1727642 (Refugee)

[2024] AATA 4409

1727642 (Refugee) [2024] AATA 4409 (20 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1727642

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Mary-Ann Cooper

DATE:20 September 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 September 2024 at 8:56am

CATCHWORDS
REFUGEE – protection visa – Indonesia – written claims of political, economic and social conditions – borrowed money from relatives – claims at hearing of business loan from money lenders – middleman disappeared with money and did not supply products – threatened and beaten – application prepared by another person – account of business loan credible but unsubstantiated – no recent contact with money lenders – country information – strong economic growth – economic harm not for refugee criteria reason – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5(1), 5H(1)(a), 5J(1)(a), (4)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379

MIAC v SZQRB (2013) 210 FCR 505

MIEA v Guo (1997) 191 CLR 559

MZYXS v MIAC [2013] FMCA 13

Prasad v MIEA (1985) 6 FCR 155

Randhawa v MILGEA (1994) 52 FCR 437

SZLVZ v MIAC [2008] FCA 1816

SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 26 October 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of Indonesia, applied for the visa on 13 January 2017. The delegate refused to grant the visa on the basis that the applicant did not satisfy the criterion in s 36(2)(a) of the Act and was not a person in respect of whom Australia had protection obligations as outlined in s 36(2)(aa).

3. The applicant appeared before the Tribunal on 29 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

   CRITERIA FOR A PROTECTION VISA

4. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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.

5. 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.

6. 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).

7. 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.

8. 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

9. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of nationality

11. Section 5H(1) of the Act refers to a person being a refugee if they are outside the country ‘of nationality’. Section 5J(1) refers to this country as a ‘receiving country’.

12. In relation to the complementary protection provisions, s 36(2)(aa) refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country.

13. The applicant has provided his Indonesian passport, issued on [in] 2015. Therefore, based on the information provided by the applicant, the Tribunal finds that he is a citizen of Indonesia and as such his protection claims will be assessed against Indonesia as the country of reference and ‘receiving country’ respectively.

    Background

14. The applicant arrived in Australia [in] November 2016 on a Visitor visa (Class FA) (Subclass 600) which ceased on 4 February 2017. On 13 January 2017 he applied for a protection visa.

    Protection visa application

15. The applicant was born in [Town/District], Surabaya, Indonesia on [Date]. According to his protection visa application he is of Javanese ethnicity and a Sunni Muslim. He has a mother and father, a sister and a wife and child who reside in [Town/District], Indonesia. In relation to his education, he states only that he studied [subject] at [Institution]. He cites only one instance of previous employment as a worker with a [business] in [Country 1].

16. In his protection visa application he claims[1] that because of ‘distrust of judiciary and low enforcement , poor system of government, burreacracy starting from the lowest lever up to the top. The distruction  of the global economy impact on the nations economy. Poverty and unemployment are still big due to such problems, as the people of Indonesia, I has been living in harsh condition so I had to borrow money from my relatives because of that I finally could not pay the debt. I live in mental distress and fear. Many people in Indonesia have problem like me who borrowed money had been hit, injured and killed. I hope government of Australia can hear what I mentioned above. [I] appeal for Minister of Immigration to approve my application. Your cooperation is highly appreciated.’

    [1] His claims are unedited, taken directly from the protection visa application.

17. If he returns to Indonesia, he claims that he ‘will get caught by creditor and could be beaten, injured or killed. They will searching me’. In describing his experience of harm, he states ‘Yes I already experience harm in that country because I already received verbal threatened from them to hurting me. Besides that, I live in hardship (because the bad economy).’ When asked if he sought help, he responded ‘Yes but nothing happen because this is a matter of economy of the country (they consider as a personal problem)’. Further, he explains that he did not try to relocate ‘because this is a matter of socio-economic. I will experience the same problem even move to another places (inside that country)’. In relation to harm or mistreatment if he is returned to Indonesia, he says ‘Yes I will live in harsh conditions, suffered discrimination as Indonesian people.’ He does not accept that the authorities can protect him because ‘this is a matter of socio-economic. I will experience the same problem.’

    Findings of the Department

18. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision record, a copy of which the applicant provided to the Tribunal with his application for review.

19. The delegate notes the applicant’s claim that he left Indonesia because of fear from unnamed debt collectors; however, absent any further information, she concluded that the criteria in s 5J(1)(a) of the Act was not satisfied and he was not refugee. In relation to complementary protection, the delegate accepted that the harm and violence that debt collectors might inflict on the applicant constituted significant harm; however, she relied on country information which indicated that Indonesian law enforcement would offer him protection. He therefore did not meet the criteria for complementary protection. Accordingly, the protection visa application was refused.

    Tribunal hearing

20. At the hearing, a slightly different account to that in the applicant’s protection visa application emerged. In addition to advising he also has two brothers, he said he had no education past the third year of high school and that he had worked in Indonesia in agriculture, as a truck driver and as an entrepreneur. When asked for further details, he said he ran a market stall selling [products 1] and other goods at market. He confirmed he had travelled to [Countries 1-3], claiming the agent told him to do this to make his entry to Australia easier. He confirmed that he signed the protection visa application and that its contents were correct. He said a friend had helped him make the application.

21. The applicant told the Tribunal he came to Australia in 2016 to seek protection and to make money. He said he incurred a debt to a moneylender who had been introduced to him by a friend. He claimed he had borrowed 600,000,000 Indonesian rupiah from him in order to start his business selling [products 2]. The interest was 10% monthly. He said he had offered no collateral. The terms of the loan were that he would pay the interest monthly and repay the principal at the end of one year (2014). He said he would pay money to a middle man who would organise the supply of the [products 2]. He claimed this went well for a while; he made a profit and paid the interest due, but after a few orders the middle man disappeared with his money and did not supply the [products 2]. He still owed interest and the principal to the moneylender who began to send people to his home and demand the money due. He said he would pay as much as he could, and had borrowed money from relatives, however the moneylender and/or his agents began to threaten him. On two occasions he claimed they took him to the park and beat him and threatened him that if he did not repay the loan his family would be killed.

22. When asked if he went to the police over the money stolen from him, he said he had not. When asked why, he said he didn’t have anything written down to prove what had happened. The Tribunal observed that if money was stolen, having something in writing was not necessarily needed. He hesitated and responded that at the time he did not think of it. The Tribunal inquired if the reason he did not report the theft was because selling the [products 2] was illegal. He responded ‘maybe’. The Tribunal also asked if he had gone to the police to report the beatings and he said ‘no’ because he was afraid he would be beaten again. When asked if he considered relocating in Indonesia, he responded that he did hide with relatives for a while but had to return home to his wife. When the Tribunal asked why he did not take his wife with him, he said it was not his wife’s debt. The Tribunal also inquired whether he had sought assistance from organisations that could help him with the debt and he responded that he did not know about such organisations.

23. The Tribunal noted his evidence that he travelled to [Countries 1-3] in 2016 on a holiday with friends and observed that it did not suggest he was someone under stress or without money. He said he went with a friend and because he had been told that it would be easier for him to get a visitor visa to come to Australia if he had travelled to other countries. When asked why, if he was afraid in Indonesia, he did not remain in any of those countries, he responded it was because he did not have any friends there but he did in Australia.

24. The Tribunal asked if he had repaid any of his debt during the nearly 8 years he had been in Australia. He claimed he had repaid 200 million rupiah but was unsure how much he still owed as he had not been in contact with the moneylender. The Tribunal asked if anything had happened to his family since his departure and he confirmed they had not been contacted by the moneylender or his associates.

25. The Tribunal asked what he thought would happen if he returned to Indonesia. He said if he returned he would not be able to pay the debt and might be beaten and threatened with death. The Tribunal noted his evidence that the moneylender and/or his agents had not been in touch with him or his family for 8 years and it appeared they had no further interest in him. The Tribunal suggested it was unlikely that they would know or care if he returned to Indonesia. He maintained that they would find out eventually if he returned to Indonesia.

26. The Tribunal queried whether he could return to another part of Indonesia. He said he did not have anywhere he could go because he has no friends or connections in other parts of Indonesia and he would not be able to survive. The Tribunal referred to DFAT country information[2] which showed that there had been strong economic growth in Indonesia, a halving of the poverty rate and a relatively low unemployment rate, which indicated the economy appeared to be going very well and he would not have trouble finding work. He said he did not know about that but, because he does not have friends or relatives in other parts of Indonesia, it would be difficult for him.

    [2] Australia, Department of Foreign Affairs and Trade, DFAT Country Information Report Indonesia, 24 July 2023, paragraphs 2.7–2.11.

27. The Tribunal noted the differences between his protection visa claim (where he said he had borrowed money from relatives) and his claims at the hearing, specifically that he had borrowed money from a moneylender and had been beaten when he had been unable to repay it. He responded that the application had been filled in by someone else and he had just told them he had a debt. The Tribunal noted that he had responded that everything in his application was true and correct. It observed that this new account might lead the Tribunal to doubt the credibility and truth of his claims and consequently refuse his visa application. The applicant maintained that he had told the person who completed the form for him that he had a debt. The Tribunal accepts, on the basis of his clear inability to speak or understand English, the applicant’s explanation that he relayed his circumstances to another person who completed the form for him but who failed to include an accurate account.

28. The Tribunal queried his protection visa claims and suggested he made them not because he feared harm in Indonesia but in order to prolong his stay in Australia. The applicant responded that he came to Australia because he had friends here and could get work here.

    CONSIDERATION AND REASONS

    Credibility

29. When making findings of fact in relation to an applicant’s claims, an assessment of the credibility of an applicant is required. In doing so, the Tribunal is mindful of the difficulties often faced by asylum seekers, their anxiety and nervousness and the length of time between the events they describe and the hearing. I note the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all their claims.[3]

    [3] SZLVZ v MIAC [2008] FCA 1816 [27].

30. Nevertheless, 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; rather, it is for the applicant to satisfy the Tribunal that all of the statutory elements are established.[4] A decision-maker is not required to make the applicant’s case for him or her.[5] The Tribunal does not have any responsibility or obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[6]

    [4] MIEA v Guo (1997) 191 CLR 559 at 596.

    [5] Prasad v MIEA (1985) 6 FCR 155 at 169–70.

    [6] Randhawa v MILGEA (1994) 52 FCR 437 and 451.

31. The applicant claims to fear harm from a moneylender (and/or his agents) to whom he owes money in Indonesia. His protection visa application also indicates he fears harm because of the poor economy in Indonesia.

32. The Tribunal found the applicant to be frank in his evidence, and his relatively detailed account of why and how he incurred his debt and what happened to him in Indonesia, although not substantiated, appeared credible.

33. For these reasons the Tribunal accepts:

    ·     The applicant operated his own business in Indonesia.

    ·     He believed he could make money selling [products 2] but needed a loan to fund his purchases.

    ·     He borrowed money from a moneylender.

    ·     For one year he successfully purchased and sold [products 2] and made a relatively small profit, paying the interest on the loan when it was due.

    ·     After a few successful transactions, the middle man to whom he paid the money and who delivered the [products 2] disappeared with his money, failing to deliver the [products 2]. The applicant was unable to repay his loan.

    ·     He was visited by agents of the moneylender seeking repayment of the loan.

    ·     He made small repayments.

    ·     He was threatened and beaten by them when he could no longer pay.

    ·     He decided to come to Australia to get away from the moneylender and find work.

    ·     He has friends in Australia who facilitated his visitor visa application.

    ·     Since being in Australia he has worked but has not fully repaid his loan.

    ·     Since being in Australia neither he nor his family have had any communication with the moneylender and/or his agents.

    ·     His family continue to live in their home in Indonesia.

    Refugee assessment

34. Section 5H(1) of the Act provides that 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. As noted above, the applicant’s nationality is Indonesian and he is outside that country.

1. Section 5J of the Act provides that a person has a well-founded fear of persecution if:

   ·     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion (s 5J(1)(a)); and

   ·     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 above (s 5J(1)(b)); and

   ·     the real chance of persecution relates to all areas of a receiving country (s 5J(1)(c)).

2. The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.

   Does the applicant fear persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion (5J(1)(a))?

3. While the Tribunal accepts the applicant is fearful of returning to Indonesia, as noted above, s 5J(1)(a) of the Act provides that a person has a well-founded fear of persecution if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. ‘Persecution’ is not defined in the Act; however, ss 5J(4)–(5) provide meaning. Specifically, a person will not meet the definition of a refugee unless the persecution involves serious harm to the person, it involves systematic and discriminatory conduct and the essential and significant reason or reasons for the persecution is for reason of race, religion, nationality, membership of a particular social group or political opinion.

   Debt

4. There is no claim or indication that the moneylender, or any debt collectors or agents on his/her behalf, threatened the applicant because of his race, religion, nationality, political opinion or because he is a member of a particular social group. The Tribunal finds that the reason these individuals might threaten to harm the applicant would be to coerce him into repaying his debt. This claimed harm arises because the applicant owes money that he has not repaid and/or is unable to repay. This is the essential and significant reason for the harm that the applicant claims he will suffer, not for one of the reasons listed in s 5J(1)(a) of the Act (s 5J(4)(a)).

5. Therefore, in relation to the applicant’s claims regarding his outstanding debt to a moneylender, the harm he fears on his return to Indonesia does not meet the criteria in s 5J(1)(a) of the Act and, it follows, does not meet s 5J(1) as a whole.

6. Consequently, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution as defined by s 5J(1) of the Act and therefore he does not meet the definition of ‘refugee’ in s 5H of the Act.

7. Accordingly, in relation to the debt claims, the applicant is not a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion in s 36(2)(a).

   Economic harm

8. The Tribunal has considered the applicant’s expressed concern in his protection visa application about the impact of the generally poor economic situation in Indonesia, specifically, the ‘harsh conditions’.

9. For the same reasons as above, the Tribunal finds that any persecution the applicant fears in relation to this issue would not be for reasons of race, religion, nationality, membership of a particular social group or political opinion. Rather, the essential and significant reason for the harm that the applicant claims he will suffer is because of the state of the economy in Indonesia, not for one of the reasons listed in s 5J(1)(a) of the Act (s 5J(4)(a)).

10. Therefore, in relation to the applicant’s claim regarding economic harm he fears on return to Indonesia, it does not meet the criteria in s 5J(1)(a) of the Act and, it follows, does not meet s 5J(1) as a whole.

11. Consequently, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution as defined by s 5J(1) of the Act and therefore he does not meet the definition of ‘refugee’ in s 5H of the Act.

12. Accordingly, in relation to the claims of economic harm, the applicant is not a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion in s 36(2)(a).

    Complementary protection

13. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered whether he is a person in respect of whom Australia has protection obligations under the complementary protection grounds set out in s 36(2)(aa) of the Act.

14. This requires that there be substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant 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’).

15. In this context, a ‘real risk’ in s 36(2)(aa) has been held to impose the same standard as the assessment of ‘real chance’ in the refugee criterion in s 36(2)(a).[7] A ‘real chance’ in the context of refugee assessment has been described by the High Court as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance.[8]

    [7] MIAC v SZQRB (2013) 210 FCR 505; Department of Home Affairs, Complementary Protection Guidelines, section 3.5.1, as re-issued 29 February 2020; MZYXS v MIAC [2013] FMCA 13.

    [8] Chan v MIEA (1989) 169 CLR 379; MIEA v Guo (1997) 191 CLR 559.

16. ‘Significant harm’ for these purposes is exhaustively defined in s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.

17. ‘Cruel or inhuman treatment or punishment’ for the purposes of s 36(2A)(d) is exhaustively defined in s 5(1) of the Act to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is 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. The pain or suffering must be intentionally inflicted, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct.[9]

    [9] SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114].

18. ‘Degrading treatment or punishment’ is exhaustively defined in s 5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct.[10]

    [10] Ibid.

19. In addition, there are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.

    Debt

20. The applicant claims he will be beaten or killed if he returns to Indonesia because of the unpaid debt. Even accepting that the applicant was threatened and beaten, this occurred nearly 8 years ago and neither the applicant nor his family in Indonesia has been contacted by the moneylender and/or his agents since the applicant arrived in Australia in November 2016. Nothing in the evidence indicates or even suggests that the moneylender has maintained any interest in collecting his debt from the applicant. On this basis the Tribunal considers it implausible that the moneylender has any further interest in the applicant or collecting his debt. On this basis, the Tribunal is not satisfied that there are any grounds, let alone substantial grounds, for believing that, as a necessary and foreseeable consequence of the applicant being removed to Indonesia, he will suffer significant harm from the moneylender and/or his agents in respect of his claimed debt. The Tribunal considers there is at most only a remote and/or insubstantial chance that the debtor and/or his agents would either know or be interested in seeking out the applicant should he return to Indonesia.

21. Consequently, in relation to the applicant’s debts, 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 from anyone.

22. It follows that, in this regard, 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.

    Economic harm

23. As confirmed by the applicant at the hearing, he wishes to stay in Australia because he fears economic hardship on return to Indonesia. While the Tribunal accepts that his return to Indonesia may cause some stress or anxiety and/or financial hardship, in this respect, for the reasons below, it is not satisfied the applicant faces a real risk he will suffer one of the 5 types of harm that constitute ‘significant harm’ under s 36(2A) of the Act.

24. The applicant has not claimed in this regard that he will be arbitrarily deprived of his life, or the death penalty will be carried out on him, or he will be subjected to torture. The Tribunal is not satisfied that any financial hardship the applicant might suffer on his return to Indonesia constitutes cruel or inhuman treatment or punishment or degrading treatment or punishment. Such financial hardship, while it may cause stress and anxiety, is not the result of intentionally inflicted physical or mental pain or suffering by any person or group. In addition, there is no demonstrated intention by any person or group to cause extreme humiliation to the applicant. Rather, any financial hardship would be the result of the operation of the Indonesian economy which applies to all Indonesian citizens and/or is the consequence of the applicant being removed from Australia and being required to re-establish himself in Indonesia. In this context the Tribunal notes the applicant’s evidence that he owns a home in Indonesia where his family live, so he would have shelter and support on his return. Furthermore, on the basis of the available country information[11] and the applicant’s previous and ongoing work history, the Tribunal is satisfied that he would have little difficulty in regaining employment, albeit, the Tribunal acknowledges, probably at a lower salary than his earnings in Australia. For these reasons, the Tribunal considers any economic harm the applicant might suffer on return to Indonesia would fall short of constituting any of the 5 types of significant harm defined above.

    [11] Above, n1.

25. Even if the Tribunal did accept there are substantial grounds for believing that there is a real risk that he will suffer significant harm on his return, s 36(2B)(c) of the Act applies insofar as it provides that there is taken not to be a real risk that an applicant will suffer significant harm in a country if the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally. The economic situation in Indonesia clearly applies to its population in general, not the applicant personally.

26. Having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal is not satisfied in this regard that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal to Indonesia, there is a real risk the applicant will suffer significant harm as defined (s 36(2A)).

27. The applicant did not advance any other reason in his claims or evidence that he is owed Australia’s protection obligations.

28. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

    CONCLUSION

29. 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).

30. 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).

31. 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 any of the criteria in s 36(2).

    DECISION

32. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Mary-Ann Cooper
    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.

    …