1801896 (Refugee)

1801896 (Refugee) [2024] AATA 1242 (17 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1801896
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Mark Oakman
DATE:17 April 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 April 2024 at 4:00pm
CATCHWORDS
REFUGEE – protection visa – Indonesia – protested against drug gangs and police corruption – arrested, beaten, harassed and threatened – multiple returns after working in other countries and no contact with gangs since then – some discrepancies and embellishment of claims and evidence – witnesses have no first-hand knowledge of events – country information – freedom of assembly – protests against corruption common and usually peaceful – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 January 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Indonesia, applied for the visa on 27 March 2017. The delegate refused to grant the visa on the basis that he is not a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 26 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Receiving Country
The applicant provided a copy of his Indonesian passport. He stated in his protection visa application that he was a citizen of Indonesia and confirmed the same at the hearing. Based on that documentary and oral evidence, I accept that the applicant is a national of Indonesia. Indonesia is the receiving country for the purpose of this assessment.
Migration History
The applicant last arrived in Australia [in] February 2017 on a [Specified] visa. He lodged an application for a protection visa on 27 March 2017.
Background
According to information given by the applicant in his application and at the hearing, he is [Age] years old and was born in Tangerang, Indonesia. From age 12 he lived in Bali until he started working on [Workplaces 1]. He married in [Year] and divorced in [Year]. He has [children], [Age] years old, they live with their mother in Bali. His mother is deceased. His father and stepmother live in Bali. He also has a younger brother who is [Age] years old. He is Indonesian / Balinese and Hindu. He speaks, reads, and writes Indonesian and English. He attended school in Indonesia, completing senior high school ([Years]). He completed a Diploma in [Subject] (2006-2007) at college in Indonesia. In Indonesia he worked as [an Occupation 1] in [Workplaces 2-4] in Bali (2006-2012). He then worked as an assistant [Occupation 1] on [Workplaces 1] for two different [Employers] (2012-2017). In Australia he has worked as [an Occupation 2] (2017-2019), [an Occupation 3] (2019-2021) and now as [an Occupation 4] (since 2021).
Evidence before the Department
In the protection visa application lodged 27 March 2017, the applicant made the following claims (Part C, Q88-96):
·I am seeking protection in Australia so that I do not have to return to – Indonesia.
·Why did you leave that country? – I left Indonesia because I was persecuted by Indonesia government. I studied [Subject] and always worked in [Industry 1]. Indonesian police officials are corrupted in Bali where a lot of tourists are. Gangs bribed police officials so they get protection when selling drugs. we always have lot of problems in Bali’s hotels and bars because of drugs. Some of my friends and I wanted our government to change. We wanted the corruption problem get solved. We protested several times around the police station. After the protest in 2012 police arrested me and my friends. Police beat me in police station. They wanted me never protesting again. Local gangs also followed me and threatened me after I was released. I was so scared that I have to leave. I found a job on [Workplace 1]. Every time I returned home for holiday, police and gangs harassed me. I can’t live in Indonesia anymore. The corruption is so serious in Indonesia that anyone wanted to change it will get into trouble.
·What do you think will happen to you if you return to that country? – I left Indonesia because I was persecuted by Indonesia government. I studied [Subject] and always worked in [Industry 1]. Indonesian police officials are corrupted in Bali where a lot of tourists are. Gangs bribed police officials so they get protection when selling drugs. we always have lot of problems in Bali’s hotels and bars because of drugs. Some of my friends and I wanted our government to change. We wanted the corruption problem get solved. We protested several times around the police station. After the protest in 2012 police arrested me and my friends. Police beat me in police station. They wanted me never protesting again. Local gangs also followed me and threatened me after I was released. I was so scared that I have to leave. I found a job on [Workplace 1]. Every time I returned home for holiday, police and gangs harassed me. I can’t live in Indonesia anymore. The corruption is so serious in Indonesia that anyone wanted to change it will get into trouble.
·Did you any experience harm in that country? – Yes (ticked). I was arrested and harmed by Indonesian police.
·Did you seek help within the country after the harm? – No (ticked). Authorities are corrupted. They wont help.
·Did you move or try to move to another part of the country to seek safety? – Yes (ticked). There is no safe place for me to live in Indonesia.
·Do you think you will be harmed or mistreated if you return to the county? – Yes (ticked). I left Indonesia because I was persecuted by Indonesia government. I studied [Subject] and always worked in [Industry 1]. Indonesian police officials are corrupted in Bali where a lot of tourists are. Gangs bribed police officials so they get protection when selling drugs. we always have lot of problems in Bali’s hotels and bars because of drugs. Some of my friends and I wanted our government to change. We wanted the corruption problem get solved. We protested several times around the police station. After the protest in 2012 police arrested me and my friends. Police beat me in police station. They wanted me never protesting again. Local gangs also followed me and threatened me after I was released. I was so scared that I have to leave. I found a job on [Workplace 1]. Every time I returned home for holiday, police and gangs harassed me. I can’t live in Indonesia anymore. The corruption is so serious in Indonesia that anyone wanted to change it will get into trouble.
·Do you think the authorities of that country can and will protect you if you return? – No (ticked). Authorities are corrupted. They won’t protect me.
·Do you think you would be able to relocate within that country? – No (ticked). There is no safe place for me to live in Indonesia.
The applicant was not invited to an interview with the delegate.
Evidence before the Tribunal
The applicant lodged his application for review with the Tribunal on 24 January 2018 in relation to the refusal to grant his protection visa.
On 5 February 2024, the applicant emailed the Tribunal a completed pre-hearing information form and two witness statements. The statements were dated 2 February 2024 and were from ‘Mr A’ and ‘Mr B’.
In his statement, Mr A said:
·I know my friend since past 10 years.
·The illegal drugs are prohibited in Indonesia and possessing or dealing in drugs entailed huge fines and imprisonment even capital punishment.
·I am from Java but my wife is from Bali and we have seen and experienced first hand how the illicit drug trafficking and business is huge and considered very lucrative in Bali. Many of my friends have been drawn into the business due to its nature and incentives they get from selling the drugs especially to tourists from Australia and other European countries, as they pay very good money for that.
·This drug dealing is only possible with having some big connections in the higher places.
·These black sheeps in the government departments give Bali a bad rap.
·It is very dangerous to stand up and voice against this business and one would be considered crazy to do so. Balinese people are very friendly and gentle in their nature.
·[The applicant] has always been upright, brave and vocal about the evils in the society as far as I know him.
·He made a group of liked minded youngsters and start voicing against the illicit drugs business.
·He successfully did a demonstration against the corruption and the drug mafia.
·After that he got beaten up a few times for doing it, so much so his family asked him to leave the place for sometimes as they feared for his safety.
·He got a job at the [Workplace 1] and it was all good for a while.
·However, every time he goes back home, he will get death threats.
·Eventually he lodged his protection visa in Australia so he can live his life peacefully.
·[The applicant] is a very responsible and good natured human being who believes in hard work, doing good deed and karma.
·Unfortunately due to his principles and morals, he had to leave his home country, his family and live in unpredictable circumstances in Australia and that has also affected his personal life drastically.
·I request that you grant him a visa so he can focus on his life and contribute to Australia as a responsible citizen. Please do not hesitate to contact me if you want to inquire about this further.
In his statement Mr B said:
·I know my nephew since his birth [date in year]
·The illegal drugs are prohibited in Indonesia and possessing or dealing in drugs entailed huge fines and imprisonment even capital punishment
·However due to huge demand and tourist influx, in Bali drug culture in very strong.
·There are big mafias with connections to the government backing up the drug business.
·It is very difficult and dangerous to stand up and voice against this business.
·[The applicant] has always been upright and vocal about the evils in the society since he was very young.
·He made a group of liked minded youngsters and start voicing against this evil business.
·He successfully did a demonstration against corruption and the drug mafia.
·After that he got beaten up a few times for doing it, so much so his family asked him to leave the place for sometimes as they feared for his safety.
·He got a job at the [Workplace 1] and it was all good for a while.
·However, every time he goes back home, he will get death threats.
·Eventually he lodged his protection visa in Australia so he can live his life peacefully.
·[The applicant] is a very responsible and good natured human being who believes in hard work, doing good deeds and karma.
·Please do not hesitate to contact me if you want to inquire about this further.
On 9 February 2024, the applicant emailed the Tribunal copies of the Department’s bridging visa grant letter dated 31 January 2017, the Department’s notification of refusal of protection visa application letter dated 2 January 2018 and the delegate’s decision record dated 2 January 2018. He also provided further copies of the material he provided in his email of 5 February 2024.
The applicant appeared before the Tribunal in person on 26 February 2024 to give evidence and present arguments. The applicant had requested an interpreter in the Indonesian language and the Tribunal arranged for an Indonesian interpreter to attend the hearing. At the commencement of the hearing the applicant advised that he was generally capable of participating in the hearing using the English language. The Tribunal encouraged the applicant to rely upon the interpreter at any stage he did not understand the Tribunal’s questions or wished to convey his responses through the interpreter using the Indonesian language rather than speaking with the Tribunal directly in the English language. In the event, on occasions the applicant used the services of the interpreter during the hearing and the Tribunal elected to direct some questions to the applicant through the interpreter. Where relevant, the applicant’s oral evidence at the hearing is referred to in my analysis below.
The applicant also provided a range of documents at the start of the hearing on 26 February 2024 as follows:
·Further copies of the Department’s notification of refusal of protection visa application letter dated 2 January 2018 and the delegate’s decision record dated 2 January 2018.
·Passport copies.
·Media articles ranging in dates from 12 October 2016 to 13 January 2024, in Indonesian (with no accompanying English translations).
·Media article dated 9 May 2023, ‘Police General Teddy Minahasa Sentenced to Life Over Drug Scheme’, in English.
·Media article dated 21 May 2015, ‘[Title]’, in English.
·Copies of the applicant’s pay slips.
·Photo images from 22 May 2018.
At the end of the hearing, the Tribunal asked the applicant if he required any additional time to provide other documents or material to support his case, including any translations into English of the media articles that were not in English (having earlier been informed that any documents not in English needed to be translated for the Tribunal to consider them). He said he had nothing further to provide and no additional material was received from the applicant as at the date of this decision.
Analysis, reasons, and findings
The applicant said at the hearing that he left Indonesia because of the problems he faced because of his involvement in demonstrations against drugs and corrupt police in Bali in 2006, 2011, and 2012, including being arrested by the police in 2012. After the 2012 arrest he felt threatened by the drug gangs and the police, so he went to work on [Workplaces 1]. While he worked on the [Workplaces] between 2012 and 2017, he returned to Bali five times, going there basically once a year for about three months to visit his family who were living in a named area in a rented unit. In 2016 when back in Bali he participated in another demonstration, this time in support of a newly appointed Inspector General of Police who was against drugs. At that time, he really got threatened by the drug gangs, his family told him to move overseas, so he decided to come to Australia. He confirmed that he did not leave Indonesia for any other reasons. He fears to return to Indonesia because he feels unsafe, it’s dangerous, maybe they will threaten him again, he had an impact on their drug business because they lost the business from the club from that time. He confirmed he had no fears, if he returned to Indonesia, other than those connected to his involvement in demonstrations and the drug gangs.
He said the demonstrations in 2006, 2011, 2012, and 2016 had about, 50, 100+, 100+ and 200+ participants, respectively. From 2006 he, together with about 25-30 others, was involved in giving information about drugs to the local community, mainly youngsters in the local area. None of his relatives were, but some friends, mainly older [Occupation 1]s from work, were involved in the demonstrations. He knew about half the people at the various demonstrations from the community and his work. He was arrested and detained by the police in the 2012 demonstration, which took place outside Kuta police station, because he was considered a provocateur. He was put in jail for one night. When he was released, he was warned not to cause any more trouble and not to get involved in any demonstrations. He was not given any paperwork by the police, he was not charged, and he didn’t have to attend court. He confirmed that was the only time he was detained and that he was not harmed in any way while detained.

At the hearing he was asked if anyone else had approached him about his involvement in the demonstrations. He doesn’t know who it was, but they threatened him via his family, and they wanted him to stop speaking and to shut up. They went to his work and his wife’s work to say he was not to go to any more demonstrations or do anything against drug selling and police corruption. He said it happened in about January 2012, three weeks before he attended the 2012 demonstration. He was asked if anything happened to him during his return visits to Bali, whether because of the demonstrations or for any other reasons. He said he didn’t feel safe or comfortable. He didn’t get involved actively in the anti-drug community, but those people didn’t want him to get involved anymore and he felt like he was being followed everywhere. He was asked if he had any contact with any of the people who had harmed him in Indonesia, or their associates, since he has been in Australia. He said there was a time in 2017, maybe three months after he arrived, that they threatened his ex-wife, asked her where he was and they said that, if he comes back, he will be in danger. He confirmed that his family in Indonesia had no contact with the police since he started work on the [Workplaces 1] and since he has been in Australia. He confirmed, other than those people looking for him in 2017, his family in Indonesia had no contact with the drug gangs since he started working on the [Workplaces 1] and since he came to Australia. He also confirmed that, other than the 2017 incident, there were no other incidents involving his wife and children between 2012 and now.
He was asked at the hearing if he received any threats in relation to his involvement in the 2016 demonstration. He said a man he didn’t know came up to him, held his shirt and told him not to talk about police who accept bribes and who sell drugs, not to do it again. This happened in August 2016, before the rally that was in September 2016. He was asked if there were any other adverse incidents, and he spoke about the police finding three police officers who were selling drugs, and that a Police General seized drugs and, rather than destroying the drugs, he sold them. He said that the media articles he provided were about such incidents. He confirmed that he had not suffered any other adverse incidents or adverse interest, other than what he had already discussed. He was asked where he would live and if he’d become involved in demonstrations again if he returned to Indonesia. He said he would live in Bali as it was his only home, but he wouldn’t feel safe there. He would always support his community to be drug free, to support the police, and if he knew about unclean police, he’d be involved due to the kids.
The applicant provided phone contact details for Mr A and Mr B, if the Tribunal wanted to contact them. When asked by the Tribunal, he confirmed he was not seeking to have them provide any further information to the Tribunal but just to confirm what was in their written statements. Additionally, he said in response to the Tribunal’s questions, that neither witness had first-hand knowledge of the incidents in Bali mentioned in their statements but were aware of things through their families who lived there. In those circumstances, the Tribunal decided not to phone Mr A and Mr B.
In his protection visa application and at the hearing he provided generally consistent information about his family, education, and employment history, and I accept those details as summarised in the background above. He was mostly consistent with the information he provided about his claims in the protection visa application and at, and throughout the course of, the hearing, and I accept most of his evidence, except as discussed below. I accept that he attended demonstrations against drugs and corrupt police in 2006, 2011, and 2012; that he and friends distributed anti-drugs information to their local community; that he was arrested and detained for one night because of his involvement in the demonstration in 2012, before being released without charge and told not to be involved in further demonstrations; that while working on [Workplaces 1] between 2012 and 2017, he returned to Bali on five occasions for visits of three or more months; that he attended a rally in 2016 in support of a newly appointed Inspector General of Police; and that he was threatened shortly before he attended the early 2012 demonstration and shortly before he attended the September 2016 rally.
However, there were some discrepancies in his evidence about his other claims. In particular:
·He stated in his protection visa application that he had been beaten by the police when he was arrested and detained in 2012. However, at the hearing he made no mention of a beating and, indeed, confirmed at the hearing that he had not been harmed while detained by the police. When this issue was raised with the applicant, he said he forgot and suggested it may have been because of trauma. His response was unconvincing. I do not consider it credible that, if true he had been beaten in 2012 by the police, he failed to mention it in the hearing, especially as it is the only form of physical harm he has otherwise claimed to have suffered in these incidents.
·He stated in his protection visa application that after he was released by the police in 2012 drug gangs followed and harassed him and that he was harassed by police and drug gangs on his return visits to Bali while working on the [Workplaces 1]. At the hearing he referred to a feeling that he was being followed, and mentioned a darked skinned man he saw, that he felt unsafe and uncomfortable, and the threat received a month before the September 2016 rally, but otherwise did not refer to any adverse incidents, whether in the form of harassment or otherwise, after his release by the police in 2012. I do not consider his evidence at the hearing about a feeling that he was followed and that he generally felt uncomfortable and unsafe on his return visits, is consistent with or otherwise establishes the claim in his protection visa application of being followed and harassed by drug gangs after his release and of being harassed by the police and drug gangs when he made his return visits to Bali after 2012. I also do not consider it credible that, given he did not take part in any other demonstrations between his release by the police in early 2012 and his attending the rally in September 2016 on one of his return visits, that anyone associated with the drug gangs or corrupt police would consider it necessary or desirable to follow and/or harass the applicant.
·The witness statements refer to the applicant having been beaten a few times and to his receiving death threats on his returns to Bali while working on the [Workplaces 1]. However, Mr A and Mr B have no first-hand knowledge of what occurred in Bali. Additionally, the applicant did not claim in his protection visa application to being beaten more than once, nor did he mention death threats. Given these issues, I attach no weight to Mr A’s and Mr B’s evidence on these points. As such, I do not consider it as corroboration for the applicant’s claims in his protection visa application about being beaten when detained by the police in 2012 or that he suffered harassment from the police and drug gangs on his return visits to Bali after 2012.
·At the hearing when discussing his claims, he said that a few months after he arrived in Australia in 2017, some unknown men went and threatened his wife, asking where the applicant was and warned he would be in danger if he returned. Later in the hearing when the Tribunal raised some issues and concerns about his case with him, the applicant said that there was an incident in 2016 when they went and threatened his wife and said that the applicant should return to Indonesia as quickly as possible. The Tribunal indicated to the applicant that this claimed 2016 incident was inconsistent with the details he gave about the 2017 incident (different timing and different threat), which may raise credibility concerns about those claims. He responded that they had tried to threaten him before that. This response was unconvincing as the applicant had earlier confirmed that other than the first mentioned 2017 incident, his wife and children had not been subject to any threats from 2012 to date. I do not consider this discrepancy in his evidence at the hearing to be credible.
Based on these concerns discussed above, I find the applicant has embellished or embroidered these aspects of his evidence. I do not accept that the applicant was beaten while detained by the police in 2012; that after his release he was followed and harassed by drug gangs in Bali; that on his return visits to Bali after he started working on the [Workplaces 1] in 2012, he was harassed or followed by drug gangs or corrupt police; and that people visited his wife in 2016 or 2017 to threaten her and ask about the applicant, to tell him to return or to warn that he would be in danger if he came back.
After his one-night detention in 2012, neither he nor his family, on my findings, had any other adverse incidents with, or adverse attention from, the police. As discussed, I accept that he was threatened shortly before he participated in the 2012 demonstration and before the 2016 rally. However, on my findings, no other adverse action (aside from his 2012 arrest and detention) was taken against the applicant by anyone, despite him taking part in the 2012 demonstration and 2016 rally contrary to the threats he received. Additionally, on my findings, no one has made any threats against or enquiries about the applicant since he came to Australia in early 2017. It follows from these findings that I do not accept that he was of adverse interest to anyone in Indonesia since he came to Australia in early 2017. Nor, given the passage of time since then, that he would be of any ongoing adverse interest to the authorities or drug gangs if he were to return to Indonesia. The Tribunal indicated to the applicant at the hearing that the passage of time since the police had last shown any interest in him and since he was involved in the 2016 rally, may raise concerns about whether he would still be of adverse interest to the authorities or drug gangs if he returned. He made no comments. I do not accept that there is a real chance the applicant may suffer harm, because of his previous activities and background in Indonesia, if he returns to Indonesia.
I accept the applicant’s evidence at the hearing that he may become involved again in demonstrations and the like in relation to drugs and police corruption if he returns to Indonesia. Country information indicates that in Indonesia the law provides for freedom of assembly, and the government generally respected this right, with a few exceptions including protests in areas like the Papua region or by non-mainstream religious and social groups. It also indicates that protests about corruption and political issues are common and usually peaceful, although violence can occur.[1] Given this country information, I do not accept that there is a real chance that the applicant may suffer harm if he takes part in further demonstrations. Additionally, as the applicant has not been of adverse interest to anyone since he came to Australia, together with the passage of time since he was released without charge by the police after his short 2012 arrest and detention, and that it is seven years since he was last threatened and subsequently participated in the 2016 rally, I do not accept that his previous activities and background in Indonesia would raise his profile in this regard.
[1] DFAT, ‘DFAT Country Information Report Indonesia’, 24 July 2023; US Department of State, ‘Indonesia 2022 Human Rights Report’, 20 March 2023; and ‘BTI 2022 Country Report - Indonesia’ Bertelsmann Stiftung, 23 February 2022.
Overall, I find that the applicant was not of adverse interest to anyone in Indonesia since he came to Australia, and that he does not face a real chance of suffering harm from anyone, including if he takes part in further demonstrations and the like, if he were to return to Indonesia, now or in the reasonably foreseeable future.
Considering the findings set out above and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to Indonesia now or in the foreseeable future, he faces a real chance of persecution.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
For the reasons set out above I have found that the applicant does not face a real chance of harm in relation to his claims or profile. As ‘real risk’ and ‘real chance’ involve the application of the same standard,[2] he also does not face a real risk of any harm in Indonesia. I am not satisfied that the applicant faces a real risk of significant harm in Indonesia.
[2] MIAC v SZQRB (2013) 210 FCR 505.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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.
Mark Oakman
Member

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

[2024] AATA 1242

17 April 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction