1806223 (Refugee)

[2024] AATA 3384

1806223 (Refugee) [2024] AATA 3384 (9 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1806223

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Rupert Timms

DATE:9 July 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 9 July 2024 at 12:18pm

CATCHWORDS

REFUGEE – protection visa – Indonesia – religion – Christian – fear of religious extremists – blasphemy accusations – 1998 anti-Chinese riots – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

Chan Yee Kin v MIEA (1989) 169 CLR 379 & 429
MIAC v SZQRB [2013] FCAFC 33

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 February 2018 to refuse to grant the applicant a protection visa under s65 of the Migration Act 1958 (Cth) (the Act).

2.    The applicant who claims to be a citizen of Indonesia applied for the visa on 3 August 2017. The delegate refused to grant the visa on the basis that the applicant is not owed protection by Australia.  

3.    The applicant appeared before the Tribunal on 4 April 2024 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

CRITERIA FOR A PROTECTION VISA

4.    The criteria for a protection visa are set out in s36 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 s36(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.

5.    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.

6.    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: s5H(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: s5H(1)(b).

7.    Under s5J(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.

1. 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.

Section 5AAA of the Act

9. Pursuant to s 5AAA of the Migration Act, it is for the review applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations, and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of the claim, nor does the Tribunal have any responsibility or obligation to establish or assist in establishing the claim.

10.    The Tribunal has applied this provision when considering the applicant's claims and evidence.

Mandatory considerations

11.    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

12.    The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or instead under ‘complementary protection’ grounds, or is a member of the same family unit of such a person and that person holds a protection visa of the same class.

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

Country of nationality

14.    The applicant travelled to Australia on an apparently genuine Indonesian passport, a copy of which is contained on the departmental file.  He was found by the Department to be an Indonesian citizen, and he also gave evidence at hearing that he is an Indonesian citizen.

15.    The Tribunal finds that the applicant is an Indonesian citizen and has assessed his claims against Indonesia as his country of nationality and his receiving country.

The applicant’s personal background

16.    The applicant is [an age]-year-old male of Chinese Indonesian ethnicity and Christian religion who is unmarried and who has no children.  He gave evidence that he was born in the Indonesian capital city of Jakarta as one of [number] siblings, and that he then lived in the family home with his parents and [family] in the small town of [Town 1], which is situated near to Jakarta.  The applicant was still living in that family home with his parents until he came to Australia. 

17.    The applicant’s evidence was that his father was [an occupation 1], and his mother was a housewife, and that they were a middle-income family. Recently his father has needed to stop work due to illness.

18.    The applicant’s evidence was that he was born a Buddhist like his parents at that time, but that soon afterwards he became a (Protestant) Christian while attending kindergarten at a Protestant educational institution in [Town 1] where he stayed also for his primary and secondary schooling.  The applicant later persuaded his father to become a Christian, and while his father is now a Christian the applicant’s mother remains a Buddhist.

19.    After completion of secondary school in [Town 1] in [specified year], the applicant commenced a [course 1] at a university in nearby Jakarta which he completed in [year].  [Later], he was granted a [work and holiday] visa to come to Australia.  The applicant arrived in Australia on that visa [in] August 2016 and approximately 12 months later, just prior to the expiry of his work and holiday visa, the applicant applied for the protection visa which is the subject of this review.

20.    Since arriving in Australia, the applicant worked for approximately four years in a [business 1] as [specified roles], as well as more recently as [an occupation 2] in which role he has worked for approximately three years. 

21.    The applicant prepared his protection visa application by himself without any assistance.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

The applicant’s claims for protection

23.    In his protection visa application, in relation to his reasons for claiming protection, the applicant claimed as follows:

·     he left Indonesia because he received a threat from a group of people who accused him blaspheming against their religion.

·     he did not experience harm in Indonesia, and he did not move or try to move to another part of Indonesia.  However, he stated that it was better for him to be in Australia where he could keep away from them so that they cannot find him easily.

·     he believes that he will be harmed or mistreated if he returns to Indonesia.  The group of people who threatened him are religious extremists and fanatics who can kill anyone whom they believe has blasphemed. 

·     while he believes that the authorities in Indonesia could in theory protect him through the country’s laws, the religious fanatics can do anything despite the laws.

·     he believes that for the time being he would not be able to relocate within Indonesia to an area where he would not be harmed. 

24.    The delegate refused to grant the applicant a protection visa, not being satisfied that there was a real chance or real risk that he would face serious or significant harm in Indonesia because of his Christian religion.

25.    Prior to the hearing, in a pre-hearing information form which the applicant completed and returned to the Tribunal on 9 October 2023, the applicant also provided the following further information about his claims for protection:

• he is traumatised by the events of May 1998 when anti-Chinese riots occurred everywhere in Indonesia, and lots of ethnic Chinese Indonesians including himself had to hide from the local ethnic Indonesian people who bullied, raped and killed the ethnic Chinese Indonesian people.

• in 2016, a Chinese Christian governor in Indonesia named Basuki Tjahaja Purnama (‘Ahok’) became a target of racism by the Islamic FPI (Front Pembela Islam) group who caused him to be imprisoned for two years for blasphemy.

Evidence given at hearing

26.    At hearing, the applicant gave evidence that his original claim in his protection visa application of having received a threat from extremists for blaspheming was not correct and that he had never received any such threat.  That original claim was instead a reference to a general threat of harm to non-Muslims who might be accused of blaspheming, similar to what happened in 2017 to the then Chinese Christian governor of Jakarta Mr Basuki “Ahok” Tjahaja Purnama when he was sentenced to two years’ gaol for blasphemy after having been reported to police by an Islamist group for blasphemy against Islam.

27.    At hearing, the applicant gave further evidence in support of his reasons why he seeks Australia’s protection, which the Tribunal relevantly summarises as follows:

• in 1998, during the anti-Chinese riots in Indonesia, the applicant and his family had to flee their home and go into hiding for a time.  While the applicant was very young at that time, and while he and his family all managed to survive the riots where many Chinese Indonesians were abused, raped, injured, kidnapped or killed with condonation by some members of the government, he still remembers and is traumatised by those riots, and this trauma gives him negativity and disappointment towards Muslims and how they act and think.  He also fears that there is a real possibility that such riots could again happen anytime very soon and within the next several years. 

• he was born with a Chinese family name, but from a young age he no longer used his family name to try to maintain a low profile about his Chinese heritage.

• apart from the trauma the applicant suffered from those 1998 riots, the applicant did not otherwise suffer any harm while he was in Indonesia.  

• he came to Australia on a 12-month work and holiday visa, and he applied for that visa and came to Australia with the purpose of gaining some international [employment] experience in Australia, to assist him with a career in Indonesia on his return to Indonesia.

• during the validity of his 12-month visa, his mother recalled to him the 1998 riots and suggested that he should seek to stay on in Australia where it would be safer for people of Chinese ethnicity.  At that same time also, the Chinese Christian governor of Jakarta (Mr Basuki “Ahok” Tjahaja Purnama) had just been sentenced to two years’ gaol for blasphemy.  At around that time also, there appeared real possibilities of a politician (Mr Prabowo Subianto) gaining power in Indonesia who had potentially been significantly involved in the 1998 anti-Chinese riots. The applicant decided to change his plans about returning to Indonesia, and he instead researched on the internet how he might apply to remain in Australia.  He subsequently prepared and lodged his protection visa application just prior to expiry of his work and holiday visa.

• while he feels he can go back to Indonesia now, he fears he could regret any return because the situation in Indonesia could become very unsafe for him tomorrow or in a matter of days or weeks or months or over the next three to five years especially, through the political situation in Indonesia deteriorating leading to a repeat of the 1998 anti-Chinese riots and leading to him getting harmed or killed.  He feels like Indonesia is a ticking time bomb for Chinese Indonesians.

• while the applicant does not wish to return to Indonesia at all, and while he might seek to move to a different country if he must leave Australia, he would return to his hometown of [Town 1] if he must return to Indonesia.

