1804724 (Refugee)

[2024] AATA 2558

1804724 (Refugee) [2024] AATA 2558 (17 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBERS:  1804724
1814571

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Lisa Lo Piccolo

DATE:17 June 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 17 June 2024 at 12:32pm

CATCHWORDS

REFUGEE – protection visa – Indonesia – joint hearing and decision of separate applications with identically-worded claims – borrowed money from relatives, were unable to repay and received verbal threats – evidence at hearing that business partner took funds for personal use – loan from bank using parents’ house as collateral, loan from acquaintance to repay bank and loan from Australian bank to repay acquaintance – work and repayment of Australia loan in progress – no fear of harm but economic hardship and ‘trauma’ – child born in Australia after delegate’s refusal decision not an applicant – severe physical condition and treatment – would meet compassionate circumstances but does not meet guidelines as no visa application and decision made for him – appropriate to obtain urgent legal advice – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (4)(b), (5)(d), 36(2)(a), (aa), (2A), 65, 78, 417

Migration Regulation 1994 (Cth), Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33

MIBP v WZAPN; WZARV v MIBP (2015) 254 CLR 610

MZYPB v MIAC [2012] FMCA 226

SZBQJ v MIAC [2005] FCA 143

SZIGC v MIAC [2007] FCA 1725

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is a combined decision of a husband and wife covering two applications for review of decisions made by delegates of the Minister for Home Affairs on 13 February 2018 and 8 May 2018 to refuse to grant the applicants a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review of those decisions by the Administrative Appeals Tribunal.

2. The first and second applicant who claim to be citizens of Indonesia, applied for the visas on 10 February 2017 and 13 April 2017 respectively. The delegate refused to grant the visas on the basis that the applicants are not person in respect of whom Australia has protection obligations.  

The applicants’ personal backgrounds

1. The first applicant is a [Age]-year-old female from East Java, in Indonesia. At the hearing, she told the Tribunal that she is married to the second applicant, and they have two children together.  Their first son, [Master A] was born in Indonesia on [Date] and lives with the second applicant’s sibling in Java.  Their other son, [Master B] was born in [Hospital] on [Date].  Both of the first applicant’s parents have passed away since she has been in Australia, and her sister, [Ms C] lives and works in [Country].

2. The second applicant is a [Age]-year-old man who was also born in East Java.  He told the Tribunal he lived in Jakarta after high school between [year] and 2008.  He has otherwise lived and worked in East Java prior to coming to Australia.

3. Both applicants arrived in Australia [in] December 2016 as the holder of a visitor visa. 

4. The first applicant told the Tribunal that she worked in Indonesia in a [workplace] doing [a job task] and as [an occupation] before she got married to the second applicant for 4-5 years.  After the birth of her first son, she stopped working.  She has worked in Australia since she arrived: her last job was in a [workplace 1] and earnt approximately $900 per week.  She stopped working not long after she fell pregnant with her second son.

5. The second applicant has also worked consistently since he has been in Australia.  He worked on a [workplace 2] [doing a job task] for all of his time in Australia, until 2 years ago when he got a job in a [workplace 1].  He normally earns around $900 per week.

6. The Tribunal accepts the above matters to be true.

Criteria for a protection visa

1. 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.

2. 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.

3. 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).

4. 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.

5. 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

1. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

2. The current DFAT report is the DFAT Country Information Report Indonesia dated 24 July 2023 (DFAT Report).

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicants are persons in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds; and, if one applicant is found to be a person in respect of whom Australia has protection applications, whether the second applicant is a member of their family unit.

2. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Country of nationality

1. The applicants both travelled to Australia on apparently genuine Indonesian passports, a copy of which is contained on the Departmental file. They have both, at all times stated that they are citizens of Indonesia, and they have been assessed on that basis by the Department. The Department was satisfied that their Indonesian passports were both genuine documents. 

2. The Tribunal finds both the applicants are Indonesian citizens and has assessed their claims against Indonesia as their country of nationality and the receiving country.

Protection visa applications

1. The first applicant applied for a protection visa on 14 February 2017. According to her protection visa application, she was born in [City 1] in East Java.  Her parents are Indonesian citizens who reside in Java.  She has [a] sister, [Ms C] who was born in [City 2], Java, Indonesia.

2. The second applicant applied for a protection visa on 13 April 2017.  According to his protection visa application, he was born in [City 2], East Java.  His parents are Indonesian citizens and were also born in East Java.  He has 1 sister and [brothers] who are all Indonesian citizens.

3. In response to questions in the protection visa application form in relation to their reasons for claiming protection, the first and second applicants had identically worded answers as follows:

   ‘Why did you leave [Indonesia]?

   [We had] been living in harsh condition so [we] had to borrow money from my relatives [and] finally could not pay the debt. in ‘mental distress and fear’ that ‘many people in Indonesia … who borrowed money [like him] had been hit, injured and killed.’ 

   What do you think will happen if you return to [Indonesia]?

   ‘[We will] get caught by [the] creditor and could be beaten, injured or killed. They will [be] searching [for us]. 

   Did you experience harm in [Indonesia]?

   Yes [we] already experienced harm in that country because [we] already received verbal threat[s] from them to hurt [us]. 

   Did you move, or try to move, to another part of [Indonesia] to seek safety?

   [We] did not try to move to another part of the country because this is a matter of socio-economic.  [We] will experience the same problem even [if we] move to another place [ ] inside that country.

4. Aside from identification documentation, the applicants did not provide any supporting documents in support of their protection visa applications. 

5. A delegate of the Minister refused to grant the first applicant and second applicants’ respective protection visa applications without holding an interview on 13 February 2018[1] and 8 May 2018.[2]  The applicants provided the Tribunal with a copy of each Departmental decision record.

   [1] Department Decision dated 13 February 2018 (Department file [Reference]), Tribunal file, 1804724, Doc ID no: 4065601.

   [2] Department Decision dated 8 May 2018 (Department file [Reference]), Tribunal file, 1814571, Doc ID no: 4334645.

Review Application

1. On 22 February 2018, the first applicant applied for review of the delegate’s decision.  On 19 May 2018, the second applicant applied for a review of the delegate’s decision.

2. The applicant submitted additional supporting documents to the Tribunal:

   a.Certified translation of Loan Agreement between [Bank] and the applicants dated [June] 2015.

   b.Certified translation of loan repayment letter dated [August] 2022 from [Bank].

   c.Certified translation of [letter] on Mortgage Certificate dated [August] 2022 from [Bank].

   d.Certified translation of Certificate dated 18 August 2023.

   e.Birth certificate of [Master B].

   f.Letter dated 31 May 2024 from [Health service provider] regarding [Master B].

3. The applicant appeared before the Tribunal by video-link on 28 May 2024 to give evidence and present arguments. The Tribunal also received oral evidence from [Pastor C]. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

4. The Tribunal notes that the applicant son, [Master B] has not lodged an application for a protection visa and has no application for review before the Tribunal as he was born after both his parents’ cases were refused by the delegate respectively.  He has been granted the same visa as his parents by virtue of s 78 of the Act.

5. At the outset of the hearing, the applicants confirmed that they consented to a combined hearing.  The Tribunal conducted the opening remarks with both applicants in the virtual hearing room.  The Tribunal then took oral evidence from the first applicant, whilst the second applicant waited in another room.  Upon the conclusion of his evidence, the first applicant waited in another room, while the Tribunal took oral evidence from the second applicant.  Both applicants were called back into the hearing room together, and the Tribunal then called their witness, [Pastor C]. 

6. On 17 June 2024, the applicants consented to a single decision being written for them both. 

Evidence at the hearing

First applicant’s evidence

1. The first applicant gave evidence that her and the second applicant came to Australia because they had many debts and thought if they came here to work they could pay off their debts in Indonesia.  She said that was the reason they applied for the protection visa.  She told the Tribunal that before she came her, her husband was in a business [in] Indonesia.  She stated that he went into this business partnership with a friend who ultimately deceived him.  She was not aware of the precise details: only that the partner was taking funds out of the business for personal use instead of paying business expenses, and the business was struggling as a result.  They ultimately had to borrow money to repay these business debts.  She said they could not repay the loans and were being chased by people who wanted to be paid back.

2. She told the Tribunal the original loan was taken out in 2012 or 2013 from [Bank].  They had to put her parents’ house up for collateral to secure the loan.  They struggled to meet the repayments and the bank threatened they would take the house.  They refinanced that loan and that is also when they borrowed money from an acquaintance [Mr D].  This loan then allowed them to repay the bank and get the title released. The first applicant gave detailed evidence about the loans, the repayments and the refinancing.  She told the Tribunal that [Mr D] was asking for payment of the debt last year so the second applicant took out a $30,000 loan with [Australian Bank] mid last year to pay his debt in full.  It is for 3 years.  She told the Tribunal that each of these loans in Indonesia have now been paid in full since they have been in Australia. 

3. In relation to the house they used as collateral, the first applicant told the Tribunal that her parents had agreed to put the house into her name in order for them to use it as collateral.  The house now belongs to her because her parents have since passed away and her other sister lives in [Country].  The first applicant told the Tribunal that the house would be worth about 800,000-900,000 Indonesian Rupiah but could be worth up to 1 billion Indonesian Rupiah.

4. The first applicant told the Tribunal she fears returning to Indonesia and living there because of the trauma from the past.  She said she is referring to the time when her and the second applicant were being chased by creditors to make payments who used rude words and made threats, and that is why she does not want to return to Indonesia.  She also told the Tribunal that her child [Master B] had been born with some medical issues and needed ongoing medical care.  When the Tribunal made further enquiries, she said that his [deleted] and he was needing regular physiotherapy to correct it.  Time was of the essence to help [him] develop normally.  If she returns to Indonesia, she will not be able to get the treatment he needs because they would need to pay for it and she does not have the money for that.  In Australia, he is having the treatment he needs every two weeks, and it is covered by Medicare.  She said she hoped for the opportunity to raise her child in Australia.

Second applicant’s evidence

1. The second applicant gave evidence with respect to the business and the loans that was entirely consistent with the first applicant. He added that his former partner had used money the business had loaned from the bank to purchase more cars for his own personal use which left them in a position that they could not continue to operate.  They were not legally bankrupt because no one brought a petition against them, but they had insufficient funds to keep the business running and the business closed in 2015. 

2. The second applicant told the Tribunal that he struggled to make the repayments on the loan and was often late.  He became very concerned because the loan was secured by the first applicant’s family home.  He said the house had been changed into the first applicant’s name because it could only be used as collateral by the person whose name was on the tittle.  The second applicant said that he decided to come to Australia with the first applicant to have a holiday and then hoped to find work.  He thought it would be easier to find work here because of the threats and intimidations he was receiving in Indonesia because he was late in repayments.

3. When the Tribunal asked the second applicant why he applied for the protection visa and why he feared returning to Indonesia, the second applicant stated that he wanted to remain in Australia because he had work and he had debts in Indonesia and was being chased by debt collectors.  He wanted to stay in Australia to pay off the debts.  He confirmed to the Tribunal that he has no unpaid debts in Indonesia as he and the first applicant have paid them all off since they have been in Australia. He also told the Tribunal he had taken out a $30,000 loan with the [Australian Bank] to pay out the loan he had with a friend, [Mr D].  He was asking to be repaid and they were worried the debt would multiply if the loan was not paid out in full.  The payments to the [Australian Bank] are $300 per month.

4. The applicant said he was not afraid of returning to Indonesia, but the first applicant is concerned that if they return and he starts a new business, they would be harassed like they had been in the past.  He said if they returned to Indonesia, he would like a simple life.  They would return to live at the parents’ house which is now owned by the wife and is vacant, and he would sell fried rice to earn a living.  The Tribunal put to the

Oral evidence of witness

1. As noted above, the Tribunal took oral evidence from the applicants’ pastor, [Pastor C].  He appeared by telephone.  Pastor [C] gave evidence that he has been the applicants pastor since they arrived in Australia and has observed their situation and has been trying to help them as much as he can.

Documentary evidence before the Tribunal

1. The translated documents submitted to the Tribunal indicate that the applicants took out two loans in Indonesia with:

   a.[Bank] in the amount of 750,000,000 rupiah.  The applicants entered into The loan agreement with [Bank] was entered into [in] June 2015 and was for a period of 12 months.  The principal and interest were due to be repaid [in] June 2016.  A property registered in the name of the first applicant (which was previously the first applicants’ property) was used as collateral for the loan.

   b.[Mr D] in the amount of 400,000,000 rupiah with loan interest in the amount of 240,000,000 rupiah.

2. Based on the consistent evidence given by the applicants, the [Bank] loan was taken out to repay business debts from the second applicant’s failed business venture, and the personal loan with [Mr D], was to taken out to pay the balance of the [Bank] loan when the applicants could not pay the full balance and interest at the end of the one year [Bank] loan term.

3. Further:

   a.A letter dated [August] 2022 from [Bank] demonstrates that all credit obligations to [Bank] have been resolved, such that the loan has been paid off in full.

   b.A [Letter] on Mortgage Certificate issued by the [Bank] on [date] August 2022 demonstrates that [Bank]’s mortgage rights with respect to the property used as security for the 2015 loan have been abolished and confirms full repayment of the loan.

   c.A certificate issued by [Mr D] dated 18 August 2023 indicates that the applicants have paid off the principal loan of 400,000,000 rupiah and the loan interest of 240,000,000 rupiah.

1. The Tribunal finds that all loans in Indonesia have been paid in full.

Does the applicant meet the refugee criterion?

Claimed fear from a moneylender

1. The Tribunal has considered the applicants’ claim that they have a well-founded fear of persecution by reason of owing money to a money lender.  The evidence before the Tribunal demonstrates and the Tribunal is satisfied that:

   a.The applicants were being pursued by debt collectors as a result of their default on the [Bank] loan prior to coming to Australia. 

   b.[Bank] made threats to repossess the property in East Java in the first applicant’s name prior to the applicants coming to Australia.  The Tribunal does not accept that [Bank] or debt collectors associated with it made any physical threats of harm ti either applicant.

   c.The [Bank] Loan was settled prior to the applicants coming to Australia by taking out a loan with [Mr D].

   d.The applicant had a 400,000,000-rupiah loan plus interest with [Mr D] prior to coming to Australia. 

   e.The applicants were making regular repayments to [Mr D] but, in mid-2023, Mr [D] was asking them to repay the loan plus interest in full.  The Tribunal does not accept on the available evidence that they were threatened by [Mr D].

   f.The second named applicant took out a loan with the [Australian Bank] in mid-2023 in the amount of $30,000 to pay the outstanding balance of the loan with [Mr D].

2. Given the Tribunal’s findings above, the Tribunal does not accept the applicants’ claims in their protection visa applications that creditors will be searching for the applicants, and will beat, injure or kill them if they locate them. The Tribunal does not accept there is a real chance that the applicants will be harmed by creditors if they return to Indonesia now or in the reasonably foreseeable future. 

3. For the above reasons, the Tribunal is not satisfied that the applicants face a real chance of serious harm now or in the reasonably foreseeable future.

4. The Tribunal has also considered the first applicants claim at the hearing that she does not want to return to Indonesia because she ‘does not feel comfortable’ returning there because she has ‘trauma’ from what happened in the past and she wants to raise her child in Australia.  Whilst the Tribunal accepts that the first applicant does not feel comfortable returning to Indonesia because of her past traumatic memories of being pursued by creditors, as put to the first applicant, the applicants do not have any creditors in Indonesia, and she is not now claiming to fear persecution for one of the reasons in s 5(1)(a), and may not meet the well-founded fear of persecution test in s 5J(1) of the Act.  The first applicant stated that she only asks to be given time to remain in Australia until her baby recovers from his condition and gets the medical attention he requires.  The Tribunal has addressed this issue further in paragraph __ below.  The Tribunal is not satisfied that the first applicant fears persecution for one of the reasons in s 5J(1)(a) or that her claims of being uncomfortable to return there because of her past trauma is a refugee nexus reason as per s 5J(1)(a), or would amount to serious harm as per s 5J(4)(b) of the Act.

Fear of economic hardship

1. The Tribunal has also considered whether there is a real chance the applicants will be harmed in the reasonably foreseeable future based on economic hardship.

2. As discussed with the applicants at the hearing, s 5J(1)(a) requires that the person fears being persecuted for one of the reasons stated.  For a person’s fear to be well founded, there must be a real chance that, if the person returned to the receiving country, the person would be persecuted: not only must the person fear persecution, but there must be a prospect of that fear being realised.  

3. Section 5J is relevant to the question of whether the harm that the applicant may suffer amounts to persecution, and ss 5J(4) qualifies the concept of persecution by requiring that, among other things, the persecution involves serious harm to the person.   Section 5J(5) of the Act sets out a non-exhaustive list of the type and level of harm that will meet the serious harm test. These provisions do not define ‘serious harm’ but provide instances of the serious harm referred to in s 5J(4)(b) by way of an aid to their application.[3]   These instances do demonstrate the type and level of harm that will rise to the requisite threshold.

   [3] MIBP v WZAPN; WZARV v MIBP (2015) 254 CLR 610 at [48]. Although the Court was considering ss 91R(1)(b) and (2)(which has since been repealed), its reasoning appears equally applicable to ss 5J(4)(b) and (5), given their similar wording.

4. The Tribunal has considered s 5J(5) - specifically s 5J(5)(d), which provides that significant economic hardship that threatens the person’s capacity to subsist is an instance of serious harm.  The Tribunal has also had regard to judicial authority indicating that a threat to subsistence as referred to in ss 5J(5)(d)–(f)[4] must be at a level that challenges the ability of the individual to continue to exist or remain in being,[5] that the hardship must be such that it would actually threaten the applicant’s capacity to subsist[6] and involves a qualitative assessment.[7]

   [4] These authorities relate to the former s 91R(2)(d)–(f) but are equally applicable given their similar wording.

   [5] See; SZBQJ v MIAC [2005] FCA 143 at [11]) that ‘the level of threat must be such as to challenge the ability of the individual to continue to exist or remain in being’: and SZIGC v MIAC [2007] FCA 1725 per Greenwood J at [23]. See also; MZYPB v MIAC [2012] FMCA 226 at [13] and DZABS v MIAC [2012] FMCA 297 at [90].

   [6] MZYPB v Minister for Immigration and Citizenship [2012] FMCA 226 at [13]. In MZYPB, the Court

   [7] see Minister for Immigration and Border Protection v WZAPN[2015] HCA 22; (2015) 254 CLR 610 at [5] per French CJ, Kiefel J (as her Honour was), Bell and Keane JJ.

5. The Tribunal accepts that the applicants came to Australia for economic opportunity and to pay off the debts they had in Indonesia which they have done.  The Tribunal accepts that they loan with the [Australian Bank] which has monthly payments of $300AUD for the next 2 years.  The Tribunal also accepts that the applicants have become acquainted with a higher income which has enabled them to pay off their debts in Indonesia and provide financial support to their son in Indonesia.  The Tribunal accepts the applicants fear returning to Indonesia because they may face some economic hardship because they would not have access to employment that affords them earnings equivalent to Australia, and as a result, they will suffer financially. 

6. However, the evidence before the Tribunal which it accepts, demonstrates that the first named applicant owns a property in Java which is valued somewhere between 800,000,000 Indonesian rupiah and 1 billion Indonesian rupiah.  Both the applicants gave evidence which the Tribunal also accepts, that the house in Java is empty since the first applicants’ parents passed away in recent years, and the first applicant’s sister lives in [Country], and they would return to live there if they returned to Indonesia. 

7. In the same way, the second applicant gave evidence that he would be able to sell fried rice on his return to Indonesia and earn a living.  The Tribunal also accepts on the evidence that the second applicant has substantial experience working in and running a business and has many years’ experience working on [workplace 2s] and in a [workplace 1].  It also considers that the second applicant has good prospects of obtaining employment in Java, again accepting that his income will not be at the same level as what he has been earning in Australia.

8. On the information provided by the applicants, the Tribunal is not satisfied that, if they did return to Indonesia, they would face significant economic hardship that would threaten their capacity to subsist, and/or they would be denied access to basic services, where the denial threatens his capacity to subsist; and/or they would be denied the capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (as per the non-exclusive examples of serious harm mentioned at s.5J(5)(d)-(f) of the Act), for one or more of the reasons mentioned at s.5J(1)(a) of the Act, should they return to Indonesia. 

9. Having considered the applicants’ claims based on economic hardship, the Tribunal is not satisfied that if the applicants return to Indonesia now or in the foreseeable future that there is a real chance, they will face persecution.  The Tribunal therefore finds that the applicants do not face a real chance of serious harm now or in the foreseeable future if they return to Indonesia.

10. Having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicants return to Indonesia now or in the foreseeable future that there is a real chance, they will face persecution.

11. Accordingly, having considered the applicant’s claims individually and cumulatively, and for the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.

Does the applicant meet the complementary protection criterion?

1. Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Indonesia, there is a real risk that he will suffer significant harm such that they meet the complementary protection criterion under s.36(2)(aa).

2. In considering this criterion, the Tribunal must consider whether the applicants will suffer significant harm.  Significant harm is exclusively defined in s36(2A). 

3. For the reasons set out above, the Tribunal has found the applicants do not face a real chance of serious harm if they return to Indonesia.  In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[8]  The Tribunal notes that this applies equally to the assessment of ‘well-founded fear’ for the purposes of s 5J. 

   [8] MIAC v SZQRB [2013] FCAFC 33 (Lander, Bosanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].

4. The Tribunal has accepted that the applicants fear that if they return to Indonesia, they will earn a lower income than they have in Australia, and this will impact their family financially noting they have an ongoing loan with the [Australian Bank].  As noted at paragraph 54 above, the second applicant has good prospects of making a living in Indonesia, given his work history in Indonesia and Australia.

5. The applicants do not suggest that any economic harm they may suffer in Indonesia could constitute arbitrary deprivation of life, cruel or inhuman treatment or punishment, degrading treatment or punishment or torture. The applicants also do not suggest that the death penalty will be carried out upon them.  In the Tribunal’s assessment, the applicants’ inability to provide financial support to their children to the same level they have while they have been in Australia in the future, does not come within the scope of significant harm as defined in s 36(2A) of the Act.

6. Moreover, as discussed with the applicants at hearing, if they return to Indonesia, the risk to them because of the overall economic situation in Indonesia would appear to be one faced by the population of the country generally and not faced by the applicants personally.  Under s 32(2B)(c) of the Act, there is no real risk of significant harm if the risk ‘is one faced by the population of the country generally’. The Tribunal therefore finds that any harm claimed by the applicants arising from the economic conditions in Indonesia is therefore not a real risk of significant harm.

7. Based on these findings, it follows that the Tribunal is not satisfied that any economic harm to the applicants arising from them would constitute significant harm as defined by s36(2A).  Such harm would not amount to arbitrary deprivation of life, infliction of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment of or to the applicant. As to cruel, inhuman or degrading treatment or punishment of or to the applicant, there is also no intentional infliction of such economic harm upon the applicant (or his family) by any person.

8. For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).

Conclusion

1. For the reasons given above the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa.

2. There is no suggestion that the applicants satisfy s 36(2) on the basis of being a member of the same family unit as a person who satisfies ss 36(2)(a) or (aa) and who holds a protection visa.  Accordingly, the applicants do not satisfy the criteria in s 36(2).

Ministerial Intervention

1. Given the evidence before the Tribunal regarding the health issues the applicants’ son born in Australia on [Date], the Tribunal has considered the Minister’s Guidelines on Ministerial powers (ss 351, 417 and 501J) issued 29 March 2016.  Section 417 of the Act gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if this Minister thinks it is in the public interest to do so.

2. The evidence before the Tribunal indicates that the first applicant gave birth to a son on [Date].  The child was born with [physical conditions 1 and 2].  Information before the Tribunal indicates that [details deleted].

3. A clinical opinion from [Ms E], Senior Physiotherapist at [Health services provider] was submitted to the Tribunal indicating that [Master B] needs to continue attending physiotherapy to improve the limited [movement]. In her opinion, his attendance is frequent and time critical whilst his bones are still soft, and left untreated at this point, will mean further deformation of [bones].

4. Notwithstanding the Tribunal’s view that [Master B's] circumstances would meet the definition of unique and exceptional circumstances and fall within section 4 of the Guidelines because they are:

   a.compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person,

   it is the Tribunal’s view that the Minister would not have power under s 417 of the Act (or by operation of section 6 of the Guidelines) to intervene to assist [Master B] at this time since there is no review decision in relation to [Master B], and the Tribunal’s decision does not include [Master B] since he has not been refused a protection visa and does not have a review application currently before the Tribunal.

5. For this reason, the Tribunal cannot refer this matter to the Minister for his possible consideration of the use of his intervention powers.  This is however an appropriate case in which the applicants should obtain urgent legal advice.

DECISION

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

Lisa Lo Piccolo
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.

1. 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.

2. 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.

3. 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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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.

…

rejected the applicant’s argument that s 91R(2)(d) only required him to demonstrate a threat to his

capacity to subsist.