1805340 (Refugee)

1805340 (Refugee) [2024] AATA 2843 (1 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1805340
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Jessica McLeod
DATE:1 May 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 1 May 2024 at 11.39am

CATCHWORDS
REFUGEE – protection visa – Indonesia – economic and social conditions and distrust of law enforcement and judiciary – unable to repay money borrowed from relatives – debts paid after working in Australia – late claim of fear of harm as homosexual man from conservative Muslim family – long-distance relationship with man met on dating app and casual activities in Australia – spontaneous and detailed responses, evidence of communications and unexaggerated fear of harm – focus on debts and reluctance to disclose sexuality to person who prepared application – reasonable explanation and no adverse inference drawn – country information – same-sex relationships not illegal but widespread official and societal discrimination – modification of behaviour not reasonable, effective protection measures not available and chance of harm in all areas of country – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (2), (4), 5LA, 36(2)(a), 65, 423A
Migration Regulations 1994 (Cth), Schedule 2

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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 February 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Indonesia, arrived in Australia [in] December 2016 and applied for the protection visa on 30 December 2016.
The delegate refused to grant the visa, finding at that time that the applicant did not engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) and did not satisfy any of the other criteria in s 36(2) of the Act.
The applicant appeared before the Tribunal on 6 February 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant engages Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s.36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
In his protection visa application lodged in 2016, the applicant claimed that he left Indonesia due to his distrust of the judiciary and law enforcement.
He said it has a poor system of government with bureaucracy starting from the lowest level up to the top. He said the destruction of the global economy had impacted the nation’s economy and poverty and unemployment were still big problems. Due to such problems, he had been living in hardship. He had to borrow money from relatives. But he could not pay the debts and he lived in mental distress and fear. He said he was threatened over this and that many people like himself who had borrowed money were hit and injured and killed.
He said he had tried but was unable to get help because it was considered a personal problem and a problem of the economy. He did not try moving to another part of the country because his is a social-economic problem and he will experience this everywhere.
He claimed that he fears returning to Indonesia because he will be caught by creditors who will be searching for him. He could be beaten, injured or killed. He also fears living in harsh conditions and suffering discrimination against Indonesian people.
The delegate assessed and refused the applicant’s protection visa application on the basis of the above claims.
In his written statement submitted to the Tribunal on 4 February 2024, the applicant raised new claims that he is gay, and fears being harmed by Indonesia on that basis.
He said he discovered he was gay when he was in high school but coming from a conservative Muslim family, and Islam’s strong influence on the law and society in Indonesia, he was unable to be open about his sexuality. He said he worried about shaming his family and he referred to Indonesian laws against pre-marital sex, which he said effectively criminalises same-sex activities because same-sex relationships are not legally recognised. He listed some examples of his witnessing LGBTIQ+ persons being bullied, discriminated against and harmed in Indonesia. He said he had tried moving within Indonesia (e.g., to Bali) but there was discrimination, and he was unable to be himself there too. He said he is seeking protection in Australia because he wants to openly be LGBTIQ+ and to freely practice LGBTIQ+ activities here, as he is now.
At the Tribunal hearing on 6 February 2024, the applicant said he had come to Australia to work and earn money to pay down his debts (which he has since paid off in-full) and to get as far away from Indonesia as possible and to hopefully help his boyfriend to come here. He wants them to live here and get married.
He said he had had unpleasant experiences with girlfriends whose families didn’t think he would amount to anything, and when he was about 16 and living in his grandmother’s house, he developed an interest in men. He has never been with a girl after leaving school.
He said he had had two boyfriends in Indonesia. The first treated him unfairly, accepting money from him while having relationships with other men. He has been with the second boyfriend ‘[A]’, for about four years, since late 2019 or early 2020, after meeting him on the Blued app (now called HeeSay).[1] [A] is [Age] years old and lives in Bandung, West Java. He has never come to Australia. They have never met in person; their whole relationship has been online. They talk every day on WhatsApp. [A] works in the [work sector], but the applicant also contributes money towards his rent.
[1] According to the description on the Apple Store, this app is a global dating app for gay men, allowing gay men to develop friendships and date other men, or find life partners from around the world: accessed 15 April 2024
The applicant’s parents divorced in 2008 and they both died in 2012. He has one sibling, [a] sister who has been living in [Country] for about four years. His parents had siblings, but he is not in contact with them.
The applicant said that he grew up in a conservative Muslim household, where his family would do all their prayers and regularly attend mosque. His parents encouraged him to get married and worried that he was getting older and was still single. When they found out he was interested in men, he was no longer welcome at home, and he had to find another place to live independently. His grandmother was the only family member who knew and accepted his sexuality. Even his sister, like his parents, has been pushing him to get married. However, he thinks that she might suspect he is gay, because he is still single. There was also one occasion in 2015 where someone who was interested in him tried to find him and went to his brother-in-law’s home looking for him and the applicant got the impression his brother-in-law wanted to kill him.
The applicant said he still considers himself to be Muslim and tries to live by his Islamic faith. He prays and attends a mosque in Melbourne’s outer [suburbs]. He hopes that if he dies, he will be treated as Muslim, but he is a gay man in this world. He has to hide his lifestyle because it doesn’t fit with his faith. In Indonesia this would be a huge problem for him; it would be hard for him to keep it covered up and it would be very painful.
Before he came to Australia, he was living mostly in [City], but he also worked in [Location 1] and [Location 2]. He said he had visited Bali and stayed with another gay person there that he met on the Blued app, but while he had expected a more gay-friendly community, he realised he wasn’t able to be openly gay there.
He said that [A] manages to live in Indonesia by living a restricted life, keeping his sexuality secret, in a conservative Muslim area which does not tolerate homosexuality. Only one of [A]’s friends know that he is gay. The only time he can be himself is on video calls with the applicant. [A] stays living in that area because of his mother, who is single, and he wants to stay close to her. However, she does not know about [A]’s sexuality; she wouldn’t tolerate it.
The applicant said that although he tries to be happy, he struggles with his sexuality. He often feels sad and lonely with no one to talk to or share things with. He has become tired of being alone, but he tries to put on a brave face. He said he worries that if he had children, they would be like him (gay).
He said that while he is committed to [A], he has been having casual fun in Australia. He referred to a gay sauna club he attends in Melbourne. He used to frequent the place in 2018, but he does not attend much anymore. He has not had any relationships with men in Australia but has had several one-nightstands.
He said that if he is forced to return to Indonesia, he will continue his relationship with [A]. He wants to stay with him and one day get married. I noted this was a big commitment when he hadn’t met [A] in person and the applicant responded that they have regular contact and talk and support each other every day. He said [A]’s life mirrors his own and they are connected. He is a good man who grew-up in similar circumstances to the applicant and he wants them to spend their future together.
During the hearing, the applicant showed me photos on his phone of [A] and other men (including some explicit images) and their message history. Following the hearing, the applicant provided more evidence similar to this, and photos and chat histories with other men, from a span of years including 2018, 2020, 2021, 2022, 2023, and February 2024. He also provided screenshot of [A]’s [Social media] profiles (including his work profile) and financial receipts showing payments in 2022 and 2023 to the gay sauna club he said he visits in Melbourne. He also appeared to try to send evidence of video calls with [A]. These video calls do not appear to work but given the abundance of other evidence, I do not consider them necessary.
FACTUAL FINDINGS
The applicant has consistently claimed that he is an Indonesian citizen originally from Surabaya. He has provided a photocopy of his Indonesian passport, and I have met and conducted a hearing with him. No concerning issues have arisen; I accept the applicant’s nationality and identity are as claimed. I accept he is an Indonesian citizen, and that Indonesia is the receiving country for the purpose of this review. I also find, based on the available evidence, that the applicant does not have a right to enter and reside in a third country and s 36(3) is therefore not applicable.
At the hearing, I raised with the applicant that I had concerns around his delay in raising his claims relating to his sexuality, and specifically with regards to s.423A, why he did not disclose this to the Department of Home Affairs. He responded that the person who had assisted him in preparing his application was a conservative Muslim, and he was afraid to disclose it to him. He also said he was preoccupied in his first two years in Australia with working to pay down his debts, and he had genuinely thought the debt claims would be sufficient get him the visa. He said he received his refusal letter from the department but until almost now, he hadn’t realised he could raise new factors to be considered. I have considered this carefully, and I am mindful that the applicant arrived and lodged his application in 2016 and had been living here for over seven years before he raised his sexuality claims. Nevertheless, noting that Indonesia is a conservative Islamic nation manifesting widespread official and societal disapproval of LGBTIQ+ identities and behaviours which the applicant credibly himself described experiencing and observing, I find the applicant’s reluctance to disclose his sexuality to the more conservative Muslim who prepared his application to be plausible. I also accept his claimed early preoccupation with his debt and misguided belief that his original claims would suffice, and that he falsely believed he could not raise new claims after the decision was made. I am satisfied that the applicant has provided a reasonable explanation for not raising these claims and evidence with the delegate and I have therefore not drawn an unfavourable inference regarding his credibility.
At the hearing, the applicant maintained that his claims regarding his debts and initially fearing return due to them is all true, but he has confirmed that he has paid his debts off in full and that this is no longer a problem; it is not a reason he fears returning. He confirmed that his only problem with returning now, is his sexuality. Given the applicant’s evidence that he has paid all his debts, they are no longer a problem, and he no longer fears harm because of them, I find he does not have a well-founded fear of being persecuted in Indonesia on this basis. I also find that in relation to the debt claims, there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Indonesia, he would face a real risk of significant harm.
The applicant is now [Age] years old. He claims that since he was in high school, he has known he is attracted to men. He claims to have fallen out with his parents over this, and that his sister and brother-in-law suspect it. He claims to have, over the years, had both long term relationships and casual sexual encounters with men. He claims he is currently in a long-distance relationship with [A], whom he met on Blued/HeeSay and has not yet met in person, but in the meantime has been having casual fun with other men in Melbourne.
During the hearing, the applicant responded to my questioning in sufficient detail, and in a spontaneous and natural manner and I am satisfied that he was recalling details and events based on his personal experiences. He was forthcoming with detail about his relationships and sexual encounters and gave convincing evidence about his lifestyle in Melbourne. He gave what I consider to be unexaggerated evidence about what he worries would happen if he were to return and be identified as gay in Indonesia, and that he cannot see a safe future being openly gay there. He did not come prepared with photographic or other evidence but presented it organically when I asked if he had any such evidence handy on his phone. As noted above, he has since provided additional evidence to support his claims.
I accept that the applicant is gay, as claimed and that he holds the claimed fears of returning for reasons of his homosexuality. I accept his parents were unable to tolerate his orientation and that he ceased to live with them for that reason. I accept he conducted his relationships in Indonesia discreetly, for fear of facing discrimination, bullying and physical harm. I do not consider that his activities with other men in Australia have been undertaken for the purpose of strengthening his refugee claim.
REFUGEE ASSESSMENT[2]
[2] I recognise the broader community, including ‘LGBTIQ+’ and ‘LGBTQIA+’, however, some of the country information reports referenced referred merely to the narrower iterations of LGBT or LGBTI or LGBTIQ. In this case, the applicant is gay and fits within, or may be perceived to fit within, all such iterations. For consistency, and noting the DFAT report refers to the LGBTI community, this is the term used in this assessment.
I accept the applicant fears harm in Indonesia for reasons of his sexuality, being gay.
