think much, we only looking to save our lives. We that believe that the Chinese ethnic violence will be happen again in Jakarta or among big cities in Indonesia. That's why we took this gambling run to Australia. We only know about protection visa maybe a couple weeks ago when we read on the internet. That is why we only apply it now. We hope we were given a chance to start our life here and be given protection from harm from our country.
Other departmental records:
8.1.Decision record relating to the delegate’s refusal decision.
8.2.Case file.
8.3.Internal records relating to the applicants.
Application for review
The Tribunal wrote to the applicants inviting them to attend a hearing on 5 May 2020. Due to COVID-19 restrictions, the hearing could not proceed. The Tribunal wrote to the applicants advising that the hearing had been postponed and would be rescheduled when a date became available.
The Tribunal subsequently wrote to the applicants inviting them to attend a hearing on 12 December 2022, and to provide pre-hearing submissions.
Prior to the hearing, the secondary applicant provided to the Tribunal:
11.1.Confirmation that the secondary applicant intended to participate in the hearing.
11.2.A request that the Tribunal take witness evidence from secondary applicant’s wife.
11.3.Change of contact details form advising relocation to Darwin address.
11.4.Advice that he was not in contact with the primary applicant.
The Tribunal had no contact details for the primary applicant other than the secondary applicant’s email address, and was unable to contact the primary applicant directly. The primary applicant made no contact with the Tribunal.
The Hearing
The secondary applicant appeared before the Tribunal at a hearing conducted via video link on 12 December 2022, with the assistance of an interpreter (in person) in the Indonesian and English languages. The secondary applicant was self-represented. The primary applicant did not appear.
The secondary applicant gave the following evidence:
14.1.The secondary applicant was born in [year] in Jakarta, Indonesia. He is of Chinese ethnicity; his grandparents were born in China, and his parents were born in Indonesia. He grew up practising the Buddhist religion and still does. He lived with his parents, being the primary applicant and his mother, [and specified] siblings.
14.2.The secondary applicant’s [specified siblings] moved to [Country 1] five to six years ago. His mother has also gone there to work in a factory and expects to return to Indonesia in three years. His [other specified siblings] remain in Indonesia; one is running a business and the other is studying, and their mother assists them financially.
14.3.The secondary had a normal childhood. His friends were mostly Chinese. His parents warned he and his siblings not to marry Muslims.
14.4.The secondary applicant was educated in Jakarta. He completed [number] years of schooling from pre-school then [number] years of a university degree in [subject 1]. He preferred to get work experience than continue studying.
14.5.When the secondary applicant was in primary school, around the age of [age range], he was walking home from school with his [sister] and they were kidnapped by the driver, a Javanese Indonesian, employed by his parents. They were driven around Jakarta for two days and stayed overnight at an address unknown to the secondary applicant, then returned to their parents. He doesn’t know why they were kidnapped; they were treated well. He never saw the driver again; he doesn’t know if his parents sacked him.
14.6.When the secondary applicant graduated from high school, his parents took him and his siblings to [specified countries] to celebrate.
14.7.The secondary applicant helped friends in their business selling [products] for 6 to 7 months in about 2008 or 2009. He received some remuneration, but he was cheated by a friend who failed to distribute the profits. In 2011, he tried to set up a [sales] business, however he did not have enough cashflow and he couldn’t continue. Through all his years in Indonesia, the secondary applicant continued living with his parents and receiving their financial support.
14.8.The secondary applicant thinks that maybe, because he is Chinese and his father had businesses and was considered rich, it was hard for him to get work. His Chinese friends mostly started their own business or continued their father’s business.
14.9.The secondary applicant’s parents ran a [product 1] business in the 1990s, then a [product 2] business in the early 2000s. Both businesses were successful for a while, but they got into problems with customer fraud, and eventually went bankrupt. They were under financial pressure to support the family and the children’s studies, so the parents opened a [business 1] in Jakarta. [Their services were] illegal in Indonesia. It was a successful business for some years nonetheless, however during the Yudhoyono presidency there was a crackdown on [similar] operations, and by 2014 it became very difficult to make money. His father knew a lot of police, so he was able to pay a fine and escape prosecution. Sometime in 2013, the Islamic Defenders Front tried to force their way through the door of their house, but couldn’t. The secondary applicant was inside the house with his siblings, they feared they would be murdered; he heard them say something he didn’t understand, but he thinks they were there because of the illegal [service].
