1728274 (Refugee)

1728274 (Refugee) [2020] AATA 2360 (17 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1728274
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Meena Sripathy
DATE:17 April 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 April 2020 at 11:41am
CATCHWORDS
REFUGEE – protection visa – Indonesia – no Convention reason – fear of attacks by loan sharks – criminal gangs – fear of physical assault by debt collectors – state protection – difficulty finding employment – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65
Migration Regulations 1994, Schedule 2
CASES
MIMA v Rajalingam (1993) FCR 220
Selvadurai v MIEA& Anor (1994) 34 ALD 347
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 14 November 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Indonesia, applied for the visa on 8 April 2016. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant claimed to fear harm in Indonesia for one of the five reasons referred to in s5J(1)(a) and therefore was not satisfied she is a refugee as defined by s5H(1) of the Act or that there was a real risk of significant harm as outlined in s36(2)(aa).
The applicant’s claims for protection as described in her application were that she fears harm from debt collectors due to money borrowed by her husband’s ex-wife and she claimed to fear harm also from her husband’s ex-wife. The Tribunal also has before it a separate review application relating to the applicant’s husband, [named] (AAT case ref. 1611212) who made claims of protection on the basis of fear of illegal money lenders.
Given the common matters arising in the applications, the Tribunal scheduled hearings in both matters on 16 March 2020 at which the applicants appeared to give evidence and present arguments, accompanied by their infant daughter, who was born in [Australia]. The Tribunal hearings were conducted with the assistance of an interpreter in the Indonesian and English languages. The Tribunal discussed with each of the applicants the other applicant’s evidence as it related to their claims. Details of the evidence obtained at the hearings is provided below.
The issue in this case is whether there is a real chance, if the applicant returns to Indonesia that she would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Indonesia, there is a real risk that she will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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 (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’). 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. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act. These are extracted in the attachment to this decision.
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.
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
Evidence before the Department
The applicant is [an age] year old married female born in Bandung, Indonesia. She indicates in her application she married [in] November 2011. She has [siblings] who reside in Indonesia. She travelled to Australia [in] March 2016 as a visitor on her own passport, issued in [2015] and valid to [2020]. Prior to arriving in Australia she resided at an address in Cirebon, West Java since 2011. She worked as a [product] supplier from 2011 to 2015. She is educated to high school level.
In her reasons for claiming protection she stated that her issues arose because her husband and his ex wife borrowed money from illegal money lenders. Her husband’s ex wife, from whom he is divorced, used his details to obtain loans and money. The people that she borrowed from were like triad gangs. The ex-wife cheated her husband and hates the applicant. Because the debt collectors cannot contact the ex wife, they pursued the applicant for the debts. The applicant claims she made a police complaint about the ex wife and the money collectors and they investigated for two weeks but provided no answers or solutions. The debt collectors continue to threaten the applicant and demand money from her family. She was kidnapped and detained by unknown men and they tried to rape her. She was followed home by unknown people and received threats every day from the debt collectors. She cannot return to Indonesia because they have no money to pay the debt collectors. The applicant fears the debt collectors and also her husband’s ex wife. She fears they will attack her because the debts are still outstanding. She is confident the government and authorities cannot help her to resolve this problem. She has attempted to report the issue to the police and they just gave her some protection for a while. She cannot relocate to another place because of this matter. Her country is not responsible about these debt cases.
The applicant was not invited to attend a Department interview. Her written claims were considered by the delegate and the application was refused on 14 November 2017.
Evidence before the Tribunal – hearing 16 March 2020
The applicant confirmed her current address and that she lives there with her husband and their daughter. She has lived with the applicant since her arrival in Australia in 2016. She was assisted to make her application by a Malaysian woman to whom she paid some $500. She communicated with the woman in Bahasa Indonesia and the woman spoke Malay which is similar but not exactly the same, so there may have been some misunderstandings between them in obtaining the story.
She has a mother and [siblings] in Indonesia. Her father passed away in 2017. Her parents live with her [sister].
The Tribunal asked about her address prior to coming to Australia. She gave the address and explained it was a house belonging to her father in law. She and the applicant were paying off the house by instalments. She continued to live at this house, initially alone, after the applicant came to Australia. After some time she asked her sister to come and stay with her.
Prior to coming to Australia she operated her own [business] and also worked as [another occupation]. She did not mention this employment in her application but only that she helped with bookkeeping in her husband’s business. She tried to continue to run her husband’s business after he came to Australia but was not so successful because some customers only wanted to deal with him. Also he had many outstanding debts when he left and she was not able to finalise many of them though she tried. She sold as many things as she could to pay off his outstanding invoices and also paid from her own [business].
One day a group of 10 men came to the house at around 10pm at night. They broke the door down and went through the whole house. She was very frightened and there was nothing she could do. Eventually they left without physically harming her but she was very scared after that. This incident occurred about one week before the end of Ramadan 2015, about a month after the applicant came to Australia. (the Tribunal notes that Ramadan ended that year on 16 July 2015). The Tribunal asked if she knew who these men were and why they came. She said they came to collect debts and asked her to pay whatever she could give. Her husband had not by this time sent any money from Australia but he started to send money to her after this incident.
The Tribunal asked if anyone came asking for money when her husband was still there and, if so, what did they do. She said soon after their marriage she recalls people coming asking for money. Sometimes they mistook her for his ex-wife. Sometimes they brought army officers with them to be paid also. If the applicant was not present she would tell them he was not there and she knows nothing about the matter.
The Tribunal asked the applicant what she knows about the origins of the loans. She asked in response, which ones, as there are so many. She said her motivation to come to Australia was the incident that happened to her. In October 2015 a man came to her house. He was one of the suppliers that her husband owed money to. She knows this because she used to go with her husband to some of the markets when he was there. The man told her he would return with an officer, and she spoke back to him and told him to do so. He then got angry and began to behave improperly. He spoke suggestively to her. It was still light outside and she went out to the passers by and asked him to leave. He left without further incident. She told her husband and his family about this incident. She went to the police but they told her she needs to have evidence of physical harm to her. Her sister was present during this incident but in a different room and she did not share it with her because she did not want her parents to find out and distress them. The applicant said this incident upset her a lot because it reminded her of a previous incident which occurred before her marriage that caused her much trauma.
Apart from these incidents no other incidents occurred. Just regular visits and calls by people to collect the debts.
The applicant said that before their marriage her husband told her he had debts of [amount] billion rupiah from his ex wife’s business. The ex wife initially borrowed a smaller amount of [amount] but then her business kept failing and she borrowed more. The applicant said she was aware of one big loan her husband had with [a named bank] which was paid by him from the proceeds of the sale of a property.
After the sale of her father in law’s property they were living in, her husband still has outstanding loans and no more capital to pay. He tried with his business to pay his debts by taking other amounts on credit but it was not eventually successful. He ended up with many different amounts owing.
The applicant said her husband’s ex-wife still has the same business and is running it. The Tribunal asked why no one pursued her for the debts if she incurred them and is still running the business. She said she does not know but sometimes they mistook her for the ex wife. She is not aware if anyone has pursued the ex wife.
The Tribunal asked the applicant what she is afraid of on return. She said she is scared because they have not paid off all the debts. Now there are no more assets left because the house has been sold. She does not know how they will be able to start again because it’s very hard to get a job and she is worried for her daughter. She also fears psychological harm because of a past trauma (before her marriage). The applicant then said that the person who came to the house in October has since apologised as has his family so she is no longer afraid of him.
The Tribunal asked about her claim in her written application, that she fears harm from her husband’s ex wife. She said she is not afraid of her and this may have been a misunderstanding with the Malaysian woman who helped with the application.
Apart from the debt issue, the applicant said she believes her stress is less in Australia and she has been able to get treatment for her anxiety and is less worried about her daughter. She is afraid about starting again without capital and with outstanding debts.
Evidence from applicant’s [husband]
The following is a summary of evidence the applicant’s husband gave to the Tribunal relevant to her claims. The witness confirmed to the Tribunal what he disclosed at his interview with the delegate, that he authorised an agent to complete his written application and was unaware of its contents.
He was married twice before his marriage to the applicant. His second marriage from 2005 to 2010 was to a woman called [Ms A]. They had one child together, [details deleted]. He and [Ms A] had a business together supplying [products]. They had a shop and he also supplied to markets in the surrounding areas. They had [number] employees. [Ms A] incurred debts in the context of the business and eventually they separated because of this issue. He continued the business selling items in the markets, and she kept the shop. They since registered the businesses separately. He believes his ex wife is still running the shop now. The Tribunal asked the witness if he has any evidence to support the existence of his previous or subsequent business. He said he had such evidence at the last address he lived at, but since that time his father sold the property and he no longer knows where it is.
The witness said his current wife (the applicant) is an old high school friend. They married after he poured his heart out to her after his previous relationship ended and he divorced his ex-wife. He has [siblings] in Indonesia. His father passed away in 2018 from illness. His father owned [properties], [most] of which have been sold, [some] after his death. The proceeds were used to pay off his father’s own debts and the remainder was used to buy his younger sibling a house.
The witness told the Tribunal that the information contained in his visitor visa application that he was not married and was seeking to visit a girlfriend In Australia was incorrect and arranged by an agent to obtain a visa for him. However he acknowledged that the bank statement provided for that application was his own.
The witness told the Tribunal that he feared return to Indonesia because of outstanding debts he owes there. He has numerous loans since 2005 before his ex wife divorced him. She borrowed money, at first it was only [amount] rupiah. She borrowed from a loan shark and could not repay, then she borrowed more and more. She took out three loans. All of the loans were taken by her, for the business they owned together. He said initially he did not know and he only came to know when they came to repossess the car. The Tribunal noted that he initially said his business commenced from 2005 when he married his ex wife and now he is saying the loans started then. He then said the loans began from [2008]. The business started having problems from the end of 2008. The problems were because of the loans she took out. He tried to pay them off from moneys he inherited and selling what they had. Then he received divorce papers from her relatives in 2010 and they divorced, but the burden of all the loans fell wholly onto him. When asked why, he said it was because he was the husband. He was asked to leave the house and did not take anything. She was left with the house, and still runs the business through her relatives. Their [child] lives with her but is also protected by [a relative] sometimes, because his ex wife runs away from time to time.
The Tribunal put to the witness that it may have difficulty accepting his claims about the ongoing burden of the unpaid loans given that his ex wife and [child] have remained living in the same house which she still owns and she is running the same business and this is inconsistent with having loan sharks pursuing him for large debts incurred by her for the business. In response he said this is because the debts are now directed to him and not his ex wife and so they are only interested in him. The Tribunal asked if he has any evidence of any of these loans or repayments made to date. He said he does not because any evidence he had was in the house that has now been sold.
He provided a document to show that he has recently paid off some of the loan. This is the loan agreement between his sister and a bank. She obtained this loan to help him to repay the debts, after his father died. The witness said his debt is [amount] billion rupiah, he has now repaid some of this to the loan shark from the proceeds of his sister’s loan. In 2012 his sister first took out a loan for her own purposes. Then in 2017 he borrowed from her to repay the loan sharks. He then said his loan was [amount] billion and he has repaid some [specified portion] now. He still owes some [amount]. If he has to return to Indonesia now, he still has to repay this amount to the loan sharks and also owes his sister the significant amount he borrowed from her. If he can stay here in Australia he can work and repay all his debts.

When the Tribunal asked the witness why he can’t ask for more help from his other siblings for the outstanding amount he owes, he said they have their own families to worry about.
When asked if he suffered harm from these people prior to coming to Australia he said sometimes the collectors came, with police and army officers and sometimes they sent thugs who brought weapons. When he tried to complain to the police they told him they cannot do anything without evidence of harm. The Tribunal put to him that this suggests he was not harmed enough to have evidence for a police complaint, to which he agreed.
The witness told the Tribunal the only reason he feared return was because of the outstanding debt he had to loan sharks and he only feared harm from them for this reason.
When asked if any other family members have been harmed, he said they have not. He said they can report them for extortion if the loan sharks came after them. The Tribunal asked why his wife came to Australia in 2016. He said the debt collectors came to her house and banged on the door. One of these men almost raped her and after this incident she was ringing him all the time and he arranged for her to come here.
The Tribunal put to the witness its concerns about his claim that the collectors came for his wife given they had never pursued his ex-wife who allegedly borrowed the money, his [child], or his father or siblings who apparently had assets. In response he said in his country they only chase the person who owes the money.
The Tribunal put to the witness its concern that he had never mentioned before this hearing that his loans were originally incurred by his ex wife. In his original written claims and oral evidence to the delegate he claimed only that the debts were incurred by him. In response he said before his divorce he promised his ex wife’s family that he would repay the debts and also that some of the debts were his own. He also said he did not know how to explain his story in the beginning.
The witness told the Tribunal he was not aware of the content of the applicant’s application because he was working at the time she made her application. He knew his wife was working before she came to Australia. She had a small [business] and she would repay the debt collectors with money he sent to her or if he did not send money she would use money from her business. They demanded payment from her and she had that incident where she was almost raped. She tried to complain to police but they said they could not prosecute unless she had evidence she was raped. She called and told him and said she locked herself in the house for 3 days. After that he brought her here. This is the only incident he is aware of.
At the conclusion of their evidence, the Tribunal explained to the applicant and her husband the issues arising in the case relate to the credibility and reliability of their evidence about outstanding loans owing and the circumstances in which these loans were incurred, whether the harm they fear as a result of this is for any of the specified reasons set out in s5J of the Act or if there are substantial grounds for believing that there is a real risk of significant harm having regard to those defined terms. In relation to apparent inconsistencies in their respective evidence about how the loans were incurred, the husband explained that he owed money to various people, both the original loan sharks and later creditors from his ongoing business operations.
After the hearing, on 24 March 2020 the following documents were provided in support of matters arising during the hearing:
a.Various bank deposit slips evidencing the business the applicant’s husband was running with his ex-wife.
b.Untranslated divorce documents and divorce agreement relating to the applicant’s husband and his ex wife’s relationship.
c.Bank statements and cheques issued after their divorce.
d.Evidence of money the applicant’s husband wired during 2019 to his brother and brother in law and identification documents relating to [two named persons].
FINDINGS AND CONSIDERATION
Nationality
On the basis of her Indonesian passport the Tribunal accepts the applicant is a national of Indonesia and considers Indonesia is the country of nationality and the receiving country for the purpose of assessing her claims against the refugee and complementary protection criteria.
Consideration of applicant’s claims
When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of credibility of the applicant. When doing so the Tribunal is mindful of the difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims.
The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. (See MIMA v Rajalingam (1993) FCR 220) However the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see Selvadurai v MIEA& Anor (1994) 34 ALD 347 at 348).
The applicant’s claims for protection are that she fears harm from debt collectors who are still owed money as a result of loans taken by her husband and his ex-wife and other debts owed by her husband. She also expressed fears about how she and her husband will be able to start again if they returned to Indonesia because it’s very hard to get a job and she is worried for her daughter. She made claims of two attempts to attack her at her house, after her husband left in 2015. The first was by a group of men associated with the money lenders. The second was by a man who her husband owed money to. She was scared and intimidated by these incidents and feared psychological harm because of a past trauma (before her marriage).
The applicant’s husband has also made a separate, earlier application for protection on the basis of fears of harm because of outstanding loans to illegal money lenders. His application was separately considered and refused by the Department. Both applications for review were constituted to the present Tribunal and the applicants in each requested the other to give evidence in their matters. As detailed above, the Tribunal heard oral evidence from the applicant and her husband at a face to face hearing.
The Tribunal has carefully considered all of the evidence before it, including the applicant’s written claims in her application, her oral evidence to the Tribunal and the evidence of her husband provided to the Tribunal, the documentary evidence submitted to the Department and Tribunal, and relevant country information. It makes the following findings relating to the material facts and assesses her protection claims accordingly.
Claims that her husband and his ex wife owed money to illegal money lenders
The Tribunal has concerns about the credibility and reliability of the evidence before it regarding the applicant’s husband’s outstanding loans. Her husband’s account about these debts was inconsistent with his own evidence and with her claims, lacked coherency and he was unable to provide a convincing amount of detail about critical aspects including when the debts were incurred by whom and to whom, and for what purpose. The Tribunal also notes the absence of any documentary evidence of the loans to these money lenders or any receipts for moneys repaid. Together this leads the Tribunal to have serious concerns about the credibility, veracity and reliability of the evidence about the money owed. The Tribunal finds particularly concerning that the applicant’s husband never mentioned to the Department in his original written or oral evidence in his own application, that his ex wife originally incurred the debts. This evidence or account only came out before the Tribunal after the applicant lodged her protection application and made these claims.
However, despite its concerns and doubts about the details of the claims regarding the debts owed in Indonesia, the Tribunal gave the applicant’s husband, in his review, the benefit of its doubts and proceeded to consider his claims on the basis that it was plausible and credible that he left Indonesia for Australia because he had outstanding debts there.
Accordingly, for the purposes of the present review, the Tribunal will proceed on the basis that it is possible, if not certain, that the applicant’s husband had borrowed moneys from illegal money lenders and while he has repaid a substantial proportion of it, he still owes approximately [amount] rupiah. For present purposes, and given the limited evidence, the Tribunal considers it is unnecessary to make any determinative findings on whether the moneys were originally borrowed by the applicant’s husband’s ex wife or himself, and does not do so.
Claims of attacks on applicant’s house in July and October 2015 after her husband left
The applicant’s claims that a group of men associated with debt collectors came to her house to intimidate her and that, separately, a lone creditor of her husband came one night in October 2015 and made sexual harassment advances towards her, are based on her verbal testimony to the Tribunal. The Tribunal found the applicant to be genuinely distraught as she recounted these incidents. It notes the manner and detail in which she recounted the indicated and that she did not seek to embellish or exaggerate the claims. On the basis of her account, the Tribunal is prepared to accept that these incidents took place as claimed. On her own evidence, she was not physically harmed on either occasion, although it accepts they succeeded in frightening her, and the second incident triggered a past trauma for her.
Does she have a well founded fear of persecution for reasons of race, religion nationality, membership of a particular social group or political opinion: s5J(1)(a)?
The Tribunal is not satisfied there is a real chance the applicant will face serious harm from debt collectors or any creditors, or anyone associated with such people for any of the specified reasons mentioned in s5J(1).
Nothing in the evidence before it suggests the necessary nexus to any of the reasons set out in s5J(1) in respect of the applicant’s claimed fears upon return. At the hearing, she stated her fears on return are because they have not paid off all the debts, and there are now no more assets left because the house has been sold. She does not know how they will be able to start again because it’s very hard to get a job and she is worried for her daughter. She also fears psychological harm because of a past trauma (before her marriage). She clarified that she is no longer afraid of the person who came to the house in October because he and his family, have since apologised.
While the Tribunal has accepted that the applicant’s husband has outstanding debts to money lenders, and accepts they may pursue him for these debts, there is nothing in the material before it to suggest that they will pursue him or the applicant for any other reason than the moneys owed. The applicant lives, and has been living, with her husband throughout her period in Australia and on that basis the Tribunal considers it reasonable to expect she would be returning to Indonesia with her husband. Therefore, it is not satisfied that she will face harm or intimidation from the debt collectors or creditors as a single woman living alone, or otherwise on the basis of her gender.
On the evidence and material before it, considering the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that the applicant has a well founded fear of persecution for any of the grounds specified in s5J(1)(a).
For these reasons, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection grounds
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 has considered whether there are substantial grounds to believe there is a real risk the applicant will be arbitrarily deprived of her life; or the death penalty will be carried out on her; or that she will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment if she is returned to Indonesia.
The Tribunal has considered the applicant’s claims that her husband has outstanding debts to money lenders in Indonesia and has accepted that he still owes around [amount] rupiah. Given that he has owed money to lenders in Indonesia since at least 2008, remained there until 2015 and was not killed or otherwise significantly harmed while he was there, and neither have any of her husband’s close family been killed or significantly harmed including his ex wife, the Tribunal finds there are no substantial grounds to believe there is a real risk the applicant will face significant harm from those her husband owes money to, or their associates, upon return. Given that he has consistently been making repayments in the past, the Tribunal finds her husband is likely to continue to make repayments in future and there is no reason to believe that anyone owed money will kill or harm him or the applicant because of any unpaid debt as this would be counterproductive to their aims of being repaid.
The Tribunal has considered the applicant’s fears about starting over again in Indonesia and the difficulty finding employment. While it accepts that she may have apprehensions about this, and they may face such difficulties, it finds that this does not amount to significant harm within the meaning of that term in the Act. The Tribunal is also not satisfied there are substantial grounds to believe she will face psychological harm amounting to significant harm because of the past trauma she alluded to in her evidence. On her own evidence, she has no fears of the man who sexually harassed her in the past. As she would be returning with her husband, she will not be living alone and would not therefore be vulnerable to an attack by unknown men as occurred previously.
Having regard to the findings above, and the applicant’s claims and evidence considered individually and cumulatively, the Tribunal is not satisfied there are substantial grounds for believing that there is a real risk she will face significant harm upon return to Indonesia.
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.
Meena Sripathy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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[2020] AATA 2360

17 April 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice