1803188 (Refugee)

[2024] AATA 3032

1803188 (Refugee) [2024] AATA 3032 (23 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1803188

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Shahyar Roushan

DATE:23 April 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 23 April 2024 at 11:21am

CATCHWORDS
REFUGEE – protection visa – Indonesia – workplace conflict – spreading of rumours – significant passage of time – race – Chinese ethnicity – religion – Buddhist – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
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.

STATEMENT OF DECISION AND REASONS

BACKGROUND

1. The applicants, who are nationals of Indonesia, are husband and wife. They arrived in Australia [in] August 2017 on Visitor visas.

2. On 20 October 2017, the first named applicant (the applicant) lodged an application for a Protection visa. The second named applicant (the applicant’s wife) was included in the application as a member of the same family unit. She did not put forward her own claims for protection before the Department and sought to rely on the applicant’s claims.

3. On 12 January 2018, a delegate for the Minister of Home Affairs refused to grant the applicants Protection visas under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

   CLAIMS AND EVIDENCE

   Protection visa application

4. According to the Protection visa application, the applicant is [age] years old and a Buddhist. He married his wife in February 2002 and together they have a son, born in [year], and a daughter born in [year]. The applicant and his wife resided at a single address in Binjai, Sumatera Utara from 1 November 2013 until their departure from Indonesia. The applicant was employed as the ‘[Position 1]’ of [Employer 1], ‘leading a team on the production of [product] for the commercial and wholesale market’ from March 2014 to May 2017. In the three months before his departure from Indonesia, he worked ‘part-time’ doing ‘odd jobs.’

5. In response to questions in relation to his reasons for claiming protection, the applicant made the following claims.

6. In his previous job, he ‘unintentionally’ offended ‘a businessman who had relations to the underground network,’ ‘government agencies’ and ‘religious groups.’ The incident occurred when the applicant, as a [Position 1] in his workplace, ‘reprimanded’ another employee who was related to the businessman. The employee made ‘false allegations’ against the applicant to the businessman and this created a ‘very serious concern’ for the applicant.

7. One day, after work, he was ‘accosted by a group of thugs’ and taken to ‘an undisclosed location.’ He was physically assaulted and ‘suffered injuries.’ They also threatened to harm his family and ‘to spread rumours [to] religious groups’ that he was ‘slandering’ their religion. They continued to ‘harass and threaten’ him and his family. He attempted to move his family away from the city, but ‘due to the age of [his] children and also with limited finances, it was not possible to leave the place.’ He eventually managed to move his children to a relative's place and asked his relatives to take care of his children.’ He fears being ‘physically harmed by the thugs’ and fears for the safety of his wife and children.

8. Departmental records indicate that the applicants were not invited to attend a Protection visa interview.

   The delegate’s decision

9. As already noted, a delegate of the Minister refused the Protection visa application. The delegate was not satisfied that there is a real chance or a real risk that the applicant will suffer serious or significant harm on return to Indonesia. The delegate was not satisfied that the applicant is a refugee as defined under s 5H(1) of the Act and found that he was not a person in respect of whom Australia has protection obligations under s 36(2)(a). The delegate was also not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act. The delegate found none of the applicants was owed protection obligations.

   The review application

10. On 7 February 2018, the applicants applied for a review of the delegate’s decision.

    The hearing

11. The applicants appeared before the Tribunal on 16 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. Where relevant, the applicants’ oral evidence at the hearing is referred to in the Tribunal’s analysis below.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The relevant law

12. The criteria for a Protection visa are set out in s 36 of the Act and Schedule 2 to 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.

13. 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.

14. 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).

15. 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.

16. 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

17. 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 DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Analysis, findings, and reasons

18. For the following reasons, I have concluded that the decision under review should be affirmed.

19. The applicant’s evidence at the hearing was broadly consistent with the claims recorded in his Protection visa application. While he provided further details in relation to his claims and personal circumstances at the hearing, aspects of his evidence were vague and bereft of persuasive details. Nevertheless, I have not drawn any adverse credibility findings on this basis.

20. I accept that the applicant was employed as a supervisor in a [workplace] in North Sumatra from 2013 to May 2017. In this capacity, he supervised approximately thirty employees. The applicant claimed that on one occasion he reprimanded an employee for neglecting his duties. The offended employee complained to one of his relatives, alleging that the applicant had insulted Islam. While the applicant claimed that the relative was an ‘influential’ man with links to Muslim religious group, he did not know his name, how exactly he was related to the employee or what was the religious group he was linked to. Nor was he able to offer any persuasive information as to the nature of the religious insult attributed to him. I am prepared, however, to accept that a form of conflict had arisen between the applicant and an employee at his [workplace] and that the employee, supported and assisted by others, including his relative, had targeted the applicant for manufactured reasons.

21. The applicant claimed, and I accept, that in February or March 2017, he was threatened by a group of men when he was returning home from work. They threatened to harm him and his family if he continued to work at the [workplace]. I accept that about 10 days later, the applicant was assaulted by the same group and threatened with harm if he did not leave the [workplace]. I accept that the applicant eventually stopped working at the [workplace] in May 2017.

22. In his Protection visa application, the applicant claimed that his assailants had spread rumours to religious groups and the employee’s relative had connections with ‘underground network,’ ‘government agencies’ and ‘religious groups.’ At the hearing, he stated that despite ceasing work at the [workplace], he continued to receive threats because they believed he had insulted or slandered their religion, but he did not know why exactly they had felt offended. However, when asked how he was threatened, he said they rode or drove past his house and kept an eye on him. The applicant also stated that he was not threatened or harmed in any other way between May 2017 and August 2017 when he departed Indonesia. According to his evidence at the hearing, during this period, the applicant and his family continued to live at their usual residential address and the applicant worked part-time as a [Occupation 1] at a [business] near his home between May and August 2017. The applicant also stated at the hearing that his two children and their grandmother continue to reside in the same locality and close to his old house. He confirmed that nothing further had happened since his departure from Indonesia, and no one had approached his family in his absence.

23. As I discussed with the applicant at the hearing, the incidents referred to had occurred some seven years ago. It appeared that the objective of those who had vocalised threats of harm against him and his family and had assaulted him before May 2017 was to force him to cease his employment at the [workplace] as a result of his conflict with the employee. It did not appear that they had any intention of seriously harming him or his family for any other reason after he left the [workplace] as they had ample opportunity to do so. The applicant responded that because there was a connection to religion, it was ‘risky’ for him, and he was concerned.

24. At the hearing, the applicant’s wife stated that she did not have any fear of returning to Indonesia. In response to questions in relation to her husband’s claims, she stated that while she did not know the details of what exactly had happened at the [workplace], she knew that he had been threatened and assaulted because he had insulted someone. He had stopped working about two months before they came to Australia, but nothing had happened to her or the rest of the family. When asked why her husband would be fearful of being harmed given the passage time of since the [workplace] incident, she responded that she had her husband are ethnically Chinese and those he had insulted are Indonesian Muslims. However, when asked if she has ever experienced any harm because of her ethnicity, she said no. The applicant also did not claim to have experienced any harm for the reason of his ethnicity or Buddhist faith.

25. On the basis of the evidence before me, I do not accept that the applicant was subjected to serious or significant harm after he stopped working at the [workplace]. I am not satisfied that the conduct he perceived to be threatening after May 2017, namely persons going past his house or watching him, amounted to serious or significant harm. I find that those who threatened and assaulted him, had no intention of subjecting him or members of his family to serious or significant harm for any reason, including his past conflict with the [workplace] employee or any alleged or perceived religious insult, after he stopped working at the [workplace]. As already noted, members of his family in Indonesia were not approached following his departure and they have had no encounters with anyone adversely interested in the applicant in his absence.

26. For the reasons above and in view of the relatively significant passage of time since the applicant’s departure from Indonesia, I find that there is no real chance that he would face serious harm in Indonesia at the hands of the reprimanded [workplace] employee, the employee’s relative and their associates for any insult or offence imputed to him or perceived by them in 2017, or for any other reason, including the applicant’s ethnicity or Buddhist faith. I find there is no real risk that the applicant would face significant harm now or in the reasonably foreseeable future at the hands of the [workplace] employee, his relative and their associates for the reasons provided by the applicant or any other reason. I also find that there is no real chance or a real risk that the applicant would face serious or significant harm by anyone else in Indonesia for the reason of or any reason arising from his ethnicity or religion.

27. The applicant’s wife did not make her own claims for protection and explicitly stated at the hearing that she did not have any fear of returning to Indonesia. Despite making references to her Chinese ethnicity, the applicant’s wife stated at the hearing that she had never experienced harm for that reason and did not express any fears in that regard. I find that there is no real chance that the applicant’s wife would face serious harm for any reason, including her race and membership of the particular social group of the applicant’s family if she were to return to Indonesia now or in the reasonably foreseeable future. I also find that there is no real risk that she would face significant harm if she were to be removed to Indonesia for any reason arising from or related to her race or being a member of the applicant’s family.

28. I appreciate the concerns both applicants expressed at the hearing regarding their bleak economic prospects in Indonesia compared to the employment opportunities they have enjoyed in Australia. However, according to his evidence, the applicant is educated and was able to find continual employment in Indonesia, including as a skilled [Occupation 1]. The applicant’s wife has also been continuously employed in Australia in both retail and hospitality sectors and would be able to use her experience to access means of earning a livelihood in Indonesia. There was no persuasive evidence before me to indicate, and I do not accept, that there is a real chance that the applicants would face significant economic hardship threatening their capacity to subsist or that they would be denied the capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist. Nor do I accept that there is a real risk that they would suffer significant harm as defined under s 5(1) of the Act for any reason related to their economic prospects in Indonesia.

29. Having considered the applicants’ claims, I do not accept that there is a real chance that, if they returned to Indonesia, they would be persecuted for one or more of the reasons mentioned in s 5J(1)(a) of the Act. Similarly, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed to Indonesia, there is a real risk that they would suffer significant harm.

30. For the above reasons, I am not satisfied that the applicants have a well-founded fear of persecution. I am, therefore, not satisfied that they are persons in respect of whom Australia has protection obligations under s 36(2)(a).

31. Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa) and I am not satisfied that they are persons in respect of whom Australia has protection obligations under s 36(2)(aa).

32. Therefore, I am not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

    DECISION

33. The Tribunal affirms the decision not to grant the applicants protection visas.

    Shahyar Roushan
    Senior 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.

    …