14.10.The secondary applicant did not marry or have children in Indonesia.
14.11.In February 2015, the secondary applicant travelled to Australia with the primary applicant on a three-month tourist visa. They came to Australia because it is the closest western country to Indonesia. They wanted to get out of Indonesia because it had become difficult to earn money due to the government’s crackdown on [their services]. They arrived in Melbourne and went to a hotel; soon after, an acquaintance of the primary applicant collected them and drove them four to five hours to a [farm] further south in Victoria. He was forced to work on the farm, and they lived there too. After about a month, his mother told him to stay in Australia because it was too hard to live in Indonesia.
14.12.When their tourist visa was about to expire, the secondary applicant told the primary applicant that they should find a legal way of staying in Australia. Their visas expired in May 2015 and the applicants stayed in Australia and continued working. They left the Victorian farm in February 2016 to try something different, and went to work and live on a [different] farm in [Town 1], Queensland.
14.13.Another acquaintance of the primary applicant, a [Nationality 1] Chinese man who worked on the [Town 1] farm, offered to take care of their protection visa application, which the primary applicant lodged in June 2015. The secondary applicant’s email address was used because the primary applicant didn’t have one. The secondary applicant isn’t sure what was written in the protection visa application, but the acquaintance told him that it was about the riots in Jakarta in 1998. It took a long time to apply for protection because it was difficult getting information about what visa they could apply for and the farm internet connections were poor.
14.14.The Tribunal asked the secondary applicant to talk about what he knew of the riots. He said they were about eliminating the Chinese, even though behind it was a plot to topple President Suharto. The riots occurred in Jakarta and his [suburb]. He was at school at the time and told to go home, so his father collected him. He recalls a lot of army and steel-armoured vehicles on the streets. The riots went on for 5 days. His family and extended family members sought safety at another relative’s house in another suburb. When the riots died down, they returned home.
14.15.The secondary applicant and his family weren’t physically harmed during or after the riots, but he was mentally affected by seeing corpses on the street, and living in fear of being killed because of their Chinese ethnicity.
14.16.The secondary applicant first met his now wife in Indonesia. She came to Australia on a tourist visa around mid-2016 and rang the secondary applicant from Sydney. She visited him in [Town 1] for a week, returned to Sydney, and only weeks later they started living together and working on the [Town 1] farm, along with the primary applicant. They all continued in [Town 1] for two to three years, then lived and worked on farms in [named towns]. The wife has also applied for protection.
14.17.The secondary applicant hasn’t had contact with the primary applicant for three years, since 2019. They had a conflict because the primary applicant had another woman, which made the secondary applicant’s mother and wife angry. The last he had heard, the primary applicant was working on a [different] farm in [Town 2].
14.18.The secondary applicant and his wife moved to Darwin in 2019. They both worked during the [picking] season, then his wife became pregnant. On medical advice, they stayed in Darwin and the baby, a boy, was born. He is now aged [age]. The secondary applicant works in a [business]; his wife works part-time, and their son goes to day care.
14.19.The secondary applicant told [his sister] about the scheduled Tribunal hearing, thinking she would tell their father. He doesn’t know whether his sister told their father about the hearing. His sister says that their father isn’t interested in anything to do with him.
14.20.The Tribunal put to the secondary applicant the following country information and invited him to comment:
The official country information current as at May 2022 says that since the riots of 1998 and the fall of President Suharto’s regime, most official policy measures discriminatory towards Chinese Indonesians have been removed. Chinese culture and language are encouraged, Chinese NY is celebrated, and the Indonesian constitution no longer differentiates between ethnic Chinese and indigenous Indonesians. It says that any anti-Chinese discrimination is owed to resentment towards the wealthy Chinese, it’s about wealth, not ethnicity or religion.
