1730799 (Refugee)

1730799 (Refugee) [2021] AATA 1543 (22 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1730799
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Alison Mercer
DATE:22 February 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 February 2021 at 3:55pm

CATCHWORDS
REFUGEE – protection visa – Indonesia – race – Balinese – workplace racism – promotion difficulties – threats of harm by loan shark – fear of harm from Indonesian ex-wife – fear of being unemployed and jobless – stateless child born in Australia to Malaysian mother – rights of Malaysian spouses in Indonesia – rights of stateless children in Indonesia – Indonesian citizenship law – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
GLD18 v Minister for Home Affairs [2020] FCAFC 2
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC
SZRSN v MIAC [2013] FCA 751
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 21 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 13 January 2017. The delegate refused to grant the visa on the basis that the applicant was not owed protection by Australia.
The Tribunal received a review application from the applicant on 6 December 2017, which was accompanied by a copy of the delegate’s decision.
The applicant attended a combined hearing, with his wife (who has a separate protection visa application under review by the Tribunal, as presently constituted), on 2 October 2020. Their [age] year old son, who has his own separate review application, was also invited to the hearing but did not attend. The Tribunal exercised its discretion to hold the hearing by video conference as it took place during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The applicants and the Tribunal were assisted at the hearing by an interpreter in the Bahasa (Indonesian and Malaysian) and English languages.
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’). 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Protection Visa Application
As noted above, the applicant made a protection visa application to the Department on 13 January 2017. Included in this application was his son, [Master A], born in Australia on [date].
In that application, the applicant indicated that:
·he was also known as [alias];
·he was born in [year] in Bali, in Indonesia; and
·he arrived in Australia [in] May 2015 as the holder of a visitor visa, travelling on a validly issued Indonesian passport.
In relation to why he was seeking protection in Australia, the applicant made the following claims:
·he left Indonesia because of economic problems. He could not live there because the salary was too low to support the applicant and his family;
·racism in his workplace made him uncomfortable, so he quit. It was difficult for him to be promoted because of racism;
·the high cost of living in Indonesia forced him to leave and he migrated to Australia;
·on return to Indonesia, he might become unemployed and jobless and his future would be dark. He might lose the will to live because of the financial burden. He would have a debt because of no work and not enough money;
·he did not experience harm in Indonesia;
·he did not relocate because the problem was about the economy and salary. All states in his country are subject to the same law; and
·the authorities would not protect him because his problem is about racism, salary and more related to the economic system.
The Department’s records indicate that the applicant attended an interview with a Department officer (the delegate) on 13 November 2017, at which he confirmed the above claims and made additional claims. Namely, he claimed that:
·he could not return to Indonesia because of debts he owed that he could not repay. He claimed that he owed [amount] rupiah (AUD $[amount]) and that half the debt is owed to someone who has threatened him. The applicant claimed that he owed [amount] rupiah to that person for 4 years, and that 2 years ago, the person threatened to harm him if the money was not repaid. Despite having worked in Australia, he had not paid back any of his Indonesian debts; and
·he feared harm from his Indonesian ex-wife because he had a new wife in Australia. The applicant claimed that since his arrival in Australian, he had not sent any money to his Indonesian wife and their children, and that his Indonesian wife was not happy with him because of this.
Department decision of 21 November 2017
The delegate accepted the applicant’s claimed identity and biographical details and that he had a son by his relationship with a Malaysian citizen in Australia, and that he had an ex-spouse and 2 children from that relationship in Indonesia. The delegate stated he had a number of concerns regarding aspects of the applicant’s claims, notably:
·the applicant’s delay in applying for a protection visa. The delegate stated that he expected someone with a genuine fear of harm to seek protection at the earliest opportunity, yet the applicant had not done so. The delegate noted that the applicant had arrived in Australia [in] May 2015 on a visa that was valid for stay until [June] 2015. However, he remained in Australia for 1 year and 8 months without seeking protection in Australia, by which stage he had no other options for visa applications onshore. The delegate found that the applicant's delay in submitting a protection visa application raised serious concerns about the immediacy, gravity and credibility of his claims to be at risk of serious or significant harm in Indonesia. The delegate further found that there was nothing in the information submitted to indicate any circumstances which would have prevented the applicant from seeking protection in Australia at an earlier time. Although the applicant claimed that, initially, he did not know how to lodge a protection visa application, and that later he paid AUD $1,200 for an application to be lodged, but it was not lodged, the delegate found that, given the applicant's close connections to other people who have sought protection in Australia, his claims about the reasons for delay should be given little weight. The delegate considered that the delay was consistent with the applicant's written claims that he came to Australia for economic reasons;
·the delegate found that the delay indicated that when the applicant arrived in Australia in May 2015, he did not have a genuine fear for his safety. Furthermore, there was no country information that suggested that circumstances had changed in the applicant's home country such that a real chance of serious or significant harm now existed for the applicant. In the circumstances, the delegate considered that it was far more probable that the applicant had now sought to make an application for a protection visa not out of a genuine fear of serious or significant harm in Indonesia, but in order to prolong his stay in Australia;
·in his written claims, the applicant did not mention having debts in Indonesia but at interview, he claimed that he could not return to Indonesia because of debts he owed that he could not repay. The delegate found that the applicant's testimony about his debts was vague and implausible. He noted that the applicant claimed that he owed [amount] rupiah (AUD[amount]) and that half the debt was to someone who had threatened him. The applicant further claimed that he had had that [amount] rupiah debt to that person for 4 years, and that 2 years ago, the person threatened to harm him if the money was not repaid. Yet, despite having worked in Australia, the applicant claimed he had not paid back any of his Indonesian debts. Indeed, he said that he had not sent any money from Australia to anyone in Indonesia. The delegate considered it implausible that someone with a genuine fear of serious or significant harm due to an unpaid debt would not take every opportunity to reduce that debt. Having weighed the information before, including the late addition of this claim, the delegate did not accept that the applicant had debts in Indonesia;
·at interview, the applicant claimed that he feared harm from his Indonesian wife because he had a wife in Australia; however, he had not provided any evidence of his marriage in Indonesia or his claimed marriage in Australia. Given the existence of an Australian-born son, the delegate accepted that it was plausible that the applicant had been in a relationship with a woman in Australia. The applicant claimed that since his arrival in Australia he had not sent any money to his Indonesian wife. In the circumstances, the delegate considered that it was plausible that the applicant's Indonesian wife was not happy with him;
·there were a number of other discrepancies in the information provided by the applicant. The delegate considered that the nature and number of these discrepancies undermined his claim to fear targeted harm in Indonesia. These included:
·in his written claims, the applicant claimed to have experienced racism in his workplace. He provided vague accounts of racism making him feel uncomfortable and leading to promotion difficulties. The delegate found that the treatment described did not amount to serious or significant harm. At interview, the applicant was asked multiple questions about his claims and did not claim to fear harm due to racism or due to his race. In response to a specific question, the applicant contradicted his written statement by stating that he had not experienced any problems in workplaces in Indonesia. The delegate noted that the applicant was also asked whether he feared harm for any reason other than having debts or due to his wife being unhappy with him, and responded that he did not fear harm for any other reason. Having weighed the information, the delegate had serious doubts as to whether the applicant experienced workplace racism in Indonesia and concluded that he did not fear harm due to his race or racism on return to Indonesia;
·the applicant had made other inconsistent claims about his work history. On his overseas visa application, the applicant declared that he was working as a farm manager for [a company], but during his Department interview, the applicant initially stated that all the information provided with his overseas visa was correct and that no one helped him with that application. After this information about his work history was put to him at interview, the applicant stated that he had never worked on a farm. He also claimed that an agent lodged his overseas visa application and he did not know what was on it. The delegate accepted that the applicant had never worked on a farm and the information on his overseas visa application was incorrect. However, if the applicant was assisted by an agent with his overseas visa application, the delegate queried why he said at interview that no one helped him with his overseas visa application. Having weighed the information, the delegate considered that the applicant knowingly provided false information to the Department in order to obtain a visa to Australia; and
·in his protection visa application, the applicant stated that his only work in Indonesia was as a [Occupation 1] at a [Business 1] from August 2012 until December 2014. However, at interview, he said that for his last 2 years in Indonesia he worked as a [Occupation 2] and before that he worked for 3 years as [Occupation 1] for a [Business 1]. He said that prior to that he worked as a labourer. The delegate considered that these discrepancies undermined the applicant's credibility.
The delegate concluded that, having weighed the information, that the applicant had a demonstrated history of providing false or misleading information in order to get a visa outcome. He therefore found that the applicant's testimony was not reliable, apart from his claims that he came to Australia for economic reasons and to work, which the delegate found were credible. However, he did not accept that the applicant owed a debt in Indonesia, or that he had experienced, or would experience, racism.
Moreover, the delegate found that the applicant did not fear persecution for reasons of race, nationality, religion, political or membership of a particular social group. Rather, he claimed to face harm because of his economic situation and that he would be unemployed and jobless. The applicant claimed to face harm because he had unpaid debts. He also claimed to face harm from his Indonesian wife. The delegate reiterated that he did not accept that the applicant had debts in Indonesia. Therefore, it followed that he did not face significant harm because of debts in Indonesia.
