1729756 (Refugee)

[2024] AATA 611

1729756 (Refugee) [2024] AATA 611 (9 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1729756

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Rodger Shanahan

DATE:9 January 2024

PLACE OF DECISION:  Sydney

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

Statement made on 09 January 2024 at 2:52pm

CATCHWORDS

REFUGEE – protection visa – Indonesia – race – ethnic Chinese – attacks on business – physical assault – state protection – return visit to Indonesia – dela in applying for protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 426, 499
Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559

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 3 November 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 7 March 2017.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.

7. 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

8. 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.

   CLAIMS AND EVIDENCE

   Protection visa application

9. The applicant provided the following written responses in his protection visa application:

   a.Why did you leave Indonesia ? I was a student in Indonesia. Racism hurt me so much that i cant continue to live in Indonesia. I am a Chinese Indonesia. I was discriminated by Muslim Indonesian and native Indonesians. My parents have a small shop. The income from their shop supported our living. Muslim Indonesians went to the shop regularly. They took things but never paid full amount. They owed a lot of money to my parents because of that. My parents always asked them to pay back the money. They not only refused to pay back the money, they also hurt my parents and me. In early 2014 my parents reported those Muslim Indonesians to police station. Police didn't help us. Instead, more and more Muslim Indonesians came to the shop. They smashed every thing in the shop. They beat my parents and I. My parents worried about me. They sent me to study in Australia. While I was studying in Australia. Muslim Indonesians forced my parents to shut their shop. My family has no income so I can't continue to study. I can't go back to Indonesia because I will suffer racism, lately in my city and Indonesia where Muslim is majority in my city the radical Muslims, grew up very fast, they tried to control us. I also was scared a lot of Muslims protest more than 1 million came to the street about blasphemy the suspected is Governor of Jakarta he is a Chinese and Christian, sentiment to Chinese now very high. My parents very worry about me.

   b.What do you think will happen top you if you return to Indonesia ? I was a student in Indonesia. Racism hurt me so much that I can't continue to live in Indonesia. I am a Chinese Indonesia. I was discriminated by Muslim Indonesian and native Indonesians. My parents have a small shop. The income from their shop supported our living. Muslim Indonesians went to the shop regularly. They took things but never paid full amount. They owed a lot of money to my parents because of that. My parents always asked them to pay back the money. They not only refused to pay back the money, they also hurt my parents and me. In early 2014 my parents reported those Muslim Indonesians to police station. Police didn't help us. Instead, more and more Muslim Indonesians came to the shop. They smashed every thing in the shop. They beat my parents and I. My parents worried about me. They sent me to study in Australia. While I was studying in Australia. Muslim Indonesians forced my parents to shut their shop. My family has no income so I can't continue to study. I can't go back to Indonesia because I will suffer racism.

   c.Did you experience harm in Indonesia ? I was a student in Indonesia. Racism hurt me so much that I cant continue to live in Indonesia. I am a Chinese Indonesia. I was discriminated by Muslim Indonesian and native Indonesians. My parents have a small shop. The income from their shop supported our living. Muslim Indonesians went to the shop regularly. They took things but never paid full amount. They owed my parents a lot of money. Because of that parents always asked them to pay back the money. They not only refused to pay back the money, they also hurt my parents and me. In early 2014 my parents reported those Muslim Indonesians to police station. Police didn't help us. Instead more and more Muslim Indonesians came to the shop. They smashed everything in the shop. They beat my parents and I. My parents worried about me. They sent me to study in Australia. While I was studying in Australia, Muslim Indonesians forced my parents to shut their shop. My family has no income so I cannot continue to study. I can’t go back to Indonesia because I will suffer racism.

   AAT Hearing

10. The applicant failed to appear before the Tribunal on the day and at the time and place at which he was scheduled to appear to give evidence and present arguments. Nor did he contact the Tribunal to explain his failure to appear. Pursuant to s. 426A of the Act, I have decided to make my decision on the review without taking any further action to enable the applicant to appear before me.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The applicant is [an age] year-old Indonesian male. The Tribunal accepts that he is an Indonesian based on a copy of the applicant’s passport held on file.

12. The mere claim to fear persecution for a particular reason is not sufficient to establish that such a fear is reasonable or ‘well-founded’. The applicant is expected to satisfy the Tribunal that all of the statutory elements necessary to establish that such a fear exists, are met. As Kirby J stated (MIEA v Guo (1997) 191 CLR 559 at 596:

13. ‘the mere fact that a person claims fear of persecution for reasons of political opinion does not establish either the genuineness of the asserted fear or that it is well-founded, or that it is for reasons of political opinion. It remains in the first place for the Minister to be satisfied and, where that decision is adverse, and a review is sought, for that applicant to persuade the reviewing decision-maker that all the statutory elements are made out.’ 

14. The information given in the applicant’s application is not sufficient to allow the Tribunal to be satisfied that the applicant faces a real chance of serious harm either now or in the reasonably foreseeable future, or 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.

15. There are a number of issues to do with the applicant’s behaviour and travel pattern that raises serious questions in the Tribunal’s mind as to the truthfulness of his claim. The applicant claimed that he could not return to Indonesia given the nature of racism directed towards Chinese Indonesians. He claimed that in early 2014 his parents had to report Muslim Indonesians for non-payment of goods to the Indonesian authorities, however the authorities did nothing and more Muslim Indonesians came to the shop in response and ransacked the shop and beat the applicant and his parents, who in response decided to send the applicant to study in Australia.

16. Yet the applicant applied for a student visa in December 2013, prior to the alleged attack on his parent’s shop. He also returned to Indonesia voluntarily in November 2015 and stayed for a month before returning to Australia. He did not then apply for protection until more than 14 months later (March 2017). If he claimed to be unable to return to Indonesia because of the racism he suffered, then it is strange that he did so voluntarily for a month in late 2015. The lengthy delay in applying for protection in Australia despite having allegedly been assaulted in early 2014 and suffering racism throughout is also inconsistent with the serious harm he claimed to fear. 

17. No supporting evidence that may have helped to corroborate his claims was provided to the Tribunal. Country information available to the Tribunal from 2015 indicated that Chinese Indonesians were at low risk of official discrimination although there may be occasional instances of prejudice resulting in a low level of societal discrimination.[1] The current DFAT report indicates that Chinese-Indonesians face a low risk of societal violence and a moderate risk of low-level societal discrimination.[2] None of this supports the applicant’s claim that he suffered, or would suffer racism on return to Indonesia that would meet the threshold of serious harm for s 5(J) purposes.

    [1] DFAT Country Information Report – Indonesia, 9 June 2015, p 11.

    [2] Ibid, 24 July 2023, p 12.

18. In view of the insufficient information provided and the inability of the applicant to attend the hearing the Tribunal is not satisfied that the applicant ever suffered any racism that would constitute serious harm for s 5 (J) purposes or that there is a real chance that he would in the reasonably foreseeable future. Nor do I accept that the applicant or his parents were ever assaulted by Muslim Indonesians and the shop ransacked, or that it had to subsequently be closed.

19. As the applicant hasn’t raised any other claims to fear persecution, and having regard to all the evidence and his claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any s 5(J) reason either now or in the reasonably foreseeable future.

    Complementary Protection

20. Whilst I accept that the applicant has and may experience some low-level racism, it does not reach the threshold that would constitute either serious or significant harm. I do not accept that the applicant was ever assaulted by Muslim-Indonesians, or that his parents were forced to close their shop due to the actions of Muslim-Indonesians. Because of this, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Indonesia that there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s 36(2)(aa).

    CONCLUDING PARAGRAPHS

21. 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).

22. 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).

23. 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

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

    Rodger Shanahan
    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.

    …