The secondary applicant replied stating that the protection visa application was made in 2016, not 2022. The Tribunal explained that the law requires it to make a decision on his case based on what’s happening now in Indonesia. The secondary applicant made no further comment.
14.21.The Tribunal put to the secondary applicant that he hadn’t been in Indonesia for nearly eight years, and the riots he spoke about occurred 24 years ago; and asked him what he thought would happen to him if he returned to Indonesia. The secondary applicant replied that he fears he wouldn’t be able to survive in Indonesia because there’s not enough work and the salaries are too low, he worries about his son, and the chemicals in the food. Here in Australia he has a place to stay and consistent work. His son has [medical conditions]. His wife was very stressed as a new mother and they had to remove the baby from her for a time because there was a concern she may kill the baby. His wife is getting better; she last got medical help a year ago, but he’s not sure if her illness will recur. Family care have helped get their son into day care.
14.22.After the secondary applicant lost contact with the primary applicant, he wanted to split the split the protection visa application so he was on his own, however he saw a lawyer in Darwin who advised him to wait for the decision from the Tribunal.
The secondary applicant’s wife gave the following evidence:
15.1.The wife called her now husband in Australia before she left Indonesia. She said she’d heard about his father making a protection visa application and wasn’t too sure that being Chinese was going to be enough to get a protection visa. She suggested his father should think about other visa options, not protection.
15.2.Her husband doesn’t feel like he has his own rights. He wants to know how he can be legal in Australia, but his father has always controlled him, taken a lot of his hard-earned farm money, and doesn’t accept him as a son.
15.3.Her husband feels so welcome in Australia and he can learn skills here, whereas in Indonesia there’s fraud, they think the Chinese are wealthy, and it’s not a place that would help her husband to work hard and earn money.
CONSIDERATION OF CLAIMS AND EVIDENCE
Primary applicant’s evidence
The Tribunal accepts that the primary applicant is a citizen of Indonesia and of Chinese ethnicity.
The Tribunal notes the primary applicant’s written protection claims and accepts his evidence about the 1998 riots in Jakarta.
The Tribunal notes the following country information set out in the Australian Government’s Department of Home Affairs Common Claims for Indonesia dated 3 May 2022:
18.1.Chinese Indonesians generally live free from official discrimination. Since the fall of President Suharto’s regime in 1998, which saw anti-Chinese riots that left hundreds dead,[1] most official policy measures discriminatory towards Chinese Indonesians – such as difficulties obtaining citizenship – have been removed.[2] Improvements are evident in the government’s moves to celebrate Chinese New Year as a national public holiday, encourage Chinese culture and language, as well as the Indonesian constitution no longer differentiating between ethnic Chinese and ‘indigenous Indonesians’.[3] Confucianism is also recognised as one of Indonesia’s official religions.[4] Overall political representation remains low however and credible sources state that in the last few years there has been an increase in opposition among conservative Muslims to ethnic Chinese serving in positions of political power.[5]
18.2.Anti-Chinese sentiment within society typically results from resentment over the perceived wealth of Chinese Indonesians and has been exacerbated by the spread of COVID-19. Most of the country’s wealthiest and most prominent business people are ethnically Chinese.[6] Although perceptions of the disproportionate share of wealth belonging to ethnic Chinese have a long history, they tend to be reinforced by the profiles of a small number of wealthy individuals, and are not characteristic of the large number of poor and middle class Chinese.[7] Anti-Chinese discrimination owes much to resentment against the perceived prosperity of Chinese Indonesians relative to the broader community, rather than specific religious or ethnic concerns.[8] For example, anti-Chinese riots in 1998 targeted Chinese shops and homes rather than temples and churches.[9] Regardless, according to Freedom House, ethnic Chinese continue to be vulnerable to harassment.[10] Despite a lack of evidence, Chinese Indonesians have been blamed by some conservative Islamic groups for the outbreak of COVID-19 in the country.[11] Reports of politicians, student groups, the media, local Islamic State affiliate groups and social media users spreading anti-Chinese sentiments in the wake of the country’s COVID-19 outbreak have surfaced.[12]