Although the applicant claimed that he would be in a poor economic situation in Indonesia because he would not be able to earn enough money to support himself and his family, the delegate found that there was no information to indicate that the applicant would be denied employment for any reason. The delegate noted that in its 'Country Information' report, the Department of Foreign Affairs and Trade (DFAT) advised that as of September 2014, nearly 11 per cent of the Indonesian population was below the national poverty line and about 80 per cent of the population experienced poverty and/or insecurity and were highly vulnerable to shocks. Accordingly, the delegate accepted that the applicant's economic situation might be better in Australia than in Indonesia, but further found that there was no obligation at international law for States to provide protection to people fleeing violations of economic rights. The delegate concluded that the fact that a person might enjoy less favourable economic rights in another country did not, of itself, give rise to a non-refoulement obligation. Accordingly, the delegate was satisfied that the applicant's economic situation in Indonesia did not amount to significant harm.
The delegate found that the applicant had made vague claims about experiencing racism in the workplace but that the harm he claimed to have experienced (being uncomfortable and difficulty being promoted), did not amount to significant harm as defined in 36(2A). The delegate considered that if the applicant were at risk of significant harm due to racism, he would have raised this at interview. Having weighed the information, the delegate was satisfied any harm due to racism did not amount to significant harm.
The delegate further found that the applicant had made vague claims about the nature of the harm he feared from his Indonesian wife. The delegate stated that, for the purposes of the decision, he was prepared to accept that it might amount to significant harm for the purposes of subsection 36(2A) of the Act. However, the delegate considered that there was a substantial difference between being unhappy with someone and being willing to significantly harm them. The delegate noted that the applicant's wife had never harmed him in the past and considered it implausible that the applicant's wife would be prepared to actively pursue the applicant to significantly harm him on his return to Indonesia. The delegate found that, in any case, if the applicant's wife were to significantly harm him, this would be a criminal act and the applicant would have the same recourse to police assistance as any other Indonesian. Having weighed the information, the delegate found that the applicant did not face a real chance of serious or significant harm from his Indonesian wife.
Accordingly, the delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Indonesia, there was a real risk that the applicant would suffer significant harm as outlined in s36(2)(aa) of the Act. Therefore, the delegate was not a person in respect of whom Australia has protection obligations under the refugee or complementary protection criteria.

The delegate further found that the applicant’s son was not owed protection by Australia either, as the delegate found that he was not a family unit member of a person to whom Australia owed protection, and he had not made any independent claims of his own.
Tribunal review
As noted above, the applicant lodged an application for review of the refusal decision with the Tribunal on 6 December 2017, which was accompanied by a copy of the delegate’s decision.
The applicant attended a hearing conducted by teleconference on 2 October 2020, which was held as a combined hearing with his wife, who has a separate protection visa review application of her own (the hearing on 2 October 2020 was a resumed hearing for her, as she had an initial hearing with the Tribunal on 5 May 2020). The applicant’s son made a separate review application in relation to the delegate’s decision to refuse him a protection visa application. He was invited to attend the hearing but did not do so (being [age] years old at that time).
The Tribunal discussed with the applicant and his wife the citizenship laws that might affect their son, now aged nearly [age] years, who was born in Australia to the applicant (an Indonesian citizen) and his second wife (a Malaysian citizen). The Tribunal noted that the applicant’s wife’s evidence at the first hearing that their son was not automatically entitled to Malaysian citizenship because his father was an Indonesian citizenship appeared to be correct. The Tribunal advised that its review of the relevant Malaysian citizenship law indicated that a child born outside Malaysia to a legally married Malaysian mother and non-Malaysian father was not automatically a Malaysian citizen, but could apply to become one. The Tribunal noted that information from the Malaysian Consulate in Australia indicated that it was preferable to make an application to register a child of such parentage before he or she reached 12 months, but that it was still possible to do so after the child was over 12 months old. The Malaysian authorities required the parents’ marriage to be registered and the child to have a birth certificate. The Tribunal indicated that it was unclear how long it might take the Malaysian authorities to process such as application, and that it was a discretionary decision on the authorities’ part, but that it did appear possible to register the applicant’s son as a Malaysian citizen.
The applicant’s wife told the Tribunal that she did approach the Malaysian Consulate in Australia to register her son as a Malaysian citizen when he was about 1 year old, but the Consulate staff refused to take the application, on the basis that her son’s father was an Indonesian citizen and Malaysian only recognised single citizenship. She told the Tribunal that Consulate staff told her that she would have to leave her son in an orphanage in Australia when she queried how she could take him back to Malaysia without a Malaysian passport if she had to return there. In response to the Tribunal’s query, the applicant’s wife said that she wrote to the Consulate to challenge this advice, but had been unable to schedule an appointment with staff there due to the COVID19 pandemic restrictions.
The Tribunal advised that its legal research indicated that a child could be a dual citizen up until 21, at which point he or she would have to choose which citizenship to retain. In response to the Tribunal’s query, the applicant’s wife said that she and the applicant had not applied for Indonesian citizenship for their son, as they did not feel that they could safely live there, due to the risks that faced them due to her husband’s experiences there.
The Tribunal then discussed with the applicant and his wife further country information from Malaysia which indicated that children in Malaysia without Malaysian citizenship had access to government health and education, so long as they had a valid birth certificate. The Tribunal also noted that private health insurance was also available, and it appeared to be reasonably priced and not exorbitant. The applicant’s wife said that private health insurance was not that cheap, and she knew people who had to pay thousands for private health treatment. The Tribunal noted that while no one could predict the future, the applicant’s son appeared to be in good health and there was no obvious reason to think that he would require expensive medical treatment if they returned to Malaysia. The applicant’s wife responded that no one could say what might happen and she remained concerned.
The Tribunal then took evidence from the applicant about his circumstances. The applicant clarified that when he made his protection visa application in January 2017, an acquaintance assisted him as his English was not very good. The acquaintance wrote down his claims, but did not read them back to him.
The applicant confirmed that he was born in Bali in [year], and grew up as a Hindu, until he converted to Islam in Australia to marry his current wife, who is a Malaysian Muslim. The applicant said that his parents were in Bali, as were his younger brother and sister, both of whom were married with their own families. The applicant said he has an older brother who lives in Queensland and is married to an Australian citizen. The applicant said that his older brother has lived in Australia for many years, but has little contact with the applicant as his brother’s wife did not approve of her husband’s family.
The applicant said that he completed secondary school in Indonesia and did some short courses before starting work. He worked in a [Business 1] and [another business], and was in this employment up until he came to Australia. He told the Tribunal that he got married in Bali when he was about [age], in about 2000, and he and his first wife had 2 sons, the older of whom was now [age] and the younger of whom was about [age]. In response to the Tribunal’s query, the applicant said that his sons now lived with his parents, after their mother gave permission for this. The applicant said that he divorced his son’s mother some years before he came to Australia, when his sons were approximately [age] and [age] years old. In response to the Tribunal’s query, the applicant said that his first marriage and subsequent divorce were cultural arrangements, so were not legally registered, and therefore the arrangements for child custody and support following the separation were not as a result of a court order, but came about through private agreement between him and his ex-wife.
The applicant said that he and his first wife separated because she had an affair with a friend of the applicant. When the separation occurred, the children stayed with their mother as they were young, and they remained with her until last year (2019). The applicant said that his ex-wife consented to them going to live with his parents as she no longer had to pay for them. In response to the Tribunal’s query, the applicant said that he and his ex-wife had an arrangement that he would pay her child support after they separated, as she had custody of the children, but he stopped paying her after about 3 months. He said that he stopped paying her because she did not spend the money on the children. In response to the Tribunal’s query, the applicant said that his ex-wife was angry when he stopped paying child support but she did not take any legal action to enforce it. This remained the case for about 6 months, until he came to Australia. In response to the Tribunal’s query, the applicant said that he had not sent any child support money to his ex-wife for the children since coming to Australia; however, he had sent money to his parents since his children went to live with them. In response to the Tribunal’s query, the applicant said that his ex-wife was able to support their sons without his financial assistance because she worked.
The Tribunal discussed with the applicant country information indicating that fathers in Indonesia were expected to pay child support until their children were 18, under Indonesian national law. The applicant said that different areas of the country had different cultural practices and there was no court order in respect of him and his ex-wife. In response to the Tribunal’s query, the applicant said that he never contacted his ex-wife, and any arrangements that had to be made about their sons (such as them going to live with his parents) were conveyed by his younger sister to his ex-wife. However, he did keep in regular contact with his sons via WhatsApp, and continued to do so.
The applicant confirmed that he came to Australia in May 2017 to run away from his issues in Indonesia. A travel agent in Bali helped him to obtain a visitor visa for Australia. In response to the Tribunal’s query, the applicant said that his friends helped him for the first 3 months in Australia, until his visitor visa expired. Even after his visa expired, the applicant said that he had no thought of returning to Indonesia. He said that he asked his older brother in Queensland to help him but his brother was reluctant to do so due to his wife’s disapproval. The applicant therefore looked for work in order to support himself to remain in Australia. He found farm work and did this for about 1 year before he had saved enough to lodge a protection visa application. This cost about $800, and he paid this to the acquaintance who assisted him to complete and lodge the application. The applicant said that he did not think that this person was a registered migration agent, but she held herself out as someone who could assist people to make applications. In response to the Tribunal’s query, the applicant confirmed that he has only made 1 protection visa application. He and his wife confirmed that another review application currently before the Tribunal, with his name, but someone else’s details, in fact related to his wife’s brother, who was also a protection visa applicant [this being 1811072]. The applicant’s wife said that her brother completed his application online, and they used the applicant’s application as a guide, so the details must have merged to some degree, accidentally.
The Tribunal went through the written claims in the applicant’s protection visa application, as he said that he was not sure of what the acquaintance he paid had put in the form. He confirmed that his 2 main concerns about having to return to Indonesia were problems with his ex-wife and money he owed to a loan shark.
In response to the Tribunal querying why the applicant’s ex-wife would still be angry with him, given she had given permission for their sons to live with his parents a year ago. The applicant responded that his ex-wife was not happy about the fact that he had not back-paid her child support for the period that their children lived with her. He said that she would therefore make trouble for him if he went back, out of spite. He said that she was not happy because he was happy now, and that she would want to create problems for him – she had told their children that she wanted him to feel pain, and that she had friends who she might ask to harm him.
The Tribunal queried how plausible it was that his ex-wife would now actually try to seriously harm him, given that she had not done so before he left Indonesia (at a time that he had already ceased to pay her child support) and given that many ex-spouses were often critical and/or angry about the other, without resorting to actual harm. The applicant said that his ex-wife once mentioned that she would kill his son with his second wife. The Tribunal queried how she would be able to do so. The applicant said that his wife had a lot of gangster friends so he was worried about what could happen.
The Tribunal queried whether the applicant felt that he could relocate elsewhere in Indonesia (for example, Jakarta) and be safe from the harm that he feared. The applicant responded that things could still happen elsewhere, as his ex-wife could pay someone to harm him or his new family. The Tribunal queried how the applicant’s ex-wife would know his whereabouts if (for instance) he returned to Indonesia and went to Jakarta. The applicant said that his ex-wife would try to find him. He told the Tribunal that he got married to her because to the debt he owed to her father, so he feared that they would find him. The applicant queried why he thought this was likely, when no one harmed him during the time he lived in Indonesia, when they knew his location. The applicant said that he kept moving around before he came to Australia to avoid this. He said that he went to Lombok, and later Java. He reiterated to the Tribunal that he did not want to live in Indonesia. In response to the Tribunal’s query, the applicant said that he did not think he put these moves in his protection visa application. He maintained that his ex-wife would still want to hurt him even if he now returned to Indonesia and offered to pay her something towards his child support arrears. The Tribunal noted that under Indonesian national Marriage law, it appeared clear that he did owe his ex-wife child support for the children until they were 18, if they were living with her. The applicant said that he did send money to them from Australia. The Tribunal queried this, given his earlier evidence that he did not pay his ex-wife any child support after he came to Australia. The applicant said that he did send money to his sister to pass directly to his sons, but it was not regular. It depended on how much work he had in Australia, so it was maybe about $200 per fortnight.
In relation to his claims to owe money to a loan shark, the applicant said that his ex-wife’s father was the local loan shark in the village, and a local gangster. He told the Tribunal that his own father had incurred debt while running a small business, and he took out a loan from the loan shark which he could not repay. The loan shark proposed that the applicant marry his daughter. In response to the Tribunal querying why this was proposed, as it did not appear likely to resolve the debt problem, the applicant said that the loan shark’s daughter loved him so that was the reason it was suggested that he marry her. The applicant said that there was no way that he could refuse to participate, and he had to go along with this for his family’s sake. After he married the loan shark’s daughter, he began paying his father’s debt by instalments as he was employed as a [Occupation 2] by the loan shark. He estimated that he had repaid about 50% of the debt (about [amount] rupiah) by the time he left Indonesia. Since being in Australia, he had repaid a further [amount] rupiah via his sister in Bali but he said that he still owed about [amount], plus whatever interest the loan shark wanted to impose. No one had given him a specific figure but loan sharks could charge whatever they liked and it could be maybe another [amount] rupiah. The applicant said that if he remained in Australia and kept working in his present job, he could repay that slowly, but if he had to return to Indonesia, he would not be able to find work that paid enough to do so as Indonesian salaries were very low. No one in his family could assist him as his parents were too old to work, his sister and brother in Indonesia had their own families to support, and his brother in Australia did not want to get involved.
The Tribunal discussed with the applicant whether he felt that he could seek protection from the Indonesian authorities in the event that he was threatened by his ex-wife and/or her father, the gangster. The applicant responded that he did not trust the Indonesian police. He also noted that the loan shark had associates in Flores and Jakarta, so might be able to track him down outside his home village. The Tribunal noted that available country information indicated that the Indonesian police did not have a high approval rating with the public and that they were known to have issues with corruption. The Tribunal further noted, however, that the government had established in 2019 a unit within the police to investigate loan sharks and to assist victims. The applicant said that he did not believe this would come to much in reality.
In response to the Tribunal’s query, the applicant said that none of his family in Indonesia had been threatened or hassled by the loan shark about the remaining debt. Prior to his coming to Australia, however, some people had made indirect inquiries to his friends trying to find out his whereabouts. The focus of the loan shark was on him, not his family.
In response to the Tribunal’s query, the applicant said that his family were not happy about his conversion to Islam and probably blamed his current wife for it. He was concerned that they might be hostile to them, or at least to her. The Tribunal noted that the applicant appeared to be on reasonably good terms with his parents and younger siblings in Indonesia. The applicant responded that they may not accept his wife if they went there. The Tribunal acknowledged that they might not be happy about his conversion but that there seemed to be no realistic suggestion that his family would try to seriously harm him or his wife as a result, to which the applicant agreed.
The Tribunal asked the applicant whether he had any fears of living in Malaysia, noting that under Malaysian law, it appeared he was entitled to a long term spouse visa there as he was married to a Malaysian national. The applicant responded that he had no fears for himself, only for his son, who appeared to be stateless. He said that he and his family did not want to live in Malaysia or Indonesia; they wished to stay in Australia.
The Tribunal asked the applicant’s wife if she had any fears of living in Indonesia, as it also appeared that she was entitled to a spouse visa enabling her to do so. She said that she would feel threatened because of her in-laws’ hostility and she feared that her husband’s ex-wife would try to harm her and/or their son. She was not confident that she could obtain state protection against this as she was not an Indonesian citizen. She added that she had never wanted to go to Indonesia as she was concerned about everything there. When asked if she could be more specific, she said she was concerned about safety, employment and the economy there.
When asked if she had any further concerns, the applicant’s wife said that she and the applicant both wished to remain in Australia as they had a stillborn son who is buried here. She told the Tribunal that this was their second child who died in [year] after he was born at 35 weeks.
Country Information
Country information indicates that the spouse of a Malaysian national requires a long term social visit pass if residing in Malaysia on the basis of sponsorship from the Malaysian spouse. The long term social visit pass (LTSVP, also known as the “spouse visa”[1]) can be granted for a period of up to five years and also provides work rights. A foreign spouse is required to live in Malaysia for a period of ten years to be eligible for Malaysian citizenship. Children are also eligible for residency through the sponsorship.
[1] ‘Foreign spouses can return’, The Star (Malaysia), 24 March 2020, 20200730175024
A Malaysian citizen can register his or her marriage and the birth of a child at a Malaysian mission abroad.[2]
[2] ‘Birth/Marriage certification registration’, Consulate General of Malaysia (Melbourne), 24 July 2020, 20200724140342; ‘On Marriage Registration’, Government of Malaysia, 23 July 2020, 20200724142200; ‘Birth/Marriage Certificate Registration’, High Commission of Malaysia (Canberra), 20200724153059
The Immigration Department of Malaysia provides the following information for spouses and children of Malaysian nationals who intend to seek permanent residency in Malaysia:
Any foreign national who is not a citizen of Malaysia intending to enter and reside in Malaysia as a permanent resident may apply for an Entry Permit in accordance with Section 10, of the Immigration Act and Regulation 4, Immigration Regulations 1963. An Entry Permit is issued is in the form of document.

There are four entry permit categories including a category for a spouse and children of a Malaysian national:
Spouse of Malaysian citizen and child /children of Malaysian citizen below age of 6
[…]
SPOUSE OF MALAYSIAN CITIZEN
·     Married to Malaysian Citizen.
·     Had been issued with Long Term Visit Pass and stay continuously in Malaysia for a period of five (5) years.
·     Requires to submit “Surat Akuan Perkahwinan”
·     Spouse has to be the sponsor.
·     For child/children of Malaysian Citizen below age 6, parents must be the sponsor[3]
[3] ‘Entry Permit’, Immigration Department of Malaysia, n.d., accessed 1 August 2020, 20200801180620
The Immigration Department of Malaysia indicate that foreign spouses of Malaysian citizens can apply for a five year social visit pass with work rights:
·     The Long Term Social Visit pass may be issued to a foreigner for a temporary stay in Malaysia for a period of not less than six months. Extensions of the period of stay can be given based on the eligibility and fulfilment of certain conditions.
·     Foreign husbands/wives to Malaysians can be given the Social Visit Pass for a period of 5 years on condition that they comply with all the requirements.
·     They are also allowed to engage in any form of paid employment or in any business or professional occupation without converting the Social Visit Pass to the Employment Pass or Visitor’s Pass (Temporary employment).[4]
[4] ‘Long Term Social Visit Pass’, Immigration Department of Malaysia, n.d., accessed 1 August 2020, 20200801120222; ‘Terms and conditions for the employment of a Citizen's Spouse’, Immigration Department of Malaysia, n.d., accessed 1 August 2020, 20200801120022
According to the Joint Action Group for Gender Equality, a male foreign spouse of a Malaysian national can apply for citizenship by naturalization after having lived in Malaysia for a period of 10 years.[5]
[5] ‘Let women confer nationality’, The Star (Malaysia), 26 March 2019, 20200730144529
The National Registration Department of Malaysia’s Ministry of Home Affairs provides information outlining the conditions and procedure for each type citizenship application in accordance with the Federal Constitution on its website.
Country information also indicates that a foreign national married to an Indonesian citizen can reside in Indonesia on the basis of the couple’s marriage.
Information gathered from the Consulate General of the Republic of Indonesia in Melbourne indicates that the foreign spouse and children of an Indonesian national can apply for a limited stay visa:
Limited Stay Visas are given for the purpose of: Foreign Investment, Employment in a Government/Private sector, Education, Training or Research, Religious duties, Joining Husband and or a Parent who is a foreign national in possession of a Limited Stay Permit or who is an Indonesian citizen, for the wife and / or single, legitimate child(ren) who is/are under 18 years of age.[6]
[6] ‘Limited Stay Visa’, Consulate General of the Republic of Indonesia in Melbourne, n.d., accessed 23 July 2020, 20200723172513
A limited stay visa is extendable for up to five years. Further details about the visa can be obtained from the Embassy of the Republic of Indonesia in Canberra.[7]
[7] ‘Visa Service’, Embassy of the Republic of Indonesia in Canberra, 15 June 2020, 20200723174144
Indonesia’s citizenship law allows the foreign spouse of an Indonesian national the opportunity to apply for citizenship after residing in Malaysia continuously for five years or intermittently for ten years:
Article 19(1) of the 2006 Law provides an opportunity for foreigners who have married an Indonesian national to become Indonesian citizens by simply making a declaration before the relevant authority. However, he/she should have had domicile in Indonesia for at least five consecutive years or ten years intermittently. However, the 2006 Act also determines that the grant of Indonesian nationality may not create dual nationality. If dual nationality occurs, the person may be granted a permit to stay permanently in Indonesia under the existing immigration regulation.[8]
[8] 'Report on Citizenship Law - Indonesia', Robert Schuman Centre for Advanced Studies, Robert Schuman Centre for Advanced Studies, 1 April 2017, p.15, CISEDB50AD5927; 'Law of the Republic of Indonesia : number 12, year 2006 on Citizenship of the Republic of Indonesia', Government of Indonesia, Government of Indonesia, 1 August 2006, Article 19(1), CIS20125
Further, country information indicates that a child born outside of Malaysia to a Malaysian citizen mother can apply for Malaysian citizenship from abroad. Under the circumstances described in the background section of this report, a citizenship application can be lodged for the child through a Malaysian mission. The application would be lodged in accordance with Article 15(2) of the Federal Constitution. Malaysian law has been criticised for not providing Malaysian women equal rights to confer citizenship to their children born abroad on an equal basis as Malaysian men. Reporting indicates that in practice, the processing time for citizenship applications lodged under Article 15(2) varies.
According to a July 2020 UN High Commissioner for Refugees (UNHCR) report that includes a discussion about statelessness, a child born outside of Malaysia, whose mother is a Malaysian citizen, can acquire Malaysian citizenship at the discretion of the Federal Government by way of registration at a Malaysian consulate abroad:
In Malaysia, children born in the country to either Malaysian mothers or Malaysian fathers automatically acquire Malaysian nationality. However, children born to Malaysian mothers outside Malaysia may only acquire Malaysian citizenship at the discretion of the Federal Government through registration at an overseas Malaysian consulate or at the National Registration Department in Malaysia.[9]
[9] 'Background Note on Gender Equality, Nationality Laws and Statelessness 2020', United Nations High Commissioner for Refugees (UNHCR), 14 July 2020, p.11, 20200715081230
In its most recent country information report on Malaysia, the Australian Department of Foreign Affairs and Trade write that ‘[a] child born outside of Malaysia to a Malaysian mother and a non-Malaysian father is not guaranteed Malaysian citizenship’.[10]
[10] 'DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 13 December 2019, p.47, section 3.146, 20191213141745
Article 15(2) of the Federal Constitution states:
Subject to Article 18, the Federal Government may cause any person under the age of twenty-one years of whose parents one at least is (or was at death) a citizen to be registered as a citizen upon application made to the Federal Government by his parent or guardian.[11]
[11] 'Federal Constitution of Malaysia 2010 Reprint', Government of Malaysia, 1 January 2010, 20191128113408
A child is considered legitimate for the purposes of applying for citizenship under Article 15(2) of the Federal Constitution if the marriage has been registered before the birth of the child.[12]
[12] ‘Birth/Marriage certificate registration’, Consulate General of Malaysia (Perth), 24 July 2020, 20200724141524; ‘Birth/Marriage Certificate Registration’, High Commission of Malaysia (Canberra), 24 July 2020, 20200724153059
Chia, Lee & Associates provide legal analysis and clarification on Article 15(2):
Article 15(2) of the Federal Constitution – the Federal Government may cause any person under the age of twenty-one (21) years of whose one of the parents is (or was at death) a Malaysian, to be registered as a citizen upon application made to the Federal Government by his parent or guardian.
Citizenship by application under Article 15(1) and Article 15(2) are rather easy as the requirements are clear.[13]
[13] ‘Citizenship in Malaysia’, Chia, Lee & Associates, 13 March 2019, 20200801180035
Country information indicates that Indonesian citizenship can be acquired by operation of the law or by application. For those who are ineligible for citizenship by operation of the law, naturalization may be another option. Country information is not definitive about whether a child born abroad from a legal marriage between an Indonesian national and foreign national is eligible for Indonesian citizenship on the basis of one parent being an Indonesian national, although it is definitive that a child born abroad is an Indonesian national if both parents are Indonesian citizens. Additionally, a child is also an Indonesian national if born in Indonesia and one parent is Indonesian. Indonesian law allows for a limited form of dual nationality for children born from mixed nationality marriages, and this option permits a child to hold dual nationality until the child is 18 at which point the child can choose his/her own nationality. For dual nationals, citizenship must be determined before the age of 21.
Article 4 of Indonesian’s citizenship law determines who is a citizen by operation of the law:
A Citizen of the Rep. of Indonesia is:
(1). All persons whom by law and/or based on agreements between the Government of the Rep. of Indonesia and other countries prior to the application of this Decree have already become Citizens of the Rep. of Indonesia;
(2). Children born through legal wedlock from an Indonesian father and mother;
(3). Children born through legal wedlock from an Indonesian father and an alien mother;
(4). Children born through legal wedlock from an alien father and an Indonesian mother;
(5). Children born through legal wedlock from an Indonesian mother and a stateless father or whose country does not provide automatic citizenship to their offspring;
(6). Children born within 300 (three hundred) days after the father has passed away, under legal wedlock, and whose father is an Indonesian citizen;
(7). Children born out of legal wedlock from an Indonesian mother;
(8). Children born out of legal wedlock from an alien mother who is claimed by the Indonesian father as his natural child and such claim is declared before the child reaches the age of 18 (eighteen) or before the child has married; w.parlemen.net
(9). Children born in Indonesian territory whose parents are of undetermined citizenship at the time of the child’s birth;
(10). Children newly born and found in Indonesian territory and whose parent’s are undetermined;
(11). Children born in Indonesian territory whom at the time of birth both parents were stateless or whose whereabouts are undetermined;
(12). Children born outside the Rep. of Indonesia from an Indonesian father and mother whom due to law prevailing in the country of birth automatically provides citizenship to the child;
(13). Children born from a father and mother who was granted citizenship and died before the parents had sworn their allegiance.
A child is a citizen by birth right if the child is born abroad and both parents are Indonesian citizens:
The 2006 Law provides for several methods of becoming an Indonesian national: by birth, by naturalisation, by adoption, and by marriage. Indonesian nationality acquired by birth includes those born in Indonesia or abroad both whose parents are Indonesian nationals; any person born in the country one of whose parents is an Indonesian citizen; a child born in Indonesia to unknown parents; and those born out of wedlock. Moreover, Article 4 says that those born in the country to parents who are stateless are Indonesian nationals. Furthermore, a child whose father or mother has been granted Indonesian nationality but passed away before swearing the oath is also regarded an Indonesian citizen.[14]
[14] 'Report on Citizenship Law - Indonesia', Robert Schuman Centre for Advanced Studies, Robert Schuman Centre for Advanced Studies, 1 April 2017, p.13, CISEDB50AD5927
Children born to parents of different nationalities, one of which is an Indonesian national, have dual citizenship until the age of 21 at which time they must choose between either:
… children born from an international marriage have dual citizenship. They have to opt for one of the nationalities when they reach the age of 18 years and before the age of 21 years at the latest. Unfortunately, the 2006 Law does not regulate in detail their status if they fail to do so. Rather, the consequence of this failure is found in Government Regulation No. 2 of 2007, which says that “in the case of children… who do not choose any of their citizenships, the legislative provisions on foreigners shall apply”. Thus, the concerned children will lose their Indonesian nationality if they are affected by this condition.[15]
[15] 'Report on Citizenship Law - Indonesia', Robert Schuman Centre for Advanced Studies, Robert Schuman Centre for Advanced Studies, 1 April 2017, p.13, CISEDB50AD5927
The Tribunal has been unable to conclusively determine whether limited dual nationality is applicable to a child born from a mixed nationality marriage abroad, rather than in Indonesia.[16]
[16] COISS consulted a number of sources that include laws, legal analysis, media and other reports.
Article 7 of Indonesia’s citizenship law says ‘[a]ll persons who are not Citizens of the Rep. of Indonesia shall be treated as alien persons’. Article 1 states that ‘[n]aturalization is the procedures applied to aliens in acquiring Indonesian Citizenship by forwarding an application’. Article 8 states that ‘[c]itizenship of the Rep. of Indonesia may be acquired through naturalization’.[17] Article 9 provides requirements for citizenship by naturalization:
[17] 'Law of the Republic of Indonesia : number 12, year 2006 on Citizenship of the Republic of Indonesia', Government of Indonesia, Government of Indonesia, 1 August 2006, Article 8, CIS20125
Requests for naturalization may be forwarded by the applicant upon meeting the following requirements:
a. Aged 18 (eighteen) or married;
b.At the time of forwarding the application, the applicant has resided in Indonesian territory for at least 5 (five) consecutive years or at least 10 (ten) years intermittently;
c. Sound in health and mind;
d.Able to speak Bahasa Indonesia and acknowledges the state basic principles of Pancasila and the 1945 Constitution;
e. Was never legally prosecuted due to acts of crime and sentenced jail for 1 (one) year or more;
f. Upon acquiring Indonesian Citizenship, will relinquish any other citizenship;
g. Employed and/or has a steady income; and
h. Pay a naturalization fee to the Government Treasury[18]
[18] 'Law of the Republic of Indonesia : number 12, year 2006 on Citizenship of the Republic of Indonesia', Government of Indonesia, Government of Indonesia, 1 August 2006, Article 9, CIS20125
Articles 10 provides details about how an application for naturalization needs to be submitted, and Article 12 indicates a fee for the application is required. Additionally, Article 31 states that a person who has lost their Indonesian citizenship can regain citizenship through the process of naturalization.[19]
[19] 'Law of the Republic of Indonesia : number 12, year 2006 on Citizenship of the Republic of Indonesia', Government of Indonesia, Government of Indonesia, 1 August 2006, Articles 10 & 12, CIS20125
Country information indicates that Malaysia’s Education Ministry implemented a nationwide policy in January 2019 that permits children without Malaysian citizenship, but who possess a birth certificate, the right to enrol and attend public schools. Public healthcare is available to refugees, permanent legal residents and Malaysian citizens. The LTVSP/spouse visa holder is eligible to access the public hospitals. Those without access to the public healthcare system may purchase health insurance to access private healthcare. The average cost for an individual with health insurance to visit a private sector doctor is approximately USD5, and a specialist is approximately USD30.
A December 2018 New Straits Times article indicates that the Education Ministry has adopted a policy to provide public education to children who were previously unable to attend public schools based on their immigration status. The article says that ‘all stateless and undocumented children will be able to go to school next year, provided their parents or guardians are able to present the relevant documents’. According to School Management Division Deputy Director Pesol Md Saad, the policy change forms part of the Education Ministry’s move to ‘simplify the registration process for children without citizenship into public schools’.[20] The report provides the follow information about the registration process for children without Malaysian citizenship:
Parents need only present relevant documents, such as the child’s birth certificate, or adoption papers or court order, and pay a small fee when registering, using the Jadual Pertama P.U.A (275) at the State Education Department or District Education office.
Pesol said children without citizenship can still register for government school or government-assisted schools despite provisions in the Education Act 1996 or Act 550 which require that every pupil must be a citizen.
There are currently 29,960 children who are not citizens who have registered and have been accepted into government and government-assisted schools.[21]
[20] ‘Stateless children can enrol in school’, New Straits Times, 21 December 2018, 20200729160400
[21] ‘Stateless children can enrol in school’, New Straits Times, 21 December 2018, 20200729160400
The article continues on to outline numerous categories of children who benefit from the new policy and how those children can be enrolled into the public education system. Notably, non-citizen children whose parents did not register their marriage legally, or children with one Malaysian citizen parent, are eligible to attend public schools under policy:
Pesol said there were three categories of children who were not Malaysian citizens who are allowed to study in government schools. This includes children who are adopted by Malaysian parents, those whose parents did not register their marriage legally, such as when one parent is a citizen and the other parent is not, and undocumented children who have one parent who is a Malaysian citizen.[22]
[22] ‘Stateless children can enrol in school’, New Straits Times, 21 December 2018, 20200729160400
Prior to the implementation of the new policy which took effect in January 2019, stateless children were only enrolled into primary education ‘based on the kindness or discretion of headmasters but they were not allowed to continue to secondary education levels’.[23] In Sarawak, the Deputy Education Minister said that a non-citizen child with ‘one parent who was a Malaysian citizen and had a birth certificate, would be allowed to enrol in government schools’[24]. In the Malaysian state of Perak, 427 stateless and undocumented children were enrolled into school. Reportedly, 444 applicants were received by the state’s Education Department, of which 81 were approved without condition and 346 were approved with conditions. A governmental spokesman said that “96 per cent of the applications have been approved as stipulated under the Education Act 1996”.[25]
[23] ‘'Easier for stateless kids to enrol in school soon'’, Bernama, 13 October 2018, 20200729162528; ‘427 stateless children in Perak enrol in national schools’, New Straits Times, 17 April 2019, 20200729162848
[24] ‘Education for stateless children’, The Star (Malaysia), 8 January 2019, 20200730095644; ‘'Easier for stateless kids to enrol in school soon'’, Bernama, 13 October 2018, 20200729162528
[25] ‘427 stateless children in Perak enrol in national schools’, New Straits Times, 17 April 2019, 20200729162848
Reportedly, an Education Ministry circular to state education departments in March 2009 said that ‘children could register in any government or government-aided school if one of the parents was a Malaysian citizen’ but that parent was required to provide a ‘support letter’ from a ‘village head’ to enrol the child.[26]
[26] ‘Stateless children can enrol in school: Kamalanathan’, New Straits times, 2 January 2017, 20200729163714

In April 2019, an article published by the Centre for Public Policy Studies indicates that the new policy, known as the ‘Zero Reject Policy’, continue to be based on the condition that one parent is a Malaysian citizen.[27]
[27] ‘We have a Zero Reject Policy, so what’s next?’, Centre for Public Policy Studies, 1 April 2019, 20200730103437
Nonetheless, the United National Special Rapporteur on extreme poverty and human rights, Philip Alston, who visited Malaysia in August 2019, observed that some ‘people without identification – including stateless, migrant, and indigenous peoples – are not able to attend public schools, and often depend on informal education’. The statement is made in reference to indigenous and native communities in Sarawak and Sabah. Notably, significant barriers to education for impoverished populations include, difficulties accessing schools in rural areas and the schools lacking basic infrastructure and facilities or there being large numbers of unsafe and dilapidated schools. These problems are most pronounced in Sarawak and Sabah.[28]
[28] ‘Statement by Professor Philip Alston, United Nations Special Rapporteur on extreme poverty and human rights, on his visit to Malaysia, 13-23 August 2019 ’, OHCHR, 23 August 2019, 20200729172426
The most recent UN Universal Periodic Review on Malaysia further elaborates with information about access to education for indigenous people (Orang Asli) and natives of Sabah and Sarawak:
The Government focused on increasing the attendance rate in schools for Orang Asli and the natives of Sabah and Sarawak and initiatives were carried out to ensure the indigenous peoples receive quality education relevant to their needs. To date, there are 93 public primary schools exclusively for the Orang Asli. The provision of appropriate and holistic education programmes had successfully raised the attendance and the transition rates of the indigenous peoples. As of 2018, 8 K9 schools are in operation nationwide. Four K9 schools offer Basic Vocational Education to enable the indigenous students to receive the Malaysian Skills Certificate and continue to higher levels of certifications in vocational colleges.
The Government also established a programme to encourage Orang Asli children who have completed their primary school education to continue their education to secondary school. Under this programme, the Government provided financial assistance and transportation to reduce the dropout rate in secondary schools.[29]
[29] 'National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21 – Malaysia', UN Human Rights Council, 23 August 2018, p.11, CIS7B8394110340
More broadly, the Review provides the following summary about Malaysia’s progress on universal access to education and government initiatives to support this:
Malaysia continues to provide quality education to all in a holistic manner. The Government has aligned all initiatives in the Malaysia Education Blueprint (MEB) 2013-2025 to the SDG 4 strategies and the 11th MP. Malaysia strives to ensure universal access and full enrolment from pre-school to upper secondary school level by 2020 by developing attractive and viable education pathways for all children. There is no gender discrimination in terms of legislation, policy, mechanisms, structures or allocation of resources. In addition to this, efforts to improve the access to education have been made through various initiatives.
The Malaysian education system embarked on a comprehensive transformation programme through MEB over a period of 13 years (2013-2025). In 2017, the number of public pre-schools was 6,096 nationwide while the enrolment for pre-schools in 2017 was 204,105. The Government continuously encouraged and supported private pre-school providers to open more pre-schools especially in rural areas to increase children’s access to early childhood education. The Gross Enrolment Rate for primary education was at 97.9% whilst for the secondary education was at 91.3% in 2017. [30]
[30] 'National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21 – Malaysia', UN Human Rights Council, 23 August 2018, p.10, CIS7B8394110340
In April 2020 by Free Malaysia Today published an opinion article statelessness written by an author described as ‘a fierce critic of the socio-political problems in Malaysia’. The author says that there are approximately half a million stateless people in Malaysia, despite the fact that one parent may be a Malaysian national. The author refers to stateless persons to include children of refugees, those abandoned at birth, from illegitimate relationships or orphans. The author says that without any identity documents, stateless individuals are left without access to public services such as ‘healthcare, government aid, schooling, higher education, housing and other incentives’. Moreover, without any identity documents, stateless persons cannot ‘open a bank account, travel overseas, get married or seek legitimate employment’.[31] The Tribunal notes information mentioned above indicates that the enrolment process for attending school under the new education policy relies on a stateless child having a birth certificate.
[31] ‘Plight of stateless people during MCO’, Mariam Mokhtar, 18 April 2020, 20200730115104
The Tribunal further notes that all children born in Malaysia, regardless of their or their parent’s immigration status, are by law permitted birth registration and a birth certificate:
Regarding the registration of all newborn children, the Births and Deaths Registration Act 1957, Registration of Births and Deaths Ordinance 1948 (Sabah Cap.123) and Registration of Births and Deaths Ordinance 1951 (Sarawak Cap.10) stipulates that all children born in Malaysia, regardless of the nationality or the legal status of their parents, have access to formal birth registration procedures and birth certificates. It is also imperative to highlight that the existing laws empower qualified informants to furnish information to the Registrar concerning the birth.[32]
[32] 'National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21 – Malaysia', UN Human Rights Council, 23 August 2018, p.12, CIS7B8394110340
The abovementioned report from the UN Special Rapporteur also provides an overview of healthcare. Alston says that ‘Malaysia should be proud of its heath care services, which are reasonably accessible for most of the population’ and point out that the delivery is healthcare is achieved through a two-tiered public-private system. Perhaps the biggest challenge for the public healthcare system is access to services, medicines and vaccines in rural areas, particularly Sabah and Sarawak. Overall, Alston says that Malaysia has come ‘very close’ to providing universal healthcare’.[33] Less critical commentators, such as the World Health Organization, recognise Malaysia as having achieve universal healthcare.[34]
[33] ‘Statement by Professor Philip Alston, United Nations Special Rapporteur on extreme poverty and human rights, on his visit to Malaysia, 13-23 August 2019 ’, OHCHR, 23 August 2019, 20200729172426
[34] ‘World Health Day 2018 – Lessons from Malaysia on Universal Health Coverage’, World Health Organization, 18 April 2018, 20200801175424
Access to the public healthcare system is restricted to Malaysia citizens, permanent legal residents,[35] and refugees.[36] The holder of a Long Term Social Visit Pass (LTVSP “spouse visa”) can access treatment at public hospitals, and it is recommended they carry their marriage certificate when seeking treatment at government hospitals.[37]
[35] ‘Healthcare in Malaysia’, Allianz, n.d., accessed 1 August 2020, 20200801175024
[36] ‘Public Health in Malaysia’, UNHCR, n.d., accessed 1 August 2020, 20200801114254
[37] ‘A Survival Manual’, Foreign Spouses Support Group (Malaysia), 5 September 2019, 20200801122428
Private health insurance provides access to the private healthcare system. Insured persons can visit a doctor at a private clinic for approximately USD5, and consultations with healthcare specialists on average cost USD30.[38]
[38] ‘6 things you should know about healthcare in Malaysia’, AIA (Malaysia), 28 June 2017, 20200801174800
The Tribunal was unable to locate any information discussing official or society discrimination against children who were conceived prior to their parents’ marriage,[39] although some sources observed that illegitimate children may face some forms of discrimination.[40] Country information discussing discrimination against non-citizen children on account of their alien immigration status indicates that official and societal stigma and discrimination is evident, predominantly against asylum seekers communities and undocumented migrant communities.
[39] Country information was not located within sources in the timeframe permitted to conduct the research.
[40] 'Federal Court Holds that Illegitimate Muslim Child Cannot Use Father’s Last Name', Kelly Buchanan, Library of Congress, 6 March 2020, 20200331135711; ‘Discrimination against children: Don’t turn a blind eye to issue’, New Straits Times, 2 August 2017, 20200801173645
In addition to the sources discussed above, the Tribunal also had regard to the following sections from most recent DFAT Country Report on Indonesia, dated 25 January 2019:
…
ECONOMIC OVERVIEW
The Indonesian economy is the largest in Southeast Asia and sixteenth largest globally in nominal GDP terms. Indonesia has experienced sustained economic growth for a number of years. Year on year real GDP growth averaged 5.12 per cent between 2013 and 2018. Services, including transport, communications, tourism, financial and business services, increasingly drive Indonesia’s economic growth, accounting for 46.7 per cent of Indonesia’s GDP in 2016. Industry and resources sectors, including petroleum and natural gas, textiles, automotive, electrical appliances, apparel and footwear, mining, cement, medical instruments and appliances, handicrafts, and chemical fertilisers, accounted for 39.6 per cent of GDP. Agriculture, including rubber, palm oil, poultry, beef, coffee, fish products, spices, and forest products, accounted for 13.7 per cent.
The Widodo government’s main economic policy priorities are inequality, poverty reduction and regional development. Since President Widodo’s election in 2014, the government has launched high-profile initiatives on infrastructure development and social assistance programs related to education and health care. Reforms of long-standing energy subsidies have enabled re-prioritisation of public spending in favour of increased investment in programs that directly affect the poor. Indonesia’s trade policy continues to focus on self-sufficiency and reducing dependence on foreign imports, which has led to higher domestic prices for basic commodities and contributed to limiting the impact of other economic reforms. Indonesia continues to face considerable economic challenges. Economic growth is below levels required to meet Indonesia’s ambitious poverty reduction goals or to absorb new entrants to the labour market each year.
Poverty is falling. The poverty rate fell to 9.8 per cent in July 2018, the first time it has been below 10 per cent. The national poverty line represents expenditure of less than the equivalent of USD 2.20 (PPP) per person per day. A further 24 per cent of the population is considered to be vulnerable to falling into poverty, which is measured as a one-in-ten chance of falling below the poverty line in the next year.
Inequality divides Indonesia geographically: the densely populated western islands of Java and Sumatra are hubs for employment and investment. In comparison, eastern Indonesia has higher rates of poverty, in large part due to lack of connectivity with larger growth centres.
Employment
The official unemployment rate in 2017 was 6.34 per cent in urban areas and 3.72 per cent in rural areas. A large number of people in formal employment are underemployed or underutilised; official rates count the employed as those who worked at least one hour in the week of the survey. The informal sector forms a large part of Indonesian industry and employs many people. The term ‘informal sector’ describes work not covered by formal employment arrangements and protections, and includes: entities that are not registered or do not pay tax; street vendors; and people, especially women, performing home-based work. The size of the sector is difficult to measure. Estimates range between 29 per cent to up to 90 per cent of the economy in some areas of Indonesia.
Employers are required to contribute towards insurance (BPJS Ketenagakerjaan) but not all employers comply. People working in the informal sector do not receive such benefits. Compulsory contribution funds for old age and disability insurance for all workers were introduced in 2015; previously these were only available to government workers.
The World Bank estimates that 9 million Indonesians work overseas, mainly in the Middle East and Southeast Asia, especially Malaysia. Most female migrant workers obtain employment as domestic workers, while male workers work in a variety of sectors including agriculture, construction, and maritime-related industries. Approximately half of all migrant workers are undocumented and 61 per cent of female domestic workers in Malaysia are undocumented. The remittances sent back by migrant workers make an important contribution to Indonesia’s economy: in 2016, remittances from migrant workers totalled USD 8.9 billion.
…
RELIGION
Article 28E (1) and (2) of the Constitution guarantees citizens the freedom to choose and practise the religion of their choice and the freedom to believe their faith; while Article 28I (1) includes freedom of religion as a human right that cannot be limited under any circumstances. Article 29 (1) and (2) stipulates that, while the state shall be based upon belief in One God, all persons are guaranteed the freedom of worship according to their own religion or belief. However, Article 28J (2) qualifies these protections by stipulating that, in exercising their rights and freedoms, every person has the duty to accept restrictions established by law. These restrictions are for the sole purposes of guaranteeing the recognition and respect of the rights and freedoms of others and of satisfying just demands based upon considerations of morality, religious values, security and public order in a democratic society.
Indonesia is home to the world’s largest Muslim population: over 207 million Indonesians identified as Muslim in the 2010 census. The country hosts two of the largest Islamic organisations in the world, Nahdlatul Ulama and Muhammadiyah, both of which have millions of followers and are socially and politically influential. Most Indonesian Muslims are Sunni, although up to 3 million are Shi’a and approximately 200,000 to 400,000 are Ahmadi. According to the 2010 census, Muslims comprise 87.2 per cent of the population; Protestant Christians 7 per cent; Roman Catholics 2.9 per cent; Hindus 1.7 per cent; others (including Buddhists) 0.9 per cent.
Indonesia’s government officially recognises only Islam, Catholicism, Protestantism, Buddhism, Hinduism, Confucianism (since 1999) and indigenous beliefs (‘aliran kepercayaan’ since 2017). The vast majority of Indonesians are categorised by the government as belonging to one of these religions. Other religions including Judaism or Daoism are not prohibited and have general protection under the Constitution described above. Religious groups outside the official religions must obtain legal charter as a civil society organisation from the Ministry of Home Affairs.
The Ministry of Religious Affairs (MoRA) oversees the activities of registered religious groups from officially recognised religions. Permits from MoRA are required (and generally granted) to hold religious events, services or other public events. MoRA allows the publication of religious materials, the use of religious symbols, and the delivery of religious speeches provided that the dissemination of such information is to believers already registered as belonging to the religious group. Registered religious groups require MoRA approval to receive funding from overseas donors.
In order to obtain permission to build a new house of worship, registered religious groups must obtain 90 signatures of support from the users of the planned house of worship and at least 60 from members of the broader community. Approval is also required from the local (city or district-level) religious affairs offices (known as the Forum for Religious Harmony), comprised of religious leaders from the six recognised religions with responsibility for mediating inter-religious conflicts. Local opposition has often prevented minority religious groups from proceeding with construction of a house of worship. This has applied both to the building of churches or non-Sunni mosques in Muslim-majority areas, and to mosques in Christian-majority areas. Religious pluralism is an established part of modern Indonesia and a wide range of local and international sources consider that inter-faith tolerance remains strong. Local sources do, however, report an increase in localised instances of religious intolerance over the past decade, including threats from hard-line Islamist organisations.
…
Personal Status Laws
Personal status laws relating to family and inheritance vary according to religion. The Marriage Law (1974) has general applicability and states that the legal age for marriage is 19 years for men and 16 years for women, but those under 21 years of age must obtain parental permission to marry. All couples marrying in Indonesia must declare a religion, with agnosticism and atheism not recognised. In practice, marriage partners must be of the same faith or one party must convert. The civil registry office records marriages of Muslims, Hindus, Buddhists, and Christians (Catholic and Protestant). The Office of Religious Affairs performs Muslim marriages, which may occur in a mosque, the home, or any other place. Christian, Hindu and Buddhist ceremonies usually take place in a temple or church ceremony. No marriages are legal until registered with the Civil Registry Office.
A set of local and traditional laws and dispute resolution mechanisms known as adat exists in some rural communities. These are usually related to a region or ethnicity, but may be related to, or include aspects of, religion and may influence family, inheritance or agrarian law. Adat tends to evolve over time within discrete communities and different systems of adat may be unrelated.
See Women for further information on the application of marriage laws. See Sharia in Aceh for further information about the application of law in that province.
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[Family Law]
The Marriage Law designates the husband as the head of the family. The Marriage Law considers property acquired during the marriage as joint marital property, but property brought into the marriage by one party or acquired separately as either a gift or inheritance is deemed to remain the property of the person concerned. The consent of both parties is required in relation to any decision affecting joint marital property. Debts and obligations incurred by one party during marriage are generally considered a joint obligation, and claims must be satisfied out of the joint property. Debts acquired prior to marriage continue as personal debts. Children are considered minors up to the age of 18 or until they are married (in the case of women marrying before the age of 18).
Divorces must be heard in court. Religious courts have jurisdiction over Muslim marriages and divorce. ‘Triple talaq’ divorces, in which the husband may unilaterally divorce his wife, have been banned since 1991. According to the Marriage Law, the husband and father of children is responsible for his children’s wellbeing until the age of 21. A court can order that he pays spousal maintenance after divorce.
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Criminals and Victims of Loan Sharks
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Gangs are known to exist in Indonesia. Preman, a colloquial term meaning ‘thug’, are also widely reported. These gangs may be ostensibly ethnically or faith-based, however rules around ethnicity and religious affiliation are not necessarily strictly adhered to. Other gangs can include bikie gangs and organised criminals involved in drugs. Although reliable crime statistics are unavailable, local sources say gangs tend to be smaller in scale than they once were and that their size and influence has decreased in the last ten years.
Local sources say loan sharks are unlikely to lend money to debtors who do not have some kind of collateral, particularly land, and that repossession of that capital is more likely than violence for those unable to pay. Most Indonesians, including in rural areas, have access to finance including from banks, agents from banks, or in some cases from local government administrations. Usury generally targets the poor and those who live in rural areas. Government financial assistance is generally available to those communities. Most Indonesians have access to banking services. Financial technology firms have made recent efforts to reach the ‘unbanked’ in Indonesia, providing them with financial services, though some have been criticised as a digital form of usury.
DFAT assesses that former gang members have a low risk of violence; gangs are unlikely to have the resources to pursue a former member, particularly outside of their area of activity. The response of police to victims of gang violence would not be different to other victims of crime or criminals. While the risk of violence from loan sharks cannot be ruled out, DFAT is not aware of a pattern of incidents.
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Police
The Indonesian National Police (INP) has more than 400,000 police officers and civilian employees (including 13,000 women), deployed to 32 regional police forces across the archipelago. The INP was formally separated from the military in 2000. The Law Concerning the State Police of the Republic of Indonesia (2002) gives the INP the lead role in handling non-defence related security matters. The president appoints the national police chief, subject to confirmation by parliament.
Many religious and ethnic minorities serve in the police. Chinese Indonesians and Christians, particularly Catholics, serve in both the national police and the military. Human rights organisations have criticised the INP for including virginity testing and assessments of physical beauty in recruiting female police.
A semi-independent government advisory body (KOMPOLNAS) maintains oversight of the INP and acts as an alternative advisor to the president on policing matters. KOMPOLNAS has limited investigative powers and can recommend (but not order) follow-up actions.
The INP does not enjoy the same high public esteem as the TNI: a 2013 poll by Transparency International found that the police ranked as the least trusted public body in Indonesia. Professionalism varies across the police. Shortages of equipment, a lack of training, a low investigative capacity, and corruption limit the effectiveness of the police. Reports of police abuses are common, including unnecessary or excessive use of force while dispersing protests and the abuse of suspects in detention.
An elite counter-terrorism unit known as Densus-88 was formed in June 2003 the wake of the October 2002 Bali bombings, in which 202 people including many Indonesians and Australians died. Local and international observers regard Densus-88 as high performing. Officers, who are highly trained in intelligence gathering, have successfully intervened to prevent numerous attacks. Densus-88 also investigates terrorist activity. Human rights organisations have expressed concerns over the number of terrorism suspects the unit has killed rather than brought to trial.
Human rights organisations claim police are rarely held to account for abuses. While police can be tried under criminal jurisdiction, impartial criminal investigations into police actions are uncommon. The usual practice is for police to conduct their own investigation, which often results in minor disciplinary actions. Such actions, usually against junior or mid-ranking officers, include short periods of detention, demotions and deferral of training opportunities. Details of investigations, court proceedings and verdicts are rarely made public.
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Findings and reasons
Identity

From all of the available information, the Tribunal is satisfied that the applicant is an Indonesian citizen and that this is the appropriate receiving country against which to assess his claims. The Tribunal notes that country information indicates that the applicant may have the right to apply for a visa to remain in Malaysia, on the basis of his marriage to his wife, a Malaysian national. However, as he has not done so to date, the Tribunal accepts that he has no right to enter and reside in Malaysia at present.
The Tribunal further accepts that the applicant is of Balinese ethnicity and that he was born a Hindu but converted to Islam upon his marriage to his current wife in 2017. It is satisfied that his parents and 2 siblings reside in Indonesia, while 1 sibling resides in Australia. The Tribunal is satisfied that the applicant was legally married in Australia [in] January 2017 to [name], a Malaysian national and an applicant for a protection visa in her own right, and that their son, [Master A], was born in Australia on [date], and is also a protection visa applicant in his own right. The Tribunal is satisfied that the applicant’s son does not hold a Malaysian or Indonesian passport at present.
Summary of Claims
In his written claims made in January 2017, the applicant indicated that he did not want to return to Indonesia due to the poor economic situation there, and because of racism that he had experienced in the workplace.
At the Tribunal hearings, the applicant explicitly resiled from his claim to fear racism, stating that he had not experienced racism prior to leaving Indonesia and did not have concerns about experiencing it if he were to now return. He confirmed that he was concerned about the poor state of the Indonesian economy and whether he and his family would be able to have a decent standard of living there.
At this Departmental interview, the applicant raised several new claims, namely:
·he owed [amount] rupiah to someone in Indonesian and he had not paid it back. That person had threatened him before he came to Australia; and
·he feared harm from his Indonesian ex-wife because he had remarried in Australia and he had not paid his ex-wife money in relation to his children from his first marriage.
At the Tribunal hearing, the applicant added a claim that he feared that his son from his current marriage may be stateless.
The Tribunal is satisfied that although these new claims about his family constitute sur place claims (that is, they have arisen since the applicant came to Australia), the actions to which they relate – the applicant’s marriage and the birth of his son - were not undertaken for the sole or dominant purpose of furthering the applicant’s protection visa claims.
Fear of family in Indonesia
The applicant said that his parents were hostile, in the sense that they were not happy about him converting to Islam in order to marry his Malaysian Muslim wife in Australia in 2017 and that he feared that they might shun or not accept her if the family relocated to Indonesia. He did not indicate that he feared that they would physically harm him, his wife or his son. His evidence at hearing indicated that he remains in regular contact with his sister and parents in Indonesia, admittedly principally in relation to payment of his debts and child support to his sons from his first wife. There is no indication that they have, or would, ostracise him due to his conversion and marriage to a Muslim. The applicant did not claim to fear harm from anyone else in the Balinese community for having converted to Islam. Accordingly, the Tribunal considers the applicant’s claim that his family (or anyone else) might shun or harm him or his wife to be speculative and unfounded. While the Tribunal accepts that the applicant’s family might not be happy about the fact that he has converted in order to remarry, the Tribunal is not satisfied that such sentiments amount to serious harm amounting to persecution.
Nor is the Tribunal satisfied that this conduct amounts to significant harm, as that term is defined in s.36(2A) of the Act, as it does not consider that it amounts to arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
Son’s status in Malaysia
As noted above, the applicant claimed that his son may be stateless in relation to Malaysia, based on the applicant’s wife’s experience of being rebuffed when trying to register him as a citizen with the Malaysian Consulate in Australia. She told the Tribunal that she was afraid that he would be denied essential services, such as access to education and healthcare. The applicant indicated that he shared the same concerns.
The Tribunal has considered these claims separately and at length in its decision in relation to the applicant’s son (see AAT/MRD decision 1724719).
However, it is not satisfied that these claims give rise to any fear of serious harm or significant harm in relation to the applicant in Indonesia, either now or in the reasonably foreseeable future.
Economic claims in relation to Indonesia
In summary, the applicant claimed that he would have difficulty contributing to the support of his family due to low wages in Indonesia, and that if he returned, he faces economic difficulty again, especially as his family there would be unlikely to be able to offer him and his new family financial support.
The Tribunal notes that the applicant has a varied history of employment in Indonesia before coming to Australia, and that he has also done factory and agricultural work in Australia. Although the Tribunal acknowledges the applicant’s evidence that he might find it difficult to find work, there is scant evidence before the Tribunal to indicate that the applicant would not be able to find any employment if he now returned to Indonesia, particularly given his history of working in several different roles in Indonesia and Australia. While the Tribunal accepts that the applicant’s earnings would be lower than he might be able to earn in Australia, it is not satisfied that they would be so low as to threaten the applicant’s ability, or his wife’s or son’s ability, to subsist in Indonesia

100. The Tribunal is not satisfied that there is a real chance that the applicant would be denied the capacity to earn a livelihood of any kind, such that his capacity to subsist would be threatened. It finds that he would not be at risk of serious or significant harm.
Fears in relation to ex-wife and/or loan sharks in Indonesia
101. The Tribunal has concerns about the applicant’s claims to face harm due to still owing a debt to a loan shark (his father in law) and due to not paying his ex wife child support in relation to their 2 sons. These concerns arise partly because the applicant did not mention these claims in his written protection visa application, but only raised them at the Departmental interview, and partly because his claims in this regard appeared to be implausible and illogical in some respects. However, the Tribunal has ultimately decided to extend the benefit of the doubt and accepts that the applicant ceased paying child support to his ex wife pursuant to a private agreement in Indonesia prior to leaving Indonesia in 2015, and that he has partially repaid a debt incurred by his father to his ex father in law, with an estimated [amount] rupiah remaining.
102. In relation to the outstanding loan, the Tribunal gives weight to the fact that the applicant (and his family) have not been actually harmed in relation to the outstanding loan, although it accepts that the applicant asserts that this is because he has been able to pay it back gradually to date, initially by working for the applicant’s father in Indonesia, and since 2015, by sending repayments from Australia via his family members in Indonesia. None of the applicant’s family members in Indonesia have been harmed to date. Although the applicant claims that this might not be the case if he were to return with approximately [amount] rupiah of loans still outstanding and with a reduced ability to pay (given his Australian earnings exceed what he could earn in Indonesia), the Tribunal considers that the fact that he was not harmed previously (nor were any family members), even before he started making repayments while in Australia, indicates there is a remote or insubstantial chance that he would be if returns now, or in the foreseeable future. In reaching this conclusion, the Tribunal accepts that the applicant’s earning capacity would be reduced in Indonesia, as he stated that he earned less there then he does in Australia, but finds that he nevertheless would have some earning capacity to continue to make repayments through employment. Given that the applicant has made loan repayments from Australia, it considers that he would do so with these means if he were to return.
103. The Tribunal is therefore not satisfied that the applicant faces a real chance of serious harm or significant harm in relation to any outstanding loan.
104. In relation to his ex-wife, the Tribunal similarly finds that she did not seek to harm the applicant prior to his departure to Australia in 2015, although he had already, on his own evidence, ceased to pay her child support for their sons, who were residing with her after their parents’ separation. The Tribunal considers it even less likely that she would seek to do so now, some 5 years later, when their sons are now living with their paternal grandparents with her consent, on the applicant’s own evidence.
105. The Tribunal accepts that the applicant’s ex-wife may harbour some animosity towards the applicant, given his failure to support their sons while they lived with her (and seemingly in breach of Indonesian national laws concerning parental responsibility), and that this might have been exacerbated by finding out that the applicant had remarried in Australia and had a child with his second wife. However, the Tribunal considers it remote and implausible that she would now be motivated, or capable, of seriously harming the applicant or his new family if they were to relocate to Indonesia. The fact that she has continued to deal with the applicant’s family in Indonesia in matters relating to their sons, and consented in 2019 to them going to live with their paternal grandparents, strongly suggests that she has moved on. The Tribunal considers the applicant’s claim that she would now wish to harm him to be farfetched.
106. The Tribunal is therefore not satisfied that the applicant faces a real chance of serious harm or significant harm from his ex-wife or her family members or associates in Indonesia.
Emotional connection with Australia
107. At the second hearing, the applicant’s wife gave evidence that following the birth of their son in Australia on [date], she and the applicant had a subsequent pregnancy in Australia resulting in the stillbirth of another son, who is buried in Melbourne. She indicated that if they were obliged to depart Australia, it would be very hard for them given their son’s grave is here.
108. The Tribunal is sympathetic to the loss suffered by the applicant and his wife, and to the significance of the site of the grave to them. However, the Tribunal finds that this scenario does not fall within any of the refugee grounds set out in s.5J(1)(a) of the refugee definition.
109. In relation to complementary protection, the Tribunal has had regard to relevant case law on this issue, notably GLD18 v Minister for Home Affairs [2020] FCAFC 2. This judgment confirms existing authority in SZRSN v MIAC [2013] FCA 751, which provides that, in the context of claims of harm arising from separation from family members, the act of removal of an applicant from Australia cannot itself be characterised as significant harm under s.36(2)(aa). It is now settled that, regardless of the location or visa status of other family members (including deceased members), any claim of harm arising from family separation resulting purely from an applicant’s removal from Australia will not satisfy s.36(2)(aa). The Court reached its view after considering the text of s.36(2)(aa), the definitions of ‘significant harm’ and the exceptions in s.36(2B), and the purpose of the complementary protection criterion as explained in previous authorities and the explanatory memorandum to the bill that introduced it.
110. Moreover, the Tribunal considers that both tests (refugee and complementary protection) require some element of intentionality or motivation before persecution or significant harm can be demonstrated, which is absent in the above circumstances.
Conclusion
111. For the reasons given above, considering the applicant’s claims both singly and cumulatively, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
112. 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).
113. In Minister for Immigration and Citizenship v SZQRB [2013] FCAFC, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition. The Tribunal notes that this applies equally to the assessment of ‘well-founded fear’ for the purposes of s.5J. It follows that the Tribunal does not accept that there is a real risk that the applicant would face serious harm if returned to Indonesia for the above reasons.
114. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
115. 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. This is because the applicant has separately found that neither the applicant’s wife nor his son is owed protection by Australia, in decisions 1707066 and 1724719, respectively. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
116. The Tribunal affirms the decision not to grant the applicant a protection visa.
Alison Mercer
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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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.
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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.
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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
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(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.
…

[2021] AATA 1543

22 February 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Natural Justice

Standing

Statutory Construction