1729885 (Refugee)

1729885 (Refugee) [2024] AATA 1797 (10 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Hevi Shikho
CASE NUMBERS: 1729885 and 1729876

COUNTRY OF REFERENCE: Indonesia
MEMBER:Jennifer Ermert
DATE:10 April 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants protection visas.

Statement made on 10 April 2024 at 12:29pm

CATCHWORDS

REFUGEE – protection visa – Indonesia – particular social group – inter-caste marriage – remarriage without family approval – black magic spells or curses – unexplained illnesses – fear of killing – internal relocation – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 423, 499
Migration Regulations 1994, Schedule 2

CASES

Chan Yee Kin v MIEA (1989) 169 CLR 379
Guo v MIEA (1996) 64 FCR 151
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220

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

This is a review of two decisions made by delegates of the Minister for Immigration and Border Protection on 1 November 2017 and 6 November 2017, respectively, to refuse to grant the applicants Class XA Subclass 866 protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of Indonesia, applied for the visa on 26 May 2017. The delegates refused to grant the applicants the visa on the basis that the applicants are not persons in respect of whom Australia has Australia has protection obligations.
The applicants appeared before the Tribunal on 9 February 2024 to give evidence and present arguments. The hearing was conducted as a combined hearing because the applicants’ protection claims are inter-related and based on common factual circumstances, although evidence was taken from each of the applicants separately as well as jointly.
The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages. The applicants were represented in relation to the review by Ms Hevi Shikho from Lincoln Lawyers.

CRITERIA FOR A PROTECTION VISA

The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

Mandatory considerations

In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

The issue in this case is whether or not the applicants are persons in respect of whom Australia has protection obligations either because they are refugees (s 36(2)(a)) or persons who meet the complementary protection criterion (s 36(2)(aa)), or because they are members of the same family unit of such a person and that person holds a protection visa of the same class as applied for by the applicants.

Country of nationality and identity

Both of the applicants claim to be citizens of Indonesia. Both applicants have provided certified copies of Indonesian passports issued in their names to the Department in connection with their protection visa applications. [Applicant 1] has additionally provided a certified copy of his Indonesian driver’s licence.
In the absence of evidence that these identity documents are bogus documents as defined in s 5(1) of the Act, and in the absence of evidence that the applicants are not the persons they claimed to be, the delegates accepted the applicants are nationals of Indonesia and considered and assessed their protection claims against Indonesia in relation to s 36(2)(a) and s 36(2)(aa) of the Act.
The Tribunal has had regard to the certified copies of the aforementioned identity documents on the applicants’ departmental files. The Tribunal has also considered the original of the applicants’ Indonesian passports sighted at the hearing. The Tribunal also accepts the applicants are citizens of Indonesia in the absence of evidence to the contrary.
For the purposes of assessing whether the applicants meet the criteria in s 36(2)(a) and s 36(2)(aa), the Tribunal finds the applicants’ country of reference is Indonesia.

Personal background and immigration history

[Applicant 1] was born in Bululeng in Bali, Indonesia, and [family composition deleted]. After completing [grade] he applied unsuccessfully to join [an agency] as he did not past the entrance tests. He subsequently found work as [an occupation 1] and continued to work in that role until he came to Australia.
[Applicant 2] was also born in Bululeng, Bali. She has [family composition deleted]. Only her mother is still alive, her father having passed away in 2001. After completing [grade], [Applicant 2] worked as [an occupation 2] and also in other roles in the [related] industry.
The applicants were married [in] May 2016. [In] March 2017, the applicants arrived in Sydney on Class FA Subclass 600 Visitor visas, and have not departed since. On 26 May 2017, the applicants made applications for the grant of Class XA Subclass 866 protection visas.
The Tribunal accepts the above matters to be true.

Protection claims

In their protection visa applications, the applicants claimed their parents did not approve of their marriage to each other and that their extended families also forbade them to marry because [Applicant 1] was a widower and [Applicant 2] was a widow. The applicants claimed their families were very threatening when they married, and that they have been expelled by their extended families and the people around them. The applicants claimed they could not return to Indonesia as it would be dangerous for them and they would be separated.
The delegates refused the applicants’ protection visa applications because the delegates were not satisfied there is a real chance that the applicants would be persecuted for one of the reasons specified in s 5J(1)(a); nor were the delegates satisfied that the harm the applicants claimed to fear amounted to significant harm of the kind specified in s 36(2A) as to meet the complementary protection criterion.

Pre-hearing submissions

Prior to the hearing which the applicants were invited to attend, the applicants’ representative made submissions the substance of which can be summarised as follows:
·[Applicant 2], who is from the upper ‘Brahmana’ caste, and [Applicant 1], who is from the lower ‘Jaba’ caste, have engaged in an inter-caste marriage in defiance of their families’ tradition of marrying within their own caste.
·The applicants fear serious harm and discrimination from their families, relatives, and other caste members because of their inter-caste marriage.
·The type of inter-caste marriage that the applicants engaged in, i.e. an upper-caste woman marrying a lower-caste man, is particularly problematic in the layered, caste-conscious community structure in Bali. By marrying below her caste, [Applicant 2] has ‘dirtied’ her blood and she and [Applicant 1] have received threats while living in Indonesia as a result.
·Although inter-caste marriages of their kind are no longer illegal or punishable by death, they are still an uncommon and uncomfortable phenomenon in Hindu-dominant Bali. As participants in a socially and culturally prohibited inter-caste marriage, the applicants have been expelled from their families and community, and black magic spells or curses have been cast on them to destroy their marriage and cause them harm.
·It is not possible for the applicants to relocate to other parts of Indonesia because there is no area within Indonesia where they could move to avoid the harm they will face, given the risk is prevalent in all parts of Indonesia.

Evidence at hearing

The applicants gave separate evidence first before providing joint evidence at the hearing in relation to the events and experiences leading up to their marriage and their decision to leave Indonesia. There were some discrepancies in the applicants’ respective testimony which raised some credibility concerns. In particular, when the Tribunal questioned the applicants about the marriage proposal in which [Applicant 1] asked [Applicant 2’s] mother for [Applicant 2’s] hand in marriage, the applicants’ respective recollections of who was present, how [Applicant 2’s] mother discovered [Applicant 1’s] lower caste status, and the reactions to [Applicant 1’s] marriage proposal, were different in some material aspects.

Credibility assessment

Despite this, and after careful consideration of the applicants’ evidence, the Tribunal is prepared to accept their evidence on the whole. In doing so, the Tribunal has had regard to the applicants’ post-hearing submissions expanding on the reasons given at the hearing for the discrepancies. The Tribunal has also had regard to available country information on the practice of inter-caste marriages in Bali and Balinese beliefs in black magic.
In an article dated 26 May 2022 published in The Jakarta Post, the article stated:
“Once punishable by death, inter-caste marriages leave a complex legacy for modern Balinese. Faced with stigma, cultural erasure and economic precarity, the brave few who marry beyond their station have a myriad of stories to tell.
“The Balinese caste system adopts the Indian system,” explained I Nyoman Yoga Segara, an anthropologist and author of Perkawinan Nyerod, one of the definitive books on nyerod marriages. “The three castes at the top are the Brahmana, or the priests; the Ksatria, or the warrior class and the Waisya, or the merchants.” Collectively, people born into these castes are known as the triwangsa, while the rest of the populace is called the Jaba, (outsiders). “Historically, the Jaba were people who lived outside of the immediate governance of the kingdoms or outside the palace grounds,” Segara explained. True to their name, the Jaba are mostly relegated to the margins of society and are constantly reminded of their place on the sidelines.
“Marrying inside the triwangsa was considered a way to keep your bloodline pure,” Segara said. “If you married a Jaba, your blood was considered dirty.”

Beyond questions of purity, marrying within your caste was also a good way to retain and develop power. As Bali is a patrilineal society, it is taboo for a woman of caste to marry a non-caste man as she would lose the family name, her vaunted social status and consequently her family’s grip on power and dominance. “By outlawing marriages between triwangsa women and Jaba men, economic and political power stays within the palaces and its royal families,” Segara continued. “There’s even a common saying that a woman of caste marrying a Jaba man is akin to her carrying a dog on a throne, while the Jaba man is likened to someone who stepped over the head of a holy person.”[1]
[1] Raka Ibrahim, Crossing borders: stories of inter-caste marriages in Bali, The Jakarta Post, 26 May 2022.
The Balinese cultural taboo on inter-caste marriages, particularly those between a woman of a higher caste and a man of a lower caste, is corroborated by a research paper published in 2016 by the Customary Law Department in the Faculty of Law, University of National Education:
“Customary law or dresta has locally applicable scope which means applying to the local people. For the Balinese, the existence of customary law is still very strong, meaning that they are recognized and obeyed by the people of Bali, particularly in family law.
Triwangsa women, especially those who are Brahmin in the past were banned from marriage to men from Kshatriyas, Vaishyas and Shudras. This marriage is commonly called asupundung. The term asupundung is often called nyerod (slip), ulung (fall), hanyud (carried by currents), and others.
Today, legally asupundung marriage is no longer an offense because it was removed in 1951 by the DPRD Bali Decree No. 11 of 1951. Balinese people still seem to believe that asupundung marriage is a marriage that violates customary law that will cause a catastrophe in their marriage life.”[2]
[2] Ida Ayu Sadnyini, Punishments of Brahmin women marriage in Bali (in the perspective of Hindu values), Customary Law Department, Faculty of Law, Universitas Pendidikan Nasional, 2016.
The Tribunal also found a couple of other articles that describe the challenges faced by, and social attitudes toward, couples engaging in inter-caste marriages in Bali.[3]
[3] Vania Evan, In Bali, love is not easy if you fall for someone from a different caste, VICE, 28 February 2020; Ida Ayu Sadnyini and Ngurah Tini Rusmini Gorda, Social changes of traditional rules in facing contemporary developments: a sociological study of inter-caste marriage in Balinese society, International Journal of Criminology and Sociology, 2020.
With respect to Balinese beliefs in black magic, available country information indicates that Balinese people believe in spirits, magic and sorcery/witchcraft. A dated The New York Times article, published on 10 December 1995, stated that most Balinese believe leyaks (nocturnal spirits) ‘are living people who practice black magic and transform themselves into spirits – monkeys, birds, even headless bodies.’ The article stated that:
“Bali, the sole Hindu island in Indonesia, one of the world's largest Moslem countries, mixes its Hinduism with powerful doses of animism and ancestor worship. There's little difference between the secular, the religious and the supernatural.”[4]
[4] Donna Rosenthal, Demons Get A Fast Checkout On Bali, The New York Times, 10 December 1995.
A blog article on Padma Resort Legian website,[5] dated 28 October 2022, states that there are two types of magic in Balinese mythology, black and white:
“White magic is used to cure people of illnesses, while black magic is to harm others. People who are gifted with the power to perform magic are called Balian. They must be careful who they choose to inherit their power (usually within their family ties), and the chosen ones must bear the responsibility.”[6]
[5] Padma Resort Legian is a five star resort in Bali. It has a blog section on various topics. See Padma Resort Legian, access 5 March 2024.
[6] Sri Utamidewi, Black Magic and its Mysteries, Padma Resort Legian, 28 October 2022.
The article claims that some people still believe in black magic:
“Like the magic we see in films or read in fiction books, treatments like love spells and hexes are done in the line of black magic, and some people believe they still exist. The love spell called ‘pengasih-asih’ (a love giver) is used to enchant someone to fall in love with the sender forcefully. However, it is believed that you will not fall towards this enchantment if you have strong faith. Hexes are known as ‘cetik’ (poison). Cetik is classified into two: the one that works instantly and the one that is placed for a certain time, which could be months or even years. Hexes and spells are imbued in clothes, food, or drink. That is why personal items are kept hidden by the Balinese, and there is a ritual of praying and offering food from their plate to Gods before they start eating to neutralise any evil intentions. Hexes come in the form of illnesses, and to be cured, one must seek a Balian to counter them and protect the victim with prayers and mantras.
Another form of black magic is one of the most known Bali icons you may have seen in paintings and Balinese dances, Leak (pronounced as “Leyak”). Legend has it that a Leak practitioner can look like a regular human during the day and shapeshift at night. Leak hunts people at night for its magic potion, visualised as a hairy creature with glaring eyes, a dangling tongue, and long fangs. Some say Leak is only found in Bali because its magic only works on the island.” [7]
[7] Sri Utamidewi, Black Magic and its Mysteries, Padma Resort Legian, 28 October 2022.
More forms of black magic creatures are Celuluk, Rarung, and Rangda:
“Celuluk is the most harmless one; it has big teeth and is bald on its front head. It scares people with its eerie laugh but cannot harm others. Rarung, however, can kill a victim using one look, while Rangda is a leader of the evil witches fighting against Barong and its army of good. Back to the Rwa Bhineda philosophy, when there’s good, there is also evil to balance it, the Balinese live alongside this knowledge and take it as a lesson to always be kind and respect all living beings, seen and unseen, so they are far from evil and all the bad energy.”[8]
[8] Sri Utamidewi, Black Magic and its Mysteries, Padma Resort Legian, 28 October 2022.
A 19 September 2023 Now! Bali article reports that sorcery in Bali ‘is the ability to master unseen or supernatural forces and in Bali, its practice is not necessarily frowned upon. In fact, priests and shamans (balian) are sought after for their ability to assist an individual using these forces, whether it is to provide prayers, heal, provide charms or act as mediums.’:
“It is those who decided to use these forces for negative purposes (‘left-handed magic’) that are branded under the name leyak, of which there are said to be 35 different kinds. The powers of a leyak are varied, ranging from causing illnesses and accidents to causing bodily harm or even killing. Their methods can be cruel. For example, a victim may experience extreme stomach pains, to find that a leyak has mysteriously placed nails inside of their body. Leyaks are said to be hired or called upon by those hoping to inflict hardship on business rivals, cheating spouses, a grudge and so on.”[9]
[9] Leyak: Balinese Sorcery and the Practice of Witchcraft, Now! Bali, 19 September 2023.

The article states that leyaks are believed to remain active to this present day, but probably retreated to rural areas:
“Those that are sick, injured or otherwise weak are said to be most vulnerable to leyak attacks. Pregnant women and newborn babies are especially vulnerable before their three-month birthday (nelubulanin), this is because leyaks are said to require young blood for their craft. Worshipping Durga, the goddess of death, their quest to reach higher levels of power may require sacrifices, human body parts and other exotic ingredients, adding to the fear of these island witches.
As implausible as it all sounds, leyaks are said to be active to this day, working in the dead of night and on specific ‘unholy’ days. Sanur was once a hub for this black practice, but many leyak have retreated to rural areas in fear of being identified.”[10]
[10] Leyak: Balinese Sorcery and the Practice of Witchcraft, Now! Bali, 19 September 2023.
The Tribunal accepts the discrepancies between the applicants’ respective testimony can be explained by a combination of the applicants’ different perceptions and understanding of what happened during the marriage proposal, and the impact of stress and anxiety on memory, cognitive function, and communication. The Tribunal has had regard to cautionary comments made by the courts about determination of credibility in cases such as Guo v MIEA (1996) 64 FCR 151:
“care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.”[11]
[11] Guo v MIEA (1996) 64 FCR 151, per Foster J at [94].
Where the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make a finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true: MIMA v Rajalingam (1999) 93 FCR 220.
Similarly, the United Nations Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 2019) states at paragraph [196] that “…if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.”
Accordingly, and having regard to the country information referred to above which corroborates the applicants’ claims with respect to their inter-caste marriage and their belief in being harmed by black magic by those who are opposed to their marriage, the Tribunal accepts that [Applicant 1] is from the lower Jaba caste whilst [Applicant 2] is from the high Brahmana caste. The Tribunal accepts that the applicants first met in one of the eateries along the beach. The Tribunal accepts that they became friends and as their affection and love for each other grew, they decided to get married despite the cultural taboo on inter-caste marriages.
The Tribunal accepts that because of the significant disparity in their caste status, [Applicant 1’s] proposal to marry [Applicant 2] was opposed by [Applicant 2’s] family, specifically her mother and her two maternal uncles, and by the few Brahmana elders who, owing to the status of [Applicant 2’s] mother as a widow, were also present at the marriage proposal. The Tribunal accepts that the Brahmana elders threatened to harm the applicants with black magic if they defied the opposition and proceeded with the proposed marriage.
The Tribunal accepts the applicants believe that because of their perceived transgression from proceeding with the marriage, they have been punished by black magic spells or curses that were cast for the purpose of destroying their marriage and causing them harm. The Tribunal accepts the applicants fear return to Indonesia because they believe in the effects of the black magic spells or curses which they believe are ongoing.
The Tribunal does not accept the applicants’ claims that they were threatened or were shunned or expelled by their families and by the broader Balinese community because of their inter-caste marriage. Other than the threat of black magic from the Brahmana elders, the only threat that the applicants purportedly received relates to [Applicant 1’s] experience with 4 strangers which the Tribunal rejects for reasons discussed below. The applicants also did not provide any evidence at hearing to support the generalised claims of being shunned or expelled; indeed [Applicant 1’s] evidence was that his family ‘was okay’ with his marriage to [Applicant 2].
The Tribunal has considered whether s 423A of the Act, which requires the Tribunal to draw an inference adverse to the credibility of claims not raised or evidence not presented before the primary decision was made without reasonable explanation, could apply to the applicants in circumstances where they have not previously raised claims and presented evidence in relation to their inter-caste marriage, but have instead claimed fear of harm based on immediate and extended family opposition to their marriage because [Applicant 2] was a widow and [Applicant 1] was a widower.
The Tribunal asked the applicants about the discrepancy in the claims made to the Tribunal vis-à-vis the claims made in the protection visa application which [Applicant 2] claimed were made using Google translate. [Applicant 2] claimed it is easier to explain the significance of caste in Balinese culture and society and the problems she and [Applicant 1] experienced from their inter-caste marriage in person.
The Tribunal has some difficulty with the reason given for the late inclusion of the applicants’ claims and evidence with respect to their inter-caste marriage. There is little doubt that it is easier for the applicants to explain the significance of caste in Balinese culture and society and to give evidence about the problems they experienced in person, particularly given the availability of opportunities for detailed discussion and clarification. However, it does not explain why their inter-caste marriage was not raised in the protection visa application and why their marriage was instead presented as that between a widow and a widower.
Nevertheless, on the basis that the general tenet of the protection claims is otherwise consistent and revolves around opposition to their marriage, and noting the limitations of using applications such as Google translate to provide accurate translation, the Tribunal is prepared to give the applicants the benefit of the doubt and find that s 423A does not apply in their case.

REASONS FOR THE DECISION

For the reasons that follow, the Tribunal finds the applicants do not meet s 36(2) of the Act because they are not persons in respect of whom Australia has protection obligations.

Assessment of refugee status

To satisfy the definition of ‘refugee’, the applicants must have a well-founded fear of persecution in Indonesia, and owing to that fear, are unable or unwilling to avail themselves of the protection of Indonesia. This requires an assessment of whether there is a real chance that, if the applicants returned to Indonesia, they would be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
The applicants gave evidence that they did not experience any direct harm while they were in Bali, although they constantly experienced things that they could not rationally explain. [Applicant 2] claimed she was always sick with frequent unexplained headaches, she had poor concentration and focus, and she suffered from heart palpitations. She would have unexplained accidents at work, for example cutting herself with knives despite wearing protective gloves. [Applicant 1] claimed he was once approached by 4 strangers while working as [an occupation 1], who told him to stay away from [Applicant 2] or he would die, yet when he spotted and quizzed the same strangers later, those strangers had no recollection of having ever approached [Applicant 1] or telling him the things they did. [Applicant 1] has also had an unexplained flat tyre on his motorbike.
The applicants believe these unexplained experiences or incidents were all the result of black magic spells cast on them because of their prohibited inter-caste marriage. The applicants disagreed with the Tribunal’s suggestion that they could avoid the black magic by relocating to another part of Indonesia, because the black magic could be deployed to take effect from anywhere within Indonesia and is not confined to Bali. Although it has been more than 7 years since they arrived in Australia, the black magic is still effective and they would be harmed or even killed as soon as they returned to Indonesia. For example, ghosts or evil spirits could enter their dreams and attack them, and they could die in their sleep.
The Tribunal accepts the applicants have a fear of harm from black magic which is sincerely held. As the country information referred to earlier demonstrates, and as submitted by the applicants in their post-hearing submissions, belief in black magic is deeply rooted in Balinese culture and society and is closely intertwined with the spiritual life of Balinese people. As Balinese, this makes the applicants’ fear of black magic and the threats of harm it could cause very real and palpable to them.
Nevertheless, it is not sufficient for the applicants to have a subjective fear of harm, however sincerely that fear might be held. There must be a real chance that the feared harm would occur in the reasonably foreseeable future should the applicants return to Indonesia in order for the applicants’ fear to be well-founded.
The Tribunal acknowledges the applicants’ post-hearing submissions that the forces of black magic are intangible and are understood and recognised within the cultural context but are elusive to external modes of verification. Ultimately, however, the Tribunal is required to and can only make findings of fact based on the information and material before it. On the applicants’ evidence, the Tribunal is not satisfied there is a real chance that the applicants would be harmed on return to Indonesia. The Tribunal finds that, having been told in no uncertain terms that their marriage was not supported and having been threatened with black magic if they proceeded, it was all too easy for the applicants to attribute every negative thing that happened to them since their marriage to black magic, regardless of whether the negative experience was capable of alternative explanation.
The Tribunal notes the applicants’ disagreement with its suggestion that they could avoid the black magic by relocating to another part of Indonesia because the black magic could be deployed to take effect throughout Indonesia. The Tribunal does not accept this. The Tribunal also does not accept the black magic, which has no ‘extra-territorial’ effect outside of Indonesia which is why it does not affect the applicants in Australia, would be miraculously and immediately triggered upon the applicants’ return to Indonesia to begin harming the applicants. To the extent that it might be perceived to have such effect, the Tribunal finds it would be because ‘it is all in the applicants’ head’.
The Tribunal has considered whether the threat of black magic from the Brahmana elders in the context of the applicants’ (and the wider Balinese community’s) belief in black magic could amount to serious psychological harm that is deliberately inflicted upon the applicants, and whether there is a real chance of such harm occurring in the reasonably foreseeable future if the applicants returned to Indonesia. Given it has been more than 7 years since the Brahmana elders threatened the applicants with black magic, the Tribunal finds there is not a real chance that the applicants would be subjected to threats of black magic with the intention to create fear and cause psychological harm in the reasonably foreseeable future, if the applicants returned to Indonesia particularly to areas other than Bali. Having regard to the applicants’ individual situation, the Tribunal finds that such internal relocation is both possible and reasonable in circumstances where both applicants are in the prime of their life and have demonstrated via successful settlement in Australia their ability to adopt and adapt to new environment.
For all the reasons discussed above, the Tribunal finds there is not a real chance that the applicants would be harmed in the reasonably foreseeable future from being ostracised by their families and the broader community if they returned to Indonesia. The Tribunal also finds there is not a real chance that the applicants would be harmed in the reasonably foreseeable future by black magic if they returned to Indonesia. It follows, therefore, that the applicants do not meet the definition of refugee and do not meet the refugee criterion in s 36(2)(a) of the Act.

Complementary protection assessment

Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered whether the applicants’ circumstances are such as to give the Tribunal substantial grounds to believe that there is a real risk that the applicants would suffer significant harm as a necessary and foreseeable consequence of their removal from Australia to Indonesia.
In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test as it applies to complementary protection imposes the same standard as the ‘real chance’ test applicable to the assessment of the refugee criterion in s 36(2)(a).
Given the Tribunal has found there is not a real chance the applicants would be harmed on return to Indonesia because of family and community ostracisation or because of black magic spells or curses which have ostensibly been cast on account of their inter-caste marriage, the Tribunal finds there are not substantial grounds for it to believe that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Indonesia, there is a real risk they would suffer significant harm.
Therefore, the Tribunal finds the applicants are not persons in respect of whom Australia has protection obligations on the basis of complementary protection under s 36(2)(aa) of the Act.

Other criteria – member of family unit

Finally, there is no evidence before the Tribunal to suggest that either of the applicants is a member of the same family unit as another person who satisfies s 36(2)(a) or (aa) and who holds a protection visa of the same class as that applied for by the applicants. Therefore, the Tribunal finds that the applicants do not satisfy s 36(2)(b) or (c) of the Act.

DECISION

The Tribunal affirms the decisions not to grant the applicants protection visas.

Jennifer Ermert
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

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

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.
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.
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.

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.
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.
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

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.
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.

…

Protection visas – criteria provided for by this Act

…

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.
…

[2024] AATA 1797

10 April 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction