1732533 (Refugee)

1732533 (Refugee) [2024] AATA 1319 (25 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1732533
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Linda Holub
DATE:25 January 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 25 January 2024 at 3:27pm

CATCHWORDS
REFUGEE – Protection Visa – Indonesia – race – Chinese ethnicity – interest in anti-corruption – claims of attending anti-corruption demonstrations – applicant had provided inconsistent information over time – delay in applying for protection in Australia – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 56, 438, 499

Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 4 December 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

BACKGROUND

2. The review applicant was born in Balikpapan, Kalimantan Indonesia in [year] and is a citizen of Indonesia. He speaks, reads, and writes Indonesian and English. His ethnicity is Chinese, and his religion is Buddhism.

3. The applicant departed Indonesia legally using his own passport. Department records indicate the applicant first travelled to Australia in April 2009, travelling on his Student (TU 572) visa, granted 18 March 2009, and ceasing 4 March 2011. In February 2011 he was granted a Bridging visa A, before being granted a further Student (TU 572) visa on 18 March 2011 that would cease 13 July 2011. On 13 July 2011 he was granted a further TU subclass 572 visa. That visa was cancelled on 5 July 2012. On 27 August 2015 he lodged his application for a Protection (XA 866) visa and on 1 September 2015 he was granted an associated Bridging visa C. he has remained onshore on a series of Bridging C visas since that time.

CRITERIA FOR A PROTECTION VISA

4. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

5. 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

9. 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.

Issues

The issues in this review are whether there is a real chance that, if he returns to Indonesia, the applicant will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purposes of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Indonesia, there is a real risk that he will suffer significant harm for the purposes of s 36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CLAIMS AND EVIDENCE

Protection visa application

Protection claims

The applicant applied for the visa on 27 August 2015. In his application the applicant claimed:
a.he left Indonesia to avoid a risk of being arrested by the Indonesian government and police. They want to arrest him because he attended a demonstration against the Indonesian government’s corruption, which he hates and believes will ruin the country.
b.he did not find a job after graduating from high school because he did not want to bribe the government officers. He did not go to university because of discrimination against Chinese ethnicity in Indonesia.
c.in December 2007 he was arrested and detained for 4 days for attending a demonstration against the Indonesian government’s corruption. In February 2009 he attended another demonstration and this time he was arrested and detained for 7 days. He does not want to go back to Indonesia and believes if the Indonesian government and police will arrest him if they find him.
d.he does not think anyone can help him in Indonesia, and that there is no safe place in Indonesia for him.

The delegate’s decision

The delegate after considering the applicant’s claims was not satisfied the applicant is a person in respect of whom Australia has protection obligations as provided for in s36(2)(a) or s36(2)(aa) of the Migration Act.

Applicant identity and country of reference

The applicant claims to be a citizen of Indonesia. The applicant provided a copy of his Republic of Indonesia passport issued [date] 2009 and ceasing [date] 2014. The delegate accepted the applicant’s identity. There is nothing before the Tribunal to suggest that the applicant is not the person identified in the relevant application for protection. The Tribunal finds that the applicant is a citizen of Indonesia, which is also his receiving country for the purposes of the refugee and complementary protection assessments.

Review application

The applicant applied to this Tribunal for a review of the delegate’s decision on 21 December 2017. He provided a copy of the Department’s notification of decision but did not provide a copy of the decision record, or any other material to the Tribunal in support of the application for review.
The applicant was not represented in relation to his application for review.
On 21 December2023 the applicant was invited to appear before the Tribunal on 16 January 2024 to give evidence and present arguments.

