1805144 (Refugee)

1805144 (Refugee) [2023] AATA 345 (12 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICATION FOR REVIEW: Application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Protection XA subclass 866 Visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’)
APPLICANT’S REPRESENTATIVE:Unrepresented
CASE NUMBER: 1805144

COUNTRY OF REFERENCE: Indonesia
MEMBER:Kate Chapple
DATE:12 January 2023
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
The Tribunal refers the case to the Department to be brought to the Minister’s attention.

Statement made on 12 January 2023 at 3:15pm
CATCHWORDS
REFUGEE – protection visa – Indonesia – family abuse allegations – mental health issues – economic conditions – ongoing and high need for medical treatment– referral for Ministerial Intervention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 423A, 424AA, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
OVERVIEW

The applicant, a woman aged [age], was born in Jakarta, Indonesia. She lived with her parents and [brother], and attended school in Jakarta until the family moved to Australia in 2000 when she was aged [age]. The family stayed in Australia for 7 years and the children continued their schooling. They returned to Indonesia in 2007 as the mother was terminally ill. After her mother died and her brother married, the applicant returned to Australia alone in 2016 and has remained here since. She re-connected with a boyfriend she had in Indonesia; they worked and travelled together in Australia, are now married, and have a son turning [age] this year.
The applicant claims serious abuse and trauma perpetrated both her father and mother throughout her childhood and teenage years and fears returning to Indonesia and experiencing further trauma.
The applicant presents as a person suffering from serious mental health conditions.
EVIDENCE BEFORE THE TRIBUNAL
Timeline
Departmental and Tribunal records disclose the following key dates:
4.1.Applicant’s first arrival in Australia: [May] 2000.
4.2.Applicant’s return to Indonesia: [May] 2007.
4.3.Applicant’s last arrival in Australia: [June] 2016.
4.4.Application for protection visa: 19 January 2017.
4.5.Delegate’s decision to refuse protection visa application: 9 February 2018.
4.6.Application for review: 11 February 2018.
Protection visa application
The applicant’s protection claims set out in the protection visa application dated 19 January 2017 (no corrections for spelling or grammar):
5.1.The applicant is seeking protection so that she does not have to return to Malaysia.
5.2.The applicant left Malaysia because: the issue economic impact is as bad as the long-term effects on public health.
5.3.The applicant thinks if she returns to Malaysia, this will happen: psychological, mental and emotional.
5.4.The applicant experienced this harm in Malaysia: psychological, mental and emotional.
5.5.The applicant gave this detail of the help she sought: I was suggest by my [named] friend to stay at Australia.
5.6.The applicant gave this detail as to why she couldn’t move: the government can’t solve this problem because the currency is lower.
5.7.The applicant thinks if she returns to Malaysia, she will be harmed this way: psychological, mental and emotional.
5.8.The applicant gave this detail as to why the Malaysian authorities can’t protect her: the government can’t solve this problem because the currency is lower.
5.9.The applicant gave this detail as to why she wouldn’t be able to relocate within Malaysia: Many died caused by can’t afford to buy drugs.
Other departmental records:
6.1.Decision record relating to the delegate’s refusal decision.
6.2.Case file.
6.3.Internal records relating to the applicant.
Application for review
The Tribunal wrote to the applicant inviting her to attend a hearing on 4 January 2023 and to provide pre-hearing submissions.
Prior to the hearing, the applicant provided to the Tribunal:
8.1.Confirmation that the applicant intended to participate in the hearing without representation.
8.2.A request that the Tribunal take witness evidence from her husband, a friend, and a contact at her local church.
8.3.[A named] Hospital Emergency Department clinical notes dated 13 January 2020 regarding a presentation by the applicant at 18 weeks’ pregnant complaining of left-sided weakness and headache, and noting a history of significant episodes of depression, possible PTSD and dissociative episodes due to past trauma, and further noting she is under the care of the perinatal mental health team (‘applicant’s ED clinical notes’).
8.4.[Health Service 1] Children’s Development Team Early Intervention Summary dated 14 October 2022 regarding multiple developmental differences demonstrated by the applicant’s son (‘son’s developmental assessment’).
8.5.Extracts from an 866 protection visa application form, Part C, being answers to questions 86 to 90 with additional handwritten notes outlining claims of serious violence and abuse perpetrated by the applicant’s parents against the applicant throughout her childhood and teenage years in Indonesia and Australia (‘applicant’s handwritten notes’)
The Hearing
The applicant appeared before the Tribunal at a hearing conducted via video link on 4 January 2023. An interpreter was present (also via video link) to assist with interpretation in the Indonesian and English languages if necessary. The applicant did not require assistance from the interpreter and the entire hearing was conducted in English. The applicant was not represented at the hearing.
The applicant gave the following evidence:
10.1.The applicant was born in Jakarta, Indonesia in [specified year]. She lived with her parents and her brother who is [relative age]. Her mother worked full time as [an occupation 1]. Her father worked full time for [a product 1] company, either on [specified locations] or in other countries, and was hardly at home. The applicant and her brother went to a private Catholic primary school in Jakarta; she attended for [number] years. Other parents at the school and neighbours often helped with before and after school care arrangements because the applicant’s parents were both working; otherwise, the applicant and her brother would look after themselves.
10.2.The applicant appeared confused about her father’s name: she gave one name, then recalled another name, and doesn’t know why he used two different names.
10.3.The applicant’s father hit her whenever he was back home not working, but she can’t remember when or how often. He always locked her in a room and tied her up from the ceiling.
10.4.The applicant first came to Australia in May 2000 with her parents and brother. She was aged [age] at the time. She thinks her parents were running from the 1998 crisis in Indonesia, but she’s not sure because she was young and didn’t know what was going on. The Tribunal asked the applicant if she was referring to the Suharto riots, and she replied, yes, that it was about the Chinese in Indonesia. She said that even though her mother’s family were Muslims, they had become Christians, and her parents thought they were at risk, and they were worried about what that meant for her brother’s education and future. The applicant doesn’t know if her parents applied for protection in Australia.
10.5.The applicant thought they were coming to Australia for a long time because her mother packed a lot of suitcases and brought all their documents. Both parents had given up their jobs in Indonesia. She doesn’t know what visa she was on in Australia or when she was without a visa.
10.6.The family lived initially in [Suburb 1], Sydney then someone found a house for them in [Suburb 2]. The applicant doesn’t know what her father did for work in Australia. Her mother worked in a [business 1] and in [industry 1]; she thinks she may have applied for [an occupation 1] job, but she didn’t work as [an occupation 1].
10.7.The applicant finished primary school in [Suburb 3] then attended [School 1]. She tried to tell her home room teacher in year 4 and her Mandarin teacher that she was being hit all the time by her father, that she had bruises, and that her parents punished her and locked her up, but the teachers didn’t hear what she was saying and didn’t help her. When the applicant was at high school, she never wanted to go home because she was scared of what her parents would do to her. She often fainted and blacked out at school. Sometime during high school, the applicant was absent from school for weeks recovering from injuries she’d received from her father or mother; her boyfriend at the time told the police who then came to the house to do a check. Her mother and brother talked to the police and they left. She was screaming in her room, but the police couldn’t hear her because her mother had made the room sound proof. Afterwards, her mother kept hitting her and telling her she was stupid.
10.8.The applicant thinks her father molested her, she can’t recall exactly when, but she had just started puberty as a young teenager. He stopped because she stayed away from him.
10.9.The family returned to Indonesia in 2007. The applicant’s mother had [medical conditions] and wanted to return home and see her family before she died. They left a week before the applicant’s HSC exams. The applicant didn’t want to leave Australia; she wanted to stay and graduate from high school and have a life here. The parent of a school friend offered for her to live with them, but the applicant’s mother did not allow it.
10.10.The family returned to live in the house in Jakarta they had lived in previously. It was owned by the applicant’s mother and had been vacant whilst they were in Australia. The parents opened a business, but the applicant doesn’t know what sort of business. They paid for her brother to go to an international university. The applicant begged her parents to send her to an international school so she could study languages, but they refused to pay the fees. Instead, she went to a normal high school and completed the equivalent of the HSC. She wanted to move out of home, but her mother told her she had to stay and help around the house, and get a job to help pay for her brother’s university fees. She worked as [an occupation 2] for [number] years.
