1725845 (Refugee)

1725845 (Refugee) [2022] AATA 554 (20 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1725845

COUNTRY OF REFERENCE: Indonesia
MEMBER:Michael Hawkins AM
DATE:20 January 2022
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 January 2022 at 2:44pm

CATCHWORDS
REFUGEE – protection visa – Indonesia – political opinion – demonstrations against corruption – detention – police monitoring – non-appearance before the Tribunal – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5AAA, 5H, 5J, 36, 65, 426A, 499
Migration Regulations 1994, Schedule 2, cl 866.211
CASES
BZADA v MIC and RRT [2013] FCA 1062
MIEA v Guo (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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 29 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 29 November 2016. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia owes protection obligations under s.36 of the Act and subclause 866.211 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”).
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background:
The applicant is [an age]-year-old national of Indonesia.
The applicant first arrived in Australia [in] November 2016 pursuant to a Class TX, Subclass 771 (Transit) visa. He has remained onshore since.
On 29 November 2016, the applicant applied for a protection visa. The application was refused by a delegate of the Minister for Home Affairs in a decision made on 29 September 2017.
On 23 October 2017, the applicant applied for merits review of the delegate’s decision to refuse his application for a protection visa.
Claims:
The applicant’s claims are set out in his protection visa application forms and the delegate’s decision.
The applicant claims he protested in demonstrations against the Indonesian government’s corrupt officials.
The applicant claims that in early 2015, he attended peaceful protests in front of the government office. He claims they wanted the corrupt government officials to admit their crimes and resign from their positions. He claims he was arrested and detained for almost a week. He claims he was threatened and forced to sign some documents saying he would not protest again.
The applicant claims police officers told him that he will be arrested by the Indonesian authorities if he protests again.
The applicant claims that after his release, the police came to his home on a regular basis to check on him.
The applicant claims to fear being monitored or arrested if he returns to Indonesia. He claims the corrupt government officials are very well connected in Indonesia and it is impossible to obtain help from the authorities.
The applicant claims he cannot return to Indonesia.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
(a)the applicant’s protection visa application forms, which were lodged on 29 November 2016;
(b)the applicant’s identity documents provided to the Department, being a copy of his passport;
(c)the protection visa decision record dated 29 September 2017 (delegate’s decision);
(d)the application for review form dated 23 October 2017;
(e)Department file [number] concerning the applicant’s protection visa application;
(f)the Tribunal file; and
(g)country information on Indonesia, as set out below.
Country of reference:
The applicant claims to be a citizen of Indonesia. Based on evidence provided to the Department by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that Indonesia is his country of nationality and also his receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3) of the Act.
Hearing:
On 30 November 2021, the Tribunal wrote to the applicant advising that it had considered the material before it, but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments in support of his case at an in-person hearing to be held on 19 January 2022. The hearing invitation advised that if he did not attend the scheduled hearing and a postponement was not granted, the Tribunal may make a decision on the review without further notice or without taking further action to enable him to appear before the Tribunal. The letter was sent to the applicant by email at the email address provided in the application for review. That correspondence had not been returned from the applicant.
On 5 January 2022, the Tribunal sent a hearing reminder and request for the provision of a contact number to the applicant by email at the email address provided in the application for review. That correspondence had not been returned from the applicant and the Tribunal received no response.
The applicant did not appear before the Tribunal on the day and at the time and place he was scheduled to appear. The applicant failed to provide any reasonable explanation as to why he could not attend at the scheduled time. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make a decision on the review without taking any further action to enable the applicant to appear before the Tribunal.
Accordingly, this matter has been determined on the evidence available to the Tribunal.
Assessment of claims and evidence, and findings:
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of 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 or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal also notes that the recent decision of the Federal Court in BZADA v MIC and RRT [2013] FCA 1062, where Rangiah J held at [21]:
As his Honour correctly found, the Tribunal was unable to reach the requisite level of satisfaction to grant the applicant a visa given his failure to attend the hearing and the Tribunal’s inability to test and examine his claims in evidence. The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.
The Tribunal has carefully considered the applicant’s claims as detailed in his application for a protection visa, both individually and cumulatively. The applicant did not take the opportunity to attend the hearing, and he did not provide additional information in support of his claims, even after having been advised of the delegate’s decision. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing.
Without the benefit of the hearing, the Tribunal is unable to be satisfied of the claims raised by the applicant in his application, or how they are said to invoke Australia’s protection obligations. His claims did not raise a fear of serious harm as defined in s.5J(4)(b) and s.5J(5) of the Act, or that a fear of harm was for one of the reasons in s.5J(1)(a) of the Act. Had the applicant attended the hearing, the Tribunal would have asked for further detail about his claims, affording him an opportunity to provide further information and to explain how his claims might relate to the refugee criteria.
On the material presented, the Tribunal has insufficient evidence as to:
·The nature of his participation in demonstrations against the Government;
·Details and evidence of his arrest;
·Details and evidence of his detention;
·Details and evidence of the threats made against him;
·Details and evidence of the document he was required to sign;
·Details and evidence of the regular police visits made to him;
·An explanation and details as to why and how he remained in Indonesia from early 2015 when he was arrested and detained to November 2016 when he was granted a visa to enter Australia; and
·Why he could not relocate to another place in Indonesia.
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
The Tribunal has had regard to the following country information on Indonesia relevant to the applicant’s claims.
The Department of Foreign Affairs and Trade’s latest country information report on Indonesia[1] reports the following on persons who hold an actual or imputed political opinion:
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.
3.71 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.
[1] Australian Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Indonesia’ (25 January 2019) p 25 at [3.68]-[3.71].
The Department of Foreign Affairs and Trade’s latest country information report on Indonesia[2] reports the following on treatment of returnees and conditions for returnees:
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.
[2] Australian Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Indonesia’ (25 January 2019) p 43 at [5.19]-[5.20].
The Department of Foreign Affairs and Trade’s latest country information report on Indonesia[3] reports the following on corruption and state protection:
[3] Australian Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Indonesia’ (25 January 2019) pp 10-11, 40-42 at [2.15]-[2.20], [5.1]-[5.2], [5.6]-[5.15].
Corruption
2.15 Indonesia is a State Party to the UN Convention Against Corruption, and is a member of the Asian Development Bank and Organisation for Economic Cooperation and Development’s (OECD) joint Anti-Corruption Initiative for the Asia Pacific and the Asia Pacific Group on Money Laundering. The primary anti-corruption statute is the Law on the Eradication of Crimes of Corruption (1999), as amended by the Anti-Corruption Law (2001). Under the Anti-Corruption Law, courts may impose penalties including fines ranging from IDR 50 million to IDR 1 billion (approximately AUD 5000 to AUD 100,000), imprisonment for up to 20 years or, in extreme cases, life imprisonment or the death penalty. Other relevant laws include the Law on State Administrators Who Are Free From Corruption, Collusion and Nepotism (1999); the Law on the Corruption Eradication Commission (2002); and the Law on the Prevention and Eradication of Money Laundering (2010).
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. Petty corruption is common in areas such as policing and education, particularly higher education. President Widodo campaigned for his presidency on an anti-corruption platform, however to date, he has not implemented major corruption reform.
2.17 The main anti-corruption authority is the Corruption Eradication Commission (KPK). The KPK coordinates with other authorised agencies in the eradication of corruption, conducts investigations and prosecutes crimes of corruption, can act to prevent corruption, and monitors government expenditure. The KPK enjoys strong public support: 86 per cent of Indonesians surveyed in May 2017 had faith in the organisation. It has successfully prosecuted a number of high-profile figures, including cabinet ministers and parliamentarians. The police and public prosecutors may also investigate crimes of corruption. The Ombudsman actively supervises the public service and investigates alleged maladministration by public officials or legal entities funded by the state.
2.18 The KPK’s anti-corruption efforts have attracted resistance from some quarters, including intimidation and attempts to weaken its authority. In April 2017, an acid attack left a senior KPK investigator with facial burns and eye damage. The attacker had not yet been identified at the time of writing. The same investigator had previously been the subject of an attempted hit and run incident.
2.19 In April 2017, Indonesia’s parliament established a special committee to carry out a parliamentary inquiry into the effectiveness of the KPK, including the organisation’s investigation of an electronic identity card scandal, a case that has implicated several politicians, including the parliamentary speaker who was imprisoned. Critics of the committee argued, among other things, that parliament was not legally authorised to examine the activities of an independent agency such as the KPK, and that the special committee did not comply with the requirement for representation from all political parties in parliament. The special committee is yet to make its final recommendations. The Widodo administration has so far protected the KPK and it remains a functional and trusted institution.
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.
State Protection
5.1 Article 28I(1) of the Constitution stipulates that the rights to life, freedom from torture, freedom of thought and conscience, freedom of religion, freedom from enslavement, recognition as a person before the law, and the right not to be tried under a law with retrospective effect are all human rights that cannot be limited under any circumstances. Article 28I (2) stipulates that every person shall have the right to be free from discriminatory treatment on any grounds and shall have the right to protection from such treatment, while Article 28I (4) stipulates that the protection, advancement, upholding and fulfilment of human rights are the responsibility of the state.
5.2 Article 28J (2) qualifies these constitutional protections by stipulating that, in exercising their rights and freedoms, every person has the duty to accept the restrictions established by law for the sole purposes of guaranteeing the recognition and respect of the rights and freedoms of others and of satisfying just demands based upon considerations of morality, religious values, security and public order in a democratic society.
Police Force
5.6 The Indonesian National Police (INP) has more than 400,000 police officers and civilian employees (including 13,000 women), deployed to 32 regional police forces across the archipelago. The INP was formally separated from the military in 2000. The Law Concerning the State Police of the Republic of Indonesia (2002) gives the INP the lead role in handling non-defence related security matters. The president appoints the national police chief, subject to confirmation by parliament.
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. Human rights organisations have criticised the INP for including virginity testing and assessments of physical beauty in recruiting female police.
5.8 A semi-independent government advisory body (KOMPOLNAS) maintains oversight of the INP and acts as an alternative advisor to the president on policing matters. KOMPOLNAS has limited investigative powers and can recommend (but not order) follow-up actions.
5.9 The INP does not enjoy the same high public esteem as the TNI: 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.
5.10 An elite counter-terrorism unit known as Densus-88 was formed in June 2003 the wake of the October 2002 Bali bombings, in which 202 people including many Indonesians and Australians died. Local and international observers regard Densus-88 as high performing. Officers, who are highly trained in intelligence gathering, have successfully intervened to prevent numerous attacks. Densus-88 also investigates terrorist activity. Human rights organisations have expressed concerns over the number of terrorism suspects the unit has killed rather than brought to trial.
5.11 Human rights organisations claim police are rarely held to account for abuses. While police can be tried under criminal jurisdiction, impartial criminal investigations into police actions are uncommon. The usual practice is for police to conduct their own investigation, which often results in minor disciplinary actions. Such actions, usually against junior or mid-ranking officers, include short periods of detention, demotions and deferral of training opportunities. Details of investigations, court proceedings and verdicts are rarely made public.
Judiciary
5.12 Indonesia has a complex justice system evolved from three inherited sources of law: Dutch colonial law, sharia, and customary law. Various provisions of Article 24 of the Constitution outline the powers and responsibilities of the judicial system, including stipulating its independence. Despite this stipulation, the judiciary has operated separately from the executive arm of the state only since 2004, when it acquired all court administration functions from the Department of Justice. Before 2004, the executive commonly instructed both lower and appellate courts how to decide cases of interest to senior government officials, including in relation to criminal defamation, labour disputes and politically motivated violence.
5.13 The Supreme Court and Constitutional Court are Indonesia’s highest courts. The Supreme Court has exclusive jurisdiction over disputes between lower courts and between courts located in different regions. On request, it can give advisory opinions to the government and guidance to lower courts. Its powers of judicial review are limited to decisions on whether administrative regulations and local regulations conform to national laws as passed by parliament. The Judicial Commission nominates the 49 Supreme Court judges, whom the president appoints with the concurrence of parliament. The Constitutional Court reviews the constitutionality of laws, resolves disputes among the various branches and levels of government, has final say in the dissolution of political parties, and decides disputes over election results. The Constitutional Court has nine judges, of whom three each are nominated by the Supreme Court, parliament, and the president.
5.14 Corruption is reported in the judiciary at all levels. In September 2017, a Constitutional Court justice was sentenced to eight years’ imprisonment on bribery charges, less than three years after the Constitutional Court’s Chief Justice received a life sentence for corruption.
5.15 Another key challenge for the judiciary is the frequent criminalisation of civil disputes. The number of civil cases filed in Indonesian courts is among the lowest per capita in the world. Only around ten cases per year are filed per 100,000 citizens (the number in Australia is around 1,500). Many cases involving private litigants are instead captured by police or prosecutors and transformed into criminal offences: contractual disputes are prosecuted as fraud; libel as criminal defamation. Until recently, no alternative dispute resolution mechanisms existed: Indonesia established a small claims court in late 2015. Since the introduction of this mechanism, the number of small claims has steadily increased with a recorded 3,966 cases in 2017. Judges are reportedly reluctant to refer cases to mediation because, if successful, the outcome would not count towards the presiding judges’ performance targets. The lack of judicial specialisation has also affected the performance of the judiciary in complex cases. In addition, general court justices may need to take into consideration matters of customary law pertaining to ethnic groups or tribes to which they do not belong, and therefore may not fully understand.

As the applicant did not appear and provide any evidence in relation to his claims, and on the material available, the Tribunal cannot be satisfied that the applicant has suffered any harm or has been threatened with any harm, by any authority, on account of attending a demonstration and nor that he has any well-founded fear of serious or significant harm should he return to Indonesia now or in the reasonably foreseeable future.
As the applicant did not appear, and on the material available, including country information, there is nothing before the Tribunal to indicate that the applicant cannot or could not freely attend protests and demonstrations about corruption and democracy. Activists and NGOs are generally able to operate freely and without significant barriers to registration.
As the applicant did not appear, and on the material available, including country information, there is nothing before the Tribunal to indicate that the applicant will not be able to access protection from state authorities, were he to require protection from corrupt officials or other people commissioned by them. Country information indicates that the protection available is durable and that the protection includes appropriate anti-corruption and criminal laws, a reasonably effective police force and a separate judicial system.
Cumulative claims
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal finds that there is no real chance that the applicant will suffer persecution as a consequence of his having attended a demonstration against corruption, or any other reason if he returns to Indonesia now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Indonesia. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm?
The Tribunal has considered the applicant’s claims under complementary protection.
Having regard to the findings above, the Tribunal cannot be satisfied that the applicant left Indonesia because he feared significant harm. The country information is to the effect that it is not unlawful to attend protests and demonstrations about corruption and democracy and that effective state and community measures directed to the substance of his claims are reasonably available.
In view of these findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he is removed from Australia back to Indonesia now, or in the reasonably foreseeable future.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Indonesia now or in the reasonably foreseeable future.
Conclusion: Refugee Criterion
Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.
Conclusion: Complementary Protection
Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia that there is a real risk that he will suffer significant harm.
Overall Conclusion:
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Michael Hawkins AM
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.
…

[2022] AATA 554

20 January 2022

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Immigration

Administrative Law

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