1722623 (Refugee)
[2023] AATA 3315
•15 June 2023
1722623 (Refugee) [2023] AATA 3315 (15 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Alim Lim (MARN: 9361253)
CASE NUMBER: 1722623
COUNTRY OF REFERENCE: Indonesia
MEMBER:Mr S Norman
DATE:15 June 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 15 June 2023 at 11:48am
CATCHWORDS
REFUGEE – protection visa – Indonesia – fear of gangs – loan sharks – religion – Christian converts – ethnic Chinese – anti-Chinese riots – internal relocation – failed asylum seeker – unique and exceptional circumstances – length of time in Australia – Australian citizen child – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 48A, 65, 91WA, 417
Migration Regulations 1994 (Cth), r 1.12; Schedule 2CASES
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 31 August 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act). The applicants who claim to be citizens of Indonesia, applied for the visas on 29 June 2016.
The Department delegate’s decision was lodged with the Tribunal.
The applicant husband and applicant wife ([the first named applicant] and [the second named applicant]) appeared before the Tribunal on 6 June 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A] (the mother of the applicant husband). The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages. The applicants were represented in relation to the review.
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
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicants (principally via their agent), lodged extensive claims and submissions. Though these and other evidence and submissions have not all been expressly referred to herein, the Tribunal has had regard to all evidence and submissions prior to drafting this decision.
Meaningful opportunity to give evidence and submissions:
There were claims the applicant wife was traumatised by her experience in Indonesia (including as a result of the 1998 riots – discussed below). The applicant husband also referred to being scared to return to Indonesia. Though represented by an agent, neither referred to ever having any related medical assistance in either Indonesia or Australia. Irrespective of this, both appeared to have been able to work regularly (principally part time) in Australia.
The applicant husband claimed to be able to speak Indonesian / English / Hokian. At hearing, the applicant wife appeared to have better English language skills than her husband (she had studied in Australia in the English language – successfully obtaining a Diploma in [subject]).
That being said, the Tribunal is aware it needs to attempt to ensure that all applicants are provided with a meaningful opportunity to put evidence and submissions, including at a hearing, After having assessed the evidence and submissions in this case, including at the hearing, the Tribunal is satisfied the applicants were afforded such an opportunity.
Section 91WA / the section 48A bar:
The applicant husband advised that a prior application for an Australian visa (a Skilled visa) was refused on 26 February 2014 (failed PIC 4020[1]). In agent submissions dated 31 May 2023, it was explained the applicant husband arrived in Australia as a dependent on the applicant wife’s Student Visa. The applicants had subsequently applied for a Skills Visa in 2009. It was claimed the applicant wife fulfilled the Visa requirement for that Visa but it was refused due to the applicants having previously arrived in Australia under false identities.
[1] PDF - p.144 (‘PDF’ refers to the merged Department file on the Tribunal Casemate database).
In his letter to the Department dated 29 June 2016,[2] the applicant husband claimed that due to fearing persecution in Indonesia in 2001, he (and subsequently his then future wife) travelled to Australia on a visa ‘using a different name’. He also said a PV ‘may have then been’ lodged in the false name – around 2001 (and he received ‘some advice from DIBP’ about this). It was claimed to have been lodged by the then ‘agent’, and the applicant husband did not know the contents of that PV.
[2] PDF – p.253.
The Tribunal understands the applicant husband and applicant wife had first met in Australia in 2005. At hearing, the applicant husband explained he first travelled to Australia on a false passport in 2001. He said he was fleeing a loan shark/gang in Medan, Sumatra (some 1416km from Jakarta, Java), and though he subsequently travelled to Jakarta, he was not safe. When asked why he travelled to Australia on a false passport in 2001, he said he was advised that without ‘money in the bank’ or ‘evidence of prior travel and return to Indonesia’ he would not be provided a visa to Australia. Accordingly, he used a fake passport to travel to Australia in 2001.
The applicant wife (originally from Aceh but who had lived outside Aceh since 1997 – principally in Jakarta) also travelled to Australia on a false passport (independent of her husband) as she feared ongoing harm due to principally, her Chinese ethnicity (the ‘tragic 1998 riots’ only occurred a few years prior to her 2001 travel). The country information stated:
The Tribunal accepts the applicant husband and applicant wife both initially travelled to Australia on false passports. The Tribunal also accepts they both (independent of each other) lodged Protection visa applications. The Tribunal will accept that both Protection visa applications were finally determined prior to the applicants departing Australia in 2006. As s.91WA only applies to Protection visa applications not finally determined prior to 18 April 2015, and the Tribunal has not found that any bogus documents have been lodged for the present Protection visa application, s.91WA does not affect this Protection visa application and I have not considered it further.
Next, the Tribunal notes that s.48A imposes a bar on a non-citizen making a further application for a Protection visa while in the migration zone in circumstances where the non-citizen has made an application for a PV which has been refused.
In agent submissions of 31 May 2023, it was claimed that after the applicant husband and applicant wife first arrived in Australia, the applicant husband and applicant wife each lodged a separate PV application (under false names). These PV applications were refused. After their individual PV’s were refused, the applicant husband and applicant wife (then married), departed Australia around 2006 – and they resided in Jakarta (for approximately 6 ½ months).
The applicant wife was subsequently granted a Student visa (in her real name) and she returned to Australia in 2007. The applicant husband (also using his real name) returned with her as her spouse. They eventually applied for a joint PV on 29 June 2016. The Tribunal accepts this to be correct. The applicants then referred to the s.48A bar and submitted that as they had left the migration zone, and only lodged the current PV after having returned to Australia lawfully, they did not believe they were subject to the s.48A bar. The Tribunal was not able to identify any prior PV application (fraudulently lodged or otherwise).
Be that as it may, given the applicants departed Australia and returned in 2007, based on the evidence before it, the Tribunal will accept the applicants are not subject to the s.48A bar.
Membership of the same family unit:
The applicants’ two children are:
· [The third named applicant] – born in Australia – [date] ([age] years old at time of Tribunal hearing); and
· [The fourth named applicant] – born in Australia – [date] ([age] years old at time of Tribunal hearing)
Sections 36(2)(b) and (c) provide as an alternative criterion for the grant of a PV, that an applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a PV of the same class as that applied for by the ‘principal’ applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations.
Based on the evidence before it, the Tribunal will accept the applicant wife is a member of the same family unit as the applicant husband (though the applicant wife is also a ‘principal’ applicant). Further, based on the evidence before it, the Tribunal accepts that both children were born before the Department decision relating to the joint PV application, was handed down (handed down on 31 August 2017). The Tribunal also accepts that [the fourth named applicant] and [the third named applicant] are members of the same family unit as the applicants (pursuant to reg 1.12 of the Migration Regulations, and s.5(1) of the Act).
The applicants’ migration history and receiving country:
In 2007, both applicants lawfully travelled to Australia. However, both applicants also claimed to have returned to Indonesia for 1 ½ months in early 2011 for a ‘holiday’.[3] The applicants’ further travel history included:
[3] PDF – p.145 & p.172. The applicant wife claimed her father had passed.