18.3.Low-level societal discrimination towards Chinese Indonesians surfaces during election campaigns and at times when sensitive religious and economic issues arise. During the 2019 presidential election campaign, candidates deployed social media teams to spread propaganda and fake news, some of which included anti-Chinese sentiment, the intent of stoking ethnic and religious divides to appeal to voters.[13] In recent years, anti-China sentiment and resentment towards Chinese Indonesians has also arisen from a number of religious and economic issues, including China’s treatment of Uyghur Muslims, an increase in Chinese investment and control over national assets, perceived privileges for Chinese investors and Chinese Indonesians, and perceptions that mainland Chinese workers are taking local jobs.[14]
18.4.Islamic organisations also blamed China for supposed upsurge in communist sentiment.[15] In 2021, police uncovered a terror plot to bomb businesses and shops owned by Chinese Indonesians – the motivations for the attack were disappointment towards the government for perceived privileges given to Chinese investors and Chinese Indonesians stemming from the economic slowdown brought about by the COVID-19 pandemic resulting in millions of Indonesians losing employment.[16]
[1] ‘DFAT Country Information Report Indonesia’, Department of Foreign Affairs and Trade (DFAT), 25 January 2019, section 3.6, pp.16-17
[2] 'BTI 2022 Country Report - Indonesia', Bertelsmann Stiftung, 22 February 2022, pp.6-7; ‘DFAT Country Information Report Indonesia’, Department of Foreign Affairs and Trade (DFAT), 25 January 2019, section 3.7, p.17
[3] ‘DFAT Country Information Report Indonesia’, Department of Foreign Affairs and Trade (DFAT), 25 January 2019, section 3.7, p.17; ‘Indonesia’s ethnic resentments’, Development and Cooperation, 27 July 2021
[4] ‘DFAT Country Information Report Indonesia’, Department of Foreign Affairs and Trade (DFAT), 25 January 2019, section 3.7, p.17
[5] ‘DFAT Country Information Report Indonesia’, Department of Foreign Affairs and Trade (DFAT), 25 January 2019, sections 3.7 & 3.9, p.17; 'BTI 2022 Country Report - Indonesia', Bertelsmann Stiftung, 22 February 2022, p.22; ‘Freedom in the World 2022: Indonesia', Freedom House, 2 March 2022, B4
[6] DFAT Country Information Report Indonesia’, Department of Foreign Affairs and Trade (DFAT), 25 January 2019, section 3.8, p.17; 'What Do the May 1998 Riots Mean for Young Chinese Indonesians?', The Diplomat, 13 May 2020; ‘Freedom in the World 2022: Indonesia', Freedom House, 2 March 2022, F4
[7] Why Chinese Indonesians don’t have to hide any longer, South China Morning Post, 10 September 2016; How Indonesia’s pribumi elite view the ethnic Chinese today, Today Online, 6 August 2016
[8] Freedom in the World 2022: Indonesia', Freedom House, 2 March 2022, F4; ‘DFAT Country Information Report Indonesia’, Department of Foreign Affairs and Trade (DFAT), 25 January 2019, section 3.8, p.17; 'What Do the May 1998 Riots Mean for Young Chinese Indonesians?', Diplomat, The, 13 May 2020
[9] Religious pluralism in Indonesia: Harmonious traditions face challenges, European Parliamentary Research Service, 2 May 2016
[10] ‘Freedom in the World 2022: Indonesia', Freedom House, 2 March 2022, F4
[11] 'The Politics of Pandemic in Southeast Asia', Zachary Abuza and Bridget Welsh, Diplomat, The, 2 June 2020; 'IPAC Short Briefing No.1: COVID-19 AND ISIS IN INDONESIA', Institute for Policy Analysis of Conflict (IPAC), 2 April 2020, p.3; ‘Rising Anti-Chinese Sentiment In Indonesia’, The ASEAN Post, 4 July 2020
