1722620 (Refugee)
[2023] AATA 4760
•8 November 2023
1722620 (Refugee) [2023] AATA 4760 (8 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Alim Lim (MARN: 5511630)
CASE NUMBER: 1722620
COUNTRY OF REFERENCE: Indonesia
MEMBER:Frank Russo
DATE:8 November 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 8 November 2023 at 1:45pm
CATCHWORDS
REFUGEE – protection visa – Indonesia – minor child born in Australia – ethnicity – Chinese – religion – Christian – does not know Indonesian – unfamiliar with life in Indonesia – close ties to Australia – eldest sibling’s Australian citizenship – applicant due to apply for Australian citizenship – referred for ministerial intervention – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 417, 499
Migration Regulations 1994 (Cth), Schedule 2CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347Any 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 31 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, applied for the visa on 27 June 2016. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations.
The applicant is [an age]-year-old Indonesian national. As the applicant is a minor, the visa application was made on her behalf by her [mother].
The applicant’s parents[appeared] before the Tribunal on 7 June and 7 September 2023 to give evidence and present arguments. The applicant did not appear before the Tribunal to give evidence, given she is a minor. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.
The applicant was represented in relation to the review. The applicant’s representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugee definition in Indonesia and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to Indonesia, there is a real risk that she will suffer significant harm.
The applicant provided the Tribunal with her application for review, a copy of the delegate’s decision and the decision notification letter from the Department.
On 8 March 2023, the applicant provided the Tribunal with a pre-hearing information form, a form appointing her legal representative, a copy of her New South Wales birth certificate and copies of the biodata pages of the applicant’s Indonesian passport and her mother’s Indonesian passport.
The applicant provided responses to the hearing invitation. On 1 June 2023 the applicant provided a written submission, which attached copies of the following articles:
a.Mark Landler, ‘Unrest in Indonesia: The Chinese; The Target Of Violence In a Time Of Wrath’, The New York Times, 16 May 1998;
b.Kate Lamb, ‘Woman jailed in Indonesia for complaining that call to prayer is too loud’, The Guardian, 25 May 2023;
c.Beril Huliselan, ‘Violated: Churches and religious freedom in Aceh Singkil, Indonesia’, New Mandala, 23 August 2018;
d.‘Indonesia: Three churches closed in permits dispute’, World Watch Monitor, 3 October 2018;
e.‘Indonesian Church Denied Building Permit’, International Christian Concern, 9 September 2022;
f.Antonia Timmerman, ‘What Do the May 1998 Riots Mean for Young Chinese Indonesians?: With handed-down memories, Generation Z tries to answer a question from the past’, The Diplomat, 13 May 2020.
On 6 June 2023, the applicant provided a further ‘submission’ which attached copies of the applicant’s baptism certificate and her mother’s Indonesian birth certificate, together with NAATI accredited translations, and photographs of the applicant attending church activities in Australia. Further copies were provided by the applicant at the first hearing.
The applicant provided a further submission on 8 June 2023 which attached copies of the following articles:
a.‘#KYR: Indonesia – Information’, The Cove, 7 November 2021;
b.‘The house is used as a place of worship, the priest becomes a suspect’, BBC News Indonesia, 17 June 2014; and
c.‘Kapolri: You Can’t Make a House a Place of Worship, That’s a Rule!’, Detik News, 6 August 2023.
On 4 October 2023, the applicant provided a further submission in response to country information put to the applicant at the second hearing. The submission attaches copies of the following articles:
a.Abdul Mujib, ‘The existence of proselytization in Indonesia (how religious regulation leads to conflict between the religious majority and minorities)’, conference paper, November 2015;
b.Olivia Tasevski, ‘Anti-Chinese and anti-Christian sentiment is not new in Indonesia’, The Conversation, 18 May 2017;
c.Vincent Bevins, ‘Ethnic Chinese still grapple with discrimination despite generations in Indonesia’, The Washington Post, 18 March 2017;
d.James Doubek, ‘Suicide Bombers Kill At Least 13, Wound Dozens At Churches In Indonesia’, The Two-Way, 13 May 2018; and
e.Augustinus Beo Da Costa and Stanley Widianto, ‘Indonesian church bombed by suspected Islamist militants’, Reuters, 28 March 2021.
The Tribunal has also had regard to the documents on the Department file, which include the application for the Protection visa and a copy of the applicant’s Indonesian passport and New South Wales birth certificate.
The Tribunal, in reaching its decision, has taken into account all of the evidence before it. It has also taken into account independent country information about Indonesia.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity
The applicant provided the Department with copies her New South Wales Birth [Certificate], which attests that she was born on [date] in [New South Wales], as well as copies of the biodata pages of her Indonesian passport.
On the basis of this information, and without any information to the contrary, the Tribunal accepts that the applicant is who she claims to be, that she is a national of Indonesia, which is also her receiving country.
The applicant’s parents claimed at the hearing that the applicant does not have a right to enter and reside in any third country. On the basis of the information before the Tribunal, I accept this claim and find that the applicant does not have a right to enter and reside in any third country.
Claims
Claims made with visa application
The applicant made the following claims in her Protection visa application:
a.She was born in Australia. She has never left Australia, she and her family have close ties to Australia and she considers it to be her home;
b.She cannot speak Indonesian, knows no-one in Indonesia and has no idea about Indonesia. She will be bullied in Indonesia and fears for her life;
c.She will experience discrimination because of her Chinese ethnicity and her family are Christians;
d.As part of a minority, she will not receive protection from the authorities in Indonesia.
Delegate’s decision
The applicant provided a copy of the delegate’s decision with her application for review. There is nothing in the delegate’s decision or the Department file to indicate that the applicant was invited by the Department to attend an interview. The delegate was not satisfied that the applicant is a refugee as defined by s.5H(1) of the Act. The delegate also considered that there is no real risk of the applicant facing significant harm, as defined by s.36(2A) of the Act, if she returns to Indonesia in the foreseeable future.
Evidence at the hearing regarding preparation and contents of application
The applicant’s mother gave evidence that she made the visa application on behalf of the applicant, and that she is aware of the contents of the application form. She confirmed that the statements contained in the visa application are true and correct and that she did not wish to make any changes to the application form or add to claims contained in the application.
Evidence of applicant’s mother regarding the applicant’s family and related applications
The Tribunal took evidence from the applicant’s mother[regarding] her own background and that of the applicant. The applicant’s mother confirmed that she was born on [date] in Palembang, Southern Sumatra. She confirmed that she is an Indonesian national and does not have a passport for any other countries or have a right to enter and reside in any third country. She confirmed that she is ethnically Chinese and is a Protestant. She gave evidence that she attends [Church 1] in [a suburb], which is part of [Church 2]. She stated that she first started attending [Church 2] in Palembang when she was [age] years old. She moved to Jakarta in 2006, but did not attend church in Jakarta.
The applicant’s mother gave evidence that she arrived in Australia in 2007, holding a Student visa. She met her husband in 2007 and they married in November 2007 in Jakarta. She gave evidence that her husband is from Jakarta and is also a Christian with Chinese ethnicity, and that he arrived in Australia at the same time as her. She confirmed that she and her husband have not departed Australia since their first arrival in 2007. She is a housewife and her husband works in a [workplace].
The applicant’s mother gave evidence that she and her husband have three children. Their first child, [Child 1], was born in Australia in [year] and became an Australian citizen in 2020. The applicant, who was born on [date], was also born in Australia. She confirmed that the applicant is an Indonesian citizen, has no right to enter or reside in any third country, and has never left Australia. They also have a son, named [Child 2], who was born on [date] in Australia.
The applicant’s mother confirmed that she, her husband and their oldest child, [Child 1], have previously lodged a Protection visa application of their own, which was refused by the Department. The delegate’s decision was affirmed by this Tribunal (differently constituted).
The applicant’s mother gave evidence that her own parents are still alive. Her father lives in Palembang and her mother lives in Jakarta. Her husband’s parents live in Jakarta. She has [brothers] and [sisters], [a few] of whom live in Jakarta, and [a few] of whom live in Palembang.
The applicant’s claims to protection – evidence of the applicant’s mother
The Tribunal put to the applicant’s mother that the applicant’s claims contained in her visa application are that she fears discrimination in Indonesia on the basis of her Chinese ethnicity and her family’s Christianity, and that she fears returning to Indonesia because she does not speak Indonesian, has no-one in Indonesia and she considers Australia to be her home. The applicant’s mother confirmed that this was an accurate summary and confirmed she was not making any other claims on the applicant’s behalf. She confirmed that the applicant is claiming protection on the basis of her own Christian beliefs, not only because of those of her family members.
Claims regarding Chinese ethnicity – evidence of applicant’s mother
When asked about the applicant’s fears relating to her Chinese ethnicity, the applicant’s mother stated that the applicant feels like she could not go to church or to a good school, and that she may be bullied if she goes to a school in Indonesia. The applicant fears she will experience discrimination because she is Chinese. When asked what kind of discrimination the applicant would experience, her mother stated that she would be called names such as ‘Cina’ by Indonesian Muslims. When asked if the applicant would experience any other forms of discrimination besides name calling, she responded no. When asked the basis for this fear, the applicant’s mother stated that it comes from her own experiences.
When questioned about her own experiences as a Chinese Indonesian, the applicant’s mother stated that she knows about the riots which occurred in 1998. She gave evidence that she was also called ‘Chinese’ by people. She also described an incident when she was taking a rickshaw on her way home from school, when someone touched her thigh. When asked when these things happened, she stated that they happened while she was in Palembang and that they occurred quite often, including both during and after the 1998 riots. She stated that they made her scared because she was being treated differently from others on the basis that she is Chinese. The applicant’s mother stated that there is also a code on her birth certificate which indicates that she is Chinese, however she did not identify any discrimination or ill-treatment from the government when asked. She stated, however, that when she would apply for jobs, employers would ask to see her birth certificate, which she said is different from others, and it was rare for her to be accepted for jobs. When asked why she believes this was the case, she stated that it because she only graduated from high school, but stated that a second reason is because she is Chinese. She stated that employers prefer to hire native Indonesians. When asked if she worked in Indonesia, she stated that she worked in [a job] for a year in Jakarta.
When questioned about the rickshaw incident, the applicant’s mother stated that she screamed in response to being touched and that the person then ran away. She stated that she does not know why the incident occurred, and that the person came out of nowhere. She stated the person may have touched her because she was Chinese, female and a little child at the time. She told her parents about the incident but did not dare go to the police. She was in middle school at the time, between the ages of 8 and 9. She gave evidence that no other events of this nature occurred, as from then on her parents always took her to school. When asked how the applicant gets to school, she stated that she takes the applicant there.
At the first hearing, the Tribunal discussed with the applicant’s mother information from the 25 January 2019 DFAT report regarding ethnically Chinese Indonesians. The Tribunal put to her that the report indicates that according to the 2010 census, 2.8 million Indonesians, or 1.2% of the population, are ethnically Indonesian, and that this community lives throughout Indonesia.[1] The Tribunal noted that while the Suharto-era New Order regime implemented a range of measures that discriminated against Chinese Indonesians, including the prohibition of Chinese language newspapers and schools, since the end of this regime in 1998, successive governments have removed most official policy measures discriminating against ethnically Chinese Indonesians.[2] The report notes that DFAT is aware of reports of Chinese Indonesians facing discrimination in relation to buying land in Yogyakarta, which is a special administrative region run as a sultanate.[3] The Tribunal noted information from the DFAT report which indicates that in May 1998, during the Asian financial crisis, rioters targeted the ethnic Chinese community due to their perceived wealth, and that as many as 1,000 Chinese Indonesians died in incidents related to the riots, women were raped, and businesses were burned or looted.[4] However, the Tribunal put to the applicant’s mother that anti-Chinese violence has been low since the events of 1998, with the exception of small-scale local riots in 2016 in a town in North Sumatra, following an allegation of blasphemy against a Chinese Indonesian woman.[5] The Tribunal put to the applicant’s mother that DFAT assesses that while the memories of the 1998 riots have caused continued anxiety amongst many members of the Chinese Indonesian community, which are exacerbated by events such as the 2016 Ahok blasphemy trial and the 2016 riots in a town in North Sumatra, Chinese Indonesians currently face a low risk of violence.[6] The Tribunal also noted that while the DFAT reports that persistent anti-Chinese sentiment may lead to low levels of societal discrimination, such discrimination is described as being low-level and may therefore not meet the required level of harm for either the refugee criterion or complementary protection.[7] The applicant’s mother indicated that she had no comments in response to this country information or the concern raised by the Tribunal. The applicant’s mother confirmed that she was not making any other claims on the applicant’s behalf regarding her Chinese ethnicity.
Claims regarding Christianity – evidence of applicant’s mother
[1] DFAT Country Information Report, Indonesia, 25 January 2019, para 3.5.
[2] DFAT Country Information Report, Indonesia, 25 January 2019, paras 3.6-3.7.
[3] DFAT Country Information Report, Indonesia, 25 January 2019, para 3.12.
[4] DFAT Country Information Report, Indonesia, 25 January 2019, para 3.6.
[5] DFAT Country Information Report, Indonesia, 25 January 2019, paras 3.11, 3.13.
[6] DFAT Country Information Report, Indonesia, 25 January 2019, para 3.13.
[7] DFAT Country Information Report, Indonesia, 25 January 2019, para 3.13.
The applicant’s mother gave evidence that her parents were Buddhists when she was growing up and she became a Christian when she was [age], after she was introduced to Christianity by a neighbourhood friend. She gave evidence that she attended Sunday school at [Church 2] once a week. She was not baptised until she arrived in Australia. When questioned why, she stated that the church was forced to close about six months after she started attending, as the community surrounding it did not accept it. She did not attend any other churches in Indonesia after this.
She gave evidence that she started attending church again in 2008 after she arrived in Australia, as her husband is Christian and wanted to take her to church. She stated that her husband has been a Christian since birth and his parents are Christians. She gave evidence that she is baptised, and all of their children, including the applicant, have been baptised in [Church 2] in Australia.