10.11.Later in her evidence the applicant said that she wanted to move out of home, but her parents said she couldn’t and they needed her to make more money, so they sold her to a stranger who kidnapped her and took her to a place in north Jakarta where many men touched her. She was hoping her other character would come out and burn them. One of the men raped her, threw the money onto her, and she later gave the money to her mother. Soon after the rape, the applicant went to the local police station in north Jakarta to make a report. The police started touching her sexually and she dropped the complaint. Sometime after that, the applicant tried to commit suicide by drinking pesticide. Someone found her and took her to the hospital.
10.12.Later again in her evidence the applicant said that after high school she completed a [degree] at the [named university]. It was the same degree her brother had completed. She took many jobs to pay for it including [occupation 2]. She finished in 2011, then her mother forced her to do a degree in [subject] so she could get a job with the government. The applicant completed her [degree] online in 2014. She likes to study because it controls her mind.
10.13.The applicant first met her now husband in 2013 in Indonesia. Sometime before that, while in Indonesia, the applicant had another boyfriend and she became pregnant. She asked the boyfriend to take responsibility, but he never came with her to the doctor visits, and she was too scared to talk to her parents because they thought she was a failure. The boyfriend’s family drugged her and cut the baby out of her, then the boyfriend left her. A doctor prescribed a month of painkillers for her. She was very depressed and felt mad.
10.14.After the abortion, the applicant went back home. Her mother was getting sicker. Her mother told her that she had never wanted her since birth. Her father told her she wasn’t worth it. Her parents were cruel and horrifying towards her. She didn’t know the point in living if she was supposed to have been dead from birth. She kept hearing voices and having bad thoughts.
10.15.On her birthday in 2014 the applicant travelled to [Country 1] for a holiday. She had been thinking about moving there to get help with her mental health problems. She can speak [a local language]. She spoke to friends there who told her that unless she had money to pay for therapy and support, [Country 1] wouldn’t be any better than Indonesia.
10.16.Sometime in 2015, the applicant travelled to [Country 2], again with the intention of living there and getting help for her mental health problems. She was not fluent in [the local language]. When she arrived she was scammed. She only spent a week there as she kept getting lost, men were following her, and she was scared.
10.17.The applicant wanted to get out of Indonesia and go to another country to get help and medication as there wasn’t enough support in Indonesia. She is afraid of herself; afraid her other character will come out and she won’t be able to control her. She doesn’t have any memories from high school because she blanked out often.
10.18.Sometime in 2015, the applicant’s mother died in Indonesia of [her condition]. The applicant continued living in the home with her father and brother. The father wasn’t violent towards her after the mother died because the brother stopped him. The brother married in 2016.
10.19.After her brother married, the applicant decided to return to Australia by herself in June 2016. Australia felt like home to her and she hoped it was her best option for getting help with her mental health problems. Because her mother had died, she could take the documents she needed to travel. Her father did not react when she told him she was leaving. She last spoke to her father on the phone in June 2016 when she arrived in Australia; he told her to visit his old best friend in Sydney, who had married an Australian citizen, to get the help she needed.
10.20.The applicant stayed in Sydney initially when she returned to Australia. She felt she needed to find a place to heal so visited the pastor she knew in [Suburb 1]. After a few days she contacted her now husband as she needed money, then travelled by train to Brisbane to meet up with him. She stayed a few days then wanted to return to Sydney to get help; her now husband told her it was pointless, no one could help her in Sydney. She stayed in Sydney with a friend from high school, but the friend stole her savings and kicked her out of the house. She then stayed with an ex-boyfriend for a few days; he told her no one could help her and he was scared of what her brother would do to him.
10.21.The applicant returned to Brisbane to live with her now husband and work on the farm at [Town 1] where he was already employed. She had to repay the money she borrowed from him. She worked very hard for little money. She was depressed, very scared, and had an episode, but didn’t go to hospital because she was illegally overstaying. Her now husband was supporting her and urging her not to end her life.
