1723979 (Refugee)

1723979 (Refugee) [2023] AATA 2494 (30 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1723979

COUNTRY OF REFERENCE: Indonesia
MEMBER:Mr S Norman
DATE:30 May 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 30 May 2023 at 1:48pm
CATCHWORDS
REFUGEE – protection visa – Indonesia – race – ethnic Chinese – political opinion – protests against corruption – religion – Buddhist – detention – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424A, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
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 8 September 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 11 January 2016.
The Department delegate’s decision was lodged with the Tribunal.
The applicant appeared before the Tribunal on 25 May 2023 to give evidence and present arguments. His partner ([named][1]) attended as an observer only. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.
[1] The applicant’s partner was not included in his PV application, and when asked at hearing, she did not wish to provide any evidence or submissions on behalf of the applicant.
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.
Meaningful opportunity to give evidence:
At hearing, the applicant said he found some of the Tribunal’s questions difficult to understand (he could speak fluent Indonesian and he appeared to have reasonable capacity in spoken English). However, the Tribunal had then repeated and or reworded its question, and I had also taken to summarising what I understood he was saying on occasion (through the interpreter) and asking if that was correct. If he agreed, the Tribunal would proceed.
That being said, the Tribunal was ultimately satisfied the applicant was provided a meaningful opportunity to give evidence and submissions, including at hearing.
The applicant’s receiving country:
The applicant lodged a photocopy of the bio-data page of his Indonesian passport with the Department (expiry date: [in] 2015). Based on the evidence, the Tribunal accepts the applicant is a citizen of Indonesia and that Indonesia is his receiving country.
Regarding renewing Indonesian passports in Australia, the country information indicated that Indonesian passports may be renewed in Australia.[2] When discussed at hearing, the applicant claimed, and the Tribunal accepts, that he had already renewed his Indonesian passport in Australia, and that same was current.
The applicant’s more recent migration history:
[2] See
The applicant’s migration history follows:
·Granted Student visa in August 2011
·Arrived in Australia in October 2011
·Student visa expired in March 2013
·Bridging Visa C granted on 13 January 2017 and on 24 January 2017
The applicant claimed to have departed Indonesia lawfully on his own passport, and he did not refer to any problem in so doing.
The applicant’s father and mother (and at hearing he said [specified family members]) remain in Indonesia.
The Tribunal’s consideration of the applicant’s material claims:
The applicant’s political opinion/activity:
The applicant’s residence in Indonesia was listed as:
[An address in Sambas Regency, Indonesia.]
The applicant’s education was listed as follows:
[School education completed at 3 named schools in his hometown in Indonesia, between specified years.]
[A specified course completed at a college in Australia in December 2013.]
In his Protection visa (PV) application (with which he had no assistance when completing[3]), it was claimed the ethnic Chinese and Buddhist applicant can speak, read and write Indonesian and English[4].
[3] Dept file – folio 7.
[4] Dept file – folio 36.
Next, the Tribunal notes that though the applicant’s [Student visa] ‘expired’ on 24 March 2013, he delayed lodging his PV application for almost three years (lodged on 11 January 2016). Given the applicant allegedly fled Indonesia for fear of being arrested, when asked why the delay, he said he was new in Australia; his English language capacity was not then competent (though he apparently attended education in Australia that was provided in English); and he had no one to ask – he had no close friends; and he did not know he could apply for protection.
The Tribunal notes the applicant had engaged in course work in Australia, and he claimed to have engaged in social activities with the ex-patriate Indonesia community in Australia, both after (and subsequently he agreed) before 2013 and he may therefore have had some access to the knowledge within that community. Further, that both before and after this time the Australian media was awash with reporting of the so-called boat people arriving in Australia and applying for protection. The Tribunal did not accept it was plausible, the applicant did not know he could apply for protection until 2016.
The applicant continued to claim he was not aware and had no capacity to apply for protection in the three years he was residing in Australia unlawfully. However, after having considered the evidence, the Tribunal is not satisfied this is correct, and I have rejected this claim as false. This is one reason that cumulatively satisfied the Tribunal the applicant was not a credible witness.
Next, as noted above, the applicant arrived in Australia on [a date in] October 2011 (which date the applicant confirmed at hearing – and notwithstanding also claiming to have studied in Australia from October 2010). In his PV form, the applicant (DOB: [specified]) claimed:
·     at High School ‘we decided to arrange a demonstration against corruption and discrimination’ against ethnic Chinese in [his hometown in] Sambas after he and some school friends had graduated high school
·     he continued that in early September 2011, he and ‘many of his classmates’ attended a demonstration against corruption and ethnic Chinese discrimination and he was arrested by the riot police and detained for one week (though the Tribunal notes the applicant did not claim to have been charged with any offence in Indonesia[5])
·     he subsequently departed Indonesia as he feared he would again be arrested for having attended demonstration/s against corruption. He claimed the Indonesian authorities ‘intended to arrest him as he had attended demonstration/s against corruption’ and or he feared discrimination against ethnic Chinese
[5] Dept – folio 12.
Regarding demonstrations against corruption in Indonesia, the Tribunal put the gist of the following country information to the applicant at hearing:
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. Articles 28E and 29 of the Constitution guarantee Indonesians the freedom to practise their faith and to express views and thoughts in accordance with their conscience, the freedom to associate, to assemble and to express opinions, and freedom of worship according to their own religion or belief.
3.69 In practice, various laws limit the exercise of these rights. A range of non-violent offences attract lengthy prison terms, including defamation, libel, insult (including against the president and vice-president), and the spread of communist teachings in public.
3.70 Freedom of expression is restricted on a number of issues … The issues include religious expression outside of the six officially recognised religions [which includes Buddhism], open expressions of support for separatism, criticism of state institutions and the Pancasila state ideology … promotion of communism, and discussion of LGBTI rights …
3.71 Protests about corruption and democracy are common. Activists and NGOs are generally able to operate freely and without significant barriers to registration. In particular, the anti-corruption body, KPK, is very popular and receives public support … A permit is generally required to hold a public demonstration, however most peaceful public demonstrations are unhindered. Social media is popular and expression on social media is generally unhindered.[6]
And:
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.[7]
[6] DFAT COUNTRY INFORMATION REPORT INDONESIA 25 January 2019.
[7] DFAT COUNTRY INFORMATION REPORT INDONESIA 25 January 2019.
The Tribunal also put the gist of the following more recent country information to the applicant at hearing:
Arbitrary Arrest: … there were multiple media and NGO reports of police temporarily detaining persons for criticizing the government, participating in peaceful demonstrations, and other nonviolent activities.
…..
NGOs reported numerous cases of arbitrary arrest across the country, many in connection with political protests and property disputes, and many in the Papua region … Most of those detained in such cases were released within 24 hours.
…..
In May demonstrations triggered by rumors that the 2024 election could be postponed and President Jokowi’s term extended drew thousands of students and other protesters around the country. Police responded with water cannons and tear gas.[8]
And regarding corruption:
… there was a widespread perception that corruption remained endemic. NGOs claimed that endemic corruption was one cause of human rights abuses, with economically powerful interests using corrupt government officials to harass and intimidate activists and groups that impeded their businesses.[9]
[8] US Department of State, 2022 Country Reports on Human Rights Practices: Indonesia, Indonesia - United States Department of State.
[9] US Department of State, 2022 Country Reports on Human Rights Practices: Indonesia, Indonesia - United States Department of State.
When discussed at hearing, the applicant said that shortly after finishing high school (in June 2010), he and some friends attended a protest in or around his home area ([in] Sambas, West Kalimantan). He only ever attended one demonstration (which he said was more like a riot). He also conceded that he did not arrange any demonstration and only attended this one demonstration only. He then said that he and around 12 or more school friends (who also attended the demonstration), were arrested and detained by the authorities and held for one week. After that they were released without any charge or conviction. The Tribunal accepts this to be correct.
The applicant continued that from that time to immediately prior to his departure from Indonesia (in October 2011), he continued to reside at his parent’s home (his usual place of residence) and he continued to work at his father’s shop. After some discussion, the Tribunal noted this meant that for around 10 (or more) months, the applicant remained at his home. When then discussing this, the applicant referred to a ‘similar protest in Jakarta (possibly about corruption and or Chinese ethnicity), though he was unable to recall when this may have taken place.
After noting the country information, the Tribunal said (words to the effect), given he only attended one demonstration in Indonesia, that he then had no further political engagement in Indonesia (and as conceded at the commencement of the hearing) or Australia, and given he was not charged and or convicted or any offence, the Tribunal may not accept he would re-engage in political activities on return, nor that there was a real chance the Indonesian authorities ‘intended to arrest him’ on return.
The Tribunal concedes the applicant was not represented before the Tribunal. However, and for the first time, the applicant then remembered the Indonesian authorities continued to visit and or threaten the applicant at his family home in Indonesia, in the 10 months he remained there after having attended the late 2010 protest. The Tribunal then noted this was not mentioned in his written PV form – though he did make a general comment the Indonesian authorities ‘intended to arrest him as he had attended a demonstration against corruption’; and he also did not respond to the Tribunal’s s.424(2) letter).
The applicant then said that at the hearing, he was attempting to only answer questions put to him, though he did refer to an allegedly similar protest in Jakarta and about which the Tribunal had not asked. The Tribunal then advised the applicant it did not propose to make his case, however he had not mentioned this earlier in the hearing, when the Tribunal was discussing his last year of residence in Indonesia. Further, this may satisfy the Tribunal the claim was false.
The applicant agreed he had not mentioned this claim previously (about the authorities visiting the family home prior to his departure from Indonesia), but that he wished to remain in Indonesia to assist his parents for this last (10 month) period. The Tribunal also notes the applicant departed Indonesia lawfully without reference to any problems and or without reference to having taken any steps to protect himself on departure (if he feared he was of adverse interest to the authorities). In the circumstances, the Tribunal now rejects as false the claim the Indonesian authorities, or anyone else, either harmed, harassed or even questioned the applicant after his release from detention in September 2010.
At the end of the hearing, and again for the first time, the applicant also remembered that since he had resided in Australia, the Indonesian authorities had (possibly regularly) visited his family home seeking information about him. As then stated at hearing, for the same reasons as set out above, the Tribunal may find, and now does find, that this new evidence was false.
The country information also stated:
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.[10]
[10] DFAT COUNTRY INFORMATION REPORT INDONESIA 25 January 2019.
Given the applicant’s lack of any other political engagement in Indonesia or Australia (something he conceded at hearing); given the Tribunal is now satisfied the [age] year old applicant would have no interest in re-engaging in political activities in Indonesia on return and that he had no political engagement since September 2010, the Tribunal is not satisfied the applicant has a real chance of suffering serious or significant harm in Indonesia, for reason of his immediate post high school attendance at one demonstration, or for reason of a political opinion.
Accordingly, based on the above findings, the Tribunal is not satisfied the applicant has a real chance of suffering serious (or significant) harm in Indonesia, for any reason related to his claimed political opinion.
The applicant’s Chinese ethnicity/Buddhist religion:
In his PV, the applicant also claimed:
· He feared harm due to being an ethnic Chinese person in Indonesia
· He said there was no safe place in Indonesia
In his PV form and as clarified at hearing, the applicant said he attended one demonstration in Indonesia, which was protesting about inter alia discrimination of ethnic Chinese. He had made no reference prior to the Tribunal hearing of fearing harm due to his Buddhist religion.

However, later in the hearing, when discussing discrimination of ethnic Chinese, the applicant for the first time said he also feared harm for reason of his Buddhist religion. That being said, at the commencement of the hearing the applicant said he was able to contact his family and some former school friends (some of whom were Buddhist) in Indonesia regularly, and though asked more than once, they only spoke about their health and well-being, and the situation in Indonesia. When asked about the situation in Indonesia, the applicant said he meant conditions in Indonesia. The Tribunal then noted that if his family or friends had suffered serious or significant harm in Indonesia for reason of their ethnicity or religion, the Tribunal may have anticipated some mention of this.
When asked to comment, the applicant said that religion is sensitive in Indonesia, and ethnic Chinese are discriminated against in Indonesia, and in particular in his home area in West Kalimantan. He said that some areas (ie large cities) may be peaceful, but in his home area ethnic Chinese and Buddhists are harmed. The Tribunal is aware that some communal violence occurs in Indonesia, but as stated at hearing, I had not seen any evidence of any material concerns in the applicant’s home area (West Kalimantan – at least since the Sambas riots of 1999,[11] or the Sampit conflict of 2001[12] - and though both involved inter-ethnic violence, ethnic Chinese were neither the material perpetrators of, or the material targets of, such violence).
[11] See World: Asia-Pacific Ethnic violence shakes Borneo, 19 March 1999, BBC News, BBC News | Asia-Pacific | Ethnic violence shakes Borneo, accessed 25 May 2023.
[12] SEE JAKARTA'S MEN WATCH AS KILLERS RUN RIOT, 24 FEB 2001, THE GUARDIAN, JAKARTA'S MEN WATCH AS KILLERS RUN RIOT | WORLD NEWS | THE GUARDIAN, ACCESSED 25 MAY 2023.
That being said, the gist of the following country information was put to the applicant at hearing:
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.[13]
[13] DFAT COUNTRY INFORMATION REPORT INDONESIA 25 January 2019.
At hearing, the Tribunal noted that based on the abovementioned DFAT report (and also the US Department of State, 2022 Report on International Religious Freedom: Indonesia), this did not indicate that merely for reason of Chinese ethnicity nor Buddhist religion, such persons have a real chance of suffering serious or significant harm in Indonesia. The Tribunal also noted the UNHCR Handbook[14] referred to inter alia ‘persons who receive less favourable treatment as a result of [different treatment in a society] are not necessarily victims of persecution’.
[14]HANDBOOK-ON-PROCEDURES-AND-CRITERIA-FOR-DETERMINING-REFUGEE STATUS and GUIDELINES ON INTERNATIONAL PROTECTION at [54].
The applicant continued that religion is sensitive in Indonesia. He also said that he was of particular interest to the authorities as he had attended the one demonstration referred to above (and he conceded that some of his arrested friends who also attended were ethnic Chinese and Buddhist). Be that as it may, the Tribunal is satisfied the applicant attended one demonstration over ten months prior to him departing Indonesia and shortly after he graduated high school. I am not satisfied he continued to be of any adverse interest to the Indonesian authorities, or anyone else, after his release from the one weeks detention.
Further, neither the accepted claims nor the country information considered, have satisfied the Tribunal the applicant has a real chance of suffering serious (or significant) harm in Indonesia, for reason of his Chinese ethnicity nor his Buddhist religion.
Even after then considering the accepted evidence cumulatively, the Tribunal is not satisfied the applicant has a real chance of suffering serious or significant harm in Indonesia.
Failed asylum seeker:
The country information stated:
5.19 … 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.[15]
[15] DFAT COUNTRY INFORMATION REPORT INDONESIA 25 January 2019.
When discussed at hearing, the applicant accepted that he was unsure whether he would be harmed in Indonesia, if returned as a failed asylum seeker – though he did fear return for the reasons discussed and finalised above.
However, after having considered the accepted claims and the country information, the Tribunal is not satisfied the applicant has a real chance of suffering serious or significant harm in Indonesia, if returned as a failed asylum seeker. The Tribunal is satisfied, for instance, the applicant had not crossed any so-called ‘red lines’, in Australia (nor Indonesia).
For the reasons given above, the Tribunal is not satisfied 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 considered the alternative criterion in s 36(2)(aa). For the same reasons, 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 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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Mr S Norman
Member

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

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.

[2023] AATA 2494

30 May 2023

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Immigration

Administrative Law

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Judicial Review

Statutory Construction

Natural Justice

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