CONSIDERATION OF CLAIMS AND EVIDENCE

Oral evidence

The applicant stated that he had no changes to his original claims and no additional claims to make. He stated that he stands by his original claims. Despite the fact that the applicant had not indicated in his application that he had received assistance with completing the application, at hearing he stated that a former workmate helped him express his claims. He stated he completed the rest of the application himself.
The applicant told the hearing he came to Australia because his mother sent him here. She made all the arrangements and paid for everything. She wanted him to have a better life because Indonesia “was a mess”. He stated his parents separated when he was young. His sister came to Australia to study but that she married in Indonesia and resides in Australia. He stated his mother lives in Indonesia; sometimes she lives with her sister in Jakarta and sometimes in Pontianak. He stated that he has contact with her about once a year - around Chinese New Year.
The applicant stated that he has worked diligently to get as much experience as he can. He stated that he has worked many occupations.
I referred to the fact that he had made no mention that he had been granted a Student visa and that it appeared he came to Australia to study. He responded that he studied [a course] and completed a [qualification] but then ran out of money because of gambling and ended up doing farm work in different places.
I referred to the fact that his Student visa was cancelled. He responded that it was because he ran out of money, so he went to an isolated farm near Darwin to work when his visa was cancelled in 2012 or 2013. I put it to the applicant that given his visa had been cancelled, I would assume he did not have work rights. The applicant responded that he was paid in cash and that he did not know if he worked legally or not, but he had to work.
I put to the applicant that according to his application he had only had one address in Australia but according to his oral evidence he had worked in multiple locations. I explained to the applicant that it appeared he may have provided misleading information in his application. I explained that I was concerned that other information in his application could also be misleading. When asked to respond to that concern, the applicant stated that at the time he applied for protection his English was not that good. He provided his permanent address but not all the address at the various farms he worked at because his mail would sit there. I explained to him that the question in the form I was referring to is unrelated to his mailing address. I explained that the question asks applicants to provide all their addresses for the last thirty years including any temporary addresses. The applicant apologised and said his English was not good.
The applicant first stated that he had done farm work in Darwin, Adelaide, and Melbourne but when I discussed further, he had actually worked and lives at a farm near [various towns]. I put the applicant on notice that in providing oral evidence he needs to provide specific and accurate information. I explained to him that I was concerned that already in this early part of the hearing there was inconsistent evidence between his written application and his oral evidence and there seemed to be inconsistencies in his oral evidence. I told him that that this could lead me to affirm the Department’s decision as it may raise credibility concerns for me.
When I asked the applicant to confirm information contained in his application that he had been unemployed in Indonesia, he responded that he used to help them and got paid if they wanted to pay him. I asked him who he was referring to. He stated that his uncle had a workshop, and he would go there after he finished high school and helped out and sometimes he would be paid if his uncle wanted to pay him. I told the applicant that I was concerned that he had provided inconsistent information in his application. He responded that he was essentially unemployed and was only helping out and it was up to his uncle if he was paid.
I asked the applicant why he had remained in Australia unlawfully after the cancellation of his Student visa. He responded that it was because he had no money having lost money at the casino. I put to him that it appears that he decided to remain in Australia unlawfully. He responded that at the time he had no idea what to do when his visa was cancelled.
The applicant told me he had been assisted in lodging his second Student visa application by an agent but could not explain why he did not use an agent to obtain advice after his Student visa was cancelled but instead remained in Australia unlawfully. I told him I was concerned that he had done so because it shows he was prepared to disregard Australia’s migration law. When asked if he wished to comment, he stated he had no comment to make.
When asked what harm he experienced in Indonesia, the applicant stated he was arrested and locked up because of anti-corruption. He stated that the events occurred one or two years before he came to Australia but that he does not remember when exactly because it was a long time ago. He remembers some things and not others. I explained given his claims, it was important that he tried to think through what had happened because the hearing was an important opportunity to present his claims for consideration.
To assist him, I asked if he could remember anything that happened around the time he attended the demonstrations that would help him pinpoint when they occurred and when he was arrested. He responded that he comes from a broken home and often stayed with his grandmother and that a lot of things happened.