10.22.The applicant believed that she had made a protection visa application in August 2016. Her Malaysian friends told her to apply because she would also get a bridging visa until the protection visa was processed. She didn’t know what a protection visa was; she felt mostly she needed protection from herself. Over the months following, she was curious to find out more about protection visas. She thought it gave her the right to stay here legally then apply for another sort of visa. She realised she had probably made the wrong decision. The applicant’s handwritten notes were part of her application. She went to the [named] offices of the Department of Home Affairs in August 2016. Security wouldn’t let her through so she left the application form on the counter. The applicant said she did not get a receipt or ever hear from Home Affairs regarding this application.
10.23.The applicant told a friend about how she hadn’t heard anything from Home Affairs, and he advised her to lodge another application. He said he’d sort it out for her, copying from the earlier application. The applicant doesn’t recall reading or signing the application. She recalls talking to the friend about needing protection for her mental health problems, from herself and others around her. She also told the friend about an incident in Indonesia when she was having an episode where she chased someone with a knife, but the victim dropped the charges because they knew she needed help. The friend lodged the application in January 2017.
10.24.The applicant believed the January 2017 application was identical to the August 2016 application. The Tribunal explained that the only valid application was the January 2017 application, and it is that application that is under review. The Tribunal also explained that the January 2017 application contained very limited detail about her claims for protection (summarised as psychological, mental and emotional harm due to economic impacts, noting Malaysia as the home country), and that the applicant’s handwritten notes had to be regarded as new claims because they had not been considered by the Department when reaching its decision to refuse the January 2017 protection visa application.
10.25.The applicant didn’t remember what was in the refusal decision from the Department, but found a copy of the decision record during the hearing. The Tribunal pointed out to the applicant that there was no reference in the refusal decision to the claims made in the applicant’s handwritten notes.
10.26.The applicant and her husband married in July 2018 when they were living at the [Town 1] farm. They moved to Darwin in August 2019 to get work through the mango season. Their son was born in [year]. During the pregnancy, the applicant had an episode; it wasn’t serious, she was wanting her husband to take care of her more often because she was feeling lonely, empty, and scared, and she was hallucinating (this incident is verified in the applicant’s ED clinical notes). After the birth, the applicant kept hearing voices saying ‘do it, do it, he’s bad for you; look what happened to your first baby, you’re not allowed to have kids’. The voices were telling her to put the baby in the freezer so he could be quiet. The applicant was hallucinating; she called her husband because she couldn’t control her other character/self. The applicant gets big headaches when ‘she’ (her other character/self) comes out, and pulls her hair.
10.27.The Northern Territory child protection authorities took the applicant’s son away from her for ten days soon after he was born. She was very depressed during that time; she couldn’t produce breast milk and she was reliving her own childhood trauma. When her son was returned to her, child protection visited their home twice a week, and the hospital visited or checked in three times a week to make sure she was taking her medication.
10.28.On the applicant’s evidence it’s not clear to the Tribunal the current involvement of child protection and the hospital. The applicant said that she has written and displayed notes to herself around their unit to remind her to focus on looking after her son so he’s not taken away from her again.
10.29.The applicant thinks she has been diagnosed with PTSD and maybe bipolar, but she’s not sure. She couldn’t recall the medication she was taking previously, and said she is currently not taking any medication because she’s showing that her mental health is under control.
10.30.The applicant had been working at [Employer 1], but she resigned on 30 November 2022 because she had an episode. She doesn’t remember what happened, but she was caught stealing on CCTV footage. [Employer 1] didn’t know anything about her mental health problems, and she didn’t want them to know because she thought it may prejudice her future job prospects, so she resigned.
10.31.The applicant’s husband has a full-time position as [an occupation 1] with a [company] in Darwin.
10.32.The applicant, her husband and son live at an address in Darwin that she disclosed to the Tribunal. It is an apartment; they have been renting there for about 4 years. They mostly deal with the real estate agent. The applicant said no one else lives with them, however they have received at the address a lot of mail addressed to people they don’t know. The mail looks like bills and bank statements. They return it to the post office. The real estate agent told them the people named on the envelopes are not former tenants of the apartment.