Date Event details [date]/4/04 Arrived on subclass 676 visa [date]/8/06 Departed [date]/3/07 Arrived in subclass 572 visa [date]/2/11 Departed [date]/3/11 Arrived in Bridging visa B [date]/5/11 Departed [date]/6/11 Arrived in Bridging visa B 5/6/16 Applied for Protection visa XA-866
Date Event details [date]/3/07 Arrived on subclass 572 visa [date]/2/11 Departed [date]/3/11 Arrived in Bridging visa B [date]/7/16 Departed
The applicants lodged a photocopy of the bio-data page of their Indonesian passports with the Department (applicant husband expiry date: [date] 2016 – and applicant wife’s expiry date: [date] 2011). The Tribunal therefore accepts the applicant husband and applicant wife are citizens of Indonesia and that Indonesia is their receiving country.
Further evidence lodged with the Department included a photocopy of the bio-data page of the applicant son’s Indonesian passport (expiry date: [date] 2020[4]), and a photocopy of the bio-data page of the daughter’s Indonesian passport (expiry date: [date] 2020[5]).
[4] PDF – p.88.
[5] PDF – p.87.
In the circumstances, and in the absence of any claims or evidence to the contrary, the Tribunal will accept that [the first named applicant], [the second named applicant] and [the fourth named applicant] are citizens of Indonesia, and that Indonesia is their receiving country (a discussion of [the third named applicant]’s citizenship is set out below).
Regarding renewing Indonesia passports in Australia, the country information indicated that Indonesia passports may be renewed in Australia.[6] When discussed with the applicants, it was claimed (words to the effect) they had not sought to renew their passports and they did not wish to return to Indonesia. The Tribunal accepts however, they may renew their Indonesian passports in Australia.
[6] SeeThe daughter’s citizenship:
By agent submissions dated 31 May 2023, the Tribunal was advised that [the third named applicant] is now an Australian citizen (evidence of her Australian Citizenship certificate was lodged at hearing). The country information stated:
Current Indonesian law states that an Indonesian citizen cannot hold another nationality – in other words Indonesian law does not recognise or allow for dual citizenship. Different rules apply to children who have one Indonesian parent and one non-Indonesian parent.[7]
[7] Australian and Indonesian Citizenship, Australian Embassy Indonesia, Australian and Indonesian Citizenship (embassy.gov.au) , accessed 1 June 2023.
Both the daughter’s parents are Indonesian citizens. That being said, s.36(2) of the Act relevantly provides that a criterion for a PV is that the applicant for the visa is a non-citizen in Australia. This means that a PV can only be granted if the applicant is a non-citizen; and visas cannot be granted to Australian citizens (see s 4 and s 29 of the Act).
Based on the evidence, the Tribunal is satisfied that [the third named applicant] is now an Australian citizen. It follows that the daughter does not satisfy the requirements of s.36(2), and cannot be granted a PV. However, to the extent that may be relevant, the Tribunal has also taken into account the impact on the family of any harm the Australian citizen daughter may suffer in Indonesia.
The Tribunal’s consideration of material claims:
The fear of gangs:
In the PV, the applicant husband’s residence was indicated to be:
[Addresses redacted]
Regarding the applicant wife, her residence was claimed to include:
[Addresses redacted]
The applicant wife (DOB: [Date 1][8]), she had resided in or around Jakarta, Bandung (115km south-east of Jakarta) and or Australia from 1997 (she had not resided in Aceh since 1997). Accordingly, at hearing the Tribunal said it may not accept that Aceh was the applicant wife’s home region in Indonesia, given her reasonably extensive residence in Jakarta from 1997.
[8] The applicant wife also claimed to have another birth date – [Date 2] (PDF – p.160). This falls birthday was included in a Visa application is the applicant wife understood it would assist her being granted a Visa by Australia.
When discussed at hearing, the applicant wife said she had no-one in Jakarta, though she did accept that she resided with an aunt in Jakarta in 1997/2000 (or 1999). That aunt had now travelled to [Country 1]. Be that as it may, and given the applicant wife had principally resided in Jakarta since 1997 (at least while resident in Indonesia), the Tribunal does not accept her home region is Aceh. I find that her home region in Indonesia is Jakarta. However, given the limited time the applicant husband resided in Jakarta (less than 10 months in total), the Tribunal accepts that Jakarta is not his home region. His home region is Medan. Be that as it may, given his history of residence in Jakarta, the Tribunal will also accept the applicant husband, applicant wife and their children, would ‘likely’ return to reside in Jakarta.
The applicant wife claimed that her parents, and one sister and two brothers remained in Indonesia (in Aceh[9]). Her education included:
[Education history redacted]
[9] PDF – p.180.
The Tribunal notes that Medan (where the applicant husband resided) is on the Island of Sumatra - and that Tangerang is in Jakarta and on the island of Java (some 1,417km south-east of Medan). The applicant husband also claimed to have been employed in Indonesia as a [Occupation 1]. He has a married sister (in Jakarta) and brother in Indonesia (though at hearing he claimed his brother is now in Australia). His mother (Buddhist) is in Australia and his father is deceased (at hearing he said his father passed away in Jakarta in 2010).
Regarding the applicant husband (DOB: [date] – [age] years old at time of the hearing), he claimed to have travelled to Australia in 2001 (on a false passport), as he was being pursued by gangsters from Medan ([named]) and where he had previously lived – who were trying to kill him. In agent submissions of 31 May 2023, it was claimed this was due to an unpaid loan taken out by the father of the applicant husband (the applicant husband did not know the amount borrowed). In the aforementioned agent submissions, it was claimed the gang would often go to the applicant husband’s shop (in Medan) and disturb his business, including smashing windows.
The applicant husband also claimed he had been kidnapped (and tortured) by gangsters in early 2001, due to his father owing the gangster money. He was only released when part of a ransom was paid – and he said the gangsters were seeking to extort money from his family. The kidnap arose due to the non-payment of the father’s loan. In agent submissions of 31 May 2023, it was claimed the applicant husband had been detained for seven days and during that time he had been beaten and traumatised. It was claimed the applicant husband was only released after his family borrowed money from other relatives to pay a ransom. Despite paying this money the gang would still visit the applicant husband’s shop and continue to harass him, which included robbing his store. The applicant husband was fearful as he could not stop this treatment.
The applicant husband said his mother is willing to give evidence at hearing. At hearing, the applicant husband’s mother inter alia sought to confirm the applicant husband’s claims and said she needed the applicant husband’s assistance in Australia – though she also received assistance from her other son in Australia who lived near to her.
The Tribunal proposes to accept the applicant husband’s father borrowed money from loan sharks (a gang), and that the applicant husband was subsequently held responsible - including that he was briefly abducted and mistreated in 2001.
In the 31 May 2023 agent submissions, it was claimed the applicant husband feared he would again be kidnapped so he travelled (‘flew’) to Jakarta (from Medan). However, he was still being pursued. He also said the police were ‘scared of the gangster’ in Medan and the gangster had a ‘good network’ in Indonesia and could find him anywhere. In the agent submissions, it was said the applicant husband had attempted to contact the police in Medan but they did not assist him. The applicant husband believed this was due to his Chinese background and the fact the police would not assist unless he paid money.
When discussed at hearing, the applicant husband said the police in Medan were scared of the gangster/s. When asked why he thought the gang had ‘a good network’ within Indonesia, he said that was due to the gang being large, and that the local police were scared of the gang, and so was he.
Further, in writing it was also claimed that at the time he lodged the (second) PV application (29 June 2016), the gangsters were still looking for the applicant husband. When asked about this claim at hearing, the applicant husband said he had no corroborating or supporting evidence of this, but he remained scared. In the circumstances, and based on all findings herein, the Tribunal does not accept the gang are still looking for him.
The country information (the gist of which was referred to at hearing) stated:
2.20 Indonesia ranked 96th out of 180 countries in Transparency International’s 2017 Corruption Perspectives Index, slightly further down the list from 90th in 2016. Local sources say the increasing numbers of convictions may have led to the perception that corruption is worsening, when it was in fact being addressed.[10]
[10] DFAT COUNTRY INFORMATION REPORT INDONESIA 25 January 2019.
And regarding the applicant’s travel to and residence in Jakarta:
5.18 Indonesian citizens are legally able to move and reside freely within all territories of the Republic of Indonesia, and Indonesians can and do relocate for a variety of reasons. Major cities, particularly Jakarta, offer Indonesians greater opportunities for employment … [11]
[11] DFAT COUNTRY INFORMATION REPORT INDONESIA 25 January 2019.
Regarding gangs in Indonesia, the country information stated:
3.134 Gangs are known to exist in Indonesia. Preman, a colloquial term meaning ‘thug’, are also widely reported. These gangs may be ostensibly ethnically or faith-based, however rules around ethnicity and religious affiliation are not necessarily strictly adhered to. Other gangs can include bikie gangs and organised criminals involved in drugs. Although reliable crime statistics are unavailable, local sources say gangs tend to be smaller in scale than they once were and that their size and influence has decreased in the last ten years.
3.135 Local sources say loan sharks are unlikely to lend money to debtors who do not have some kind of collateral, particularly land, and that repossession of that capital is more likely than violence for those unable to pay. Most Indonesians, including in rural areas, have access to finance including from banks, agents from banks, or in some cases from local government administrations. Usury generally targets the poor and those who live in rural areas. Government financial assistance is generally available to those communities. Most Indonesians have access to banking services. Financial technology firms have made recent efforts to reach the ‘unbanked’ in Indonesia, providing them with financial services, though some have been criticised as a digital form of usury.
3.136 DFAT assesses that former gang members have a low risk of violence; gangs are unlikely to have the resources to pursue a former member, particularly outside of their area of activity. The response of police to victims of gang violence would not be different to other victims of crime or criminals. While the risk of violence from loan sharks cannot be ruled out, DFAT is not aware of a pattern of incidents.[12]
[12] DFAT COUNTRY INFORMATION REPORT INDONESIA 25 January 2019.
And regarding the police, the country information stated:
2.16 Notwithstanding strong laws against corruption, international commentators have observed weak enforcement of anti-corruption legislation, ineffective regulatory mechanisms and conflicting legislation, a culture of nepotism and favouritism, and bribery in the public service, judiciary, police and politics.
…..
5.7 Many religious and ethnic minorities serve in the police. Chinese Indonesians and Christians, particularly Catholics, serve in both the national police and the military. …
…..
5.9 The INP [Indonesian National Police] does not enjoy the same high public esteem as the TNI [Indonesian Armed Forces]: a 2013 poll by Transparency International found that the police ranked as the least trusted public body in Indonesia. Professionalism varies across the police. Shortages of equipment, a lack of training, a low investigative capacity, and corruption limit the effectiveness of the police. Reports of police abuses are common, including unnecessary or excessive use of force while dispersing protests and the abuse of suspects in detention. [13]
[13] DFAT COUNTRY INFORMATION REPORT INDONESIA 25 January 2019.
As noted above, the country information indicates that ‘local sources say gangs tend to be smaller in scale than they once were and that their size and influence has decreased in the last ten years’ and that ‘gangs are unlikely to have the resources to pursue a former member, particularly outside of their area of activity’. Further, the applicant husband said his own father resided in Jakarta prior to his passing in 2010 (though the applicant husband did not speak to his father ‘much if at all’). Also, given the relevant incident (the loan) occurred over 20 years prior to the Tribunal hearing, the Tribunal advised it may not accept the applicant husband (or any of his immediate family members) had a real chance of suffering serious or significant harm in (ie) Jakarta (over 1,400km from Medan), should he return. The Tribunal said (words to the effect) it did not appear they (the gang) would even be able to trace him, even if they continued to be willing to do so.
In reply, the applicant husband referred to fearing his children may be harmed, that he may not find employment (principally due to his Chinese ethnicity), that he and or other family members may be harmed due to discrimination arising from their Chinese ethnicity and/or their being Christian converts (discussed below).
However, and based on the country information considered, the Tribunal does not accept the applicant husband (or his immediate family), had a real chance of suffering serious or significant harm arising from gangs or their associates, should they return to Jakarta.
Regarding the applicants’ religious conversion:
Regarding the applicant husband (raised as a Buddhist), it was claimed that his parents were of Chinese descent and that he had converted to Christianity in Australia (in 2004). The applicant wife’s parents were also Buddhist, but she too converted to Christianity in Australia (in 2005). They both feared harm for this reason in Indonesia.
In ‘Refugee Submissions’, it was explained that while in Australia the applicant husband and applicant wife ‘were attracted to join [Church 1] in Sydney’ and had now become part of the Christian community in Australia. They both now feared persecution in Indonesia due to their Christian conversion. In the Refugee Submissions, the applicant husband also said restaurants are not allowed to open for lunch during Ramadan and employers must give 2 ½ hours for employees to prayer every Friday throughout the year (though the Tribunal understood the applicant husband was indicating that such restrictions also applied to Christian businesses).
In agent submissions of 31 May 2023, it was claimed the Indonesian authorities do not protect either ethnic Chinese or Christians. It was claimed the applicants fear losing their right to freedom and to a life without fear. They fear they will not be able to enjoy their freedom in Indonesia, to the same extent that they enjoy the freedom of Australia. This freedom was said to include freedom of thought, conscience and belief. In Australia the applicants can enjoy and express their religious belief. It was claimed the applicants are active members of [Church 1] (a reference letter from the church was lodged). It was also claimed there was evidence of restrictions on the construction of new churches or repairing of the existing ones in Indonesia, and it was difficult for Christians to exercise their religious rights, and there had been instances, sometimes violent, of harassment and harm to Christians. Further, this harm was officially tolerated by Indonesian authorities.
In agent submissions of 31 May 2023, it was also claimed the applicants could not be required to suppress and/or conceal their religious belief. Evidence was also provided about Christians in Aceh, but given I am not satisfied that continues to be the applicant wife’s home region in Indonesia, I have not considered that further; except to say the country information supports the claim that where more hard-line Islamic groups exist (like Aceh), Christians may be more likely targeted.
Regarding the applicant children, in agent submissions of 31 May 2023, it was claimed the oldest child was baptised in early 2022 (lodged were said to be inter alia ‘photos and evidence of the children’s religious belief’[14]).
[14] Agent submissions of 31 May 2023, from p.42.
With respect to Christianity in Indonesia, the country information (the gist of which was discussed at hearing) stated:
3.68 Indonesia has made impressive democratic gains in the post-New Order era, establishing pluralism in politics and the media, and undergoing multiple peaceful transfers of power …[15]
And:
3.35 Christianity is Indonesia’s second-largest religion after Islam. Approximately 24 million Indonesians listed their religion as Christian in the 2010 census. Protestants make up approximately 7 per cent of the total population and Catholics approximately 3 per cent of the total population. Christian communities exist in every province and Christianity is the majority religion in some of the eastern provinces including the Papua provinces and North Sulawesi. East Nusa Tenggara, especially the island of Flores, is majority Catholic. About a million Christians lived in Jakarta at the time of the last census [2010]. A large number of Protestant churches operate in Indonesia including mainstream Protestants (especially those related to Lutheran denominations) and evangelical and Pentecostal churches as well as non-denominational independent churches.
3.36 Christians are generally able to practise their faith freely throughout Indonesia. High-level inter-denominational and inter-faith dialogues, especially between Muslims and Christians and between Catholics and Protestants, occur regularly. Christians residing in some areas, particularly where hard-line Islamist groups are more influential (such as Aceh, and parts of East and West Java) have occasionally been prevented from worshipping, including through forced church closures and the disruption of church services, however this violence and discrimination appears to be localised.
…..
3.39 Conversion to and from Christianity is common. Some bureaucratic difficulties can be encountered in registering a change in religion with the government, but this is not a significant barrier to conversion, which commonly occurs without difficulty. Some Pentecostal Christians are involved in door-to-door evangelical activities, which have been known to upset religious sensitivities. Preaching by foreign missionaries is unlawful, but the US State Department reports that many foreign missionaries preach without official sanction.
3.40 Christians do not generally experience discrimination in gaining access to health care, education or employment.
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, although this risk is unlikely to include violence. DFAT assesses that Christians face a low risk of terrorism in spite of recent exceptional events.[16]
[15] DFAT COUNTRY INFORMATION REPORT INDONESIA 25 January 2019.
[16] DFAT COUNTRY INFORMATION REPORT INDONESIA 25 January 2019.
When discussed at hearing, the applicants said they attended church weekly, they may sometimes assist in collecting donations on behalf of the church, and they may on occasion assist around the church. Later in the hearing, the applicant wife referred to being unable to proselytise in Indonesia. However, the Tribunal noted she had not undertaken this activity in Australia (where it was safe to do so); and she had not listed this as one of her religious activities when first discussed. She said (words to the effect) she could not publicly speak about her faith in Indonesia. However, the Tribunal does not accept she would even wish to proselytise in Indonesia, and given the over one million Christians in Jakarta, I am not satisfied she would be unable to speak to others (Christians) about her faith, should she wish.
Based on the country information, neither is the Tribunal satisfied that any of the applicants (including the son and daughter) would have a real chance of suffering serious or significant harm, should they wish to continue to practise their religion in Indonesia (particularly in Jakarta), in the manner they currently do so in Australia.
The applicant wife had referred to possible Church bombing/s and other incidents in Indonesia. She did say her children should not be subject to fear for practising their Christian religion in Indonesia, but based on the country information considered, the Tribunal finds that many thousands of children are able to practice as Christians in Indonesia, including in Jakarta, without a real chance of suffering serious or significant harm (or any other harm) for that reason.
The applicants also believed the country information referred to by the Tribunal ‘may only relate to high level groups’. However, the Tribunal notes that Indonesia is subject to a range of independent news media outlets, who report a range of information, and if the harm feared by the applicants amounted to a real chance, then it would have been subject to more reporting to that effect. For instance, amongst other things the country information stated:
3.93 DFAT assesses that Indonesian journalists and social media users are generally able to operate without interference (with the Papua provinces as the exception). If attempting to cover the sensitive subjects outlined in Papua, journalists may feel pressured to self-censor their reporting to avoid the risk of legal sanction or pressure from hard-line Islamist groups.[17]
[17] DFAT COUNTRY INFORMATION REPORT INDONESIA 25 January 2019.
The Tribunal notes inter alia the evidence that conversion to and from Christianity in Indonesia, was common and that feared violence and discrimination appeared to be localised. Given all the accepted evidence, and given all the country evidence referred to herein, the Tribunal is not satisfied any of the applicants have a real chance of suffering serious or significant harm in Indonesia, and in particular Jakarta, for any reason related to their new Christian faith.
Regarding ethnic Chinese in Indonesia:
In agent submissions of 31 May 2023 various reports (within, approximately, the last 12 years) were lodged referring to discrimination of ethnic Chinese persons in Indonesia. It was also claimed the experience of both applicants demonstrated a substantial fear for reasons which included their ethnicity.
Regarding the applicant wife, she claimed she was ethnic Chinese and she was from Aceh (though the Tribunal now accepts her home region is Jakarta). She claimed to have been affected by anti-Chinese riots. She said she had experienced discrimination and harassment and physical harm in Indonesia, for reason of her ethnicity. She claimed that persecution of ethnic Chinese persons occurred ‘all over Indonesia’.
In agent submissions dated 31 May 2023, it was also claimed the applicant wife was ‘affected by the 1998 anti-Chinese riots’ and though she was not in Aceh at the time, ‘unfortunately, the situation was not much better in Jakarta, in fact it was worse due to the 1998 anti-Chinese riot’. It was also claimed the applicant wife had experienced racial discrimination and feared for her life. It was claimed the applicant wife was still traumatised due to her personal experiences and these ‘haunt her to this day’. In the written PV, it was claimed that in Banda Aceh, the ethnic Chinese were often attacked and their businesses burnt, looted and ransacked. She still fears the violence from indigenous and Muslim Indonesians. It was claimed the applicant wife was still traumatised by the 1998 riots. The country information stated:
3.6 … in May 1998 during the Asian financial crisis, rioters targeted the ethnic Chinese community due to their perceived wealth. As many as 1,000 Chinese Indonesians died in incidents related to the riots, women were raped, and businesses were burned or looted.[18]
[18] DFAT COUNTRY INFORMATION REPORT INDONESIA 25 January 2019.
It was also claimed that since childhood, both applicants were subject to hate and resentment by indigenous Indonesians and Muslims. When applying for citizens identification, drivers licence, passport and other formal documents she was subject to harassment and discrimination.
In the agent submissions of 31 May 2023, it was claimed that after the applicant husband returned to Jakarta in 2006/2007, he was still traumatised and feared being kidnapped again, hence he remained at a rental property for most of his time. It was claimed the applicant husband would only leave his house to buy food as he feared the gang would find him and attempt to kidnap him again (the Tribunal has discussed the fear of gangs above). It was also claimed that he and his wife were struggling to meet their daily needs so they again decided to escape to Australia (some 6 ½ months after having departed Australia in 2006).
In post hearing submissions by email of 8 June 2023, the agent submitted the applicant would be unable to live freely as someone of Chinese descent and will continue to be ‘grossly discriminated’ against. Further, the applicant stated his birth certificate is coded so all the Indonesian authorities would know he is of Chinese descent (evidence lodged).
That being said, and regarding ethnic Chinese in Indonesia, the country information (the gist of which was put at hearing) stated:
3.5 Successive waves of immigration to Indonesia from China over more than five centuries have resulted in an established ethnically Chinese Indonesian community throughout the country. The 2010 census recorded 2.8 million ethnic Chinese living in Indonesia, comprising 1.2 per cent of the population. … About half of the ethnically Chinese population are Buddhist and about 42 per cent are Christian. Fewer than five per cent are Muslim, compared with over 87 per cent of Indonesians generally.
…..
3.7 Since the end of the New Order regime in 1998, successive governments have removed most official policy measures discriminating against ethnically Chinese Indonesians. Chinese New Year is celebrated as a national public holiday, Confucianism is an officially recognised religion, Chinese cultural performances and languages are accepted, and the Constitution no longer distinguishes between ethnic Chinese and ‘indigenous’ Indonesians, with barriers to citizenship removed. In 2014, then-President Yudhoyono issued a regulation changing the Indonesian word used to designate ‘of Chinese descent’ from one which was often associated with racial slurs. A number of Chinese Indonesians have held high office and work in a range of sectors, including the police, clergy and the business community.
3.8 Some anti-Chinese sentiment remains at a societal level. Although many Chinese Indonesians are not wealthy, most of the country’s richest and most prominent businesspeople are ethnically Chinese Indonesian, which is a source of resentment for some non-Chinese Indonesians.
…..
3.11 Small-scale local riots took place in a town in North Sumatra in 2016, following an allegation of blasphemy against a Chinese Indonesian woman … While the riots were ostensibly anti-Buddhist, most Indonesian Buddhists are ethnically Chinese and local media described the riots as anti-Chinese and stated that some Chinese families had fled the region. A number of youths were arrested, prosecuted and imprisoned in the wake of the riots.
3.12 DFAT is aware of reports of Chinese Indonesians facing discrimination in relation to buying land in Yogyakarta. Yogyakarta is a special administrative region run as a sultanate, in which the sultan is also the governor. In March 2018, a regional court upheld a 1975 law that only allows ‘native Indonesians’, which has been construed to exclude ethnic Chinese, to own land in Yogyakarta.
3.13 With the notable exception of the 2016 riots, which may have been partly motivated by racial tensions, anti-Chinese violence has been low since events in 1998. Although memories of the crisis have caused continued anxiety amongst many members of the Chinese Indonesian community, exacerbated by events such as the Ahok blasphemy trial and the 2016 riots, DFAT assesses that Chinese Indonesians currently face a low risk of violence. Persistent anti-Chinese sentiment may lead to low levels of societal discrimination.[19]
[19] DFAT COUNTRY INFORMATION REPORT INDONESIA 25 January 2019.
Both applicants claimed to fear (principally) discrimination in Indonesia, arising from their Chinese ethnicity (and they were identified as same on their birth certificates). The Tribunal noted that though not bound by same, the UNHCR Handbook stated:
54. Differences in the treatment of various groups do indeed exist to a greater or lesser extent in many societies. Persons who receive less favourable treatment as a result of such differences are not necessarily victims of persecution. It is only in certain circumstances that discrimination will amount to persecution. This would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn his livelihood, his right to practise his religion, or his access to normally available educational facilities.[20]
[20] UN High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, April 2019, HCR/1P/4/ENG/REV. 4, available at: 1 June 2023].
That being said, the Tribunal accepts the applicant husband and applicant wife may be subject to low levels of societal discrimination. The Tribunal also accepts they wish to avoid their children being subject to same in Indonesia. However, none of the country information considered, considered individually or cumulatively, has satisfied the Tribunal the low-level discrimination to which the applicants may be subject in Indonesia (due to their Chinese ethnicity), constitutes serious or significant harm for them or their children.
Next, in agent submissions of 31 May 2023, it was claimed that both applicants were of Chinese Indonesian descent, and largely as a result, both were unable to work or receive equal treatment due to officially tolerated discrimination by the Indonesian authorities. Further, the applicant husband had claimed that after travelling to Jakarta (in 2001 and 2006 and where he only stayed for a few months), the applicant husband was unable to obtain employment due to his Chinese background. He said he applied for jobs but was rejected for this reason. It was also claimed he and his wife were struggling to meet their daily needs in Jakarta so they again decided to escape to Australia (some 6 ½ months after having departed Australia in 2006) – as they claimed to be desperate and wished to leave Indonesia. The country information stated:
2.12 The official unemployment rate in 2017 was 6.34 per cent in urban areas and 3.72 per cent in rural areas. A large number of people in formal employment are underemployed or underutilised …
…..
3.40 Christians do not generally experience discrimination in gaining access to health care, education or employment.
…..
5.18 Indonesian citizens are legally able to move and reside freely within all territories of the Republic of Indonesia, and Indonesians can and do relocate for a variety of reasons. Major cities, particularly Jakarta, offer Indonesians greater opportunities for employment.[21]
And:
2.1 Treatment by Indonesian Society and Authorities
In correspondence with the Research Directorate, a research fellow at the Asia Research Centre at Murdoch University in Perth, Australia who has written on ethnic conflict in Indonesia, indicated that "there are regular reports of discrimination, particularly against working and middle-class ethnic Chinese, and racist views towards Indonesians of Chinese descent are frequently expressed, including by provincial and national politicians" (17 Mar. 2015)…[22]
However:
… a Professor Emeritus of political science at Ohio State University who specializes in Indonesian politics and society stated that, specifically on employment, "Sino-Indonesians dominate the modern economy and probably hire only a token number of indigenous Indonesians. Conversely, there are probably indigenous companies that would hire indigenous Indonesians in preference to Sino-Indonesians" (Professor Emeritus 18 Mar. 2015). ..[23]
[21] DFAT COUNTRY INFORMATION REPORT INDONESIA 25 January 2019.
[22] Canada: Immigration and Refugee Board of Canada, Indonesia: Situation of Chinese-Indonesians, including Christians; treatment by society and authorities (2012-April 2015), 2 April 2015, IDN105128.E, available at: 1 June 2023].
[23] Canada: Immigration and Refugee Board of Canada, Indonesia: Situation of Chinese-Indonesians, including Christians; treatment by society and authorities (2012-April 2015), 2 April 2015, IDN105128.E, available at: 1 June 2023].
After considering the country information, the Tribunal does accept there may exist some discrimination of ethnic Chinese persons in Indonesia, including in employment. However, there is also evidence of relative advantage enjoyed by ethic Chinese, with respect to be employed by Chinese businesses in Indonesia, that ‘dominate the modern economy’. The Tribunal therefore accepts the applicants should find work commensurate with their skills in Indonesia (including in Jakarta), and I reject their claims to the contrary.
Next, the applicants also claimed their age (the applicant husband was [age] years and the applicant wife was [age] years) would prevent them from obtaining work in Jakarta. However, the applicant wife had obtained [specified] skills in Australia and had been employed in that capacity for several years, and the applicant husband had worked in a range of manual labouring positions in Australia, as well as having been a [Occupation 1] in Indonesia. As noted at hearing, the Tribunal had not seen evidence of material discrimination against middle-aged persons in Indonesia, with respect to employment or any other reason. The Tribunal therefore finds the applicants should be able to find work commensurate with their skills in Jakarta.
Further, the Tribunal is not satisfied the applicants have a real chance of suffering serious or significant harm in Indonesia, and in particular in Jakarta, for reason of their Chinese ethnicity.
The applicant wife’s further claims:
It was claimed that females are not allowed to wear short sleeve shirts or shorts in public. A range of country information summaries were also lodged and the Tribunal has had regard to same prior to drafting this decision. In agent submissions dated 31 May 2023, it was also claimed the Aceh province was known for its strong adherence to Islamic customs and traditions, and that it was a recognised Muslim majority region. The strict implementation of Islamic law disproportionately affected women, minority ethnic groups such as the Chinese community, and individual freedom. Women often faced harm or even imprisonment due to the conservative societal norms prevalent in the region.
The agent submissions of 31 May 2023 continued, that in order to escape the racial discrimination and be allowed to express herself, the applicant wife had moved to Jakarta to study around 1997/8. It was claimed that ‘unfortunately, the situation was not much better in Jakarta, in fact it was worse due to the 1998 anti-Chinese riot’. Regarding women and relocation in Indonesia, the country information stated:
5.18 Indonesian citizens are legally able to move and reside freely within all territories of the Republic of Indonesia, and Indonesians can and do relocate for a variety of reasons. Major cities, particularly Jakarta, offer Indonesians greater opportunities for employment. … DFAT assesses that practical factors such as income and lack of family connections are the primary obstacles preventing an Indonesian from relocating within the country, rather than concerns over religion or ethnicity.[24]
And:
3.30 Some Indonesians who choose not to comply with conservative religious norms, particularly women in rural areas, may relocate to Jakarta or other cities if circumstances allow…
…..
3.94 Women participate in all areas of Indonesian society. However, societal, cultural and religious barriers limit the extent of that participation. Indonesia ranked 113th (out of 188) on UNDP’s 2016 Gender Inequality Index, which is a composite measure reflecting inequality in achievement between women and men in relation to reproductive health, ‘empowerment’ (in political spheres and in relation to education) and the labour market. The government has made efforts to promote women’s rights and Indonesia has ratified the Convention for the Elimination of Discrimination Against Women.[25]
[24] DFAT COUNTRY INFORMATION REPORT INDONESIA 25 January 2019.
[25] DFAT COUNTRY INFORMATION REPORT INDONESIA 25 January 2019.
The Tribunal accepts the treatment of women in Indonesia was relevant to both the applicant wife and her daughter. When discussed at hearing, and amongst other things, it was claimed the applicants’ children are happy in Australia and they may suffer in Indonesia (for reasons of discrimination related to their ethnicity and or religion).
However, nothing the applicants said indicated to the Tribunal that (ie) not being able to wear short sleeve shirts or shorts in public would constitute serious or significant harm for the applicants or their daughter. Neither was there (ie) any indication the applicant wife would wish to reject such constraints based on a political opinion or for any other reason.
Therefore, and given the country information considered, and given the findings about religion and ethnicity discussed herein, the Tribunal is not satisfied the applicant wife or her daughter, have a real chance of suffering serious or significant harm in Indonesia, for reasons including their gender.
The applicant children:
Regarding the applicant children, neither the applicant son nor the daughter lodged claims for protection. However, in his letter of 29 June 2016, the applicant husband ‘feared what may happen to them’ should they be returned to Indonesia.[26] In agent submissions of 31 May 2023, it was claimed that after the birth of the applicants’ two children ([year and year]), the applicants’ priority is to now protect their children from harm. Hence, the applicants made a decision to again apply for PV.
[26] PDF – p.255.
The applicant husband had said that neither child ‘spoke the [Indonesian] language’ and Indonesia is a foreign country to them and they will suffer ‘great and extreme hardship’ if returned. The applicant husband confirmed the children’s language was English, and they only knew a few words of Indonesian. Regarding language, the country information stated:
Although Englishis not the official language of Indonesia, it is widely spoken and understood. … That can be attributed to the fact that many Indonesiansare educated in English. Most study Englishfrom an early age. That means many people speak Englishfairly well, especially those living inurban areas.[27]
And:
2.6 … Indonesia is one of the world’s most ethnically diverse countries, hosting more than 300 ethnic groups and more than 700 languages. Major ethnic groups include Javanese (40 per cent), Sundanese (15.5 per cent), Malay (3.7 per cent), and Batak (3.6 per cent).[28]
[27] DO PEOPLE SPEAK ENGLISH IN INDONESIA? – MAJOR LINGUAL FACTS!, DECEMBER 14, 2022 BY ELIZABETH WILLIAMS, DO PEOPLE SPEAK ENGLISH IN INDONESIA? - MAJOR LINGUAL FACTS! (HIGHERLANGUAGE.COM) , ACCESSED 26 MAY 2023.
[28] DFAT COUNTRY INFORMATION REPORT INDONESIA 25 January 2019.
As noted at hearing, the Tribunal may not, and now does not, accept the children’s language capacity would give rise to a real chance of suffering serious or significant harm (particularly if they reside in Jakarta). Based on the evidence, neither do I accept this would make it unreasonable for them to reside in Jakarta.
When discussed, the applicants said the children had not been to Indonesia (though as an infant, the oldest child had holidayed in Indonesia with her parents in 2011). It was also claimed that neither understood Indonesia, though the Tribunal notes they attended [Church 1] in Sydney and the Tribunal is satisfied the children would therefore have (at least) a limited understanding of Indonesian language, culture and norms due to their activities within their present religious community.
Next, in the Refugee Submissions, and with respect to complimentary protection, the applicant husband also said there were compelling and compassionate reasons to allow his two children to remain in Australia as both were born in Australia, adopted the Australian way of life, will suffer extreme hardship in Indonesia, consider Australia their home, they only speak English and did not speak Indonesia, and they also fear harm for reasons of ethnicity and religion.
The Tribunal has discussed some of these issues elsewhere herein. However, when discussed at hearing, the applicant husband believed the compelling and compassionate reasons included that he may not find work in Indonesia, that his children may suffer discrimination due to their religion and ethnicity, and he was scared of the gangs. The Tribunal notes it has discussed these issues above, and I have not considered them further. To the extent the applicant husband was requesting a s.417 consideration, the Tribunal has addressed this below.
Be that as it may, the Tribunal was not satisfied the applicants, including their children, have a real chance of suffering serious or significant harm in Jakarta, for any reason they have claimed.
Cumulative grounds:
As noted herein, it had been claimed the applicants feared harm for reason of inter alia their ethnicity and or their region and or their gender. That being said, even after considering the accepted evidence cumulatively, after then considering the country information the Tribunal remains satisfied they do not have a real chance of suffering serious or significant harm in Jakarta.