[12] ‘Rising Anti-Chinese Sentiment In Indonesia’, The ASEAN Post, 4 July 2020; ‘Indonesia’s ethnic resentments’, Development and Cooperation, 27 July 2021; 'Indonesia must tackle corona-driven growth in anti-Chinese xenophobia', Nikkei Asian Review, 4 August 2020; 'Wuhan Virus Boosts Indonesian Anti-Chinese Conspiracies', Foreign Policy, 31 January 2020; 'Protesting Indonesian students write to Chinese ambassador threatening to deport workers', South China Morning Post, 6 August 2020; ‘Rising Anti-Chinese Sentiment In Indonesia’, The ASEAN Post, 4 July 2020
[13] '"We're not Chinese officers": Indonesia fights anti-China disinformation', Reuters, 24 May 2019
[14] ‘DFAT Country Information Report Indonesia’, Department of Foreign Affairs and Trade (DFAT), 25 January 2019, section 3.10, p.17; ‘Rising Anti-Chinese Sentiment In Indonesia’, The ASEAN Post, 4 July 2020; ‘Indonesia’s ethnic resentments’, Development and Cooperation, 27 July 2021; 'As Indonesian police foil bomb plots, the country’s Chinese community finds itself targeted again', South China Morning Post, 8 April 2021
[15] ‘DFAT Country Information Report Indonesia’, Department of Foreign Affairs and Trade (DFAT), 25 January 2019, section 3.10, p.17
[16] 'As Indonesian police foil bomb plots, the country’s Chinese community finds itself targeted again', South China Morning Post, 8 April 2021

In the absence of any written or oral evidence from the primary applicant, the Tribunal does not consider that the primary applicant experienced harm or discrimination while in Indonesia by reason of his Chinese ethnicity, related to the 1998 riots, or his perceived wealth, or for any other reason.
In the absence of any written or oral evidence from the primary applicant, the Tribunal does not consider that the primary applicant would be perceived as wealthy if he returns to Indonesia.
Based on the country information, the Tribunal does not accept that the primary applicant would be a target of harm and discrimination by reason of his Chinese ethnicity if he returns to Indonesia.
There is no evidence before the Tribunal of the primary applicant’s current fear of returning to Indonesia.
Secondary applicant’s evidence
The Tribunal accepts that the secondary applicant is a citizen of Indonesia and of Chinese ethnicity.
The Tribunal considers the secondary applicant’s evidence to be truthful and credible.
The Tribunal considers it is highly likely that the primary applicant came to Australia to pursue opportunities for work and income as he could no longer make money from the illegal [business 1] in Jakarta and he had been previously bankrupted twice due to failed businesses.
The Tribunal considers it is highly likely that the secondary applicant, as the eldest child in the family, did not have a choice about coming to Australia with the primary applicant or being put to work on the [farm] south of Melbourne.
The Tribunal accepts that the secondary applicant wanted to find a way of staying in Australia lawfully with an appropriate visa. The Tribunal considers that the secondary applicant had limited involvement and no agency in the protection visa application and very limited understanding of its substance or effect.
The Tribunal notes and accepts the secondary applicant’s evidence that he and his sister were kidnapped on one occasion by the driver employed by their parents. The Tribunal accepts that it was a distressing experience for the secondary applicant. However, there is no evidence before the Tribunal that the kidnapping occurred by reason of his Chinese ethnicity. Further, there is no evidence before the Tribunal that the experience had any long-term and continuing effect on the secondary applicant’s mental or physical health.
The Tribunal accepts that the secondary applicant, aged [age] when the 1998 riots in his suburb in Jakarta occurred, was distressed by the death and conflict he witnessed. However, there is no evidence before the Tribunal, including from the secondary applicant, that his experience of the riots had any long-term and continuing effect on his mental or physical health.
The Tribunal notes the secondary applicant’s evidence that it may have been because of his Chinese ethnicity and his father being considered rich that it was hard for him to get work in Jakarta where he lived with his parents. Based on the secondary applicant’s evidence, the Tribunal does not consider it is likely his father would have been perceived as wealthy given that the two businesses his parents ran ended in bankruptcy and their [business 1] became unviable due to the government’s crackdown on [their services].
Based on the secondary applicant’s evidence, the Tribunal does not consider that the secondary applicant experienced harm or discrimination while in Indonesia by reason of his Chinese ethnicity.
Based on the secondary applicant’s evidence, the Tribunal does not consider that the secondary applicant would be perceived as wealthy if he returns to Indonesia.
Based on the secondary applicant’s evidence, the Tribunal considers that the secondary applicant does not want to return to Indonesia because he worries he would be economically disadvantaged and it would not be the right environment for his son’s health, rather than because of a fear of harm or discrimination by reason of his Chinese ethnicity.
The Tribunal does not accept that the secondary applicant would be a target of harm and discrimination by reason of his Chinese ethnicity if he returns to Indonesia.
Wife’s evidence
The Tribunal accepts the evidence of the secondary applicant’s wife.
Other considerations
In considering the claims and evidence, the Tribunal has taken account of:
36.1.The Department of Home Affairs ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’.
36.2.The Tribunal’s Migration and Refugee Division Guidelines on the Assessment of Credibility.
Application of law
The first issue in this case is whether the primary applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection.
Given the secondary applicant’s estrangement from and loss of contact with the primary applicant, the second issue in this case is whether the secondary applicant, to the extent that in his evidence before the Tribunal he asserts his own claims for protection, meets the refugee criterion, and if not, whether he is entitled to complementary protection.
Attachment A sets out the applicable law.
Based on the consideration of claims and evidence, the Tribunal finds that:
40.1.The applicants are non-citizens in Australia.
40.2.The secondary applicant is a member of the same family unit as the primary applicant.
40.3.The primary applicant has no credible claims for protection under the refugee criterion or on complementary protection grounds set out in the applicable law.
40.4.The secondary applicant has no credible claims for protection under the refugee criterion or on complementary protection grounds set out in the applicable law.
40.5.If the primary applicant is returned to Indonesia, there is no real chance that he would be persecuted, and accordingly the primary applicant does not have a ‘well-founded fear of persecution’ as required by s 5H(1)(a) of the Act and as defined in s 5J(1) of the Act.
40.6.If the secondary applicant is returned to Indonesia, there is no real chance that he would be persecuted, and accordingly the secondary applicant does not have a ‘well-founded fear of persecution’ as required by s 5H(1)(a) of the Act and as defined in s 5J(1) of the Act.
40.7.There do not exist substantial grounds for believing that as a necessary and foreseeable consequence of the primary applicant being removed from Australia to Indonesia there is a real risk the primary applicant will suffer significant harm.
40.8.There do not exist substantial grounds for believing that as a necessary and foreseeable consequence of the secondary applicant being removed from Australia to Indonesia there is a real risk the secondary applicant will suffer significant harm.
CONCLUSIONS
Based on the evidence, analysis, reasoning and findings set out above, the Tribunal is not satisfied that the primary applicant and the secondary applicant are persons in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Having concluded that the primary applicant and the secondary applicant do not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) of the Act. The Tribunal is not satisfied that the primary applicant and the secondary applicant are persons in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
The secondary applicant, as a member of the same family unit as the primary applicant, and having concluded that the primary applicant does not satisfy the criteria s 36(2)(a) or (aa) of the Act, does not satisfy the criterion in s 36(2)(b) or (c) of the Act.
Further, there is no evidence before the Tribunal that suggests that the primary applicant satisfies s 36(2)(b) or (c) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the primary applicant does not satisfy the criterion in s 36(2)(b) or (c).
decision
The Tribunal affirms the decision not to grant the primary applicant a protection visa.
The Tribunal affirms the decision not to grant the secondary applicant a protection visa.
Kate Chapple
Member

ATTACHMENT A
Summary of applicable law
The criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant 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.
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).
Relevant extracts from Migration Act 1958
5 (1) Interpretation
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
36     Protection visas – criteria provided for by this Act
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

[2022] AATA 5050

14 December 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction