1724849 (Refugee)

[2024] AATA 2676

1724849 (Refugee) [2024] AATA 2676 (3 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Alim Lim

CASE NUMBER:  1724849

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Catherine Carney-Orsborn

DATE:3 April 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 03 April 2024 at 3:57pm

CATCHWORDS
REFUGEE – protection visa – Indonesia – ethnic Chinese – evidence lacked detail – delay in seeking protection – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. 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 applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants who claim to be citizens of Indonesia, applied for the visas on 18 March 2016. The delegate refused to grant the visas on the basis that the applicants are not persons in respect of whom Australia has protection obligations.  

3. The applicants appeared before the Tribunal on 27 March 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

4. The applicants were represented in relation to the review.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.

9. 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

10. 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.

    MIGRATION AND VISA HISTORY

11. The primary applicant has the following migration and visa history.

    a.The applicant was granted a Student visa (TU-572) on 23 October 2008. He arrived in Australia [in] November 2008.

    b.He applied for a Voc Ed Sctr Further Stay (TU-572) visa on 13 April 2011. An extension for this visa was granted on 19 April 2011.

    c.He departed Australia [in] January 2012. He arrived back in Australia [in] February 2012, before he departed [in] February 2013.

    d.He was granted a Tourist visa on 21 December 2012 and arrived in Australia [in] December 2015.

    e.The applicant applied for a Protection visa on 18 March 2016. This application was refused on 8 September 2017. The applicant applied to the Tribunal on 12 October 2017.  

12. The secondary applicant has the following migration and visa history.

    a.The applicant was granted a student visa (TU-572) on 23 October 2008. She arrived in Australia [in] November 2008.

    b.She departed Australia [in] June 2010, before she returned [in] July 2010.

    c.She applied for a Voc Ed Sctr Further Stay (TU-572) visa on 13 April 2011. An extension for this visa was granted on 19 April 2011.

    d.She departed [in] January 2012 and arrived back in Australia [in] February 2012. Again, she departed [in] September 2012 and arrived in Australia [in] September 2012. She departed [in] March 2013.

    e.She was granted a Tourist visa on 21 December 2015. She arrived in Australia [in] December 2015 and departed [in] January 2016.

    f.The applicant applied for a Protection visa on 18 March 2016. This application was refused on 8 September 2017. The applicant applied to the Tribunal on 12 October 2017.  

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Applicant’s background

14. The primary applicant was born in late [year], within Indonesia. He is ethnically Chinese and identifies as Buddhist. He completed high school in [year]. He worked at a [shop] in Indonesia from January 2008 to October 2008. Then, he worked at [location] in Australia from November 2008 to February 2013. Before he returned to Indonesia from March 2013 to December 2015, where he ran a small business. He has been unemployed in Australia since December 2015.  

15. The secondary applicant is married to the primary applicant. She has no claims of her own. She was born in mid-[year] and completed high school in Indonesia. She ran a small business in Indonesia from January 2001 to October 2008. Then, she moved to Australia where she completed a diploma at [Education provider 1], and a second diploma at ‘[Education provider 2]’ from November 2008 to February 2013. From March 2013 to March 2016, she ran a shop in Indonesia and has been unemployed since March 2016.

    Applicant’s claims for protection

16. In the primary applicant’s Protection visa application dated 18 March 2016, he made the following claims.

17. In March 2013, the applicant started his own [business]. In September 2013, several governmental officers borrowed money from him. He claimed that the officers promised to return the money within two months, however, he never received the money back. That the officers threatened to close his shop.

18. The applicant protested the Indonesia government’s corruption and was arrested. He claimed that he was detained for two days in August 2014 and three days in March 2015.

19. In November 2015, the applicant attended another protest against the Indonesian government. He was notified in early December 2015, that the Indonesian police were looking to arrest him after this event.

20. The applicant claims that he is unable to return to Indonesia, as he fears that he will be arrested by the government.

    PV interview

21. Departmental records indicate that the applicant was not invited to attend an interview.

    Delegate’s decision

22. In the Departmental decision record dated 8 September 2017, the delegate made the following findings.

23. The delegate referenced the US Department of State’s 2016 Human Rights Report on corruption within Indonesia. It was noted that official corruption within the government, police and judiciary are criminalised by the law. The delegate noted reports by the Overseas Security Advisory Council, the Jakarta Post and Bertelsmann Stiftung to discuss corruption.

24. Regarding freedom of assembly, the delegate noted the US Department of State Country Reports on Human Rights Practices for 2016, DFAT 2015 report and the Overseas Security Advisory Council’s 2016 Crime and Safety report. These noted that although demonstrations are common within Indonesia, they are peaceful, and police are notified three days prior to the protest.

25. The delegate concluded that although some corruption remains within Indonesia, country information indicates that those who attend protests would not face persecution for their opinion.

26. Ultimately, the delegate was not satisfied that the applicant is a refugee defined by s 5H(1) of the Act, nor that there was a real chance that the applicant would be persecuted if he were to return to Indonesia according to s 36(2)(aa) of the Act.

    Evidence submitted to the Department

27. The applicants submitted the following evidence to the Department.

    a.A copy of the secondary applicant’s Indonesian passport issued [in] 2013.

    b.A copy of the primary applicant’s Indonesian passport issued [in] 2015.

    Evidence submitted to the Tribunal

28. The applicant submitted the following evidence to the Tribunal.

    a.A copy of the Department’s decision record dated 8 September 2017.

    b.A copy of the primary applicant’s photo card expiring [in] 2025.

    c.A copy of the secondary applicant’s photo card expiring [in] 2025.

    d.A copy of the primary applicant’s drivers license expiring [in] 2026.

29. On 18 March 2024 new claims and submissions were provided to the Tribunal from the applicant’s representative.

30. In those submissions the applicants claims that they fear returning to Indonesia due to their Chinese heritage and ethnicity.

31. The claims are summarised below. 

32. The submissions stated that there were multiple mistakes and misinterpretations of their circumstances in their application for a protection visa lodged with the department.

33. The applicants submit that Chinese Indonesians suffer historical patterns of discrimination and violence and references the 1998 riots.

34. The applicant claims he suffered a series of distressing incidents during his time in Indonesia and listed those incidents which happened between 2001 and 2008.  He claims he was frequently approached by thugs who would demand money.  He claims he was physically assaulted and has a permanent scar on his head.  He claims if the demands were not met the gang leader would then confront and threaten him.  He claims this behaviour was racially motivated as the applicants were called names such as Chinese pig.  He claims this never happened to his native Indonesian neighbour. 

35. He claims that around 2013 to 2015 while running a [store] the applicants were subjected to constant extortion for money through illegal fees, despite having settled their rent and maintenance costs.  Refusal to pay these extra moneys led to threats of destroying their shop, with assurances that no assistance would be forthcoming.  Items were stolen from their store if they refused to hand over money. 

36. The applicants claim they faced verbal abuse in public, being derogatorily referred to as Chinese pigs when in public and that this reflects a broader pattern of discrimination and derogatory treatments towards Chinese Indonesians based on their ethnicity.

37. The applicant’s claim they did not report these incidents to the local authorities as they doubted the authorities would help without monetary incentives.  They claim if they reported to authorities it would result in more harm to them from local residents.

38. They claim that numerous Chinese Indonesians face harassment by local Indonesians.

39. They claim the state would not offer them any protection.

40. The submissions provided general information about discrimination against Chinese and the effect of 1998 riots.

    Tribunal proceedings

41. The applicant attended a Tribunal hearing on 27 March 2024. The following is a summary of the oral evidence provided.

42. The Tribunal explained the purpose of the hearing with the aid of the interpreter.  The first named applicant (the applicant) indicated he had no trouble understanding the interpreter.

43. He indicated he was currently working for [Employer 1] in Australia.  He was born in Indonesia as were his parents.  He does not know how long back his family goes in Indonesia.  He says he recalls his father said that his grandmother came from China.

44. He has parents who are still in Indonesia.  They are still living in the place he was born.  His father previously ran a grocery store however has retired now.

45. The Tribunal asked the applicant if the information he provided to the Department was true and correct.  He responded with words to the effect that parts of it were correct and other parts were not.

46. The Tribunal asked him which parts were not correct.  He responded that he did not protest against corruption, and he was not detained.  The Tribunal pointed out that his application he stated he spoke, reads, and writes English.  He stated that he did not know the application said that.  He claims he did not know what was put in the application.  The Tribunal stated that he attended school in Indonesia.  He said he completed junior high school.

47. The Tribunal stated that it was concerned that he was willing to mislead the Australian authorities by submitting a document which he did not know was correct.

48. The Tribunal discussed that he was on a student visa.  He responded that his wife was on a student visa, and he was a dependent.  He stated that she understood and read English.

49. The Tribunal asked the applicant why he fears returning to Indonesia.  He said he was threatened and scared of violence as he was Chinese.  The Tribunal asked for more detail about his claims as the original application made no reference to being fearful due to his Chinese ethnicity.

50. He again repeated that he was scared of violence, discrimination, and threats.  He said the authorities do not act.

51. The Tribunal again asked for more detail.  The Tribunal asked if there were any particular incidents he could talk about.  Anything that caused his fear. 

52. After prompting the applicant stated that he was bullied and discriminated against by a group of people who went to his parent’s house and asked for money

53. He stated he was hit on the head in 2001 to 2008.  The Tribunal asked for clarification as to when he was hit on the head.  He responded it was maybe around 2001-2003. 

54. The Tribunal asked if there was anything else the applicant wanted it to consider.  He responded with words to the effect that when he went home in 2013 to 2015 gangs came to his shop and asked for money.  He said they would take things and not pay for them.

55. The Tribunal responded that this could happen generally to shop keepers that people take things.  He indicated he agreed.  The Tribunal then asked for clarification why it was different for him from the shop keepers and how it fits under the convention.

56. He stated he could not respond.

57. The Tribunal then asked why he returned to Indonesia if he was so fearful in 2013.  He stated words to the effect he went back as he thought he would not suffer discrimination.  He claims that in 2013 to 2015 he was in Jakarta.  He started a [store] and paid for security and still he was threatened.  He was told they would burn his shop down.  He indicated he was fearful he would experience this again if he returns.

58. The Tribunal discussed with the applicant that there was a delay in lodging his application for protection.

59. He stated words to the effect that in 2015 he had to get information from a friend and his friend told him that people could apply for a protection visa.

60. The Tribunal then discussed that he says he did not know about a protection visa however was able to navigate the migration system through several visas since 2008.

61. The Tribunal then discussed independent country information as set out above for his comments.

62. He responded that there is violence everywhere, he said there is a lot of violence and if people go to the government, they are not confident they will get help.  He agreed the threat was to all Indonesians however he doesn’t feel safe as he is of Chinese background.

63. The Tribunal again asked for more detail about his claims.

64. He responded he has nothing more to add.

    The second named applicant

65. The second named applicant gave oral evidence.

66. She stated that she is relying on her husband claims.  She said she agrees with his claims.

67. She stated she reads and writes English.  She stated she was with him when the original application for protection was prepared and signed.

68. When the Tribunal put to her that she would have known the claims were incorrect when he signed the statutory declaration.  She stated she didn’t remember and only had some idea of what was in the application.

69. The Tribunal stated it was concerned that she was willing to mislead the Australian authorities.  She responded that the new claims are honest and say what happened.

70. The Tribunal asked for more detail.  She stated saying that in 2001-2008 he (the applicant) was often asked for money.  She indicated words to the effect that she did not see it, but he told her about it.

71. The second named applicant stated she was from Chinese background.  She stated that she has not suffered any discrimination.

72. The Tribunal then discussed her migration history and indicated that from that history it could look like that the aim was to stay longer in Australia and not that protection was needed.

73. She responded that they did not know about protection visas.  She said she was told by a friend after their tourist visa had run out.  She agreed that their friend told them it was a way to stay longer in Australia.

74. The Tribunal then asked the applicants and representative if there was anything further, they wished to put to the Tribunal for its consideration.  They indicated there was nothing they wanted to add.

    DFAT Country Information Report Indonesia 24 July 2023

    Ethnically Chinese Indonesians

75. Successive waves of immigration to Indonesia from China have resulted in well-established ethnically Chinese Indonesian communities throughout the country. Many Chinese Indonesians can trace their history in Indonesia back many generations, may no longer identify as Chinese, and may not speak a Chinese language. Most Chinese Indonesians belong to a religious minority, either Buddhism or a Christian denomination.

76. The Suharto-era New Order regime implemented a range of discriminatory measures, prohibiting Chinese language newspapers, schools and cultural expression and requiring Indonesian names. Violence and looting targeting Chinese Indonesians and their homes and businesses peaked during the Asian Financial Crisis (see Recent History). Since the end of the New Order regime in 1998, successive governments have removed official policy measures discriminating against ethnically Chinese Indonesians. Chinese New Year is a national public holiday, Confucianism is an officially recognised religion, Chinese-language newspapers are published, and there are no barriers to Chinese cultural celebrations or education.

1. Hundreds of thousands of protesters demonstrated in Jakarta on several occasions in 2016 to demand the detention of the Christian and Chinese-Indonesian Governor of Jakarta, Basuki Tjahaja Purnama (often referred to as ‘Ahok’), after he was arrested for allegedly insulting Islam. Violence between protesters and police was reported, but not violence against ordinary citizens, as occurred in 1998.

2. Chinese Indonesians experience societal discrimination in the form of negative stereotypes that portray them as greedy, as criminals or as being associated with China and its policies. Discrimination of this type increased around the outbreak of the COVID-19 pandemic due to the extensive media coverage of China and various claims about the origins of the virus at the time.

3. Risk of societal discrimination against Chinese Indonesians depends on individual circumstances. Individuals with wealth are less affected; they can use their wealth and connections with powerful people to protect themselves. Many Chinese Indonesians work in family businesses or within their own ethnic community, which reduces the chances of discrimination at work. Those without such networks or wealth would be more at risk of discrimination, but that applies to all Indonesians, not just Chinese Indonesians.

4. Memories of the 1998 violence and 2016 protests are still fresh in the memories of many ethnically Chinese Indonesians. Some jealousy of perceived wealth can lead to threats and some Chinese Indonesians keep a low profile as a result. Anti-minority sentiment is also heightened during election campaigns. Violence has occurred in the past but is not an everyday experience for Chinese Indonesians.

5. DFAT assesses that Chinese Indonesians currently face a low risk of societal violence and a moderate risk of low-level societal discrimination. DFAT is not aware of official discrimination against Chinese Indonesians.

   Nationality

6. The applicants claim to be citizens of Indonesia and have provided to the Department a copy of their Indonesian passports. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicants are citizens of Indonesia. The Tribunal finds that Indonesia is their receiving country for the purpose of assessing their claims for protection. There is no evidence before the Tribunal to suggest that the applicants have the right to enter and reside in any other country for the purposes of the Act.

   Does the applicant have a well-founded fear of persecution?

7. The mere fact that a person claims a fear of persecution for a particular reason does not establish the genuineness of the asserted fear or that it is well founded. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself in as much detail as is necessary to enable the Tribunal to establish the relevant facts. The Tribunal is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all of the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)

   Consideration of claims

8. The Tribunal has before it the applicant’s claims in his original application to the Department.  In that claim he stated he was involved in protests against corruption and was in detention. In his original claim he stated that governmental officers took loans from him and did not repay the money. Prior to the hearing the applicant stated that there were mistakes and misinterpretations in the original claims.   The applicant amended his claims and made the generalised claim that he suffered racism in Indonesia due to him being ethnically Chinese.  He provided some detail of how he claims he was targeted.  In the written submissions those claims were detailed (as set out above) describing how he suffered bullying and threats from 2001 to 2008 at his house.  He claims that when he set up a [store], he was subjected to threats, insults and demands for money.  He claims that when he opened a shop he was targeted for extortion and items were stolen from his store.

9. He made further generalised claims that all Chinese in Indonesia suffer from the risk of charges of blasphemy and are targeted for physical and sexual violence.  He claims the authorities will not provide assistance due to his ethnicity.

10. At hearing the applicant stated that he was not involved in protests nor was he detained in Indonesia.

11. The Tribunal has several concerns about the applicant’s claims.  His oral evidence lacked detail and the Tribunal several times had to ask for more information and clarify what had just been said.  The Tribunal had to prompt the applicant for details about his claim that he suffered physical assaults so severe that he had a scar on his forehead.  When queried when this happened, he was unable to provide any more detail than to say maybe sometime between 2001 and 2003.  The Tribunal would have expected that he could have had more detail about such a distressing event.

12. The Tribunal found the applicant’s oral evidence to be vague and unpersuasive.

13. The Tribunal discussed with the applicant that what he described in relation to his shop could have been applicable to many small businesses.  He agreed.  When the Tribunal asked him to discuss how it fits under the convention, he indicated he could not respond.

14. The Tribunal discussed country information as set out above.  The applicant stated words to the effect that violence is everywhere in Indonesia.  He agreed that this applies to everyone however it is worse for him as he is ethnically Chinese.

15. The Tribunal discussed the applicant’s migration history with him and his attempts to stay in Australia.  He was unable to articulate in any persuasive way why he delayed his application for protection except to state he did not know about it.  The Tribunal does not accept this response as truthful as he has been able to successfully navigate the Australian migration systems since 2008 and has used various visas to stay in Australia.  The applicants are both currently working in Australia.

16. The applicant displayed a cavalier attitude about his misleading Australian authorities in his first application for protection which was lodged with the Department.  When queried he stated he just signed it and did not read it.  The Tribunal discussed with him that he stated he could read, write and speak English he responded that it was his wife who could read English.  His wife agreed that she was with him when he signed the application however stated she had no knowledge of it.

17. The Tribunal does not accept that he has little or no knowledge of what was in his application for protection.  He has been in Australia since 2008 and when the application was lodged and has been working and navigating systems in relation to work and migration visas since that time up until he lodged his application in 2016.

18. The Tribunal finds that he was willing to mislead Australian authorities in order to secure his desired migration outcome which was permanent residency.  The Tribunal does not accept that his claims to fear harm if he returns to Indonesia are genuine.

19. The applicants’ recent submissions make much of the previous 1998 riots in which ethnic Chinese were targeted however it is now 2024 and the Tribunal accepts the independent country information as set out above that the government moved to change any laws discriminating against Chinese and if there are problems in Indonesia with the police and corruption, they are issues that are faced by all Indonesians.  The applicant referred to blasphemy laws and risk of assaults however these were generalised concerns and do not relate to the applicant himself.  The Tribunal accepts that when there have been major attacks against minority groups in Indonesia however when this has happened the authorities have moved to protect them. DFAT 2023.

20. The applicant, as set out in his application, was educated, and finished high school in Indonesia, he was previously able to work and travelled to and from Australia. The applicants from the information provided were able to live in Indonesia, receive an education, pay for student visas, and have family still living in the same area they have always lived in.   

21. The Tribunal accepts the DFAT assessment that Chinese Indonesians currently face a low risk of societal violence and a moderate risk of low-level societal discrimination. DFAT is not aware of official discrimination against Chinese Indonesians.

22. The Tribunal does not accept that the applicant has suffered serious harm due to being ethnic Chinese in Indonesia.         

23. On the limited evidence available the Tribunal is not satisfied that the applicant suffered discrimination in Indonesia and is not satisfied that if he returns, he will be harmed by local police, government authorities or groups of persons because he is ethnic Chinese and will receive no protection from the Indonesian authorities.

100.   The applicant has not claimed to fear harm, other than harm set out above, from any other source, and no other claims are apparent on the information before the Tribunal. The applicant has not claimed, and there is nothing to suggest, that he has a well-founded fear of persecution for any other reason listed in s.5J(1) of the Act.

101.   The Tribunal has considered all the material before it. It is of the view the applicant has merely made written and oral assertions to fear harm in Indonesia to achieve his preferred migration outcome. The Tribunal is not satisfied there is any reliable convincing evidence to suggest the applicant has any reason to fear harm if he returns to Indonesia. The evidence before the Tribunal is not sufficiently convincing and persuasive for the Tribunal to be satisfied the applicant has suffered serious harm or that the authorities in Indonesia would fail to move to protect him.

102.   The Tribunal has considered the Independent Country Information set out in the Department’s decision which was provided to the Tribunal and the latest DFAT updates on the situation in Indonesia.  The Tribunal is satisfied that the authorities in Indonesia have moved to protect the sizable ethnic Chinese minority from serious harm. There was no evidence before the Tribunal to suggest the Indonesian government would fail to protect the applicant with the same degree of protection afforded to other nationals.

103.   On the evidence before it, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reasons of his ethnicity, political opinion or being a particular social group or for any other reason set out in the Act, or that there is a real chance that he would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of Indonesia.  Therefore, he does not meet the definition of refugee. Accordingly, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

Does the applicant meet the complementary protection criteria?

104.   As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, it has considered whether he may nevertheless meet the criterion for the grant of a protection visa under the complementary protection criterion.

105.   As indicated above, the applicant has failed to provide persuasive evidence regarding his claims. In view of the above findings and on the evidence before it, the Tribunal is not satisfied that the applicant suffered serious harm in Indonesia or that there is a real risk that he will suffer significant harm if he returns to Indonesia.

106.   On the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia, there is a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act. 

107.   There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

1. 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

109.   The Tribunal affirms the decision not to grant the applicants protection visas.

Catherine Carney-Orsborn
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.

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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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