When questioned how the applicant practises her religion, she stated that every week her family goes to church. The applicant attends Sunday school, worships, prays and learns about the word of God. When asked if she could tell the Tribunal anything to describe the applicant’s beliefs, she stated that the applicant experiences something of a miracle in being allocated to her particular class at school. The applicant wished to be taught by [a certain teacher] in Year [grade]. Her mother told her to pray, and a week later she received [that teacher] as her teacher. The applicant’s mother gave evidence that the applicant learns about the Bible at church and talks to her about the birth of Jesus and about Mary.
When questioned if the applicant could attend church in Indonesia, her mother stated no, as the language of worship is Indonesian, and in addition she claimed that the religious freedom there is not that good. When asked if the applicant could attend a church in Indonesia if she relocated there, she stated that she could not do so for the same reasons, that whichever city they move to in Indonesia, they would not be free. The Tribunal put to the applicant’s mother that the church her family attends in Australia is an Indonesian church and questioned whether services are in Indonesian. She confirmed this is the case but stated that the Sunday school classes are taught in English. She claimed that the applicant also attends a weekly Religion class at her primary school. The Tribunal questioned whether the applicant attends a government-run public school, to which her mother confirmed that the class she attends is Christian-based and her daughter learns about Jesus.
When asked what the applicant fears on the basis of her religion if she returns to Indonesia, her mother stated that she is worried the applicant will not be able to attend church anymore as many churches in Indonesia have closed. The Tribunal questioned whether there are any other churches in Palembang which the applicant could attend with her family, besides the one she claims closed when she was [age]. She stated that it has been a long time and she does not know. The Tribunal put to her that her husband is from Jakarta and questioned whether they could attend a church in Jakarta. She stated that she is unsure as she never went to church in Jakarta.
The applicant’s mother confirmed that she had no additional claims or evidence regarding the applicant’s religion. She stated that none of her family members have experienced harm in Indonesia on the basis of their religion as none of them are Christian.
At the first hearing, the Tribunal discussed with the applicant’s mother information from the 25 January 2019 DFAT report regarding Christians in Indonesia. The Tribunal put to the applicant’s mother that Christianity is Indonesia’s second largest religion, with approximately 24 million people listing Christian as their religion in the 2010 census, and with Protestants making up about 7% of the total population and Catholics making up about 3% of the total population, and about a million Christians living in Jakarta.[8] The Tribunal put to the applicant that DFAT advises that Christians are generally able to practise their faith freely throughout Indonesia, though Christians who live 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 such violence and discrimination appears to be localised.[9] The Tribunal put to the applicant’s mother that some Pentecostal Christians are involved in door-to-door evangelical activities, even though these have been known to upset religious sensitivities.[10] The Tribunal discussed recent attacks on church communities which are set out in the report, but noted that DFAT assesses that Christians residing in areas where they are the majority do not face either official or societal discrimination, and that Christians face a low risk of terrorism in spite of certain recent exceptional events.[11] The Tribunal put to the applicant’s mother that on the basis of the country information set out in the DFAT report, and on the evidence it had heard of the applicant’s circumstances, it may not be satisfied that there is a real chance that the applicant will face serious harm on the basis of her religion if she returns to Indonesia, and it may not accept that there are substantial grounds for believing that there is a real risk that she will suffer significant harm if she is removed from Australia.
[8] DFAT Country Information Report, Indonesia, 25 January 2019, para 3.35.
[9] DFAT Country Information Report, Indonesia, 25 January 2019, para 3.36.
[10] DFAT Country Information Report, Indonesia, 25 January 2019, para 3.39.
[11] DFAT Country Information Report, Indonesia, 25 January 2019, para 3.41.
The applicant’s mother responded that to her knowledge she cannot ask someone to come to her church, and that if someone was to report such activity, they could go to jail. She stated that in Australia they attend a prayer group, but in Indonesia you have to get permission for prayer groups with more than five participants. When questioned if she had ever asked people to attend her church, she stated yes. When asked what this involved, she stated that she asks people what church they go to, and if the person tells her that they are still looking for a church, she tells them to come to her church, and if they like it, they stay. When asked who she will invite, she stated she asks people she already knows, as well as some she does not know, such as friends of friends. She stated that she might meet some people at the shopping centre if she sees them with one of her friends. The Tribunal put to her that she appears to invite people whom she meets through someone already known to her, and that it may not be satisfied that she would encounter any trouble on return to Indonesia for inviting people to her church in such a limited way. The Tribunal put to the applicant that the 2019 DFAT report indicates that some Pentecostal Christians undertake door-to-door evangelical activities, whereas her evidence of attempts at proselytising is more limited and unlikely to bring her to the attention of the authorities or anyone else who wishes to harm her. She had no further comments in response to the Tribunal’s concern.
Claims regarding language and not having lived in Indonesia – evidence of applicant’s mother
The applicant’s mother claimed the applicant fears returning to Indonesia because she cannot read Indonesian and has lived in Australia all her life. The Tribunal questioned as to what language she and her husband speak at home, to which she responded that they speak in English. When asked whether the applicant has picked up any Indonesian from the home or elsewhere, she stated that at first she expected the applicant would attend worship services in Indonesian, but she was unable to understand them. The Tribunal put to her whether the applicant being raised in an English-speaking educational environment could be an advantage to her on return to Indonesia, to which she responded that she is afraid of how the applicant will perform at school in Indonesia, as all of the study is in English and she cannot read Indonesian. She stated that she needs to translate for the applicant.
The Tribunal put to the applicant’s mother that while it acknowledged there may be disruption to the applicant’s education and personal life, it may not be satisfied that there is a real chance that the applicant will face serious harm on the basis of her not reading Indonesian and having lived all her life in Australia if she was to return to Indonesia, and it may not accept that there are substantial grounds for believing that there is a real risk that she will suffer significant harm on this basis if she is removed from Australia. The applicant’s mother indicated that she had no comments in relation to this potential concern.
Evidence of the applicant’s father regarding the applicant’s claims about her religion
The applicant’s father confirmed that he was born in Jakarta and has lived nowhere else in Indonesia. His mother became a Christian before he was born. His father is a Buddhist. He became a Christian at the age of [age] and was baptised in [Church 2]. He was able to explain the concept of baptism in a convincing manner and demonstrated knowledge of the Bible, including the ability to recite information from the Book of Matthew.
The applicant’s father confirmed that he did not experience any incidents of past harm as a result of his religious practise in Indonesia. He stated however that after about 7 or 8 years of worship at his church in Jakarta, the church had to close down as it was unable to renew its licence. He stated that the government would not renew the church’s licence. He stated that after this he attended another church in Jakarta, which was a little further away from his home.
When asked what he fears would happen to the applicant on the basis of her religion if she were to return to Indonesia, he stated that he fears she will not be able to practise her religion freely. He stated that she will not be able to ask someone to come with her to church. The Tribunal questioned whether this is a requirement of her religion. He responded that it is, and that it is a requirement that you tell both people you know and people you don’t know about the Bible. The Tribunal put to the applicant’s father that the 2019 DFAT report indicates that some Pentecostal Christians are involved in door-to-door evangelical activities, and while this has been known to upset religious sensitivities, the fact that this activity continues to occur may indicate that the asking a friend or acquaintance whether they wish to come to your church is unlikely to result in a level of harm which would be sufficient to meet the tests for the refugee criterion or complementary protection. The applicant’s father responded that while Christians may be able to practise their faith once a week in certain churches, they would also like to hold prayer and Bible study groups once a week, but they need permission from the head of neighbourhood administration if they organise such events involving more than 5 people. He stated that such permission is sometimes not easy to obtain, with the local community sometimes forbidding you to worship at home. He stated that both he and the applicant attend Bible study groups in Australia.
The Tribunal put the same information from the 2019 DFAT report regarding Christianity in Indonesia to the applicant’s father and put to him the same concerns. He indicated that he had no further comments or response.
The applicant’s father later gave evidence that it is a requirement of his church that they tell everyone they meet about the Bible. He stated that this extends to friends as well as people they don’t know. The Tribunal put to the applicant that while it might accept this is the case, he has not given any evidence of formal proselytising, such as door-to-door evangelical activities, such as those conducted by some Pentecostal churches, which the 2019 DFAT report indicates does occur in Indonesia. The applicant’s father responded that while they do not conduct activities of this kind, they are required to ‘net souls’. When asked about the process he uses, he stated that he tells people about his faith, and if they agree to accept the Lord as their saviour, they move to the next step, which is to bring them to church and Bible studies. The Tribunal put to the applicant that on the basis of the 2019 DFAT report, there is nothing to indicate that such an activity would bring him to the attention of the authorities and is unlikely to result in the risk of harm required for the Protection visa. The applicant’s father responded that he fears that if they conduct such activities they will be imprisoned. He stated that this will happen because, when he tells people about the Bible, he will have to explain the differences between Christianity and Islam. The Tribunal questioned whether he has previously had such conversations in Indonesia. He responded that he has had them in Australia, though not in Indonesia. He stated that he has had a debate with a Muslim person in Australia when they discussed the differences between their religions. When asked what that person’s response was, he stated that he accepted there are certain things in the Koran which are not contained in the Bible. When asked if he could have such a conversation in Indonesia, he stated yes, though there would be trouble. He stated he is not free to tell people about the Bible in Indonesia, which is why he does not want to live there.
Claims regarding Chinese ethnicity – evidence of the applicant’s father
The applicant’s father gave evidence that he has experienced harm and discrimination on the basis of his Chinese ethnicity. When questioned about these claims, he stated that when he was [age range], a neighbouring Muslim Indonesian child of the same age called him Chinese. He stated that he was ready to fight this person, but they gathered other Muslim Indonesian boys from the neighbourhood to attack his house. His mother told him to stay inside, and the boys smashed the windows of their house. He stated that his uncle reported the incident to the police. The police wrote up a report but then did nothing further about the incident. He stated that there were no further incidents as an older person mediated the incident. He was forced to pay compensation to them even though they were the ones who had caused harm to him. When asked why he believes this incident happened, he stated that he was learning to ride a motorcycle with his uncle, and they almost crashed into people, so the people called them Chinese and told them to move away. He stated that he and his uncle were angered by this and ‘started to want to fight’.
The applicant’s father confirmed that he had experienced no other incidents relating to his Chinese ethnicity. When asked what he fears would happen to the applicant on the basis of her Chinese ethnicity if she was to return to Indonesia, he stated that he worries she would be bullied. He stated that she would be bullied because she does not speak Indonesian and because she has fair skin. The applicant’s father had no comments in response to the information the Tribunal discussed from the 2019 DFAT report.
Evidence of the applicant’s father regarding the applicant’s claims on language and bullying
The applicant’s father claimed that he fears the applicant would be bullied on return to Indonesia because she does not speak Indonesian. He stated that there was nothing further. He had no further response to the Tribunal’s concern that this claim may not be sufficient to meet the requirements for the protection visa.
Submissions from the applicant’s representative and request for referral to the Minister
The applicant’s representative was invited to make oral submissions but declined to provide any in relation to the applicant’s claims for protection. The Tribunal granted her representative one week to provide further written submissions.
The applicant’s representative confirmed that should the Tribunal affirm the delegate’s decision, the applicant requests that the Tribunal refer the matter to the Minister for intervention. He stated that the applicant’s family unit includes her sister, who is an Australian citizen, and the applicant would herself be eligible to apply for Australian citizenship in July 2024, approximately one year from the date of the first hearing.
Second hearing – discussion of updated DFAT country information report
Prior to the Tribunal finalising its decision, an updated country information report for Indonesia was published by DFAT on 24 July 2023. [12] Accordingly, the Tribunal re-opened the hearing to put to the applicant information from this report and to invite her comments or response, as well as to discuss the country information which the applicant provided after the first hearing in June 2023, and her claims regarding the banning of proselytising in Indonesia.
[12] DFAT Country Information Report, Indonesia, 24 July 2023.
The Tribunal discussed with the applicant’s parents background information about religion and Christianity in Indonesia which is similar to that contained in the 2019 report. The Tribunal put to the applicant’s parents information from the report which indicates that to obtain permission to build a new house of worship, registered religious groups must obtain 90 signatures of support from the planned users of the house of worship, and at least 60 signatures from members of the broader community.[13] This means in practice that some adherents of smaller faiths, such as small denominations of Christianity, have a more difficult time obtaining approvals.[14] Local governments are responsible for implementing approvals, which means the experience of different religious groups that seek approvals may differ from place to place.[15] However, local government areas hold ‘Forums for Religious Harmony’, which are comprised of members of the six official religions, and which are responsible for granting building permissions.[16] These forums are also responsible for mediating religious conflict.
[13] DFAT Country Information Report, Indonesia, 24 July 2023, para 3.23.
[14] DFAT Country Information Report, Indonesia, 24 July 2023, para 3.23.
[15] DFAT Country Information Report, Indonesia, 24 July 2023, para 3.24.
[16] DFAT Country Information Report, Indonesia, 24 July 2023, para 3.24.
The DFAT report contains the following section specific to Christians, which the Tribunal discussed with the applicant’s parents:
Christians
3.37 Christianity is Indonesia’s second-largest religion after Islam. Many Christians live in the Papua provinces, parts of North Sumatra, East Nusa Tenggara, North Sulawesi, and Maluku islands, but also in Jakarta and other parts of the country. There are Christians in every province of Indonesia. Many Indonesians of Chinese descent are Catholic. Along with the Catholic church, many Protestant churches operate in Indonesia, including mainline Protestant churches (especially 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. In general, Christians have good relations between denominations and with other religions, including regular dialogue and a generally peaceful coexistence.
3.38 In country sources told DFAT that they do not generally experience discrimination, for example, because of the faith listed on their identity cards, when publishing literature, or for having Christian websites. Localised discrimination from local governments is possible. For example, the Indonesian Christian Church (GKI) won a 2010 Supreme Court challenge against the revocation of its building permit in Bogor, near Jakarta. The Church remains sealed by the local government at the time of writing despite the court ruling.
3.39 Religious intolerance against Christians occurs occasionally with a small possibility of violence. Police sometimes provide armed protection to churches, especially during religious festivals. In-country sources told DFAT that most churchgoers feel safe going to church on Sundays.
