1806772 (Refugee)

[2023] AATA 2728

1806772 (Refugee) [2023] AATA 2728 (6 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1806772

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Jason Pennell

DATE:6 April 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Act.

Statement made on 6 April 2023 at 11.40am

CATCHWORDS
REFUGEE – protection visa – Indonesia – religion – Buddhist – member of a particular social group – female – sexually abused – ongoing threats of serious harm by the perpetrator– no family support – unable to relocate – chance of serious harm if returned to Indonesia – no effective state protection available – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5 (1),5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Applicant S v MIMA (2004) 217 CLR 387
MIEA v Guo (1997) 191 CLR 559
MIMA v Khawar (2002) 210 CLR
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 March 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Indonesia, applied for the visa [in] January 2017. The delegate refused to grant the visa on the basis that she was not satisfied that the applicant was a person to whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).  

3. The applicant appeared before the Tribunal on 3 April 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

1. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

2. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

3. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

4. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

5. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

Mandatory considerations

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

CONSIDERATION OF Claims and evidence

Identity and Country of reference

1. The applicant claims that he was born on [DOB deleted] in [Town 1], [Town 1], Indonesia.[1]  The applicant has provided a copy of the biodata page of her Indonesian passport to the Department.[2]  There is no evidence to suggest this is a bogus document and, as such, the Tribunal accepts the applicant’s identity.

   [1]    Protection visa application form, Dept file[file number deleted], Doc ID no: 1005395 f 23.

   [2]    Protection visa application form, Dept file [file number deleted], Doc ID no: 1005395 f 24.

2. There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the document provided by the applicant, the Tribunal finds that she is a citizen of Indonesia and as such her protection claim will be assessed against Indonesia as the country of reference and ‘receiving country’ respectively.

Migration history

1. The applicant arrived in Australia [in]February 2016 on a FA-600 Visitor Tourist Stream visa and has not departed since. The applicant’s visa expired on 26 May 2016 upon which the applicant became an unlawful citizen. The applicant applied for a protection visa on 5 January 2017 and was granted an associated bridging visa.  Prior to arriving in Australia, the applicant had never travelled to any other countries.

Applicant’s claims

1. The applicants claim for a protection visa is detailed in her application dated 6 February 2017. The delegate repeated the applicant’s claims as follows:[3]

   [3]     Protection visa application form, Dept file [file number deleted], Doc ID no: 1005395 f 12.

   89.  Why did you leave that country(s)?

   Some one do not good to me and make me shy.

   90. What do you think will happen to you if you return to that country(s)?

   I’m so shy to go back there

   91. Did you experience harm in that country(s)?

   The men come to find me. Him made me so shy and made my life not comfortable.

   92. Did you seek help within the country(s) after the harm?

   I talk to my family to help me but them scared to help me.

   93. Did you move, or try to move, to another part of that country(s) to seek safety?

   Some part of my country.

   94. Do you think you will be harmed or mistreated if you return to that country(s)?

   He made me so shy.

   95. Do you think the authorities of that country(s) can and will protect you if you go back?

   No one can help me.

   96. Do you think you would be able to relocate within that country(s)?

   I am not able to be there.

Applicant’s documents

1. The applicant provided the Department with a certified copy of the biodata page of her Indonesian passport, [4] but otherwise has not provided any material to the Tribunal in support of her review application.

Applicant’s evidence

[4]    Protection visa application form, Dept file [file number deleted], Doc ID no: 1005395 f 24.

1. The applicant’s evidence to the Tribunal was that she was born on [DOB deleted]in [Town 1], [Town 1], Indonesia. She claims that she is a Buddhist and that she reads, writes, and speaks English and Indonesian, and that she speaks Chinese.[5]

   [5]    Protection visa application form, Dept file [file number deleted], Doc ID no: 1005395 f 22.

2. The applicant’s evidence to the Tribunal was that her parents remain living in[Town 1], Indonesia. The applicant’s father is a small business owner trading [in]goods while her mother is engaged in home duties. The applicant has one younger brother and three younger sisters. All the applicant’s siblings continue to live in Indonesia.

