1727988 (Refugee)

[2023] AATA 4685

1727988 (Refugee) [2023] AATA 4685 (15 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Michael Huang (MARN: 0639694)

CASE NUMBER:  1727988

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Nora Lamont

DATE:15 December 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 15 December 2023 at 10:58am

CATCHWORDS

REFUGEE – protection visa – Indonesia – race – ethnic Chinese – 1998 anti-Chinese riots – language discrimination – period of unlawful residence – mental health issues – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 7 June 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 12 May 2017.

3. The applicant appeared before the Tribunal on 26 October and in a resumed hearing on 7 December 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s defacto partner. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and Mandarin and English languages.

4. The applicant was represented in relation to the review. The representative attended both the Tribunal hearings.

5. There are no non-disclosure certificates on the applicant’s file.

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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.

8. 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).

9. 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.

10. 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

11. 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

12. The applicant is Chinese Indonesian and has one living brother who remains in Indonesia. She is not married but in a defacto relationship and has been since 2009. Prior to arriving in Australia, the applicant had been living in Jakarta.

13. The applicant travelled from Indonesia on a valid Indonesian passport and stated she is a national of Indonesia. Based on the applicant’s evidence both oral and written the Tribunal has assessed the applicant’s claims against Indonesia as her country of nationality and receiving country for Complementary Protection purposes.

14. The issues in this review is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s5J(1) and if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to her receiving country of Indonesia, there is a real risk that she will suffer significant harm.

15. For the following reasons the Tribunal has concluded that the decision under review should be affirmed.

16. The applicant’s claims are summarised as follows:

    ·She left Indonesia as she felt worried for her future.

    ·She was mistreated by the community because of ‘different ethnic’ and racism, and as a woman.

    ·She cannot move to another state as the result would be the same.

    ·No protection from the state because the situation cannot be handled.

17. The applicant explained that she is a Chinese Indonesian who was discriminated against when she was growing up. When she was at school, she was told she could not speak the Hakka language by her teacher as a way to oppress her, and that she could not use her Chinese name [specified]. They gave her the [applicant’s name] instead of her real name. Her brothers’ names were changed to [two names specified]. She was also forbidden from speaking Bahasa Ibu.

18. The applicant explained that the loss of the Chinese name hurt the family and their ancestors and that when Suharto ruled Indonesia they were oppressed. In May of 1998 she was working [in] West Jakarta when the riots and demonstrations broke out. They turned on the Chinese people and there were fires and looting. She got caught up in the riot and she saw a man get stabbed and a woman get gang raped. A Muslim man helped her and took her to his house where she stayed for two days, and she dressed like a Muslim woman in disguise. She was eventually rescued by the Indonesian Military Police who were sent by her brother (he paid them).

19. The applicant said she was traumatised and that as she was running away, she collided with a motorbike. She didn’t feel any pain immediately but after awhile she felt the pain. She is now deaf in one ear and has issues with the other ear.

20. After 2 months, her brother sent her to [Country 1], but they don’t accept refugees, so she returned to Indonesia. She returned to Indonesia and worked and stayed for 11 years until she came to Australia. She remained unlawful from 2009-2017 when she applied for protection. She has been working on farms [in regional Victoria] and met her partner when she arrived in [one town] in 2009. When asked why she was unlawful for so long she said that the agents wanted $5000 up front to do a visa application and she didn’t have that kind of money. She said that when she was in Indonesia, she got cheated by agents and it took a long time to get to Australia.

21. The Tribunal asked her why she was so fearful after all the years that had passed since this happened. She said that she was an eyewitness to rape and murder.

22. The Tribunal spoke with her de facto, and he said that he wants to protect her and keep her safe. He is currently awaiting his Tribunal hearing for his separate application for protection. He said that she is easily freaked out and that he wants to live his life with her.

23. The applicant’s representative provided the Tribunal with two articles, one in relation to the history of Indonesian Chinese history and one about what the riots of 1998 mean for Chinese Indonesians. The Tribunal also received the following documents from the applicant’s representative prior to the hearing(s):

    • [The applicant’s name] Submission 2
    • [The applicant’s name] Victims of Indonesia 1998 Violence Want Justice 25 Years On
    • [The applicant’s name] Country Report/Indonesia
    • [The applicant’s name] Anti-Chinese riots in 1998 May
    • [The applicant’s name] Chinese persecution in Indonesia

24. The Tribunal accepts that the applicant is a Chinese Indonesian and accepts that she was working [on] the day of the May 1998 riots. It further accepts that she witnessed a rape and witnessed the riot and brutality, that she was knocked down by a motorcycle and that a Muslim man took her into his house for two days to protect her. Whilst this was a serious incident, and it has clearly impacted on the applicant and caused her PTSD, it was 25 years ago, and the applicant continued to live in Indonesia for another eleven years prior to coming to Australia. She did not describe any further incidences or issues related to her life in Indonesia after the May 1998 incident.

25. The Tribunal further accepts that when the applicant was growing up, she was not allowed to speak her language in public, that she had to change her name, and that the overall experience for the Chinese Indonesian community was difficult given the discrimination at the time. Current country information shows that since 1998 discriminatory policies have changed: [1]

    The Suharto-era New Order regime implemented a range of discriminatory measures, prohibiting Chinese language newspapers, schools and cultural expression and requiring Indonesian names. Violence and looting targeting Chinese Indonesians and their homes and businesses peaked during the Asian Financial Crisis (see Recent History). Since the end of the New Order regime in 1998, successive governments have removed official policy measures discriminating against ethnically Chinese Indonesians. Chinese New Year is

    a national public holiday, Confucianism is an officially recognised religion, Chinese-language newspapers are published, and there are no barriers to Chinese cultural celebrations or education.

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

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

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

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

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

    [1] DFAT Country Information Indonesia 24 July 2023

26. This country information demonstrates that life for Chinese Indonesians has changed dramatically since 1998. According to the country information above, there is no official discrimination against Chinese Indonesians and the applicant would have effective protection from the state.

27. Whilst the Tribunal accepts that the applicant has lingering mental health issues, she did remain in Indonesia working for another 11 years after the riots of May 1998 and reported no significant issues after this event. Given these findings, the Tribunal does not accept that if the applicant returns to Indonesia she will face a real chance of persecution from the authorities, or the community or anyone. The Tribunal finds that the applicant does not face a well-founded fear of persecution as per 5J(1) of the Act and therefore the applicant is not a refugee within the meaning of s5H(1).

28. Nor does the Tribunal accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to Indonesia, there is a real risk that the applicant will suffer significant harm from the community or the authorities. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s36(2)(aa).

29. 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

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

    Nora Lamont
    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.

    …