Relocation:
As noted herein, the Tribunal has accepted the applicants’ ‘likely’ home area in Indonesia is Jakarta. However, and though he had not resided in Medan since 2001, the applicant husband had only resided in Jakarta for a few months in 2001 (prior to travelling to Australia unlawfully), and for approximately 6 ½ months in 2006/2007 (prior to his return to Australia). Accordingly, and only for the purposes of the following discussion, the Tribunal will accept that Jakarta may be a relocation option for the applicants.
In agent submissions of 31 May 2023, it was claimed the applicants had already attempted to relocate to Jakarta. Unfortunately, the situation for them was the same and they continued to live in fear; the applicant husband and applicant wife were unable to find employment due to their ethnicity (though the Tribunal has rejected this claim above). Further, they would not be able to rely on the Indonesian authorities, and the evidence was that despite having reported prior matters, no police action was undertaken. This was due to their Chinese ethnicity, Christian conversion, gangs etc (discussed above).
Be that as it may, given the findings herein, the Tribunal is satisfied the applicants (and the applicant children) may safely reside in Jakarta.
However, under s 36(2B)(a) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. The Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
Regarding whether it is reasonable for them to relocate, the country information included that:
2.6 Indonesia is the world’s largest archipelagic state. It comprises around 17,500 islands, of which approximately 6,000 are inhabited. As of July 2018, Indonesia had an estimated population of 262 million people. Just over half of Indonesia’s population lives in urban centres. Indonesia’s capital and largest city, Jakarta, is home to approximately 10.5 million people. Other major cities include Surabaya (2.5 million), Bandung (2.5 million), Medan (2.3 million), and Tangerang (2.2 million). Indonesia is one of the world’s most ethnically diverse countries, hosting more than 300 ethnic groups and more than 700 languages. Major ethnic groups include Javanese (40 per cent), Sundanese (15.5 per cent), Malay (3.7 per cent), and Batak (3.6 per cent).
…..
5.18 Indonesian citizens are legally able to move and reside freely within all territories of the Republic of Indonesia, and Indonesians can and do relocate for a variety of reasons. Major cities, particularly Jakarta, offer Indonesians greater opportunities for employment. Presidential Decree No.25 (2008), based on Law No.23 (2006) requires Indonesian citizens who relocate within Indonesia to register with the relevant local authority within one year of relocation. Registration information is passed to higher authorities. DFAT assesses that practical factors such as income and lack of family connections are the primary obstacles preventing an Indonesian from relocating within the country, rather than concerns over religion or ethnicity.[29]
[29] DFAT COUNTRY INFORMATION REPORT INDONESIA 25 January 2019.
Regarding security in Indonesia, the country information stated:
2.4 In the post-New Order period (‘the democratic era’), Indonesian presidents have faced political, security, social, and economic challenges but these challenges have lessened over time. Elections in Indonesia in the democratic era have been mostly free of violence. After a strong pro-independence vote in 1999, a violent backlash by pro-Indonesia militia groups, and international intervention, Timor Leste became an independent nation in 2002. Terrorist attacks in Jakarta, Bali and elsewhere have killed hundreds, and terrorism remains a persistent threat, as in much of the world.
…..
2.44 Active armed insurgencies against the central government, for example in Aceh, have largely ceased. Small-scale violent secessionist activities continue in the Papua provinces … Indonesian authorities continue to conduct security operations against the remnants of the Santoso terrorist networks in Central Sulawesi province after Indonesian police killed its eponymous ISIL-linked leader in July 2016.
And:
3.134 … local sources say gangs tend to be smaller in scale than they once were and that their size and influence has decreased in the last ten years.[30]
[30] DFAT COUNTRY INFORMATION REPORT INDONESIA 25 January 2019.
Regarding the media, the country information stated:
3.93 DFAT assesses that Indonesian journalists and social media users are generally able to operate without interference (with the Papua provinces as the exception). If attempting to cover the sensitive subjects outlined in Papua, journalists may feel pressured to self-censor their reporting to avoid the risk of legal sanction or pressure from hard-line Islamist groups.[31]
[31] DFAT COUNTRY INFORMATION REPORT INDONESIA 25 January 2019.
Regarding health, the country information stated:
2.22 In January 2014, Indonesia began the implementation of a National Health Insurance Scheme (JKN), aimed at providing universal health coverage by 2019. The scheme experienced considerable cost over-runs in its early stages. In spite of implementation problems, health care coverage for the poor expanded rapidly and analysts expect it to reach universality, on target, in 2019.
2.23 People living in the poorer eastern provinces and urban slums are covered by the universal health system, but health facilities in these areas have lower capacity to treat people with chronic diseases, who may have to travel to larger cities to gain access to health services. Patients must contribute a small co-payment for health services.[32]
[32] DFAT COUNTRY INFORMATION REPORT INDONESIA 25 January 2019.
And:
3.126 DFAT assesses that people with mental health issues, particularly the poor and those in rural areas, face a moderate risk of societal discrimination and violence. Wealthy people, especially in large cities, face a low risk of societal or official violence or discrimination.[33]
[33] DFAT COUNTRY INFORMATION REPORT INDONESIA 25 January 2019.
100. Regarding education, the country information stated:
2.26 Article 31 of the Constitution guarantees citizens the right and obligation to undertake basic education, and commits the government to funding, managing and organising education. The school system is split between general schools administered by the Ministry of Education and Culture (MoEC) and madrasah (Islamic day schools), administered by the Ministry of Religious Affairs (MoRA). Both systems offer education from pre-school to year 12 and teach the national curriculum, as regulated by MoEC.
…..
2.29 The UN Development Programme (UNDP) reported in 2018 that Indonesians attended an average of 8 years of schooling. Despite major improvements to schooling access, education quality remains a key challenge. According to internationally recognised tests, 55 per cent of Indonesian students who finish their education are functionally illiterate.[34]
[34] DFAT COUNTRY INFORMATION REPORT INDONESIA 25 January 2019.
101. Regarding employment, the country information also stated:
2.8 The Indonesian economy is the largest in Southeast Asia and sixteenth largest globally in nominal GDP terms. Indonesia has experienced sustained economic growth for a number of years. Year on year real GDP growth averaged 5.12 per cent between 2013 and 2018. Services, including transport, communications, tourism, financial and business services, increasingly drive Indonesia’s economic growth, accounting for 46.7 per cent of Indonesia’s GDP in 2016. Industry and resources sectors, including petroleum and natural gas, textiles, automotive, electrical appliances, apparel and footwear, mining, cement, medical instruments and appliances, handicrafts, and chemical fertilisers, accounted for 39.6 per cent of GDP. Agriculture, including rubber, palm oil, poultry, beef, coffee, fish products, spices, and forest products, accounted for 13.7 per cent.
…..
2.11 Inequality divides Indonesia geographically: the densely populated western islands of Java and Sumatra are hubs for employment and investment. In comparison, eastern Indonesia has higher rates of poverty, in large part due to lack of connectivity with larger growth centres.[35]
[35] DFAT COUNTRY INFORMATION REPORT INDONESIA 25 January 2019.
And:
2.12 The official unemployment rate in 2017 was 6.34 per cent in urban areas and 3.72 per cent in rural areas…
2.13 … Compulsory contribution funds for old age and disability insurance for all workers were introduced in 2015; previously these were only available to government workers.
2.14 The World Bank estimates that 9 million Indonesians work overseas, mainly in the Middle East and Southeast Asia, especially Malaysia. Most female migrant workers obtain employment as domestic workers, while male workers work in a variety of sectors including agriculture, construction, and maritime-related industries. Approximately half of all migrant workers are undocumented and 61 per cent of female domestic workers in Malaysia are undocumented. The remittances sent back by migrant workers make an important contribution to Indonesia’s economy: in 2016, remittances from migrant workers totalled USD 8.9 billion.[36]
[36] DFAT COUNTRY INFORMATION REPORT INDONESIA 25 January 2019.
102. When discussed at hearing, the applicants said their children were happy in Australia and may suffer mental health issues if returned to Indonesia. The applicant wife then conceded that neither child had any prior mental health issue, and the Tribunal noted the applicant husband and applicant wife’s interest in prioritising their children’s interests, and that this should ensure the children are not likely to suffer any mental health issue, relating to their return to (ie) Jakarta. The applicants were unsure, but the Tribunal is satisfied this is correct. Neither is the Tribunal satisfied that relocation would be unreasonable for this reason.
103. The applicants again referred to lack of employment opportunities, discrimination for reason of Chinese ethnicity, and or Christian conversion and or Christianity, would make it unreasonable for them or their children to relocate to Jakarta. The Tribunal notes for instance, that ‘income and lack of family connections are the primary obstacles preventing an Indonesia from relocating within the country’. However, both applicants had relocated to Jakarta previously. Though both complained of ongoing problems, the applicant wife managed to reside there for many years, and the applicant husband (and the applicant wife) managed to fund various travel out of Jakarta. The Tribunal is therefore not satisfied the applicants existence in Jakarta was as impoverished as they have now claimed. Further, and after considering the country information, given the applicant wife and applicant husband now also have education and/or employment skills gained in Australia, the Tribunal again does not accept they would be unable to find work commensurate with their skills, particularly in Jakarta.
104. For the reasons set out above, the Tribunal accepts the applicants may safely relocate to Jakarta and where they would not have a real chance of suffering serious or significant harm.
105. The Tribunal accepts the opportunities the applicants may enjoy in Australia are superior to that which may be available to them in Indonesia. However, nothing the Tribunal has seen has satisfied it that it would be unreasonable for the applicants and their children to relocate to Jakarta.
106. Accordingly, the Tribunal now accepts it is safe and reasonable for all applicants to relocate to Jakarta.
Failed asylum seeker:
107. The country information stated:
5.19 There is no requirement for Indonesian citizens to obtain an exit permit prior to undertaking foreign travel. However, Indonesian citizens leaving Indonesia to reside externally are required to register with the closest Indonesian consular mission within 30 days of arrival. No special entry procedures exist for Indonesian citizens who have been removed or deported from another country. Indonesia has a large number of recognised entry ports, including air, sea and land crossings.
5.20 Under the New Order regime, an Indonesian national who had actively and publicly criticised Indonesia or the government while in a foreign country would most likely have been questioned or sanctioned on return. Today this is far less likely to occur, due to an increased acceptance of public protest and dissent. However, crossing acknowledged ‘red lines’- such as publicly advocating a separatist movement or displaying separatist symbols – may still result in additional attention on return to Indonesia. Indonesians who are returned after unsuccessfully seeking protection overseas are unlikely to come to the attention of authorities, provided these ‘red lines’ have not been crossed.[37]
[37] DFAT COUNTRY INFORMATION REPORT INDONESIA 25 January 2019.
108. When discussed at hearing, the applicants repeated that which has been discussed above. In the circumstances, and based on the evidence, the Tribunal is not satisfied that being a failed asylum seeker after a lengthy stay outside Indonesia, would give rise to an applicant/s having a real chance of suffering serious or significant harm in Indonesia.
Section 417 discretion:
109. In agent submissions of 31 May 2023, the agent said that if the ‘Tribunal is unable to consider the applicant’s compassionate circumstances and make a favourable decision, they were instructed to seek the Tribunal to exercise their discretionary power and refer the matter to the Minister’ (pursuant to s.417 of the Act). It was claimed there were ‘strong compassionate circumstances that if not recognised would result in serious, ongoing, and irreversible harm and continuing hardship to an Australian citizen, namely the applicants’ Australian citizen child.
110. As also noted above, both the applicant husband and applicant wife initially travelled to Australia (around 2001), on false passports (both claiming to hold a subject fear of being harmed), and after departing in 2006, both then returned to Australia lawfully in 2007.
111. The Tribunal notes that under s.417 of the Act the Minister has a non-compellable discretionary power to intervene in a matter and grant a visa to an applicant where they consider it would be in the ‘public interest’ to do so. The Minister’s Guidelines state the public interest may be served where the Australian government ‘responds with care and compassion’ where an individual’s situation involves ‘unique and exceptional’ circumstances, which are said to include:
strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident
And:
circumstances that may bring Australia’s obligations under the Convention on the Rights of the Child into consideration, including the best interests of the child - which must be treated as a primary consideration, but can be balanced against other primary considerations
112. In support of this issue, the Tribunal notes the following:
· The applicants have lived for considerable periods in Australia since 2001 (2001-2006 & 2007 to present)
· The applicant wife is currently employed within a [workplace]. This work is presently listed as one of the ‘Top 20 Occupations in Demand’ in Australia[38] (though the Tribunal understands the applicant wife may not be directly engaged as a [Occupation 2]).
· The applicant children were both born in Australia ([year] & [year]), and both were raised in Australia; and importantly
· the daughter is now an Australian citizen
113. Accordingly, given the length of time the applicants have resided in Australian, given that one applicant child is now an Australian citizen and may be substantially advantaged if she was allowed to remain in Australia, given the applicant wife’s work in a in-demand sector in Australia, the Tribunal considers the circumstances may warrant the Department consider whether this case should be referred to the Minister, pursuant to the Minister’s non-compellable humanitarian discretion.
[38] NEW DATA ON TOP 20 OCCUPATIONS IN DEMAND, 5 MARCH 2023, MINISTER’S MEDIA CENTRE, MINISTERS OF EMPLOYMENT AND WORKPLACE RELATIONS PORTFOLIO, NEW DATA ON TOP 20 OCCUPATIONS IN DEMAND | MINISTERS' MEDIA CENTRE (DEWR.GOV.AU) , ACCESSED 8 JUNE 2023.
Concluding paragraphs:
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
115. The Tribunal affirms the decision not to grant the applicants protection visas.
Mr S Norman
MemberATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
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5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
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5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36 Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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CONSULATE GENERAL OF THE REPUBLIC OF INDONESIAFOR NEW SOUTH WALES, QUEENSLAND, AND SOUTH AUSTRALIA BASED IN SYDNEY, CONSULATE GENERAL OF THE REPUBLIC OF INDONESIA, FOR NEW SOUTH WALES, QUEENSLAND, AND SOUTH AUSTRALIA BASED IN, SYDNEY (kemlu.go.id) accessed 27 April 2023.
Key Legal Topics
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Immigration
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Administrative Law
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Statutory Interpretation
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Standing
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