3. In her protection visa application, the applicant stated that she had never received an education and that she had not been employed.[6] However, her evidence to the Tribunal was that she attended school in[Town 1], Indonesia and that she completed High School in or about [year]. The applicant did not attend College or University. After leaving school the applicant worked in a [shop]in Medan for approximately four years. She then worked in another [shop]known as [name deleted]in Medan, Indonesia for a further 2 years. The applicant’s evidence was that she then worked odd jobs ‘selling things.’ Her evidence was that she worked selling [things] such as[goods]. In or about 2009 and 2013 the applicant travelled to [Country 1]to work in an [Workplace 1]for a period of between one and two years on each occasion. The applicant’s evidence was that on each occasion she arranged a work visa to be able to remain in [Country 1] and work at the[Workplace 1].

   [6]    Protection visa application form, Dept file [file number deleted], Doc ID no: 1005395 f 14.

4. The applicant claims that in or about 2014 she was sexually assaulted by a man in[Town 1], Indonesia. Her evidence was that the man who assaulted her was a friend of a friend and that he continued to threaten her while she was in Indonesia. The applicant’s evidence was that she informed her family of the assault to seek protection from them. However, they viewed her as having brought shame on the family and did nothing to help her. The applicant’s evidence was that she did not seek protection from the police or the authorities more generally. The applicant claimed that she feared approaching the police because the man had threatened to harm her if she told the police about the sexual assault.

5. The applicant’s evidence was that she tried relocating to a different suburb in Medan, but the man had her phone number and continued to call her about the incident. The applicant did not know how he had her phone number. The applicant’s evidence was that he wanted her to like him and that he was interested in continuing a relationship with her. 

1. The applicant did not try to relocate to Jakarta or any other area of Indonesia. Her evidence was that she did no longer felt safe in in Indonesia and did not want to be there anymore. The applicant claims that if she is returned to Indonesia she will be seriously or significantly harmed by the man who sexually assaulted her.

COUNTRY INFORMATION

1. The Tribunal in accordance with the Ministerial Direction No. 84 made under s 499 of the Act also had regard to the country information assessments prepared by DFAT. The Tribunal has referred to the DFAT Country Information Report Indonesia dated 25 January 2019 (the DFAT Report).[7] In particular, the sections of the DFAT Report detailed in Annexure ‘A’ attached to these reasons.  

   [7]     DFAT Country Information Report Indonesia 25 January 2019.

APPLICANT’s Claims and evidence

1. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted.

Credibility

1. When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.

2. The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[8] Nor is the Tribunal required to accept uncritically all the allegations made by an applicant.[9]

   [8] s.5AAA Migration Act 1958.

   [9]    MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[10] Care must be taken not to exclude from consideration the totality of evidence where a portion of it could reasonably have been accepted.

   [10] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482

4. If the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[11] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.

   [11] The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196

Applicant’s Refugee Claim

Relevant grounds

1. The applicant did not make any submission that her claims fall within the scope of s 5J(1)(a) of the Act. Nevertheless, it was open to the applicant to claim that as a woman who has been sexually assaulted, her claim fell within s.5J(1)(a) of the Act by reason of her membership of a particular social group (PSG). As a member of a PSG the applicant must be recognised (by the persecutor or persecutors) as sharing a connection or falling under some general classification.[12] When a person claims to fear being persecuted by reason of their membership of a PSG, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. Section 5L of the Act states:

   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.

   [12] Applicant S v MIMA (2004) 217 CLR 387

1. In MIMA v Khawar (2002) 210 CLR [13] the High Court, when considering the refugee convention, found that it would be open for the Tribunal to declare that 'women in Pakistan' meets the description of PSG. On the issue of such a large group His Honour Chief Justice Gleeson stated that:[14]

   'The size of the group does not necessarily stand in the way ... There are instances where the victims of persecution in a country have been a majority. It is power, not number, that creates the conditions in which persecution may occur.'

   [13] MIMA v Khawar (2002) 210 CLR 1

   [14] MIMA v Khawar (2002) 210 CLR 1 at [33]

2. In this case it was open to the applicant to claim that being a woman is a characteristic that is so fundamental to her identity or conscience that she should not be forced to renounce it. In addition, it is a characteristic that distinguishes the group from the rest of society.  That is, women in Indonesia, or alternatively women in Indonesia who have been sexually abused. As such, the Tribunal accepts that the applicant is a member of a PSG pursuant to s 5L. Accordingly the Tribunal accepts her claim falls within the scope of s 5J(1)(a) of the Act.

Applicant’s well-founded fear

1. Section 5J of the Act states that for the purposes of application under the Act a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’ and that there is a real chance that they will be persecuted for one or more of these reasons in the event they are returned to their receiving country.

2. In Chan v MIEA[15] the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Justice Dawson noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[16]

   [15] (1989) 169 CLR 379 at 396

   [16] (1989) 169 CLR 379 at 396; see also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ

3. The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact. In this case, based on the evidence of the applicant the Tribunal accepts that the applicant has a subjective fear of being harmed or persecuted if she returns to Indonesia.

4. However, to hold a ‘well-founded fear of persecution’ on an objective basis the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J[17] stated:

   “Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.

   [17] Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397

5. In MIEA v Guo, the Court stated that:[18]

   Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.

   [18] MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293

1. Having considered the available country information and the applicant’s evidence to the Tribunal, for the reasons expressed below the Tribunal does accept that the applicant has a well-founded fear of persecution on either a subjective and objective basis if she is returned to Indonesia.

Accepted facts

1. Based on the applicant’s evidence to the Department and the Tribunal, the Tribunal finds that the applicant:

   (a)was born on [DOB deleted]in[Town 1], [Town 1], Indonesia.

   (b)is a Buddhist. 

   (c)reads, speaks and writes English and Indonesian, and speaks Chinese.[19]

   (d)parents remain living in [Town 1], Indonesia.

   (e)has one younger [siblings]. All the applicant’s siblings continue to live in Indonesia.

   (f)attended school in[Town 1], Indonesia and that she completed High School in or about[year].

   (g)did not attend College or University.

   (h)worked in two [shops] in Medan for a total of approximately six years.

   (i)worked odd jobs selling [things] such as[goods].

   (j)in 2009 and 2013 travelled to [Country 1]to work in [workplace 1]for a period of between one and two years on each occasion.

Applicant’s claim

[19]  Protection visa application form, Dept file[file number deleted], Doc ID no: 1005395 f 22.

1. The applicant claims that she has a well-founded fear of persecution of she is returned to Indonesia as woman who has been sexually abused. The applicant’s evidence was that she was sexually associated a by a friend of a friend. She claims that the person who assaulted her threatened to seriously harm her if she reported the incident to the police. The applicant’s evidence was that she told her family but the assault but, they refused to help her as they believed she had brought shame on the family’s good name because of being sexually assaulted. The applicant claims that if she is returned to Indonesia, she will be seriously harmed by the perpetrator of her sexual assault. 

1. The country information[20] reports that while women in Indonesia participate in all areas of society, there are societal, cultural and religious barriers that limit the extent their participation. It’s reported[21] that Indonesia is ranked 113th out of 188 on UNDP’s 2016 Gender Inequality Index, a composite measure reflecting inequality in achievement between women and men in relation to reproductive health, ‘empowerment’ (in political spheres and in relation to education) and the labour market. While the government has made some effort to promote women’s rights having ratified the Convention for the Elimination of Discrimination Against Women,[22] it’s reported[23] that Indonesia has a greater gender inequality than fellow member countries Malaysia, the Philippines, Singapore, and Thailand. This is exhibited by fewer roles and lesser participation of women, particularly in the areas of politics, public positions, and the economy.[24] It’s reported[25] that a 2019 survey conducted by ValueChampion ranked Indonesia as the most dangerous nation for women in the ASEAN region.

   [20]   DFAT report at p.29

   [21]  DFAT report at p.29; Human Developments report, ‘Gender Development Index (GDI)’   DFAT Report at p.29

   [23]  Journal of Southwest Jiatong University Vol 56 No 1 (2021) ‘The Gender Inequality Index: Indonesian Efforts to Enhance Huma development within the ASEAN’ by Wilson Bangun; ibid

   [25]  The Borgen Report, ‘Combating Sexual Violence in Indonesia’ dated 6 August 2022; indonesia/#:~:text=In%20West%20Java%20province%20specifically,sexual%20violence%20every%20two%20hours.

2. Despite steady economic growth and increased urbanisation, the participation of women in the workforce has stagnated in recent decades.[26] In 2021 it was reported at 52 percent.[27]  It’s reported that cultural norms play a strong part in gender segregation of industries. A large percentage of women work in the informal sector, particularly in low paying and low-skilled areas including agriculture, trade, retail (including street vendors) and domestic service.[28] Migration to foreign countries seeking employment is an important source of income for Indonesian women.[29]

   [26] DFAT report at p.29

   [27]  The World bank, ‘Labor force participation rate, female (% of female population ages 15+(modeled ILO estimate) – Indonesia’ dated 11990-2021 DFAT Report at p.29

   [29]  DFAT Report at p.29

3. It’s reported[30]  that sexual harassment in the workplace is common with many women in Indonesia experience sexual violence in the workplace. According to the National Commission on Violence against Women (Komnas Perempuan’s) annual report 2019[31], of the 3528 reported cases of violence in the workplace, 2670 (76%) related to sexual violence. Despite unions attempt to make workplaces better for women the government has failed to take any action. In particular it delayed passing a bill against sexual violence for more than four years.[32] On April 12, 2022, the Indonesian parliament passed the Sexual Violence Bill, a decade after it was first introduced in 2012. Muslim conservative groups opposed the bill arguing that’ it contravenes religious and cultural values.” The eventual passing of the law came about as women’s rights groups highlighted several cases of sexual violence, arguing that this equates to a ‘state of emergency.’[33] A 2016 study conducted by the Inter-Factory Workers’ Federation (FBLP)[34] identified various forms of sexual violence. They included being touched inappropriately,[35] voyeurism[36] (eg men intentionally dropping their tools to peek at women's undergarments), women receiving unwanted erotic images and texts online[37] and coerced dating.[38] In the case of coerced dating it’s reported[39] that supervisors would ask women on a dinner date, then demand that they undress and have sex. It’s reported[40] that women who experience sexual violence are often unable to report the abuse out of fear they will be fired because the perpetrator is their superior. As a result, women are highly vulnerable to sexual violence in the Indonesian workplace.

   [30]  DFAT Report at p.29. Inside Indonesia, ‘Sexual Violence and Women Workers’ by Jumisish & Andi Cipta Asmawaty dated 29 January 2020. http:/ National Commission on Violence against Women (Komnas Perempuan’s) National Human Rights Institution Independent Report dated 27 September 2019; http:/ngocsw.org/wp-content/uploads/2019/10/Komnas-Perempuan-Independent-Report-BPFA25.pdf

   [32]  Inside Indonesia, ‘Sexual Violence and Women Workers’ by Jumisish & Andi Cipta Asmawaty dated 29 January 2020. http:/ The Borgen Report, ‘Combating Sexual Violence in Indonesia’ dated 6 August 2022; indonesia/#:~:text=In%20West%20Java%20province%20specifically,sexual%20violence%20every%20two%20hours.

   [34]  Inside Indonesia, ‘Sexual Violence and Women Workers’ by Jumisish & Andi Cipta Asmawaty dated 29 January 2020. http:/ ibid

   [36]  ibid

   [37]  ibid

   [38]  ibid

   [39]  ibid

   [40]  ibid

4. It’s reported[41] that a national survey conducted by Indonesia’s Central Statistics Agency in 2017 revealed that a third of Indonesian women had experienced either physical, sexual, emotional or economic violence in their lifetime and over 33 per cent of women aged 15 to 64 years had experienced physical or sexual violence in their lifetime. It’s reported that in 2021 the reported[42] cases of violence against women in West Java province  was 58,395 cases. In 2022, Indonesia’s Commission on Violence Against Women reported that a minimum of three women in Indonesia endure sexual violence every two hours.[43] National Commission on Violence against Women reported that in 2021 the number of cases of violence against women rose by approximately  50 percent to 338,496 in 2021 compared to 226,062 in 2020.[44] Despite the introduction of the Sexual Violence Bill, women rights advocates have raised concerns about its implementation.[45] 