When asked if he had any other claims of past harm, he responded that he did not and added that because he is Chinese and because he lives in a majority Islam community he was treated like an outsider and alienated.
In relation to future harm, the applicant claimed that he does not know what might happen in the future. He stated that things can happen suddenly. He stated that when a friend returned to Indonesia he was stabbed 14 times. I asked him if he was claiming that he is in fear of being stabbed if he were to return to Indonesia is. He responded ‘of course’.
I asked him if he holds any other fear. He responded there is clear evidence of what happened to his friend when he went back five or six years ago. He added that at the moment he cannot think of anything. I explained to him that my decision would be based on the application and his oral evidence and that I had provided two opportunities to articulate what harm he fears.
In relation to his fear of being stabbed, I asked the applicant if his concern stemmed from being uncertain about what might happen in the future or whether it related to anything more specific. He responded that he was thinking about what happened to his friend who went to a friend’s place and a Madurese stabbed him. I told him I would consider this claim and whether there is a real risk or real chance that this could occur to him. I explained that in that context I would consider the incident in the context of the overall population of Indonesia and whether it had been an ad hoc incident.
I referred to the applicant’s earlier evidence of being arrested at a demonstration and asked him to elaborate. He stated that he remembers participating in two demonstrations but did not recall where they were held. He stated it was about two to three hours by motorcycle from his home in Kalimantan. When asked if he could be more specific, the applicant stated that the only thing he knows is that they were still in West Kalimantan when they arrived at the location, but he cannot name the place although he knows visually where it was. I suggested that normally a demonstration would be held in a particular location, such as in front of a government building or other key centre. He stated that it was in front of a police station but did not know which one because according to his evidence, there are so many suburbs in Kalimantan.
In relation to the demonstrations he attended, the applicant stated they were held a few months apart and were in either 2007, 2008 or 2009.
When asked if he was involved in other anti-corruption activities, he responded that it was only these two demonstrations. In relation to what prompted his involvement at that time, he responded that it was “to improve the government system”. I asked him why he had chosen those two particular demonstrations, he responded that he and his friend had the same thought to attend those demonstrations.
I put to the applicant that his evidence so far raises questions for me as to whether his claims for protection are fabricated as he is unable to provide basic details about the events.
The applicant stated that he was arrested once and that the situation was chaotic at that time. He stated that he thinks he was arrested at the second demonstration. I put it to him that I expect he would have been issued with some sort of arrest warrant or document and asked him if he was given one. In response, he stated that perhaps because they saw he was a child they didn’t give him a warrant. I asked him if he meant that they would arrest a child but not issue a warrant because he was a child. He had no response when I put this to him.
The applicant stated he was put into a cell behind the police station where he was demonstrating. He stated that he thinks about 20 people were locked up there but only several of them had been involved in the demonstration. The applicant stated that a short time after he was put into the cell he was beaten. He was held there for a few days (maybe two or three) and was beaten by several people in addition to being beaten by people held in the cell.
The applicant confirmed that “as far he remembers” he was arrested once and stated that he can only tell me what he remembers.
I put information to him under the provisions Section 424AA. I explained that when put to him he did not need to respond immediately and that he could seek additional time to do so by having an adjournment or responding in writing after the hearing. I explained to him that the information I was about to put to him could be the reason of part of the reason I affirm the Department’s decision. I also explained to him that his oral evidence is inconsistent with his written claims and the fact this inconsistency may lead me to think his claims have been fabricated.
The information put to the applicant is that in his application he claimed that “in December 2007 he was arrested and detained for four days for attending a demonstration and that in February 2009 he attended another demonstration and this time he was arrested and detained for 7 days”. I told the applicant that in his oral evidence he said that he remembers being arrested once for a few days. I put to the applicant if he had been arrested twice I would expect he would remember that.
The applicant chose to respond stating that he was only providing the big picture, of what he can remember. He stated he didn’t study before the hearing and so he can only tell me what he can remember. I asked him what he was referring to about studying. He replied that when his application was rejected by email he couldn’t study. I told the applicant that it was not a matter of lining up his responses to what was in a document and that when a person has an experience they usually remember what occurred at least in broad terms; for example, like the number of times they were arrested.