10.33.It is difficult for the applicant and her husband to manage financially on only one wage. The rent has increased and it’s costly having a toddler. They get some support from the church, mostly supermarket vouchers, but it’s not enough. They have to draw on their savings to cover costs.
10.34.The Tribunal referred to the son’s developmental assessment and asked the applicant how her son had been going since. She said there had not been any further assessments since August 2022 and he’s not currently having any treatment or therapy because there’s no money or insurance to cover the costs. They can’t access the NDIS because she’s not a permanent resident. She thinks her son is traumatised because child protection removed him from her; he clings to her and doesn’t want to be held by anyone else.
10.35.The applicant doesn’t know whether her father returned to Australia at any stage or where he lives now. She thinks he has a new family and they may live in Sulawesi, Indonesia.
10.36.The applicant’s brother and wife live in Indonesia. They would never come here because the wife is scared of planes. The applicant has little contact with them; mostly when they want something. The last contact was by phone on Christmas 2022 when her brother’s wife asked her the whereabouts of the title deeds to the mother’s house in Jakarta. When the mother died, the brother was bequeathed the mother’s house and her other assets and belongings. The applicant did not receive anything. There was no discussion on the phone about the applicant’s father.
10.37.When asked by the Tribunal to explain the basis on which she is claiming protection in Australia, the applicant said she needs protection from her bad character coming out due to her past traumatic events. She needs to get control because the other self can swap any time. If she is sent back to Indonesia, she fears the environment and the memories will cause another episode, which she couldn’t control or get help for, and it will end badly. She fears harm from her father because of all that he and her mother did to her, even though she still cares about her father. He’ll call her names and maybe hit her. She also fears harm from everyone around her because they won’t help her, and some take advantage of her by touching and molesting her. There’s nowhere she feels safe there and no one who can help her.
Adverse information
10.38.The Tribunal explained to the applicant that where any information, known as adverse information, comes to the attention of the Tribunal that it considers would be the reason or part of the reason for affirming the decision under review, the Tribunal is required by law to present clear particulars of that information to the applicant.[1]
[1] s 424AA of the Migration Act 1958 (Cth)
10.39.The Tribunal explained to the applicant that it must ensure, as far as reasonably practicable, that the applicant understands why the information is relevant to the review and the consequences of the information being relied on in affirming the decision under review.
10.40.The Tribunal explained that it must invite the applicant to comment on or respond to the adverse information, and if she requires time to consider the matter, the Tribunal must adjourn the hearing for such time as is reasonably necessary.
10.41.The Tribunal emphasised to the applicant that while these obligations exist, the Tribunal had not made a decision about her case or the extent to which the adverse information affects her claims for protection.
10.42.The Tribunal presented the information to the applicant in the following terms (‘the adverse information’):
10.42.1.The Tribunal referred to the earlier discussion about the August 2016 and January 2017 protection visa applications. The Tribunal repeated that the January 2017 application referred to Malaysia, not Indonesia, as the country the applicant was seeking protection from; and further that her claims for protection appear to be based on economic reasons giving rise to fears of psychological, mental and emotional harm, which are not consistent with the claims made in the applicant’s handwritten notes.
10.42.2.The Tribunal explained that because the applicant’s handwritten notes were not part of the January 2017 application, being the application under review, the Tribunal must regard them as new claims and evidence made after the Department’s decision to refuse the protection visa, which, under the law, means that the Tribunal must draw an unfavourable inference about the applicant’s credibility unless there is a reasonable explanation for her raising the new claims and evidence.[2]
10.42.3.The Tribunal referred to information in a departmental record that discloses that the applicant’s father did return to Australia and that he remains in Australia as at the date of the hearing. The Tribunal referred to additional information available to the Tribunal that discloses that the applicant’s father has listed as his address the same address as the applicant.[3] The Tribunal explained that if her father is a source of her fears of returning to Indonesia, and her father is in fact in Australia, there is no foundation for that protection claim.
10.43.The Tribunal asked the applicant if she wanted time to consider her responses to the adverse information. She became extremely distressed and upset, crying out that she needs help. She didn’t ask for a break or time to consider. She said her father had never come to their current address, she doesn’t know why he has listed their address as his own, perhaps the brother told the father the address. She believes the father hasn’t come near her because he thinks it will cause him trouble. If she is returned to Indonesia and the father goes back there at some stage, the applicant believes he will harm her.
10.44.The Tribunal strongly suggested to the applicant that she ring her GP after the hearing and make an appointment so she can get some help.
[2] s 423A of the Migration Act 1958 (Cth)
[3] Australian Privacy Principles: an APP entity that holds personal information about an individual can only use or disclose the information for a particular purpose for which it was collected (known as the ‘primary purpose’ of collection), unless an exception applies. Where an exception applies the entity may use or disclose personal information for another purpose (known as the ‘secondary purpose’). Exceptions include (inter alia): the individual would reasonably expect the secondary use or disclosure, and that is related to the primary purpose of collection or, in the case of sensitive information, directly related to the primary purpose (APP 6.2(a))
Witness evidence

At the applicant’s request, the Tribunal agreed to take evidence from the applicant’s husband, a friend of the applicant, and a contact at the local church. The applicant said her husband wasn’t available because he was working and wouldn’t be giving evidence. The hearing attendant made two calls to the church contact; however the calls were not answered.
The applicant’s friend gave evidence over the telephone that she has been a close friend of the applicant for two years; they met at the library. She sees the applicant about once a month, and they talk on the phone about three times a week. She is aware of the applicant’s mental health issues and that the applicant is worried about her son, and has tried to support her as a friend. She lives close by to the applicant. The Tribunal told the friend that the applicant had found the hearing very distressing because of the issues that were discussed, and asked the friend if she would consider visiting the applicant after the hearing to give her some support. She said she would do that.
Additional material
At the close of the hearing, the Tribunal invited the applicant to provide the following material to the Tribunal by close of business 6 January 2023:
13.1.Complete copy of the August 2016 protection visa application.
13.2.Copies of all correspondence between the applicant and the Department.
13.3.Letter from the church contact (given they were not available to give oral evidence).
13.4.Documents relating to the applicant’s child protection matter.
On 12 January 2023, the Tribunal received by post from the applicant the following copied material (‘the additional material’):
14.1.Form 866A Application for a protection visa completed and signed by the applicant, marked at the foot of each page with an indecipherable signature and the letters ‘JP’, and dated 3 August 2016.
14.2.Civil Registry (Indonesian Citizen) Jakarta Excerpt Birth Certificate No. relating to the applicant.
14.3.Undated text messages through the day and night between the applicant and first-named individuals (likely to be staff of NT Government’s Territory Families) in which the applicant discloses an attempt to harm her son and expressing fears that he will be taken away from her.
14.4.Undated letter from Northern Territory Government Territory Families addressed to the applicant and her husband advising that their son had been taken into provisional protection and removed from their home [in] December 2020.
14.5.Application to the Family Matters Division of the Local Court of the Northern Territory for a Temporary Protection Order under s 104 of the Care and Protection of Children Act 2007 (NT) dated [in] December 2020 for the urgent temporary protection of the applicant’s son to safeguard his wellbeing, together with supporting affidavit of the same date.
14.6.Suicide Safety Plan, which appears to have been completed by the applicant [in] December 2020.
14.7.Letter from Northern Territory Government Territory Families dated [in] April 2021 addressed to the applicant advising that a [specified] case had been opened on her family [in] September 2020, and that the case had been reviewed, and the agency had concluded that there are no child protection concerns to warrant the case remaining open.
14.8.Letter from the head pastor of the [named] Church, Darwin dated [in] January 2023 attesting to his observations of the applicant’s regular church attendance and good character.
14.9.Undated and unsigned statement by the applicant’s friend who gave evidence at hearing attesting to her observations of the applicant’s childhood abuse and trauma and mental health problems.
The applicant advised the Tribunal by phone after the hearing that said she did not have any correspondence from the Department regarding the August 2016 application.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal made the following observations of the applicant and her evidence during the hearing:
16.1.The applicant on a number of occasions referred to having mental health problems as a result of the abuse and trauma she experienced growing up.
16.2.The applicant on a number of occasions talked about her parents not wanting her, that they didn’t want a daughter, that they only cared about her brother, and they considered her a failure.
16.3.The applicant on a number of occasions talked about her other self or other character. The applicant said she hears the voice of her other self/character talking to her from time to time, telling her she is no good and to do things that are wrong or bad. The applicant also said her other self/character needs to be controlled and she needs to be protected from her.
16.4.The applicant on a number of occasions talked about having ‘episodes’, which the Tribunal understood to be when the applicant couldn’t control her other character/self.
16.5.The applicant had periods of lucidity, periods of confusion and memory loss, and periods of distress and crying during her evidence. When the applicant was particularly distressed, she hit her forehead with her hand because she said she had a headache.
16.6.The applicant often had difficulty remembering when incidents had occurred, including the year in which they occurred.
16.7.The applicant’s evidence was at times vague and incomplete, inconsistent or implausible.
The Tribunal considers that the August 2016 protection visa application was never lodged with the Department.
Based on the applicant’s oral evidence overall, and the copies of the August 2016 and January 2017 protection visa applications and other pre-hearing documents signed and provided by the applicant, the Tribunal considers it is likely that the applicant did not complete, sign or lodge the January 2017 application, and further, it is likely the applicant was not aware of the protection claims made in the January 2017 application.
The Tribunal considers it was reasonable for the applicant to assume or believe that the protection claims made in the January 2017 application were the same as those made in the August 2016 application.
The Tribunal considers it is likely the applicant did not understand that the Department had not considered the protection claims made in the applicant’s handwritten notes in making its refusal decision.
Whilst the applicant’s handwritten notes must be regarded as new claims and evidence not raised or presented by the applicant before the primary decision was made, the Tribunal considers that the applicant has a reasonable explanation for not raising or presenting the claims and evidence before the primary decision was made. Therefore, the Tribunal does not draw an inference unfavourable to the credibility of the claims or evidence for the reason that they were raised or presented after the primary decision was made.[4]
[4] s 423A of the Migration Act 1958 (Cth)
The Tribunal considers that the applicant’s intended protection claims are those made in the applicant’s August 2016 application and about which she gave evidence at hearing, notwithstanding that the August 2016 application was never lodged with the Department.
The Tribunal considers the protection claims made in the January 2017 application nonsensical. The applicant could not explain the claims to the Tribunal or present any evidence in support, and could not explain why the application referred to Malaysia as the country she was seeking protection from, rather than Indonesia.
Based on the Tribunal’s observations of the applicant and her evidence during the hearing, and having regard to the applicant’s ED clinical notes and the additional material, the Tribunal considers it is highly likely that the applicant has experienced significant abuse and trauma in her life, both in Indonesia and Australia; that it is highly likely a perpetrator of that abuse is her father; and it is highly likely that she has one or more serious mental health conditions.
In further support of these conclusions, the Tribunal notes the Application for a Temporary Protection Order provided by the applicant as part of the additional material states (inter alia) that: “The mother suffers from depression and complex post-traumatic stress disorder (c-PTSD), attributed to childhood trauma and neglect.”; and “The maternal grandfather was a perpetrator of the mother’s childhood trauma.”
The Tribunal considers that the claims and evidence regarding the applicant’s fears of her father harming her if she is returned to Indonesia are not borne out by the facts, being that the father has been in Australia since 2018 and, as at the date of this decision record, remains so.
The applicant gave evidence that she last had contact with her father (who was then in Indonesia) by telephone soon after she arrived in Australia in June 2016. However, the father’s address disclosed at hearing as part of the adverse information procedure indicates that the father may be living at the applicant’s address or may have done so in the past.
In further support of this conclusion, the Tribunal notes the Application for a Temporary Protection Order provided by the applicant as part of the additional material states (inter alia) that: “The maternal grandfather lives in Victoria, but stays with the family for extended periods from time to time.”
The Tribunal accepts that the applicant fears harm from her father based on the past abuse and trauma highly likely to have been perpetrated by the father, and that this fear can be genuinely felt and sustained by the applicant even in circumstances where the father is living with or has lived with the applicant with her apparent consent.
The Tribunal accepts that the applicant has a fear of herself, in that she feels at times she can’t control herself and fears she may do things that are dangerous or harmful to herself or others.
Notwithstanding the applicant’s subjectively held fears, the Tribunal considers that the applicant’s claims and evidence do not meet the refugee or complementary protection criteria.
Other considerations
In considering the claims and evidence, the Tribunal has also taken account of:
32.1.The Department of Home Affairs ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’.
32.2.The Tribunal’s Migration and Refugee Division Guidelines on the Assessment of Credibility.
Application of law
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection. Attachment A sets out the applicable law.
Based on the consideration of the applicant’s claims and evidence, the Tribunal finds that:
34.1.The applicant is a citizen of Indonesia and a non-citizen in Australia.
34.2.There is no evidence to support a claim by the applicant for protection under the refugee criterion or on complementary protection grounds set out in the applicable law.
34.3.If the applicant is returned to Indonesia, there is no real chance that she would be persecuted, and accordingly the applicant does not have a ‘well-founded fear of persecution’ as required by s 5H(1)(a) of the Act and as defined in s 5J(1) of the Act.
34.4.There do not exist substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia there is a real risk the applicant will suffer significant harm.
CONSIDERATION OF REFERRAL FOR MINISTERIAL INTERVENTION
The Tribunal considers that the circumstances of this case are sufficiently unique or exceptional to warrant a referral to the Minister for possible consideration of the use of the Minister’s intervention powers, according the criteria set out in the Minister’s guidelines on ministerial powers (ss 351, 417 and 501J of the Act).
In particular, based on the evidence before it, the Tribunal considers that:
36.1.Compassionate circumstances exist regarding the psychological state of the applicant that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the applicant.
36.2.Whilst the applicant does not meet the criteria for the grant of any type of protection visa, the applicant’s psychological state provides a sound basis for believing that there is a significant threat to her health and wellbeing if she returns to Indonesia due in part to the abuse and trauma she is highly likely to have experienced there.
36.3.There are circumstances that bring Australia’s obligations under the Convention on the Rights of the Child into consideration, including the best interests of the child.
The Tribunal notes there is evidence (i.e. the applicant’s ED clinical notes and the additional material) of the applicant having received medical treatment or care from the Northern Territory health services for her mental health problems. The Tribunal considers that it is highly likely the applicant has an ongoing and high need for medical treatment or care, and that she is unlikely to be able to access that treatment and care in Indonesia.
The Tribunal notes there is evidence (i.e. the son’s developmental assessment) of the applicant’s son having received medical or allied treatment or care from the Northern Territory health services for his developmental problems. The Tribunal considers that it is highly likely the applicant’s son has an ongoing and high need for medical or allied treatment or care, and that he is unlikely to be able to access that treatment and care in Indonesia.
The Tribunal notes the DFAT Country Report for Indonesia dated 25 January 2019 provides the following information that it considers relevant to this case:
39.1.[3.124] A lack of understanding about mental and intellectual disabilities including autism or schizophrenia can lead to pasung or ‘shackling’, where people with disabilities are restrained in chains, cages or other restraints. While the practice has been illegal since 1977, it continues to occur where families hide their disabled relatives in, for example, a shed. Shackling of people with mental disabilities persists, though gains have been made to reduce the practice…While some argue that shackling is a form of traditional treatment, families also use it to hide family members with mental health conditions who may bring social shame. This view is more common among poorer people and rural communities.
39.2.[3.125] Mental health services are available in Indonesia, but are limited. General health facilities including local hospitals may provide basic mental health services. Specialised mental health facilities are also used to treat general health and their capacity is often stretched. People with mental health problems may face stigma in seeking access to services.
39.3.[3.126] DFAT assesses that people with mental health issues, particularly the poor and those in rural areas, face a moderate risk of societal discrimination and violence.
CONCLUSIONS
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
There is no evidence before the Tribunal that suggests that the applicant satisfies s 36(2)(b) or (c) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2)(b) or (c) of the Act.
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
The Tribunal refers the case to the Department to be brought to the Minister’s attention.
Kate Chapple
Member

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

[2023] AATA 345

12 January 2023

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