Indonesia is the world’s largest majority Muslim country by population.[3] Despite there being no national law against same-sex sexual relations and it not being illegal (apart from in Aceh), the country information depicts Indonesia as a conservative Islamic nation in which it is very difficult to be openly LGBTI. LGBTI people are heavily stigmatised and face official and societal discrimination.[4] Various sources also report that they suffer from widespread discrimination, inflammatory and discriminatory rhetoric from authorities and targeting under local government laws and by police.[5]
[3] DFAT, ‘DFAT Country Information Report: Indonesia’ 24 July 2023, 20230724102537
[4] DFAT, ‘DFAT Country Information Report: Indonesia’ 24 July 2023
[5] DFAT, ‘DFAT Country Information Report: Indonesia’ 24 July 2023, 20230724102537; United States Department of State, 'Country Reports on Human Rights Practices for 2023 - Indonesia', 22 April 2024, 20240424084554; United States Department of State, 'Country Reports on Human Rights Practices for 2022 - Indonesia', 20 March 2023, 20230321160256; Freedom House, 'Freedom in the World 2024 - Indonesia', 1 March 2024, 20240307130032

Numerous local government regulations define same-sex sexual conduct as a form of sexual deviance[6] and authorities have acted under the guise of various laws to target the LGBTI community. International media reported on raids against a private gay party and against other private homes in 2020, with charges laid for ‘obscene acts’ under anti-pornography laws. In 2022 and 2023, NGOs reported several cases where vaguely defined laws related to pornography and facilitation of prostitution were used to prosecute LGBTI individuals.[7] In January 2023, the Mayor of Medan (Sumatra), characterised same-sex relationships as counter to national culture and publicly proclaimed Medan an “anti-LGBTI” city. In July 2023, Garut Regency in West Java became the fifth local government to enact anti-LGBTI legislation providing for a taskforce to prevent and monitor “immorality,” including same-sex relationships. In May and July 2022, authorities in Pekanbaru (Sumatra) carried out “surveillance raids” on guesthouses to deter same-sex relationships under the guise of upholding “public order”.[8] NGOs have also criticised the city of Bogor (West Java) for a law aimed at “rehabilitating” those perceived to suffer from abnormal sexual behaviour, saying it violated rights and targeted LGBTI individuals and communities.[9] LGBTI people may also face charges in the military, where same-sex sexual activity is illegal, and LGBTI people have also been dismissed from the police force due to their sexual orientation.[10]
[6] United States Department of State, 'Country Reports on Human Rights Practices for 2023 - Indonesia', 22 April 2024, 20240424084554; Human Rights Watch, ‘Human Rights Watch World Report 2022', 12 January 2022; United States Department of State, 'Country Reports on Human Rights Practices for 2022 - Indonesia', 20 March 2023, 20230321160256
[7] DFAT, ‘DFAT Country Information Report: Indonesia’ 24 July 2023, 20230724102537; United States Department of State, 'Country Reports on Human Rights Practices for 2023 - Indonesia', 22 April 2024, 20240424084554; Human Rights Watch, 'Human Rights Watch World Report 2023', 12 January 2023, 20230112144355
[8] United States Department of State, 'Country Reports on Human Rights Practices for 2023 - Indonesia', 22 April 2024, 20240424084554; Human Rights Watch, ‘World Report 2024’, 11 January 2024, 20240112083455; The Jakarta Post, 'Medan mayor’s remark again raises LGBTIQ+ issue to the forefront', 3 January 2023, 20230104114414
[9] United States Department of State, 'Country Reports on Human Rights Practices for 2023 - Indonesia', 22 April 2024, 20240424084554
[10] DFAT, ‘DFAT Country Information Report: Indonesia’ 24 July 2023, 20230724102537; United States Department of State, 'Country Reports on Human Rights Practices for 2023 - Indonesia', 22 April 2024, 20240424084554; Human Rights Watch, 'Human Rights Watch World Report 2023', 12 January 2023, 20230112144355
In addition to the above, numerous other government officials have publicly expressed adverse views regarding members of the LGBTI community.[11] And there are other signs too, of a tightening conservatism and intolerance for LGBTI behaviours. Amendments to the Criminal Code passed Parliament in December 2022, criminalise cohabitation and adultery when reported by direct family members. DFAT and others considers that because same-sex marriage is illegal in Indonesia, the law could in effect criminalise same-sex sexual activities. Penalties include a maximum one-year prison term. The provisions are expected to become law following three years promulgation.[12]
[11] United States Department of State, 'Country Reports on Human Rights Practices for 2022 - Indonesia', 20 March 2023, 20230321160256; United States Department of State, 'Country Reports on Human Rights Practices for 2023 - Indonesia', 22 April 2024, 20240424084554; DFAT, ‘DFAT Country Information Report: Indonesia’ 24 July 2023, 20230724102537
[12] DFAT, ‘DFAT Country Information Report: Indonesia’ 24 July 2023, 20230724102537; Masrur Jamaluddin, Heather Chen and Angus Watson, CNN, 'Indonesia bans sex outside marriage as parliament passes sweeping new criminal code', 6 December 2022, 20230124143010; Modern Diplomacy, 'Indonesia’s new criminal code is a worrying step back for democracy and human rights', 15 December 2022, 20230124153700; Benedict Brook for News.com.au, 'Forgotten victims of Indonesia’s new sex outside marriage ban', 17 December 2022, 20230124160910
An individual LGBTI person’s experience in Indonesia can reportedly depend a lot on the individual families involved, and the religiosity of their community. Family networks are crucial. Those whose families reject them are at a high risk of poverty, may be forced into sham marriages, or simply be required, on a day-to-day basis, to hide their sexual orientation or gender identity. Given prevailing societal attitudes, many LGBTI people will submit to sham marriages or attempts to ‘cure’ them. LGBTI women are vulnerable to violence and forced marriage.[13] The United State Department of State has also reported that in 2023, families often put LGBTQI+ children into therapy, confined them to their homes, or pressured them to marry persons of the opposite sex.
[13] DFAT, ‘DFAT Country Information Report: Indonesia’ 24 July 2023, 20230724102537
In addition to legal and familial environments, societal disapproval of LGBTI identities and behaviours also manifests through widespread anti-LGBTI sentiment, threats, discrimination and cultural references. In 2020, public acceptance of homosexuality was only nine percent among Indonesians, this is among the lowest of the 34 countries surveyed (in Australia public acceptance was 81 percent).[14]In July 2023, a regional gathering of LGBTI activists in Jakarta was cancelled in response to harassment and death threats from Muslim conservatives.[15] Reports from DFAT, United States Department of State and other commentators note that members of the LGBTQI+ community find it difficult to find employment due to prevailing social attitudes.[16] They may also have difficulty accessing health care and public services.[17]
[14] DFAT, ‘DFAT Country Information Report: Indonesia’ 24 July 2023, 20230724102537
[15] Ryan Thoreson for Human Rights Watch, ‘Harassment, Threats Prompt Cancellation of LGBTIQ+ Conference in Indonesia’, 19 July 2023, news/2023/07/19/harassment-threats-prompt-cancellation-LGBTIQ+-conference-indonesia, accessed 29 April 2024.
[16] Bertelsmann Stiftung, 'BTI 2022 Country Report - Indonesia', 23 February 2022, 20220225113058
[17] United States Department of State, 'Country Reports on Human Rights Practices for 2023 - Indonesia', 22 April 2024, 20240424084554
In terms of cultural references, DFAT reports that an online video featuring a popular podcaster interviewing a gay couple received outcry until the video was taken down and the podcaster apologised, and in 2022, the Indonesian Film Censorship Board reportedly reviewed the Disney film, Lightyear, because it had a lesbian character, which breached Indonesian laws that prohibiting ‘deviant’ or ‘vulgar’ content. Provisions of the Broadcasting Commission also prohibit LGBTI content.[18] There was also widespread outrage and protests occurred when the British Embassy in Jakarta raised a rainbow flag in support of LGBTI people. DFAT reports that incidents like these can quickly cause widespread outrage on social media and lead to street protests.
[18] DFAT, ‘DFAT Country Information Report: Indonesia’ 24 July 2023, 20230724102537; United States Department of State, 'Country Reports on Human Rights Practices for 2022 - Indonesia', 20 March 2023, 20230321160256
DFAT summarises its assessment of the situation as follows:
“LGBTI people face a moderate risk of societal discrimination: traditional views about sexuality and gender can restrict participation in the workforce and the broader community. People perceived to be LGBTI may face a risk of violence, particularly if living in religiously conservative areas and communities, including Muslim and Christian communities. LGBTI individuals face a moderate risk of official discrimination due to national laws that discriminate against them based on their sexuality, and due to official attitudes. DFAT assesses that LGBTI people living in Aceh face a high risk of official and societal discrimination and violence.”[19]
[19] An explanation of DFAT’s risk ratings is provided at the beginning of the relevant DFAT report: DFAT, ‘DFAT Country Information Report: Indonesia’ 24 July 2023, 20230724102537
I have considered that the applicant is from [City], in East Java, a majority Muslim region of the majority-Muslim country, and that he grew-up in a conservative Islamic household. He fell out with his parents and had to leave their family home. His only accepting family member (his grandmother) has now died and he hides his sexuality from his closest living family members. I accept the applicant conducted his relationships in Indonesia discreetly, for fear of facing discrimination, bullying and physical harm, and that his boyfriend, [A], lives a restrictive lifestyle. I accept that if returned to Indonesia, although the applicant would want to be more open about his sexuality and pursue an openly gay relationship with [A] and/or other men, but he would be compelled to hide his sexuality out of fear, as he has in the past.
The country information indicates that persons perceived to be LGBTI may face a risk of violence, particularly if living in religiously conservative areas and communities, including Muslim and Christian communities, which would include the applicant’s area. Societal disapproval towards homosexuality is reflected not only in religious doctrine, but also in family and cultural realms and the applicant does not have supportive familial structures in place to assist him.
Disapproval of his identity and lifestyle is also increasingly being reflected by government and the application of laws. The authorities have conducted raids in recent years in an effort to deter LGBTI relationships and activities and used various laws to penalise LGBTI persons and government officials have publicly sprouted anti-LGBTI rhetoric. And while it is unclear at this point how new Criminal Code provisions will be interpreted and implemented, it seems to reflect a growing conservatism and intolerance for LGBTI lifestyles.[20]
[20] DFAT, ‘DFAT Country Information Report: Indonesia’ 24 July 2023, 20230724102537; Masrur Jamaluddin, Heather Chen and Angus Watson, CNN, 'Indonesia bans sex outside marriage as parliament passes sweeping new criminal code', 6 December 2022, 20230124143010; Modern Diplomacy, 'Indonesia’s new criminal code is a worrying step back for democracy and human rights', 15 December 2022, 20230124153700; Benedict Brook for News.com.au, 'Forgotten victims of Indonesia’s new sex outside marriage ban', 17 December 2022, 20230124160910
Considering all of the above and taking into account the applicant’s specific individual profile, I find that that if the applicant returns to Indonesia, he will now or in the reasonably foreseeable future, face a real chance of harm which cannot be discounted as remote. I find the harm would include being subjected to societal violence, harassment, and ill-treatment at the societal and official levels. Taking into account the growing conservatism and intolerance remarked on above and reported incidents of adverse official and societal treatment of LGBTI persons including as a result of government laws, policies and rhetoric, I find that there is a real, as opposed to remote or far-fetched, chance of the harm occurring. I find too, that it would amount, especially on a cumulative basis to serious harm.
The applicant comes from [City], in East Java, and I accept his evidence in the hearing that he had explored Bali as an option to live but did not find it gay-friendly. DFAT reports that the situation in Bali is somewhat better than in most other parts of Indonesia, but qualifies that Bali is heavily-touristed and the better experience may be due to the presence of international visitors who may be more tolerant or be LGBTIQ+I themselves. DFAT referred to a vibrant nightlife well frequented by international tourists which provides some LGBTI Indonesians a space for self-expression but qualifies that these spaces are not necessarily inclusive of all LGBTI people. The Guardian reported in January 2021 that LGBTI locals experience day-to-day discrimination. And DFAT notes that while working in international hotels or tourism in other parts of the country (including big cities like Jakarta) may be a safer place for LGBTI people for the same reasons, LGBTI people in these locations would potentially be subject to violence or discrimination.[21] As such, I find that even in the most permissive areas for LGBTI persons in Indonesia, I find he would face a real chance of serious harm.
[21] DFAT, ‘DFAT Country Information Report: Indonesia’ 24 July 2023, 20230724102537
I have considered whether effective protection measures would be available to the applicant. However, according to DFAT, because of the threat of arrest or extortion, most LGBTI people avoid police. The United States Department of State has also reflected this, reporting that in 2023, LGBTI individuals reportedly avoided interaction with Indonesian police due to police corruption, bias, and violence. There is some suggestion that police have investigated criminal cases involving LGBTI victims reasonably well, but at the same time, officials often ignored formal complaints by victims and affected persons and refused to investigate bullying directed at LGBTI individuals. In many cases, officials failed to protect LGBTI persons from societal abuse.[22] Additionally, as referred to above, anti-LGBTI rhetoric has been reflected in numerous public statements by government officials, and LGBTI people have been targeted by official raids and other activities in recent years. Having regard to all of this, even if not perpetrated by them, I am not satisfied the Indonesian police or other authorities would be willing and able to protect the applicant. I find the applicant would face a real chance of serious harm in all areas of Indonesia and that effective protection measures, as referenced in s.5J(2) and defined in s 5LA are not available to the applicant.
[22] United States Department of State, 'Country Reports on Human Rights Practices for 2023 - Indonesia', 22 April 2024, 20240424084554
I find that the applicant fears persecution due to being a member of the particular social groups ‘LGBTI people’ and ‘homosexual males in Indonesia’. I find that this satisfies the definition in s 5L because the characteristic of being or being perceived as an LGBTI person or homosexual male is shared by each member of the group, including the applicant, and the shared characteristic is not a fear of persecution. I am satisfied too, that this characteristic is so fundamental to the applicant’s identity that he should not be forced to renounce it. As well, the applicant may be perceived as someone transgressing the conservative religious doctrine through his homosexuality.
I find that being an LGBTI person or homosexual male in Indonesia and a person that transgresses conservative religious doctrine through his homosexuality are equally the essential and significant reasons for the persecution, as required by s 5J(4)(a) and that the persecution involves serious harm, as required by.s5J(4)(b) and systematic and discriminatory conduct, as required by s5J(4)(c), as it is targeted toward members of these groups and is non-random.
I find there are no reasonable steps the applicant could take to modify his behaviour to avoid a real chance of persecution. Such modifications would fall within various exceptions in s 5J(3), including conflicting with a characteristic that is fundamental to a person’s identity or conscience, and requiring the person to alter or conceal their sexual orientation.
Refugee: Conclusion
For the above reasons, I find the applicant has a well-founded fear of persecution and is a refugee within the meaning of s 5H(1) of the Act.
I have considered s.36(3) of the Act but based on the available evidence, I find that the applicant does not have a right to enter and reside in a third country and s 36(3) is therefore not applicable.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a of the Migration Act.
Jessica McLeod
Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)   severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)   pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)   that is not inconsistent with Article 7 of the Covenant; or
(d)   arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)   that is not inconsistent with Article 7 of the Covenant; or
(b)   that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)   for the purpose of obtaining from the person or from a third person information or a confession; or
(b)   for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)   for the purpose of intimidating or coercing the person or a third person; or
(d)   for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)   for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)   a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)   if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)   in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)   in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J   Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)   the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)   without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)   the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)   a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)   significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)   denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L   Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)   a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)   any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)   protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36   Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)   a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)   a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)   a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 2843

1 May 2024

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