I do not accept the applicant’s explanation that he provided inconsistent evidence regarding the number of times he had been arrested because he was only providing the big picture of what he can remember. However, the fact of the applicant stating that he had not have studied the Department’s Decision Record before the hearing implied to me that he was saying that his evidence was inconsistent because he had not reviewed the Department’s Decision Record. This raised concerns for me that his evidence was inconsistent regarding his claims not because he could not remember what had occurred, but rather because he could not recall the details of what he had claimed. For this reason, it raised a concern that his claims of participating in demonstrations and being arrested were fabricated for the purposes of his application and that he had not actually experienced the claimed harm.
The applicant stated that he is staying here because he wants to avoid going back if he can.
I asked the applicant what his actual fear of harm from the Indonesian authorities is. He responded that it is because he is part of a minority. He stated that he does not know what will happen if he returns. He stated that Pontianak is a small town. I put it to the applicant that what he was outlining was very generic. He responded that he does not know what will happen: in his words ‘anything and everything could happen’. The applicant stated he held these concerns because of his Chinese ethnicity.
I referred to the 2023 DFAT Country Information Report on Indonesia and put to him the italicised parts of the relevant section contained in that report:
Ethnically Chinese Indonesians
3.6 Successive waves of immigration to Indonesia from China have resulted in well-established ethnically Chinese Indonesian communities throughout the country. Many Chinese Indonesians can trace their history in Indonesia back many generations, may no longer identify as Chinese, and may not speak a Chinese language. Most Chinese Indonesians belong to a religious minority, either Buddhism or a Christian denomination.
3.7 The Suharto-era New Order regime implemented a range of discriminatory measures, prohibiting Chinese language newspapers, schools and cultural expression and requiring Indonesian names. Violence and looting targeting Chinese Indonesians and their homes and businesses peaked during the Asian Financial Crisis (see Recent History). Since the end of the New Order regime in 1998, successive governments have removed official policy measures discriminating against ethnically Chinese Indonesians. Chinese New Year is a national public holiday, Confucianism is an officially recognised religion, Chinese-language newspapers are published, and there are no barriers to Chinese cultural celebrations or education.
3.8 Hundreds of thousands of protesters demonstrated in Jakarta on several occasions in 2016 to demand the detention of the Christian and Chinese-Indonesian Governor of Jakarta, Basuki Tjahaja Purnama (often referred to as ‘Ahok’), after he was arrested for allegedly insulting Islam. Violence between protesters and police was reported, but not violence against ordinary citizens, as occurred in 1998.
3.9 Chinese Indonesians experience societal discrimination in the form of negative stereotypes that portray them as greedy, as criminals or as being associated with China and its policies. Discrimination of this type increased around the outbreak of the COVID-19 pandemic due to the extensive media coverage of China and various claims about the origins of the virus at the time.
3.10 Risk of societal discrimination against Chinese Indonesians depends on individual circumstances. Individuals with wealth are less affected; they can use their wealth and connections with powerful people to protect themselves. Many Chinese Indonesians work in family businesses or within their own ethnic community, which reduces the chances of discrimination at work. Those without such networks or wealth would be more at risk of discrimination, but that applies to all Indonesians, not just Chinese Indonesians.
3.11 Memories of the 1998 violence and 2016 protests are still fresh in the memories of many ethnically Chinese Indonesians. Some jealousy of perceived wealth can lead to threats and some Chinese Indonesians keep a low profile as a result. Anti-minority sentiment is also heightened during election campaigns. Violence has occurred in the past but is not an everyday experience for Chinese Indonesians.
3.12 DFAT assesses that Chinese Indonesians currently face a low risk of societal violence and a moderate risk of low-level societal discrimination. DFAT is not aware of official discrimination against Chinese Indonesians”.
In response the applicant stated that in practice this is not 100% true and that the situation is different. He stated that that of course the minority is treated differently to what is in the news. He referred to what happened to former Governor ‘Ahok”. I acknowledged there were accusations made against ‘Ahok’ in 2016 and asked how it impacted on him. He responded that it is evidence that if it happens to important people it can happen to little people.
I explained that I would consider if he is at risk of serious or significant harm for reasons related to his Chinese ethnicity and that I would be reliant on DFAT report as a source of independent country information.
In relation to my further questioning as to whether he suffered any other harm due to his Chinese ethnicity, he stated that he lived in a native majority area and was automatically ignored when he was young. When asked if there was anything else, he told the hearing that his father wanted to build a house and had the necessary certificates, but the local people wanted to demolish it and it is evidence that they are racist.
I referred again to the final paragraph of the DFAT report referred to above and told him that I accept there is low risk of societal violence and a moderate risk of low-level of social discrimination and that I would consider his claims in that context.
I referred to the applicant’s written application in which he claimed the government wants to arrest him because he attended a demonstration in either 2007 or 2008 or 2009. He responded that he does not know what will happen when he returns. I asked him if there was any objective reason he believes the government will want to arrest him now given the passage of time. He responded that he does not know what will happen.
I referred to the fact that he did not to lodge his protection application until August 2015 although he first came to Australia in 2009 and that this suggests to me that he was not concerned about the claimed harm until after his Student visa was cancelled. In response, he stated he did not know about protection until he found out from friends and then he applied.
I explained to the applicant that I would consider his claims and evidence and his response to the concerns I had put to him.

FINDINGS

When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all their claims. However, in this case, and for the reasons outlined below, the Tribunal finds that the written claims were not diligently or conscientiously submitted, and the applicant’s oral evidence did not add credibility to his claims.
In assessing the applicant’s case the Tribunal found the claims for protection in Australia suffered due to inconsistencies and a lack of detail in his evidence. The applicant’s claims in his application for protection submitted to the Department were vague and as a result, the Tribunal’s attempt to elicit more information during the hearing.
The applicant was only able to give an outline of his claims in very generalized terms including about his interest in anti-corruption as an important issue that would spur him to attend demonstrations, the basis on which he decided to attend the particular demonstrations given they were two to three hours bike ride away from home and the poor level of specificity in relation to when he attended the demonstrations and where they were held have all lead me to have doubts regarding the veracity of his claims. While I do not expect an applicant to necessarily specify a particular date nor address for when and where the demonstrations were held it is reasonable to expect an applicant would be able to specify a year or even more detail about when the demonstrations they attended were held especially given claims of being arrested. My attempt to prompt him by considering other events that may have been occurring in his life at that time in order for him to provide a more accurate sense of timing and location was not successful.
On balance, the applicant’s evidence did not impress the Tribunal as being sufficiently detailed as could be expected from a person who had actually been through the process of attending a number of demonstrations and being arrested and beaten.
Furthermore, the fact that the applicant provided inconsistent oral evidence vis-à-vis his written claims regarding the number of times he was arrested raises further doubts regarding the veracity of his claims. His explanation that he told me what he was able to remember when my concern was put to him did not allay that concern. As I explained to him, it can reasonably be anticipated that a person will remember how many times they had been arrested.
Additionally, the applicant’s evidence regarding why he was not provided with an arrest warrant was nonsensical. He stated that it may have been because he was a child. The Tribunal is of the view that it was illogical to claim that he may have be arrested as a child but not given an arrest warrant for being one. Furthermore, the Tribunal notes that having been born in [year]he was either [age or age] years of age at the time of the claimed events, and therefore not a child.
For the reasons outlined, I do not accept that the applicant attended one or more anti-corruption demonstrations in either 2007 or 2008 or 2009 and it follows that I do not accept that he was arrested for doing so nor that he was detained and beaten nor that the Indonesian authorities have any interest in the applicant should he return to Indonesia for any reason related to his claims of attending anti-corruption demonstrations.
In relation to the applicant’s claims of harm regarding his Chinese ethnicity, at hearing the applicant made general claims of having been treated like an outsider and being alienated and being automatically ignored because he lives a majority Islamic country. I am prepared to accept that his may have occurred, but I am not satisfied that such treatment amounts to serious and significant harm.
Despite being asked three times what harm he had experienced in Indonesia related to his Chinese ethnicity he made no reference to the claims in his written application. Nevertheless, I am prepared to accept he was not prepared to bribe a government officer and that this may have led to some sort of difficulty in obtaining a job. I am also prepared to accept that he did not go to university because of discrimination against his Chinese ethnicity but I am not satisfied that either of these two claims meet the threshold of serious and significant harm.
The applicant referred to locals wanting to destroy his father’s house because of his Chinese ethnicity. I have had regard to the fact that the applicant only raised this claim when I had asked him several times to outline incidents of harm he experienced because of his Chinese ethnicity. It appeared to me he was attempting to strengthen his claims for protection after I had raised concerns in relation to other claims he made. In any event, even if I accept such an incident occurred, I am not satisfied that the applicant is a risk of harm for this reason if he were to return to Indonesia.
I do not accept that there is an objective basis to the applicant’s claim that he fears being stabbed should he return to Indonesia. The applicant did not present any evidence that his friend was stabbed because of his Chinese ethnicity nor was I able to identify any evidence that Chinese males in Indonesia are targeted in this way. Therefore, I am not satisfied that there is a real chance or real risk that the applicant will be stabbed should he return to Indonesia.
In relation to the applicant’s more general claims of potential discrimination in the future in the because of his Chinese ethnicity, I accept that this may be the case. In this context, I have had regard to the country information contained in the DFAT report that Chinese Indonesians currently face a low risk of societal violence and a moderate risk of low-level societal discrimination. DFAT is not aware of official discrimination against Chinese Indonesians. However, I do not accept that this risk amounts to serious or significant harm.
In relation to the applicant’s claims that anything or everything could happen should he return to Indonesia, I accept that this is the case. It is also the case if he were to remain in Australia. I find that this claim is of such a generalised nature that it was not possible for me to assess for the purpose of the applicant’s Protection visa application.
Considering the totality of the information and evidence made available by the applicant the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm for reasons of race, religion, nationality, membership of a particular social group or political opinion, either now or in the reasonably foreseeable future, if she returns to Indonesia. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in Indonesia. Therefore, he does not satisfy the criterion at s.36(2)(a) of the Act.
The Tribunal has also considered the alternative criteria in s.36(2)(a)(a) of the Act. For the same reasons already articulated, the Tribunal is not satisfied that the available evidence supports that there are substantial grounds for believing that, as are necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia, there is a real risk that he would suffer significant harm in the form of, arbitrary deprivation of life, or the death penalty being carried out, or torture, or cruel or inhuman treatment or punishment, or degrading treatment or punishment. Therefore, the applicant has not satisfied the requirements s.36(2)(a)(a) of the Act.
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

DECISION

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

Linda Holub
Member

ATTACHMENT - Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a pon:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:

(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H Meaning of refugee

For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J Meaning of well-founded fear of persecution

For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures

For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

Protection visas – criteria provided for by this Act

…

A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 1319

25 January 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness