1732727 (Refugee)

1732727 (Refugee) [2023] AATA 4779 (21 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICATIONS FOR REVIEW:               Applications for review of two separate decisions made by delegates of the Minister for Home Affairs to refuse to grant the applicants a Protection XA subclass 866 Visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’)
APPLICANTS’ REPRESENTATIVE:        Unrepresented
CASE NUMBERS:  1732727 + 2101507
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Kate Chapple
DATE:21 November 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the primary applicant and husband a protection visa.
The Tribunal affirms the decision not to grant the son a protection visa.

Statement made on 21 November 2023 at 12:37pm
CATCHWORDS
REFUGEE – protection visa –Indonesia – loan shark debt – older brother fraudulently borrowed money from a non-bank lender – no prior knowledge or consent of debt –
liable for the repayment of borrowed money – claims of threats and intimidation to pay back loan – interfaith marriage – Muslim and Hindu – husband claims intimidation and mistreatment from applicant’s family – fabricated claims – evidence not credible – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5 (1), 5H, 5J, 5K-LA, 36, 65, 423A, 499
Migration Regulations 1994 (Cth), 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 dependant.
BACKGROUND

The primary applicant’s husband arrived in Australia [in]April 2014.
The primary applicant last arrived in Australia [in] November 2015.
The primary applicant lodged a protection visa application on 1 February 2016, with her husband named as the other applicant and having no separate protection claims.
The son was born in Australia on[DOB], and has not departed Australia.
Pursuant to Reg 2.08 of the Migration Regulations 1994 (Cth), the son is taken to have applied for a protection visa and the son’s protection visa application is taken to be combined with the primary applicant’s protection visa application. The son has no separate protection claims.
On 15 November 2017, the Minister’s delegate made a decision to refuse to grant the primary applicant and her husband a protection visa.
On 22 December 2017, the primary applicant applied to the Tribunal for review of the delegate’s decision (case number 1732727).
On 14 January 2021, the Minister’s delegate made a decision to refuse to grant the son a protection visa.
On 9 February 2021, the son applied to the Tribunal for review of the delegate’s decision (case number 2101507).
The applicants consented in writing to a combined hearing of the applications for review.
EVIDENCE BEFORE THE TRIBUNAL
Protection visa application
The primary applicant’s protection visa application setting out the following claims (spelling and grammatical errors not corrected):
11.1.[reason primary applicant left Indonesia] Im coming here to seeking protection from Australian authorities and start a new life with my husband. The issues when my brother was borrowing money from some of unregistered company with a large amount to running his business. He use my details as a partner even though he had not seen my family and connect. Im really didn’t know about his borrowed the money with money lending company. He cheated me and my parents. He also doesn’t like my boyfriend who is now my husband. After the debts collectors cannot to reach him and Im as a victim to pay all the debts. He does not pay anything at all. I’ve made a police report about my brother and the debt collectors gang. The police officer have made investigation of all instances that have be fallen to myself. After 2 weeks of the investigations I still don’t get any positive solutions from the police. My brother keep revenge to my husband. The debt collectors gang also sent threatened to my parents. I also was detained by the unknown guys and they want money also should pay all the debts. Everyday we always received some of the death threats. I cannot take all the big risk and threats. The debt collectors cannot find my brother and until now I can’t to contact him. Now we as a victim to pay all the debts. The debt collectors still hunting me wherever I go. I decided to leave my country and not Im stay with my husband and seek protection to get a better life.
11.2.[what primary applicant thinks will happen to her if she returns to Indonesia] If I returned again to my country Im sure my brother and the debt collectors gang still find us because of the debts incurred by my brother and until now I still cannot find him. I am afraid they will threatened me like the situation before this could happened to my parents. The police also not covered me for 24 hours. Im not going back to Indonesia because of this matters and as danger to my family. Now my family stay in other place. I don’t want my family to be a victim of my brother and the debt collectors.
11.3.[harm experienced by primary applicant in Indonesia] Some of the incident we have faced and still traumatic. My brother kidnapped me and try to rapping me. He also sent me to the debt collectors until I’ve ran away from them. I am very afraid until I suffered a mental torture. I was followed by unknown guys who very cruel when Im going back to home. I received threatening letters from the debt collectors to pay the loan immediately. Im threatened for murder and death. My life still in danger.
11.4.[help sought by primary applicant in Indonesia] Im looking some help from the police to my salvation. I make a police report about the incident occurred to myself and my husband. But I know the police never protect me for 24 hours every day. I still feel unsafe wherever I go. I have to protect myself as not to fall a victim to the debt collectors.
11.5.[reason primary applicant did not move to another part of Indonesia] Im not moved out to anywhere else in my country until I decided to leaving my country. Wherever I go they will find me. I should protect myself and my parents too. Im also afraid my brother still keep revenge to my husband and he want to kill him before this. If I try to run away from them I will be killed until we leave our country.
11.6.[reason primary applicant thinks she will be harmed or mistreated if she returns to Indonesia] Im sure the debt collectors would kill me and my parents too if I returned to my country again. I don’t want to be a victim of the cruelty of them while the offence all not arising from me. I became a victim of my brother. They’ll find me wherever I go and Im not going back to my country because I have not been able to solve this problem. This is a big risk for us. They still keep grudged with me and my husband too. The debts still pending and they will be threatened me and whole of my family. I don’t have a choice to leave my country.
11.7.[reason primary applicant thinks the Indonesia authorities can’t and won’t protect her] Im sure that the authorities will not protect me every day. I have to protect myself and decided to runaway from my country and seeking some helping. The police just received my reports and nothing changes and answer I get it to resolved this matters. They just give some protection for a while.
11.8.[reason primary applicant thinks she is unable to relocate within Indonesia] I wont be able to relocate within my country because of this matters. My country will not be liable for anything happened because of this problem to protect me by put some into safety place. I should protect myself even though this problems involves of my life and my parents. Our lives in danger and we should faced the big risk all the time.
Decision records relating to the delegates’ refusal decisions.
Departmental case files.
Internal departmental records relating to the applicants.
Applications for review
The Tribunal wrote to the applicants inviting them to attend a hearing on 20 November 2023 and to provide pre-hearing submissions.
Prior to the hearing, the primary applicant provided to the Tribunal confirmation that she and her husband intended to participate in the hearing without the assistance of an interpreter, and consent in writing to a combined hearing of the applications for review.
The Hearing
The applicants appeared before the Tribunal at a hearing conducted in English via video link on 20 November 2023. The applicants were unrepresented.
Primary applicant’s evidence
The primary applicant gave evidence, summarised by the Tribunal as follows:
18.1.The primary applicant was born in [year] in Mataram on Lombok Island (close to Bali) where she grew up with her parents, two older brothers and younger sister. Her mother died in[year]. Her father was born in [year] and is still alive; he was a government employee before retiring to farm his own rice field. Her sister is a [occupation]employed by a government hospital, and her second brother is a government officer; both are in Jakarta. The older brother doesn’t have a job and she doesn’t know where he is. She is in contact with her sister and father from time to time; they talk on the phone, but she is busy at work, so doesn’t have much time. She obtained [Qualification 1]and now works in that role.
18.2.After finishing school, the primary applicant completed a [Course 1]at the university in her home town. From 2004 to 2009, she worked as a loan officer for[Company 1]. Following that, she worked in [Job 1]for [Company 2], for a year and a half.
18.3.In[year], after her mother died, the primary applicant decided to run her own business so that she didn’t have to report to a boss and work in an office. She sourced and bought [goods]from farmers and sold them into the grocery and export markets. She registered the business with the government as ‘[company name]’, but it took a while to register because she wanted to wait until it was viable. She provided the untranslated certificate of registration to the Tribunal immediately following the hearing. She operated the business from home, being her parents’ home where she and her siblings grew up.
18.4.The primary applicant was the sole owner of the [business]. She employed her older brother to help source [the goods]and farmers and paid him a monthly wage and a bonus if sales went well. She sourced customers and markets for the sale of the [goods]and paid herself from the profits. She isn’t able to provide any other documents to the Tribunal as proof of the business operations.
18.5.The primary applicant met her husband in 2011 through a friend. Her older brother didn’t like him because he is a Muslim and from another part of Indonesia, which is culturally different. Her husband came to Australia in April 2014 because her older brother was threatening him.
18.6.In 2015, a friend of the primary applicant told her that the older brother had in 2014 borrowed money from a third party, not a bank, she doesn’t know who they are. Later in the hearing she referred to them as a loan shark. She confronted her brother. He had put her name on the loan document and used her signature stamp to sign her name. He showed her the loan document: she saw that he had borrowed AUD100000; it said that if the money wasn’t repaid they would do terrible things and take their parents’ house, however the business was listed as collateral. She was very angry with her brother. Soon after he ran away, and she hasn’t seen or spoken to him since. She doesn’t know why he borrowed the money or what he did with it, but thinks he may be a gambler.
18.7.Three or so people visited the primary applicant at the family home sometime in 2015 demanding the repayment of the loan, and asking the whereabouts of her older brother. She told them she had no money to repay the loan and she didn’t know where her brother was. They told her they would harm or kill her if she didn’t repay. They visited on one other occasion when she was home, and on other occasions (she doesn’t know how many) when she wasn’t home and they spoke to her father. She had to tell her father about the older brother borrowing money. She also told her then boyfriend, now husband, and her other brother and sister.
18.8.The Tribunal asked the applicant to describe what else the people did. She said they knocked on the door very hard, spoke in a very rude manner, and were intimidating. They did not harm her.
18.9.The primary applicant went to the police and made a statement. She doesn’t have a copy of the statement; her father moved to a different house closer to his rice field and all her things she left behind would be gone by now. The police said they couldn’t do anything because nothing had happened to her.
18.10.The primary applicant first came to Australia in 1997 during senior school for around one week as part of an extension program. They visited the [a]school.
18.11.The primary applicant didn’t come to Australia with her husband in April 2014 because she thought she had to stay behind in Indonesia and try to sort out the problem caused by her older brother. She couldn’t fix the problem so decided to come to Australia in November 2015. She didn’t tell her family until she had arrived in Australia. She told them she came to Australia for a better life, to be free from fear and away from the people demanding the money.
18.12.The primary applicant and her husband married in January 2016. She applied for protection in February 2016. A Malaysian couple told her they were agents and she should apply for a protection visa because it was scary for her to go back home and she could get work and study rights. They helped her complete the application. She didn’t really know much about it.
18.13.The primary applicant’s father told her that the people demanding the money came looking for her in 2016. The father told them she wasn’t home.
18.14.When the primary applicant talks to her father and sister, they don’t talk about the older brother. She doesn’t know where he is or what he is doing.
18.15.The primary applicant hasn’t been pursued for the repayment of the debt while she’s been in Australia. She is on social media under a different name; she posts food that she has made. Her sister and other brother are on social media too; the older brother isn’t.
18.16.The Tribunal asked the primary applicant what she thinks would happen to her if she returns to Indonesia. She said she is afraid because now she has a son. She doesn’t want the feeling of fear she had years ago, people knowing where she lives. Also, her son doesn’t speak the language; he doesn’t know anything about Indonesia. The police won’t do anything until something happens. The loan sharks can be anywhere, they aren’t a bank. She’s concerned about her son’s future.
Husband’s evidence
The husband gave evidence, summarised by the Tribunal as follows:
19.1.His wife’s older brother threatened him when he was in Indonesia, sent him texts telling him to stay away from his sister. He has come from a strong Muslim background and his wife from Hinduism.
19.2.He came to Australia in 2014 because an agency had promised him he could earn $6,000 per month here. He didn’t want to stay in Indonesia because he didn’t have support from family or community due to his background and religion. He was confused, he wanted to avoid intimidation from the wife’s brother and he wanted to solve her problem in Indonesia; Australia felt safe.
19.3.When he arrived in Australia, he was on a tourist visa, and he realised he couldn’t work. The agent didn’t help. He had AUD9,000 of savings, so he just tried to survive.
19.4.He grew up in Jimbung, which is mostly Muslim. He was part of a chain and supply business in Jakarta; he had to travel to different parts of Indonesia and met his wife when visiting Lombok. Her family weren’t supportive of him because of his different religion and culture.
19.5.His father is the leader of the Muslim community in Jimbung. His brother and sister live in Jakarta. Initially, they didn’t want to talk to him because his wife is from a different religion and culture, but since their son was born, they don’t really care about that. They can’t do anything to him because he is here.
19.6.He thinks the police in Indonesia protect the loan sharks. There’s no evidence until someone is dead.
19.7.He drives his wife to and from work, and his son to and from school. His wife also makes[goods], which he delivers to customers. He does the work around the home and some farming at the friend’s house where they live. He has a diploma in[Course 2]; he would like to get work in[this industry], and for his wife to be sponsored in her [Qualification 1]job.
Country information
Loan shark services are widely available and utilised. In recent years, the use of loan shark services have partly been driven by a rise in online lenders offering small loans at high rates of interest.¹ Loan sharks have much lower lending standards than banks but charge far higher rates of interest.² Borrowing occurs for a variety of reasons, including migration and people smuggling activities.³ Consequences for defaulting on loans can include threats or acts of physical violence, the confiscation of property or the harassment of family, colleagues and friends of the debtor, although credible sources state that violence is generally unlikely.⁴Indonesian authorities have introduced some measures to crack down on loan sharks – such as compulsory government registration for online lenders and the formation of a task force to speed up the processing of complaints received from people suffering abuse and threats – but they nevertheless remain prevalent.⁵ According to the Australian Department of Foreign Affairs and Trade, police periodically target loan shark activities but their effectiveness can be limited by corruption and resourcing constraints.⁶
1 'Fighting Loan Sharks in Indonesia', Bamboo Microcredit, 17 August 2018; ‘’Online loan sharks, see you in the afterlife’: Indonesian taxi driver leaves note before hanging himself over debt’, Coconuts Jakarta, 12 February 2019; ‘Indonesia tightens net on digital loan sharks’, PwC, 29 September 2019
2 'Indonesia's Microfinance Industry Faces Overwhelming Demand', Jakarta Globe, 17 August 2018; ‘Indonesia’s online P2P loan sharks are driving people to suicide’, South China Morning Post, 4 March 2019
3 'DFAT Country Information Report - Indonesia ', Department of Foreign Affairs and Trade, 24 July 2023, sections 3.117, p.25
4 ‘Indonesia’s online P2P loan sharks are driving people to suicide’, South China Morning Post, 4 March 2019; 'Fighting Loan Sharks in Indonesia', Bamboo Microcredit, 17 August 2018; ‘Indonesia tightens net on digital loan sharks’, PwC, 29 September 2019; ‘’Online loan sharks, see you in the afterlife’: Indonesian taxi driver leaves note before hanging himself over debt’, Coconuts Jakarta, 12 February 2019
5 ‘’Online loan sharks, see you in the afterlife’: Indonesian taxi driver leaves note before hanging himself over debt’, Coconuts Jakarta, 12 February 2019; ‘Indonesia tightens net on digital loan sharks’, PwC, 29 September 2019; ‘Indonesia’s online P2P loan sharks are driving people to suicide’, South China Morning Post, 4 March 2019; 'Police get expertise help to crack down on online loan sharks', The Jakarta Post, 14 August 2019
6 'DFAT Country Information Report - Indonesia ', Department of Foreign Affairs and Trade, 24 July 2023, sections 3.118, p.25
Indonesia has a diverse religious population. The most recent census date from 2010 shows that Muslims comprise 87.2 percent of the population, Protestant 7 percent, Roman Catholic 2.9, Hindu 1.7, Confucianism .05, and other religion 1.3.⁷ The large majority of the Muslim population are Sunni whereas there is an estimated one to five million Shia and between 200.000 and 500,000 Ahmadis.⁸
7 '2022 Report on International Religious Freedom: Indonesia', US Department of State, 15 May 2023, section I, pp.2-3
8 '2022 Report on International Religious Freedom: Indonesia', US Department of State, 15 May 2023, section I, p.3

The Constitution provides religious freedoms. Indonesia’s Constitution guarantees citizens the right to practice a religion of their own choice and states that freedom of religion is a human right that cannot be restricted.⁹ Furthermore, the Constitution guarantees everyone the right to worship their chosen religion and that religion should not be discriminated against.¹⁰ The Constitution also state that citizens must adhere to any legal restrictions that safeguard religious values, morality, security and public order. The law prohibits citizens from exercising their rights if infringing on the rights of others, compromising moral standards of religious values or security and public order.¹¹
9 '2022 Report on International Religious Freedom: Indonesia', US Department of State, 15 May 2023, section I, p.3
10 '2022 Report on International Religious Freedom: Indonesia', US Department of State, 15 May 2023, section I, pp.3-4
11 '2022 Report on International Religious Freedom: Indonesia', US Department of State, 15 May 2023, section I, p.4
Interfaith marriages are permitted. The law contains provisions on interfaith marriage that are sometimes interpreted to forbid certain interfaith marriages despite a 1986 Supreme Court decision that specifically allows interfaith marriages.¹² A 2005 fatwa forbids interfaith marriages.¹³ Because certain religious teachings forbid interfaith marriage, some groups and government officials have held that there cannot be interfaith marriages if one of the religions specifically forbids interfaith marriages.¹⁴ Interreligious marriages can be difficult unless one party to the marriage is willing to marry according to the religious rituals of the partner’s religion.¹⁵ Many interfaith couples marry abroad in less restrictive countries.¹⁶ The 2010 Census recorded fewer than 230,000 married couples who had different religions and lived in the same household, accounting for 0.5 per cent of all married couples.¹⁷ According to some reports, the introduction and strengthening of barriers against interfaith marriage is making it increasingly difficult for individuals to marry across religious boundaries.¹⁸
12 '2022 Report on International Religious Freedom: Indonesia', US Department of State, 15 May 2023, section II, p.8
13 '2022 Report on International Religious Freedom: Indonesia', US Department of State, 15 May 2023, p.8, 20230516094331
14 '2022 Report on International Religious Freedom: Indonesia', US Department of State, 15 May 2023, p.9, 20230516094331
15 '2022 Report on International Religious Freedom: Indonesia', US Department of State, 15 May 2023, p.9, 20230516094331
16 '2022 Report on International Religious Freedom: Indonesia', US Department of State, 15 May 2023, p.9, 20230516094331; ‘Contemporary Indonesian marriage: who marries whom and why it matters’, Indonesia at Melbourne, 5 November 2019, 20201214143150
17 ‘Contemporary Indonesian marriage: who marries whom and why it matters’, Indonesia at Melbourne, 5 November 2019, 20201214143150
18 ‘Contemporary Indonesian marriage: who marries whom and why it matters’, Indonesia at Melbourne, 5 November 2019, 20201214143150
The DFAT Country Information Report for Indonesia dated 24 July 2023 provides (inter alia) that:
24.1.[3.4] People from different ethnicities and different parts of Indonesia are often visibly distinguishable by body and facial features, skin tone, or are recognisable by their name. Low-level ethnic discrimination, like stereotypes and the use of racist slurs, occurs in Indonesia, as in other parts of the world. Non-Javanese are worse affected, but ethnic chauvinism occurs among members of all ethnic groups.
24.2.[3.5] DFAT is not aware of a pattern of incidents of official discrimination based on race or ethnicity.
24.3.[3.19] Indonesia is officially a religiously pluralist state. The constitution guarantees freedom of religion subject to restrictions in the interests of morality, religious values, security and public order. Major religions generally have good relationships with each other and with government authorities at an institutional level, but this differs for smaller religions and between individual religious communities.
24.4.[3.54] DFAT assesses that Hindus living in Bali do not face societal discrimination or violence based on their religion. Hindus living in other parts of the country where they are a small minority may face low-level societal discrimination. DFAT is not aware of reports of official discrimination against Hindus.
24.5.[3.116] Usury occurs in Indonesia, but it is mostly a hidden crime. Online lenders have grown in popularity and money can be lent from outfits based overseas. DFAT is aware of media reports of those who have borrowed money being harassed by debt collectors, which in some cases has led to suicide. Harassment can take the form of threats of violence or blackmail.
24.6.[3.118] Police occasionally target usurious lenders, including online lenders, however police protection should not be assumed. Police corruption and lack of resources may act as barriers to seeking police assistance.
24.7.[3.119] Loan sharking, especially using technology, is not uncommon, however little information about the practice is publicly available, and many Indonesians avoid talking about it due to shame or fear. There is a potential for violence from debt collectors contracted by loan sharks, even if the money originated overseas, however it is difficult to assess generally whether harm would come to borrowers, and outcomes differ from case to case.
24.8.[5.2] Bribes can be demanded for relatively minor offences, or at traffic stops, and also in relation to criminal investigations, for example to commence an investigation or to make a particular finding. Bribes can change police outcomes in favour of the person giving the bribe. While interactions with police differ from case to case, police are generally effective at detecting and investigating crime.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal notes that s 5AAA(2) of the Act provides that it is the applicant’s responsibility to specify all particulars of his protection claim and to provide sufficient evidence to establish the claim.
In considering the applicant’s claims and evidence, the Tribunal has taken account of the Department of Home Affairs ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’, and the country information set out in this decision record.
Further, the Tribunal has made an assessment of the credibility of the applicant’s claims and evidence having regard to the Migration and Refugee Division Guidelines on the Assessment of Credibility.
In particular, the Tribunal notes the following guidelines:
28.1.[8] The process of determining whether an applicant meets a visa criterion, including whether an applicant is a person who meets the definition of a refugee, often requires the tribunal to decide whether it accepts certain evidence and how much weight to give to that evidence. This process may involve assessing the credibility of an applicant or other persons and documentary evidence.
28.2.[12] The tribunal considers all the material before it and is not restricted to claims and evidence considered by the primary decision-maker. If the review applicant raises new claims or presents material for the first time to the tribunal, the tribunal will consider the credibility of what has been provided, including any reasons for why it was not provided earlier in the application process. There may be good reasons why new information or claims are presented by applicants at a later stage in the application process. These reasons may include stress, anxiety, inadequate immigration advice and uncertainty about the relevance of certain information to an applicant’s claims.
Primary applicant’s evidence
The Tribunal considers the primary applicant’s account of her experiences in Indonesia credible overall.
The Tribunal notes the country information reports that:
30.1.There is a prevalence of loan sharks in Indonesia and their services are widely used.
30.2.Consequences for defaulting on loans can include threats or acts of physical violence, the confiscation of property or the harassment of family, colleagues and friends of the debtor, although credible sources state that violence is generally unlikely.
30.3.Police periodically target loan shark activities but their effectiveness can be limited by corruption and resourcing constraints.
The Tribunal notes the copy of the untranslated document provided by the primary applicant to the Tribunal as evidence of the registration of the business called ‘[name]’ in the name of the primary applicant. The Tribunal considers it is reasonable to conclude on the face of the document that the business was registered on 2 December 2014 and the registration was due for renewal on 10 December 2017.
The Tribunal accepts that the primary applicant was the sole owner of a [goods]trading business called ‘[name]’.
The Tribunal notes the primary applicant’s evidence that she saw the loan document, but does not have a copy of the document. The Tribunal further notes the primary applicant’s evidence that the loan amount was AUD100000 and the business was collateral security, but she was otherwise vague about the details of the loan.
The Tribunal considers it is likely the primary applicant’s older brother borrowed money from a non-bank lender in Indonesia, likely to be a loan shark, and fraudulently, without the primary applicant’s prior knowledge or consent, made her to some extent liable for the repayment of the money.
The Tribunal accepts the primary applicant’s older brother absconded sometime in 2015 to avoid having to repay the money, and the primary applicant has not had contact with him since.
The Tribunal accepts that people visited the primary applicant at the family home on two occasions demanding the repayment of money and the whereabouts of her older brother while speaking and acting in an intimidatory manner.
The Tribunal considers it is possible that the same people, or their associates, visited the family home when the primary applicant wasn’t there and engaged somehow with her father, however the Tribunal notes the primary applicant’s evidence in this regard is vague and inconclusive.
The Tribunal accepts that at some stage the primary applicant reported in some way to police the encounters with the people demanding the repayment of money.
The Tribunal considers it is possible the police did not act on the primary applicant’s report.
The Tribunal notes that the primary applicant’s evidence that the people demanding the repayment of money did not harm her.
The Tribunal notes that when asked to explain what else the people did, the primary applicant said only that they knocked on the door very hard, spoke in a very rude manner, and were intimidating.
The Tribunal notes the primary applicant’s written claims in the protection visa application, in particular (in her words):
42.1.I was detained by the unknown guys.
42.2.Everyday we always received some of the death threats.
42.3.My brother kidnapped me and try to rapping [sic] me.
42.4.I was followed by unknown guys who very cruel when I’m going back to home.
42.5.I received threatening letters from the debt collectors to pay the loan immediately.
42.6.I should protect myself and my parents too.
The Tribunal notes that when the primary applicant was invited to give more detail, she did not make these claims in her oral evidence. The Tribunal further notes the primary applicant’s evidence that her mother died in 2010, and therefore only her father could have been alive at the time the people were demanding the repayment of money.
The Tribunal considers that the primary applicant made these claims in her protection visa application, perhaps with the encouragement and assistance of the Malaysia couple, to fabricate threats and harm experienced by her in Indonesia.
The Tribunal considers these claims do not accord with the primary applicant’s evidence and are not credible.
The Tribunal notes the primary applicant’s evidence that during her conversations with her father and sister since she’s been in Australia, they have not told her of any problems with the people demanding the repayment of money, other than her father telling her that they visited the family home sometime in 2016 looking for her. The Tribunal further notes the applicant’s evidence that her father is no longer living in the family home; he is living elsewhere, closer to his[work place].
The Tribunal accepts the primary applicant fears returning to Indonesia, however considers that her fear relates primarily to returning to a country she is no longer connected to, with her son who has never lived there, and forgoing the benefits of life and work in Australia, which she has enjoyed for 8 years, rather than to harm from the people who previously demanded the repayment of money.
The Tribunal considers that if the primary applicant returns to Indonesia, it is possible the people who previously demanded the repayment of money would try to find her and renew their demands, meanwhile noting that it has been 8 years, a significant period, since the primary applicant left Indonesia, that her father is no longer living in the former family home where the people visited the primary applicant, and that it would therefore be necessary for the primary applicant to settle at a different location likely to be unknown to the people.
The Tribunal considers that, whilst the effectiveness of the Indonesian police can be limited, it is open to the primary applicant to seek assistance and protection from police in the event that renewed demands were made on her for the repayment of money.
In these circumstances, the Tribunal considers it is unlikely the primary applicant would face targeted harm or other significant harm as a result of the non-repayment of money such as to engage Australia’s protection obligations.
Husband’s evidence
The Tribunal notes the hearing was conducted via video link between the applicants’ home and a Brisbane Registry hearing room. The Tribunal further notes the husband was proximate to the primary applicant when she gave evidence, and likely to have heard her evidence.
The Tribunal notes the husband’s evidence that his wife’s family and the community didn’t accept him because he is Muslim and therefore of a different religion and culture (from Hindus on Lombok), and that he was treated badly by her older brother who intimidated him and told him to stay away. The Tribunal further notes he wanted to avoid the intimidation and Australia felt safe.
The Tribunal notes the husband did not make his own claims in the protection visa application, rather he relied on the primary applicant’s claims. The Tribunal considers however this to be a new claim by the husband requiring the Tribunal’s consideration.
The Tribunal is prepared to accept the assertions that the primary applicant’s older brother felt animus towards the husband on the basis that this is within the range of experience of most families of all religions and cultures, however there is no credible evidence before the Tribunal to establish the reason for the animus or of any harm occasioned to the husband.
The Tribunal notes the primary applicant’s evidence that she has not seen or spoken to her older brother since 2015, and is not aware of his current whereabouts. The Tribunal considers it is reasonable to assume that the husband has not had contact with the older brother since he came to Australia in April 2014 and also is not aware of his current whereabouts.
The Tribunal considers there is no credible evidence before it of mistreatment of the husband by other members of the primary applicant’s family or the community more broadly.
The Tribunal notes the country information reports that Muslims comprise a significant proportion of Indonesian society and the Constitution guarantees religious freedom without discrimination. The Tribunal further notes it is possible interfaith marriages are forbidden in some circumstances, and many interfaith couples marry abroad in less restrictive countries.
The Tribunal notes there is no evidence before it of specific prohibitions on marriages between a Muslim and Hindu. The Tribunal notes in any event that the primary applicant and her husband married in Australia in January 2016.
The Tribunal considers that if the husband returns to Indonesia it is unlikely he would face targeted harm or other significant harm as a result of his religion and culture such as to engage Australia’s protection obligations.
The Tribunal notes the provisions of s 423A of the Act. The Tribunal considers there is no credible evidence before it providing a reasonable explanation as to why the husband’s claim was not raised before the primary refusal decision was made.
The Tribunal considers that, whilst it has addressed the husband’s claim in the preceding paragraphs, it is any event bound by s 423A of the Act to draw an inference unfavourable to the credibility of the claim.
Application of law
The issue in this case is whether the primary applicant and husband meet the refugee criterion, and if not, whether they are entitled to complementary protection. Attachment A sets out the applicable law.
The Tribunal finds that:
63.1.The primary applicant is a citizen of Indonesia.
63.2.The husband is a citizen of Indonesia.
63.3.The husband and the son are members of the same family unit as the primary applicant.
63.4.The primary applicant and the husband have no credible claims for protection under the refugee or complementary protection criteria set out in the applicable law.
63.5.If the primary applicant is returned to Indonesia, there is no real chance that she would be persecuted, and accordingly the primary applicant does not have a ‘well-founded fear of persecution’ as required by s 5H(1)(a) of the Act and as defined in s 5J(1) of the Act.
63.6.If the husband is returned to Indonesia, there is no real chance that he would be persecuted, and accordingly the husband does not have a ‘well-founded fear of persecution’ as required by s 5H(1)(a) of the Act and as defined in s 5J(1) of the Act.
63.7.There do not exist substantial grounds for believing that as a necessary and foreseeable consequence of the primary applicant being removed from Australia to Indonesia there is a real risk she will suffer significant harm.
63.8.There do not exist substantial grounds for believing that as a necessary and foreseeable consequence of the husband being removed from Australia to Indonesia there is a real risk he will suffer significant harm.
CONCLUSIONS
The Tribunal is not satisfied the primary applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
The Tribunal is not satisfied the husband is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Having concluded the primary applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) of the Act. The Tribunal is not satisfied the primary applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Having concluded the husband does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) of the Act. The Tribunal is not satisfied the husband is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Having concluded the primary applicant does not satisfy the criteria in s 36(2)(a) or (aa) of the Act, accordingly, the husband and the son do not satisfy the criterion in s 36(2)(b) or (c) of the Act.
Having concluded the husband does not satisfy the criteria in s 36(2)(a) or (aa) of the Act, accordingly, the primary applicant and the son do not satisfy the criterion in s 36(2)(b) or (c) of the Act.

There is no evidence before the Tribunal that suggests the primary applicant or the husband satisfies s 36(2)(b) or (c) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the primary applicant and the husband do not satisfy the criterion in s 36(2)(b) or (c) of the Act.
DECISION
The Tribunal affirms the decision not to grant the primary applicant and husband a protection visa.
The Tribunal affirms the decision not to grant the son a protection visa.
Kate Chapple
Member

ATTACHMENT A
Summary of applicable law
The criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA.
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).
Relevant extracts from Migration Act 1958
5 (1) Interpretation
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
36     Protection visas – criteria provided for by this Act
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

[2023] AATA 4779

21 November 2023

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