• he fears that a possible trigger very soon for a repeat of the 1998 situation could be the current appeal being decided in Indonesia’s courts against the result of Indonesia’s presidential election held on February 14.  One of those two losing presidential candidates is associated with an Islamic party which is known to be anti-Chinese, and the applicant fears that if the appeal is successful, and if a fresh election is then held which is then won by that particular candidate, this could trigger a new wave of anti-Chinese sentiment and persecution and anti-Chinese rioting and killing.  The applicant sees this court appeal situation as a ‘moment of truth for Indonesia’.

• he is also highly concerned that his own town of [Town 1 variant] would likely specifically to be targeted in any future anti-Chinese rioting because many Chinese are also known to live in his township, and also because it is close to north Jakarta where many Chinese Indonesians live.

• as a Christian and non-Muslim, he further fears being threatened in future by extremists in case they might believe at some time that he has blasphemed against Islam.

• he will send the Tribunal some articles in English which will provide information to the Tribunal about the 1998 riots, as well as about the new president, as well as information which will demonstrate the discrimination suffered by ethnically Chinese Indonesians in Indonesia.

28.    The Tribunal read and discussed with the applicant the following information[1] from the Country Information Report on Indonesia published by the Department of Foreign Affairs and Trade (DFAT) as it relates to his claims of fear of harm due to his Chinese Indonesian ethnicity.  The Tribunal sought his comments on this information, further discussing with him that the Tribunal needed to be satisfied of a real chance of serious harm or real risk of significant harm to him due to his being Chinese Indonesian:   

[1] Country Information Report on Indonesia, Department of Foreign Affairs and Trade, 24 July 2023 at pages 11 and 12.  

• Successive waves of immigration to Indonesia from China have resulted in well-established ethnically Chinese Indonesian communities throughout the country. Many Chinese Indonesians can trace their history in Indonesia back many generations, may no longer identify as Chinese, and may not speak a Chinese language. Most Chinese Indonesians belong to a religious minority, either Buddhism or a Christian denomination.

• The Suharto-era New Order regime implemented a range of discriminatory measures, prohibiting Chinese language newspapers, schools and cultural expression and requiring Indonesian names. Violence and looting targeting Chinese Indonesians and their homes and businesses peaked during the Asian Financial Crisis [in 1997]…Since the end of the New Order regime in 1998, successive governments have removed official policy measures discriminating against ethnically Chinese Indonesians. Chinese New Year is a national public holiday, Confucianism is an officially recognised religion, Chinese-language newspapers are published, and there are no barriers to Chinese cultural celebrations or education.

• Hundreds of thousands of protesters demonstrated in Jakarta on several occasions in 2016 to demand the detention of the Christian and Chinese-Indonesian Governor of Jakarta, Basuki Tjahaja Purnama (often referred to as ‘Ahok’), after he was arrested for allegedly insulting Islam. Violence between protesters and police was reported, but not violence against ordinary citizens, as occurred in 1998.

• Chinese Indonesians experience societal discrimination in the form of negative stereotypes that portray them as greedy, as criminals or as being associated with China and its policies. Discrimination of this type increased around the outbreak of the COVID-19 pandemic due to the extensive media coverage of China and various claims about the origins of the virus at the time.

• Risk of societal discrimination against Chinese Indonesians depends on individual circumstances. Individuals with wealth are less affected; they can use their wealth and connections with powerful people to protect themselves. Many Chinese Indonesians work in family businesses or within their own ethnic community, which reduces the chances of discrimination at work. Those without such networks or wealth would be more at risk of discrimination, but that applies to all Indonesians, not just Chinese Indonesians.

• Memories of the 1998 violence and 2016 protests are still fresh in the memories of many ethnically Chinese Indonesians. Some jealousy of perceived wealth can lead to threats and some Chinese Indonesians keep a low profile as a result. Anti-minority sentiment is also heightened during election campaigns. Violence has occurred in the past but is not an everyday experience for Chinese Indonesians.

• DFAT assesses that Chinese Indonesians currently face a low risk of societal violence and a moderate risk of low-level societal discrimination. DFAT is not aware of official discrimination against Chinese Indonesians.

29.    After the Tribunal read to the applicant the DFAT country information contained in the first two bullet points above, the applicant stated that while he agrees with some of this content, some of it is not correct.  He stated that he has an article which states that when Chinese Indonesians do small things wrongly they be discriminated against, and he will send that article to the Tribunal about this after the hearing.   

30.    After the Tribunal then read the remaining above bullet points of country information to the applicant, the Tribunal then discussed with the applicant that this information might make the Tribunal consider that while there has been a history in Indonesia of governmental discrimination including severe discrimination against Chinese, this has mostly ceased and that there is no real day-to-day discrimination by government against Chinese Indonesians.  The information might also make the Tribunal consider that while there is some societal discrimination against Chinese Indonesians, this is mostly low-level societal discrimination. The Tribunal invited the applicant’s comment on these possible considerations, and on all the above DFAT content. The applicant responded in relation to the violence aspect of the country information by stating that serious conflict can arise at any time, just like with the current Israel-Palestine situation at the moment, and that no one knows the future.  The Tribunal responded further by stating that in terms of harm, the Tribunal needs to be satisfied not just that there is a chance of harm but that there is a real chance of harm and not a remote chance of harm.  The Tribunal invited the applicant’s further comment on this, but the applicant did not provide further comment.

31.    The Tribunal then read and discussed with the applicant the following information[2] from the Country Information Report on Indonesia published by the Department of Foreign Affairs and Trade (DFAT) as it relates to his fear of harm related to being Christian in Indonesia:  

[2] Country Information Report on Indonesia, Department of Foreign Affairs and Trade, 24 July 2023 at pages 13 and 15.   

• Indonesia is the world’s largest majority Muslim country, by population. According to the most recent census in 2010, approximately 87.2 per cent of the population is Muslim (almost all of whom are Sunni), 7 per cent is Protestant, just under 3 per cent is Catholic and 1.7 per cent is Hindu.

• Indonesia is officially a religiously pluralist state. The constitution guarantees freedom of religion subject to restrictions in the interests of morality, religious values, security and public order. Major religions generally have good relationships with each other and with government authorities at an institutional level, but this differs for smaller religions and between individual religious communities.

• Not every religion is legally recognised. According to the law, religions must have a prophet, a holy book, a deity and international recognition. Indonesia recognises six official faiths that meet that definition: Islam, Catholicism, Protestantism, Buddhism, Hinduism and Confucianism.

• Christianity is Indonesia’s second-largest religion after Islam. Many Christians live in the Papua provinces, parts of North Sumatra, East Nusa Tenggara, North Sulawesi, and Maluku islands, but also in Jakarta and other parts of the country. There are Christians in every province of Indonesia. Many Indonesians of Chinese descent are Catholic. Along with the Catholic church, many Protestant churches operate in Indonesia, including mainline Protestant churches (especially Lutheran denominations), and evangelical and Pentecostal churches, as well as non-denominational independent churches. Christians are generally able to practise their faith freely throughout Indonesia. In general, Christians have good relations between denominations and with other religions, including regular dialogue and a generally peaceful coexistence.

• In country sources told DFAT that they do not generally experience discrimination, for example, because of the faith listed on their identity cards, when publishing literature, or for having Christian websites. Localised discrimination from local governments is possible. For example, the Indonesian Christian Church (GKI) won a 2010 Supreme Court challenge against the revocation of its building permit in Bogor, near Jakarta. The Church remains sealed by the local government at the time of writing despite the court ruling.

• Religious intolerance against Christians occurs occasionally with a small possibility of violence. Police sometimes provide armed protection to churches, especially during religious festivals. In-country sources told DFAT that most churchgoers feel safe going to church on Sundays.

• Attacks against Christians can be highly organised, and police investigate and sometimes disrupt these threats. For example, a bomb attack in Makassar in March 2021 on Sacred Heart Cathedral injured about 20 people. Police arrested 53 people for the attack, who were charged with terrorism offences. In May 2021, police disrupted plans to kill a Catholic bishop in the Papua provinces and attack several other churches. In November 2020, ISIS-linked terrorist group East Indonesia Mujahidin (MIT) carried out an attack on several homes and a Salvation Army church in Central Sulawesi, killing four.

• DFAT assesses that Christians residing in areas where they are a majority do not face either official or societal discrimination. Christians residing in areas where conservative Islam is prevalent face a low risk of societal discrimination in the form of impediments to worship. Violence does occur and there are recent high-profile examples, but this is not the day-to-day experience of most Christians.

32.    The Tribunal discussed with the applicant that this above DFAT Country Information about Christians in Indonesia, together with the Tribunal’s understanding that he has not in the past been harmed in Indonesia because of being Christian, might make the Tribunal consider that the risk of harm to the applicant including serious harm or significant harm through being Christian would be remote, and that there would not be a real chance of such harm.  The Tribunal stated that it might consider this notwithstanding that the Tribunal accepts that there have been attacks on Christian churches in Indonesia. The applicant responded by stating that when he is in Indonesia, because Indonesian Muslims are so fanatical about their religion, and because Muslims are in the high majority in Indonesia, and because he is part of a small minority group of ethnically Chinese Christians which does not have much power in Indonesia, all the time he has to be very careful and to be on the lookout for not saying or doing anything small or irrelevant which is somehow interpreted to be against Islam, and he has to keep a low profile all the time, all for fear of being killed or harmed. By comparison, in Australia he feels he is safe from all this and he has the feeling of being human.

oThe Tribunal further discussed with the applicant the blasphemy conviction of the Chinese Christian “Ahok”, and its understanding that the blasphemy laws in Indonesia might really only be used against high-profile people such as Ahok, and not used against people of low profile such as the applicant who the Tribunal understands to be of low profile, and that the Tribunal might consider there was a remote chance only of the applicant being targeted because he does not have a high profile.  The applicant responded by stating that he had a different opinion, but that otherwise he had no further comment.

Evidence provided after hearing

33.    On 10 April 2024, the applicant provided links to the Tribunal to the following further articles for the Tribunal to take into account in support of the applicant’s claims:

• an article entitled “We Asked People Who Fled After the '98 Riots How They Feel About Indonesia Today”, dated 23 May 2018, published by the Vice Media Group.

• an article entitled “Chinese Indonesians reflect on life 25 years from Soeharto’s fall”, dated 24 May 2023, published by Al Jazeera.

• an article entitled “Revisiting the May 1998 Riots in Indonesia: Civilians and Their Untold Memories”, first published online 9 March 2022, from The Journal of Current Southeast Asian Affairs.

• an article entitled “Who is Prabowo Subianto, the man likely to be Indonesia’s next president?”, dated 16 February 2024, published by Al Jazeera.

• an article entitled “Families of Indonesian activists tortured by soldiers 25 years ago shocked at general’s election win”, dated 16 February 2024, published by the Associated Press (AP).

• an article entitled “Indonesia's next president haunts father of missing activist”, dated 16 February 2024, published by the Japan Times.

Findings

Fear of harm from a group who have accused him of blasphemy

34.    In his protection visa application form, the applicant claimed that the reason he left Indonesia was that he received a threat from a group of people who accused him of blasphemy. He further stated while he did not experience any harm in Indonesia, he fears physical violence from this group if he returns to Indonesia and that it is better for him to keep away from them by residing in Australia so that they cannot easily find him. 

35.    However, at hearing the applicant gave testimony to the Tribunal that he had never received a threat from people who had accused him of blaspheming.  He stated that this claim was instead a reference to a general threat of harm to Christians who might be accused of blaspheming, similar to what had happened in 2017 to the then Chinese Christian governor of Jakarta “Ahok” who was sentenced to two years’ gaol for blasphemy. 

36.    The Tribunal accepts and finds the applicant’s oral evidence that he left Indonesia in order to gain international experience to further his career on his return to Indonesia, and that he never received any threat from a group who accused him of blasphemy. 

37.    In these circumstances, the Tribunal rejects the written claims by the applicant that he left Indonesia because he had received a threat from a group of people who were accusing him of blasphemy, and it rejects his written claim to fear harm from this group if he returns to Indonesia.  In these circumstances also, the Tribunal is not satisfied that there is a real chance of any harm to the applicant through a group who has accused him of blasphemy, and the Tribunal finds that s5J(1)(b) of the Act is not met.

38.    For the same reasons, the Tribunal is not satisfied that there are 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 that the applicant will suffer harm through from a group who has accused him of blasphemy.  The Tribunal finds that section 36(2)(aa) of the Act is also not met in relation to this claim of harm.

Fear of harm due to Chinese Indonesian ethnicity

39.    In his oral testimony to the Tribunal at hearing, the applicant has claimed that he is traumatised by the anti-Chinese Indonesian riots which occurred in 1998 when he was still a child and when Chinese Indonesians were abused, raped, injured, kidnapped and killed with condonation by some members of the government.  He claims that he fears future harm due to his Chinese Indonesian ethnicity, including being harmed or killed in riots similar to those deadly riots which occurred in 1998 which could again occur at any moment now and into the future.

40.    He further stated that he feared that an immediate trigger point for a new wave of anti-Chinese Indonesian rioting and persecution and killing could be an appeal being decided in Indonesia’s courts against the result of Indonesia’s presidential election held on 14 February 2024. 

41.    After the hearing, the applicant also provided the Tribunal with evidence which supports longstanding allegations that the newly elected president of Indonesia, President Prabowo Subianto, was personally involved in instigating the 1998 anti-Chinese Indonesian riots, and also in human rights abuses and in the disappearances of a number of activists at that time who currently still remain missing.   The evidence also suggests that Indonesians who are anti-Chinese Indonesian may be emboldened by President Subianto’s election into future anti-Chinese actions by President Subianto’s election.

42.    In considering whether the applicant might be a refugee under the Act in relation to this harm feared by him, the Tribunal would need to be satisfied that there is a real chance that the applicant would suffer serious harm: s5J(1)(b) of the Act. 

43.    A real chance is one that is not remote or insubstantial or a far-fetched possibility, and it can be well below fifty per cent and may even be a ten per cent chance: Chan Yee Kin v MIEA (1989) 169 CLR 379 & 429.  Also, while the Act does not exhaustively define or limit what might constitute serious harm, at s5J(5) it instead provides the following six instances in guidance as to the degree or level of harm required to constitute serious harm for the purposes of s5J(4)(b) of the Act:

(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. 

44.    In also considering whether the first applicant instead meets the Complementary Protection criterion under s36(2)(aa) because of this harm, the Tribunal would need to be satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to Indonesia, there is a real risk that he will suffer significant harm.

45.    In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of a ‘well-founded fear’ in the refugee Convention definition[3].  Also, significant harm is exclusively defined in s36(2A) of the Act as follows:

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

(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.

46.The Tribunal accepts that memories of the 1998 violence are still fresh in the memories of many ethnically Chinese Indonesians, as supported by articles provided by the applicant to the Tribunal and by the above DFAT country information, and that many Chinese Indonesians who have since left Indonesia are still scarred by such memories and still wish never to return.  The Tribunal also accepts that the shocking and deadly and terribly violent anti-Chinese Indonesian riots occurred in 1998 when the applicant was young, and that the applicant has been traumatised by those events, and that he is still traumatised by those events.  The Tribunal also accepts that the applicant fears that similar harm could occur to himself and to other Chinese Indonesians at any time through similar anti-Chinese Indonesian riots which could occur at any time, and that the applicant also fears that the recent election of President Subianto increases the prospects of this. 

47.The Tribunal further accepts that the applicant has held a fear that the possible success of a legal challenge against the results of Indonesia’s election held on 14 February 2024 could be a flashpoint or trigger for such rioting. However, in relation to this particular fear the Tribunal finds that that legal challenge has subsequently been rejected by the Indonesian courts[4] and that there is no evidence before the Tribunal to suggest that any anti-Chinese Indonesian rioting or other orchestrated harm against Chinese Indonesians has since occurred on any significant scale.

[4] Indonesia election: Prabowo formally declared president-elect after court rejects legal challenges | Indonesia | The Guardian

48.The Tribunal further accepts and finds the applicant’s testimony that apart from the trauma the applicant suffered from the 1998 riots, the applicant did not otherwise suffer any harm while he was in Indonesia.

49.Giving strong weight to the above DFAT country information cited at above paragraph 28 relating to the applicant’s fear of harm due to his Chinese Indonesian ethnicity, the Tribunal further finds that there has been no anti-Chinese rioting involving violence to ordinary Chinese Indonesian citizens on any significant scale since the 1998 riots, that is for more than 25 years.  

50.In relation to this anti-Chinese Indonesian harm feared by the applicant similar to the 1998 harm, and giving strong weight to DFAT’s July 2023 assessment extracted above that Chinese Indonesians face a low risk of societal violence, and taking into account the Tribunal’s above findings that the applicant has not otherwise suffered any harm since 1998, and that there has been no anti-Chinese Indonesian rioting involving violence against Chinese Indonesians on any significant scale for more than 25 years including also since the recent election of President Subianto, the Tribunal is not satisfied that there is a real chance that on his return to Indonesia the applicant will suffer serious harm through anti-Chinese violence similar to the 1998 riots, now or in the reasonably foreseeable future. The Tribunal accordingly finds that s5J(1)(b) of the Act is not met in relation to claims of future harm due to his Chinese-Indonesian ethnicity.

51.In relation to this anti-Chinese Indonesian harm feared by the applicant similar to the 1998 harm, and giving strong weight to DFAT’s July 2023 assessment extracted above that Chinese Indonesians face a low risk of societal violence, and taking into account the Tribunal’s above findings that the applicant has not otherwise suffered any harm since 1998, and that there has been no anti-Chinese Indonesian rioting involving violence against Chinese Indonesians on any significant scale for more than 25 years including also since the recent election of President Subianto, the Tribunal is also not satisfied that on his return to Indonesia there is a real risk that the applicant will suffer significant harm through anti-Chinese violence similar to the 1998 riots, now or in the reasonably foreseeable future. Accordingly, the Tribunal finds that s36(2)(aa) of the Act is not met in relation to claims of future harm due to his Chinese-Indonesian ethnicity.

52.In making these findings, the Tribunal has not substituted DFAT’s assessment of ‘low risk’ for its evaluation about whether the applicant faces a real chance of persecution or a real risk of significant harm.   

53.In making these findings also, and while accepting a real likelihood of truth in the above allegations against President Subianto, and while also accepting that his election may embolden some within the Indonesian community to consider engaging in future anti-Chinese Indonesian persecution and harm, there is no evidence before the Tribunal to suggest that DFAT’s above assessment of a low risk of societal violence would have changed in any significant way due to the President’s election after that DFAT risk assessment was made.  

54.While the DFAT Country Information also states that there is a moderate risk of low-level societal discrimination against Chinese Indonesians, there is no evidence before the Tribunal that the applicant fears any higher-level harm through general anti-Chinese societal discrimination, and nor does the Tribunal accept that low level discrimination amounts to either serious harm or to significant harm for the purposes of the Act.

Fear of harm due to being Christian and through accusations of blasphemy

55.The applicant claims to fear harm due to being Christian, including also harm through being accused of blasphemy after innocent or small actions by him are wrongly taken by others to be blasphemous.  In support of his claims, the applicant has also cited the 2017 conviction and gaoling for blasphemy of the Chinese Indonesian Christian governor ‘Ahok’. 

56.The Tribunal accepts and finds that the applicant has these fears claimed by the applicant, and also that in 2017 the then Governor of Jakarta ‘Ahok’, who was an Indonesian Chinese Christian, was convicted by Indonesian courts of charges of blasphemy and sentenced for two years’ imprisonment.

57.In considering these claims by the applicant, the Tribunal gives strong weight to the above DFAT country information which informs the Tribunal that Christianity is Indonesia’s second-largest religion with approximately 10% of Indonesia’s population being Christian (compared to approximately 87% being Muslim); that many Protestant churches operate in Indonesia, and that Christians are generally able to practise their faith freely throughout Indonesia, and that in general Christians have good relations between denominations and with other religions, including regular dialogue and a generally peaceful coexistence; and that Christians generally do not experience discrimination.

58.The Tribunal also gives strong weight to DFAT’s overall assessment that Christians residing in areas where they are a majority do not face either official or societal discrimination, and that Christians residing in areas where conservative Islam is prevalent face a low risk of societal discrimination in the form of impediments to worship.

59.While the Tribunal acknowledges that this DFAT country information also states that localised discrimination from local governments is possible for Christians, and that highly organised attacks against Christians can occur, and that on occasion police feel the need to provide armed protection to churches especially during festivals, the information also states that police investigate and sometimes disrupt these threats and it also states that religious intolerance against Christians occurs occasionally with a small possibly of violence.

60.The Tribunal gives further strong weight to DFAT’s overall assessment that religious minorities face a low threat of blasphemy allegations being made against them[5].  In relation to the applicant’s fears that he might be targeted for blasphemy like the Christian Chinese Indonesian ex-Governor ‘Ahok’ however, the Tribunal finds that the applicant has a low public profile which is very different to the high public political profile of a governor such as Ahok, and that DFAT’s assessment that religious minorities face a ‘low threat’ of having blasphemy allegations being made against them would apply also to the applicant.

[5] Country Information Report on Indonesia, Department of Foreign Affairs and Trade (DFAT), 24 July 2023, at page 14.

61.After considering all the claims and evidence provided by the applicant, and after taking into account the above DFAT country information to which the Tribunal gives strong weight, and especially its country information stating that in general Christians have good relations between denominations and with other religions, including regular dialogue and a generally peaceful coexistence, and taking into account the Tribunal’s above findings that the applicant has not suffered harm in Indonesia apart from trauma related to the 1998 anti-Chinese riots, and also taking into account the Tribunal’s above finding the applicant faces a low threat of blasphemy allegations being made against him, the Tribunal is not satisfied that there is a real chance that on his return to Indonesia the applicant will suffer serious harm due to his Christianity including through allegations of blasphemy, now or in the reasonably foreseeable future. The Tribunal accordingly finds that s5J(1)(b) of the Act is not met in relation to these claims of future harm.

62.After considering all the claims and evidence provided by the applicant, and after taking into account the above DFAT country information to which the Tribunal gives strong weight, and especially its country information stating that in general Christians have good relations between denominations and with other religions, including regular dialogue and a generally peaceful coexistence, and taking into account the Tribunal’s above findings that the applicant has not suffered harm in Indonesia apart from trauma related to the 1998 anti-Chinese riots, and also taking into account the Tribunal’s above finding the applicant faces a low threat of blasphemy allegations being made against him, the Tribunal is also not satisfied that on his return to Indonesia there is a real risk that the applicant will suffer significant harm due to his Christianity including through allegations of blasphemy, now or in the reasonably foreseeable future. Accordingly, the Tribunal finds that s36(2)(aa) of the Act is not met in relation to these claims of future harm.

63.In making these findings, the Tribunal has not substituted DFAT’s assessments of ‘low risk’ or ‘low threat’ for an evaluation by this Tribunal as to whether the applicant faces a real chance of persecution or a real risk of significant harm.  

64.The Tribunal has further considered whether the applicant would face a real chance of serious harm, or a real risk of significant harm, on his return to Indonesia due to his combined status of being both Chinese Indonesian and Christian. However, on the evidence before it, the Tribunal is still not satisfied that there is a real chance of serious harm to the applicant, or a real risk of significant harm to the applicant.  

CONCLUSIONS 

65.For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s36(2)(a).

66.Having concluded that the applicant does not meet the refugee criterion in s36(2)(a), the Tribunal has considered the alternative criterion in s36(2)(aa). For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s36(2)(aa).

67.There is no suggestion that the applicant satisfies s36(2) on the basis of being a member of the same family unit as a person who satisfies s36(2)(a) or (aa) and who holds a protection visa.  Accordingly, the Tribunal finds that the applicant does not satisfy the criteria in s36(2).

DECISION

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

Rupert Timms
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.

…

1. Protection visas – criteria provided for by this Act

…

1. A criterion for a protection visa is that the applicant for the visa is:

   (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa of the same class as that applied for by the applicant; or

   (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…