3.40 Attacks against Christians can be highly organised, and police investigate and sometimes disrupt these threats. For example, a bomb attack in Makassar in March 2021 on Sacred Heart Cathedral injured about 20 people. Police arrested 53 people for the attack, who were charged with terrorism offences. In May 2021, police disrupted plans to kill a Catholic bishop in the Papua provinces and attack several other churches. In November 2020, ISIS-linked terrorist group East Indonesia Mujahidin (MIT) carried out an attack on several homes and a Salvation Army church in Central Sulawesi, killing four.
3.41 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. Violence does occur and there are recent high-profile examples, but this is not the day-to-day experience of most Christians.
The Tribunal put to the applicant’s parents that from this information it may infer that it may not accept that the applicant would experience any official discrimination upon return to Indonesia, and that if she were to live in an area where conservative Islam is prevalent, she would face only a low risk of societal discrimination in the form of impediments to worship, and that while there have been some instances of violence against Christians, this is not the day-to-day experience of most Christians and the Tribunal may find that the risk of the applicant coming to any harm on the basis of her religious practise is remote. The Tribunal also put to the applicant that the latest country information report no longer contains any reference to proselytising by Christians, from which the Tribunal may infer that it is no longer a significant issue for Indonesian Christians or that the situation has not changed since the previous report. Both of the applicant’s parents indicated that they had no comments or response to the information from this report.
The Tribunal also referred to the country information which the applicant provided following the first hearing, in particular that which relates to bans on proselytising. The Tribunal put to the applicant’s parents that while it accepts that there are ministerial decrees which ban proselytising on those who belong to another religion, the use of material inducements to encourage conversion, the dissemination of religious material to those who belong to another religion and missionary activity in the form of door-to-door visits, the evidence which they have provided of their own activities and those of their church, may not be such that would attract adverse attention in Indonesia. Both of the applicant’s parents indicated that they had no comments in relation to the further country information which the Tribunal put to them, which is set out in my analysis and findings below.
The Tribunal also discussed with the applicant’s parents the following country information regarding ethnically Chinese Indonesians, contained in the most recent DFAT report:
Ethnically Chinese Indonesians
3.6 Successive waves of immigration to Indonesia from China have resulted in well-established ethnically Chinese Indonesian communities throughout the country. Many Chinese Indonesians can trace their history in Indonesia back many generations, may no longer identify as Chinese, and may not speak a Chinese language. Most Chinese Indonesians belong to a religious minority, either Buddhism or a Christian denomination.
3.7 The Suharto-era New Order regime implemented a range of discriminatory measures, prohibiting Chinese language newspapers, schools and cultural expression and requiring Indonesian names. Violence and looting targeting Chinese Indonesians and their homes and businesses peaked during the Asian Financial Crisis (see Recent History). Since the end of the New Order regime in 1998, successive governments have removed official policy measures discriminating against ethnically Chinese Indonesians. Chinese New Year is a national public holiday, Confucianism is an officially recognised religion, Chinese-language newspapers are published, and there are no barriers to Chinese cultural celebrations or education.
3.8 Hundreds of thousands of protesters demonstrated in Jakarta on several occasions in 2016 to demand the detention of the Christian and Chinese-Indonesian Governor of Jakarta, Basuki Tjahaja Purnama (often referred to as ‘Ahok’), after he was arrested for allegedly insulting Islam. Violence between protesters and police was reported, but not violence against ordinary citizens, as occurred in 1998.
3.9 Chinese Indonesians experience societal discrimination in the form of negative stereotypes that portray them as greedy, as criminals or as being associated with China and its policies. Discrimination of this type increased around the outbreak of the COVID-19 pandemic due to the extensive media coverage of China and various claims about the origins of the virus at the time.
3.10 Risk of societal discrimination against Chinese Indonesians depends on individual circumstances. Individuals with wealth are less affected; they can use their wealth and connections with powerful people to protect themselves. Many Chinese Indonesians work in family businesses or within their own ethnic community, which reduces the chances of discrimination at work. Those without such networks or wealth would be more at risk of discrimination, but that applies to all Indonesians, not just Chinese Indonesians.
3.11 Memories of the 1998 violence and 2016 protests are still fresh in the memories of many ethnically Chinese Indonesians. Some jealousy of perceived wealth can lead to threats and some Chinese Indonesians keep a low profile as a result. Anti-minority sentiment is also heightened during election campaigns. Violence has occurred in the past but is not an everyday experience for Chinese Indonesians.
3.12 DFAT assesses that Chinese Indonesians currently face a low risk of societal violence and a moderate risk of low-level societal discrimination. DFAT is not aware of official discrimination against Chinese Indonesians.
The Tribunal put to the applicant that on the basis of this information, it may infer that Chinese Indonesians currently face a low risk of societal violence, and that while there is a moderate risk of societal discrimination such as negative stereotyping, this is of a low-level and may not meet the requirements of harm necessary to meet either the refugee criterion or complementary protection. The applicant’s mother responded that while the report may say that the discrimination is low-level, she is still fearful. She stated that differences in wealth also cause problems with things such as obtaining identity cards. The applicant’s father stated that he had no further response to the most recent country information. The applicant’s parents confirmed that they had no further claims or evidence to give on behalf of the applicant.
The applicant’s representative requested one month to provide written submissions in response to the updated country information discussed by the Tribunal. The Tribunal granted the applicant one month to provide these submissions.
FINDINGS AND REASONS
In determining whether an applicant is entitled to protection in Australia, the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need, and importance of, being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
On the other hand, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by the applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is ‘well-founded’ or that it is for the reason claimed. A fear of persecution is not ‘well-founded’ if it is merely assumed or if it is mere speculation. 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 him 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 her or him. 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.)
Having heard the evidence of the applicant’s parents, I accept that the applicant is of Chinese Indonesian ethnicity and that the applicant and her entire immediate family, including her parents and siblings, are Christians. I accept that the applicant’s parents were truthful in their evidence. I accept that the applicant is being raised as a Christian and has been baptised in [Church 1], which I accept is a Christian Pentecostal church. I also accept that in Indonesia, the applicant’s parents attended [Church 2] or a[deleted], which I also accept is a Christian Pentecostal church. I accept that if the applicant and her family were to return to Indonesia, they would continue to practise their faith in a Christian Pentecostal church. I accept that this would include her parents attending Sunday church services, and the applicant and her siblings attending Sunday school until they are old enough to also attend church services. I accept that the practise of their religion would also involve attending prayer and Bible study groups, as it does in Australia. While the applicant is only currently [age] years old, and may therefore on return to Indonesia not seek to practise her Pentecostal faith independently of any of the actions or wishes of her parents, I accept that the applicant’s parents would ensure that she continues to practise her faith until she reaches adolescence or adulthood, at which time she would make her own independent decision as to her religious beliefs and practise.
I also accept that as a Pentecostal religion, the applicant’s family’s faith involves an element of proselytising or of the ‘netting of souls’, as the applicant’s father put it. I accept that the applicant’s parents currently undertake some limited proselytising activity in Australia, which includes asking people which church they attend, and inviting them to attend their church. I accept that this includes asking both people they know, as well as people they meet through acquaintances, whether they would like to attend their church. I however find that there is no evidence that either of the applicant’s parents undertake more public forms of proselytising, such as door-to-door evangelising. I accept that when the applicant is older, she is likely to undertake similar proselytising activity in line with the religious beliefs she is being raised with. I accept that this may extend to the applicant asking people she knows, including school friends, as well as people she meets through acquaintances, whether they would like to attend her church. I find, however, that given the activities of the applicant’s parents in Australia, where they are free to practise their religion openly and to conduct public proselytising, that the activities of the applicant are very unlikely to include door-to-door evangelising. I also find that the applicant’s parents’ activities, and those of the remaining members of their family, are very unlikely to extend to such public evangelising, based on the evidence of their activities to date in Australia.
I also accept the evidence from both of the applicant’s parents of the harassment and discrimination they experienced as children in Indonesia, including claims of name calling, stones being thrown at the applicant’s father’s home, and the applicant’s mother’s claim that she was touched by a stranger while travelling home from school in a rickshaw.
I also accept the evidence from the applicant’s parents that the applicant’s understanding of Indonesian is limited, and that she cannot read Indonesian, and that she has some difficulty understanding church services conducted in Indonesian.
Does the applicant have a well-founded fear of persecution if she returns to Indonesia?
Claims regarding Christianity
On the basis of the applicant’s Indonesian passport and birth certificate, I accept that she was born in Australia and holds Indonesian citizenship. As noted above, I have accepted that the applicant is being raised a Pentecostal Christian, and that all the members of her immediate family practise this faith. I accept that the applicant will continue to practise this faith, in line with how she is being raised by her parents, upon return to Indonesia. I have also accepted that she and her parents will seek to undertake limited forms of proselytising upon return to Indonesia, as consistent with their religious beliefs. I accept that this will include inviting people they know, as well as friends of acquaintances, to their church. I do not however accept that their activities will include more public forms of proselytising such as door-to-door evangelising.
As noted in the country information advice prepared by DFAT, many Protestant churches operate in Indonesia and Christians are generally able to practise their faith freely throughout Indonesia.[17] DFAT assesses that Christians who live in areas where they are a majority do not face either official or societal discrimination, while those who reside in areas where conservative Islam is prevalent face a low risk of societal discrimination in the form of impediments to worship.[18] While there have been some recent high-profile examples of violence towards Christians, this is not the day-to-day experience of most Christians, there remains only a small possibility of violence and most churchgoers feel safe attending church on Sundays.[19]
[17] DFAT Country Information Report, Indonesia, 24 July 2023, para 3.37.
[18] DFAT Country Information Report, Indonesia, 24 July 2023, para 3.41.
[19] DFAT Country Information Report, Indonesia, 24 July 2023, paras 3.39 and 3.41.
I have had regard to the country information submitted by the applicant, which includes articles which report on arson attacks on several churches in Aceh Province in 2015, the denial of church permits and the demolition of 9 churches by the local government, the closure of three churches in West Kenali village in Sumatra, the demolition of a church in Bekasi, West Java, because it was deemed not to have a permit, and an agreement between Islamic leaders and the local government in Banten, Java’s westernmost province, for the removal and restriction of any churches within the city of Cilegon, under which 21 churches would face closure. The information provided contains a report of a priest in Slemen, Yogyakarta, who was named as a police suspect because he was deemed to have used his house as a place of worship without a permit, as well as reports of police comments that houses are not to be used as places of worship. The articles refer to Joint Regulation Number 9 of 2006 of the Minister of Religion and the Minister for Home Affairs, which requires a permit to use a building as a place of worship, as well as the need to obtain approval from people who live in the vicinity of the proposed place of worship. The articles also contained information about suicide bomb attacks on a Catholic church in Surabaya in 2018, which wounded 41 people, and in Makassar in 2021, wounding 19, with the suspects in both cases being the only fatalities. I have also had regard to the conference paper by Abdul Mujib regarding proselytising in Indonesia.
I do not find that these articles or the submissions of the applicant’s representative are inconsistent with information contained in the most recent DFAT report, issued on 24 July 2023, nor do they contain information of a different nature which might discredit the advice which DFAT has provided. Rather, I find that the latest DFAT report acknowledges that it can be difficult in some local government areas to obtain permission to build new houses of worship, with the potential for religious groups to have different experiences from place to place, and that to build new houses of worship, registered religious groups must obtain 90 signatures of support from the proposed users, as well as at least 60 from members of the broader community.[20] The latest DFAT report also acknowledges that localised discrimination from local governments occurs in the form of refusal to grant permits for places of worship, as well as church closures, but such treatment remains localised.[21] The latest DFAT report refers to the attack on the Catholic church in Makassar in 2021 which is contained in one of the articles supplied by the applicant, as well as attacks in November 2020 in Central Sulawesi.[22] The previous DFAT report refers the 2018 attack on a Catholic church in Surabaya,[23] which is referred to in another article supplied by the applicant. Overall, this additional country information is consistent with that provided in the two most recent DFAT reports. Having considered it, I accept DFAT’s assessment that Christians who reside in areas where they are the majority, do not face either official or societal discrimination,[24] and that Christians who reside in areas where conservative Islam is prevalent, face a low risk of societal discrimination in the form of impediments to worship, with the risk unlikely to include violence.[25] In its 2019 country information report on Indonesia, DFAT advised that Christians residing in some areas, particularly where hard-line Islamist groups are more influential (such as Aceh, and in parts of East and West Java) have occasionally been prevented from worshipping, including through forced church closures and the disruption of church services), however such discrimination is localised.[26] While I have taken into account the evidence from the applicant’s parents of the closure of churches that they attended as children in Palembang and Jakarta, I do not accept that the applicant or her family would be prevented from finding or worshipping in a Pentecostal church in Jakarta. Given the applicant’s father is from Jakarta and her mother also moved to Jakarta prior to arriving in Australia, and the applicant has extended family in Jakarta, including a grandparent and uncles and aunts, I find that the applicant could move to Jakarta, where there are about one million Christian residents, and where the applicant and her family could practise their faith freely.[27]
[20] DFAT Country Information Report, Indonesia, 24 July 2023, paras 3.23 and 3.24.
[21] DFAT Country Information Report, Indonesia, 24 July 2023, para 3.38.
[22] DFAT Country Information Report, Indonesia, 24 July 2023, para 3.40.
[23] DFAT Country Information Report, Indonesia, 25 January 2019, para 3.37.
[24] DFAT Country Information Report, Indonesia, 25 January 2019, para 3.41.
[25] DFAT Country Information Report, Indonesia, 25 January 2019, para 3.41.
[26] DFAT Country Information Report, Indonesia, 25 January 2019, para 3.36.
[27] DFAT Country Information Report, Indonesia, 24 July 2023, para 3.37.
On the basis of the independent country information, including an assessment of the additional articles submitted by the applicant, I find that the applicant would be able to attend a Pentecostal church and Sunday school in Jakarta, and practise her faith in the same manner which she and her family currently do in Australia, with the risk of the applicant or any member of her family coming to any harm as a result of the practise of their religion being remote. I am not satisfied that the applicant’s attendance at church or Sunday school activities in Indonesia will attract adverse attention to her or any members of her family. I also accept DFAT’s assessment that while violence against Christians in Indonesia does occur, and there have been some recent high-profile examples of such violence, this is not the day-to-day experience of most Christians.[28]
[28] DFAT Country Information Report, Indonesia, 25 January 2019, para 3.41.
I have also considered the applicant’s claims regarding proselytising and a call to ‘net souls’ as part of her faith. I have accepted that this is a required aspect of the applicant’s faith. I have also accepted that the applicant’s parents conduct a form of proselytising where they invite people they know and acquaintances of such persons to their church. I have also accepted that when she is older, the applicant may seek to undertake such activity in Indonesia, and that other members of her family, including her parents, would continue to undertake such activity upon return to Indonesia. However, I do not accept that this form of activity would bring attention to the applicant or any members of her family. As noted above, the 2019 DFAT report indicates that conversion to and from Christianity is common and that some Pentecostal Christians in Indonesia are involved in door-to-door evangelical activities, despite such activities having been known to upset religious sensitivities.[29] Preaching by foreign missionaries is unlawful, but the US State Department reports that many foreign missionaries preach without official sanction.[30] The most recent DFAT report contains no reference to proselytising by Christians or door-to-door evangelical activities, though it includes information about proselytising by Ahmadis, which is not relevant to the applicant’s claims.[31] This suggests that proselytising by Christians is not a key concern or there has been no change in the situation since the 2019 report.
[29] DFAT Country Information Report, Indonesia, 24 July 2023, para 3.39
[30] DFAT Country Information Report, Indonesia, 24 July 2023, para 3.39.
[31] DFAT Country Information Report, Indonesia, 24 July 2023, see paras 3.37 to 3.41 for information on Christians in Indonesia and paras 3.42 to 3.47 for information about Ahmadis.
I have also had regard to the applicant’s submissions regarding the prohibition against proselytising in Indonesia, including her claims regarding specific regulations, which I discussed with the applicant’s parents at the second hearing. I accept that proselytising and specific forms of public evangelical missionary work are regulated in Indonesia by decrees issued in the 1970s by the Minister of Religion (in particular, the Guidelines for the Propagation of Religion (Ministerial Decision No. 70/1978).[32] These decrees ban proselytising to those who belong to another religion, the use of material inducements to encourage conversion, the dissemination of religious material to those who belong to another religion and missionary activity in the form of door-to-door visits.[33] Kim Hyung-Jun argues that following the issuance of these decrees, the Indonesian government encouraged an understanding of them and their dissemination through inter-religious meetings which involved the five official religions (including Protestantism).[34] By 1983, religious delegates had agreed to an ethical code which regulated the behavioural norms between followers of different religions. This included a code that proselytising should not be directed at a person or group of persons who already have another religion.
[32] Hyung-Jun Kim, The Changing Interpretation of Religious Freedom in Indonesia, Journal of Southeast Asian Studies, 29, 2 (September 1998); U.S. Department of State Annual Report on International Religious Freedom for 2002 – Indonesia, United States Department of State, 7 October 2002. Available at: Harmony in Diversity: A Government Policy and Mutual Effort of Religious People in Indonesia, Dr Dede Rosyada, UIN Syarif Hidayatullah Jakarta, available at: Hyung-Jun Kim (1998), ibid.
[34] Hyung-Jun Kim (1998), ibid.
The Tribunal’s research indicates that any formal action by authorities against persons suspected of proselytising has been very limited. In March 2006, allegations were made against two foreign university lecturers/linguists by members of a militant Islamic group that ransacked their office/house, accusing the two of translating the Bible into the local dialect and demanding that they leave the country for allegedly trying to convert local residents to Christianity. Local police dispersed the crowd and searched the couple’s house.[35] There are no reports of the couple being arrested by police. In September 2005, a court in West Java sentenced three women to three years in prison each for proselytising in their Sunday school activities, based on their inclusion of Muslim children in a class with Christian children, even though this was done with the verbal consent of parents.[36] Rather than being prosecuted under the above-mentioned decrees, the women were convicted of breaching the Child Protection Act 2002 (Indonesia), which makes it illegal to convert children under specific circumstances. The women belonged to the evangelical Christian Church of David’s Camp, and were located in Haurgeulis, a strongly Muslim fundamentalist area of West Java, a community that was marked by ongoing and increasing tension with the Christian minority.[37]
[35] Country Reports on Human Rights Practices – Indonesia, Bureau of Democracy, Human Rights, and Labour, U.S. Department of State, 6 March 2007, available at: Bureau of Democracy, Human Rights, and Labour, U.S. Department of State, ibid.
[37] Melissa Crouch, ‘The Proselytisation Case: Law, the Rise of Islamic Conservatism and Religious Discrimination in West Java’, Australian Journal of Asian Law, 2006.
Overall, the two most recent DFAT reports indicate that the 1978 Guidelines for the Propagation of Religion appear to no longer be enforced in relation to Christians. On the country information, door-to-door evangelical activity is conducted in Indonesia by Pentecostal Christians, and while this may upset religious sensitivities, there are no reports of people being charged, arrested or harmed in any way as a result of such activities. I note that in making my findings I have considered the further submission received on 4 October 2023, which the applicant was given one month to provide, but find the information contained in these submissions does little to take this issue any further. For instance, the conference paper by Abdul Mujib restates information regarding Regulation 70/1978 on the Guidelines for the Propagation of Religion and information about the prosecution of three Sunday school teachers, which the Tribunal had already discussed with the applicant at the second hearing. I find that the form of proselytising conducted by the applicant’s parents, which is of a much more limited nature than public door-to-door evangelism, is unlikely to bring attention to them. While I accept that the applicant may seek to proselytise in a similar manner to that currently conducted by her parents in Australia, for the same reasons I find it is unlikely to bring adverse attention to her from the authorities or anyone else.
The Tribunal does not consider there is anything in the applicant’s practise of her religion or in her profile, nor that of her parents or any member of her family, which would lead to a real chance that she will face serious harm upon return to Indonesia. This includes a cumulative assessment of the applicant’s claims regarding her Chinese ethnicity, which are addressed separately below.
I am therefore satisfied that there is no real chance that the applicant will be questioned, harassed, bullied, attacked, detained, charged or otherwise harmed by the authorities or anyone else for reasons of her religion, or the religion or practices of her parents or any members of her family, now or in the reasonably foreseeable future.
Claims relating to Chinese ethnicity
The applicant claims that she will be subjected to discrimination and harassment in Indonesia, including name-calling. As noted above, the country information indicates that Chinese Indonesians face a low risk of societal violence and a moderate risk of low-level societal discrimination.[38] DFAT also advises in its current report that it is not aware of any official discrimination against Chinese Indonesians.[39] I have also considered the additional articles which the applicant has provided, which refer to several incidents and aspects of discrimination, including:
a.Articles relating to discrimination faced by Indonesians of Chinese ethnicity during the Soeharto era (1966-1998) and about the 1998 riots;
b.An article about a Chinese Buddhist woman who was sentenced to 18 months’ jail for complaining about the volume of the call to prayer at her local mosque;
c.An article about Ahok, who in 2017 was sentenced to two years’ imprisonment for blasphemy; and
d.Articles which reference derogatory terms being used against Chinese Indonesians, including the racist term ‘Cina’.
[38] DFAT Country Information Report, Indonesia, 24 July 2023, para 3.12.
[39] DFAT Country Information Report, Indonesia, 24 July 2023, para 3.12.
While I have considered these additional articles, I find that they are consistent with the information set out in the most recent DFAT report and do not cause me to question DFAT’s assessment of the situation in Indonesia for Indonesians of Chinese ethnicity.
While the Tribunal accepts the evidence of the applicant’s parents that they have experienced some harassment, including name calling, particularly when they were young, it does not accept that this amounts to serious harm. I have also considered the applicant’s father’s account of getting into an argument with a local boy of Indonesian Muslim background, which resulted in rocks being thrown at his house and windows being smashed. I have also considered the evidence of the applicant’s mother that on one occasion while she was returning home from school, she was touched by an unknown person as she sat in a rickshaw. While I accept that these incidents occurred, I do not accept that they occurred solely on the basis that the applicant’s parents are Chinese Indonesians. For instance, the applicant’s father gave evidence that the incident where stones were thrown at his house occurred after he and his uncle almost drove into a group of boys, and it followed a potential altercation where both sides indicated a willingness to fight. The incident recounted by the applicant’s mother involved a situation where she was travelling alone from school as [a child]. The applicant’s mother conceded that she does not know who was responsible for touching her, and that the person ran away when she screamed. There is no convincing evidence to indicate that she was targeted because she is of Chinese Indonesian ethnicity or for any other particular reason. I therefore have concerns that the incident may have been the result of opportunism, rather than directed at the applicant’s mother because of her ethnicity or any other reason. The applicant’s mother gave evidence that she accompanies the applicant to and from school, and she gave no other evidence of any other incidents, other than name-calling. I am therefore unable to find that either of these incidents would indicate that the applicant would experience any harm in Indonesia as a result of her Chinese ethnicity.
The Tribunal accepts DFAT's advice which indicates that, while some historical biases against ethnic Chinese Indonesians persist, the situation has improved since 1998. The Tribunal further finds, based on the independent country information, that while occasional cases of prejudice persist, Indonesians of Chinese ethnicity overall face low levels of societal discrimination.
Claims regarding the applicant’s language and related claims of bullying
As noted, I accept that the applicant may not have strong Indonesian language skills and may not be able to read Indonesian. I am prepared to accept that children who are not fluent in Indonesian or cannot read Indonesian is capable of being a particular social group for the purposes of s.5J(1)(a) of the Act. While I accept that the applicant’s level of Indonesian language skills may cause some difficulties to her in adjusting to the education system in Indonesia, and may also result in some bullying at school, I do not consider that there is any convincing or compelling evidence to indicate that she would suffer serious harm amounting to persecution from anyone as a result of this concern, if she were to return to Indonesia.
For the purposes of s. 5J(4) of the Act, the following are instances of serious harm: (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; and (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist. I consider that the applicant is currently 9 years old and is therefore young and at an age where she has the ability to quickly acquire language and adapt to the education system in Indonesia, particularly as she has been raised in an Indonesian family and already has some basic Indonesian language skills. I find that if the applicant were to return to Indonesia, she would do so with her parents, and would therefore be supported by them financially and emotionally while she adapts to the Indonesian educational system. I am not satisfied that the applicant’s Indonesian language skills, or any associated bullying which she may experience, would amount to serious harm as defined under the Act.
Cumulative findings regarding refugee criterion
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, I find that there is no real chance that the applicant will suffer serious harm amounting to persecution from anyone for any reason, if she returned to Indonesia, now or in the reasonably foreseeable future.
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).
Does Australia have protection obligations to the applicant under the complementary protection criterion?
As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether she may nevertheless meet the criterion for the grant of a protection visa pursuant to the complementary protection criterion.
Section 36(2)(aa) of the Act refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB[40] the Full Federal Court held that a ‘real risk’ test imposes the same test as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.
[40] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342]
‘Significant harm’ is defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
As set out in my reasons above, I accept that the applicant and her family will practise Christianity in Indonesia and that they will attend a Pentecostal church. I also accept on the basis of the country information that some low-level discrimination against Indonesians of Chinese ethnicity continues to exist, particularly in the form of name-calling and the use of derogatory language. However, for the same reasons as set out above, I am not satisfied that there is a real risk of serious harm to the applicant in the reasonably foreseeable future if she returns to Indonesia on the basis of any of her claims regarding her religion, including any proselytising activities she or members of her family undertake, her Chinese ethnicity or her Indonesian language skills.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, the Tribunal is not satisfied that there is a real risk that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on her, she will be subjected to torture or cruel or inhuman treatment or punishment or she will be subjected to degrading treatment or punishment if she returns to Indonesia now or in the reasonably foreseeable future.
Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia, there is a real risk that she will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.
Request for Ministerial intervention
The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.417 of the Act, which gives the Minister a discretion to substitute a decision of the Tribunal for another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.
During the course of the hearing, the applicant’s parents gave evidence that the applicant’s family unit includes her older sister, [Child 1], who was born in Australia in [year] and became an Australian citizen in 2020. The applicant also has a younger brother, [Child 2], who was born on [date] in Australia. The applicant was herself born [on date], is currently [age] years old, and will herself be eligible to apply for Australian citizenship in what is now approximately [time period]. The applicant’s parents gave evidence that all of their children were born in Australia, have never left Australia, and have been educated exclusively in Australia. They also gave evidence that the applicant and her siblings are well integrated into their schools and church community, with Australia being the only home that all three children have known.
100. I have considered the Ministerial guidelines for intervention. I accept that the applicant's sister, [Child 1], is an Australian citizen and entitled to remain in Australia to live and study here. In the present case I consider that there are unique or exceptional circumstances which would justify bringing this case to the Minister’s attention. In particular, I accept that there are strong compassionate circumstances such that failure to recognise them would result in irreparable harm to an Australian citizen, namely the applicant’s older sister, [Child 1]. I accept that other than her parents, [Child 1], who is [age] years old, has no close relatives in Australia capable of caring for her in the event that the applicant and her family are removed from Australia. In addition, the circumstances may raise Australia’s obligations as a signatory to the Convention on the Rights of the Child, in particular the best interests of the applicant and her younger brother, [Child 2], both of whom were born in Australia. The applicant is currently aged [age] and has lived her entire life in Australia and been educated exclusively in Australia. The applicant’s younger brother, [Child 2], who was born [one date], is [age] years of age and was born and educated entirely within Australia. The applicant has remained in Australia since her [birth], and she and her siblings appear to have integrated into the Australian community, as demonstrated by their participation in their church community. The applicant will also be eligible to apply for Australian citizenship in approximately [time period], which adds to the compelling and exceptional nature of her circumstances. There is no evidence to suggest the applicant has not complied with Australian immigration requirements or that she has an application for any other visa which is yet to be finally determined.
101. In light of the above circumstances, I consider that it is appropriate to refer this matter to the Department to be brought to the Minister’s attention.
CONCLUSION ON PROTECTION VISA CRITERIA
102. 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 criterion in s 36(2).
DECISION
105. The Tribunal affirms the decision not to grant the applicant a protection visa.
Frank Russo
MemberATTACHMENT - 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.
…
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.
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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
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Immigration
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Administrative Law
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Judicial Review
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Procedural Fairness
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