   [41]  DFAT Report at p.29

   [42]  The Borgen Report, ‘Combating Sexual Violence in Indonesia’ dated 6 August 2022; indonesia/#:~:text=In%20West%20Java%20province%20specifically,sexual%20violence%20every%20two%20hours

   [43]  ibid

   [44]   UCA News, ‘Indonesia records sharp rise in violence against women’ by Katharina Reny Lestari, 9 March 2022 ibid

5. It’s reported[46] that domestic violence safe houses exist but are limited in number. The availability of facilities varies between local government areas. Rules in these facilities are strict, including time limits for stays of approximately a week. NGOs or village heads may make local arrangements to protect women on a temporary and ad hoc basis.

   [46]   DFAT report at p.30

6. Police protection is inconsistent. The country information reports that the Indonesian National Police (INP) is not held in high public esteem.[47] A 2013 poll by Transparency International found that the police ranked as the least trusted public body in Indonesia.[48] Professionalism varies across the police. Shortages of equipment, a lack of training, a low investigative capacity, and corruption limit the effectiveness of the police to protect women from sexual abuse.[49] In the case of abuse against women it’s reported that some police encourage women to return to their abusers.[50] Many victims are reluctant to report rape due to cultural stigma. In addition, it’s reported[51] that the high burden of proof and weak legal definitions makes prosecutions of rapists and other sex offenders difficult. Based on the available country information the Tribunal finds that the INP is an inept and incompetent police force that displays a tolerance and condonation of violence towards women.[52] Accordingly, the Tribunal finds that the INP would not offer any effective protection to the applicant on a selective and discriminatory basis[53] because of her membership of a PSG[54] if she was threatened with harm as claimed.

   [47]   DFAT report at p.41

   [48]   ibid

   [49]   ibid

   [50]   DFAT report at p.30

   [51]   ibid

   [52] MIMA v Khawar (2002) 210 CLR 1

   [53] ibid

   [54] ibid

7. Based on the applicant’s evidence and the available country information Tribunal accepts that she was sexually assaulted as claimed. The Tribunal notes that the sexual assault occurred in 2014 and the applicant did not flee Indonesia until 2016. The applicant’s evidence was that while she did not experience any further sexual assault, she was contacted regularly by the perpetrator of her sexual assault and threatened.  She claims that he threatened to kill her if she informed the authorities as to her sexual assault.  The applicant’s evidence was that during this time she had relocated to another suburb and changed her telephone number for the purposes of avoiding her perpetrator. However, despite her efforts to relocate and change her contact details he was able to find locate her and obtain her new telephone number. As a result, he continued to contact the applicant and threatened to kill her. Accordingly, the applicant’s evidence was that she was not able to relocate to another area in Indonesia. Based on the applicants evidence, and the available country information, the Tribunal accepts that she is not able to relocate to another part of the Indonesia to avoid the real chance of being seriously harmed.

8. Nevertheless, given the period between the incident and her departure from Indonesia, the Tribunal has some difficulty in accepting that the perpetrator continued to contact for the purposes of threatening her. In response to the Tribunal’s question the applicant did concede that the perpetrator wanted to continue a relationship with her. It was her evidence that she did not want a relationship with him but that he continued to contact her and threaten her as claimed. As a result, she felt unsafe. In any event the Tribunal accepts that the perpetrator did continued to contact the applicant and that his advances were not welcomed by the applicant.  The applicant’s evidence was that if she returned to Indonesia, he would again contact her and threaten to harm her. Having found that the applicant was sexually abused as claimed, the Tribunal accepts the applicant evidence that the applicant’s perpetrator will continue contact the applicant as claimed. In addition, based on the available country information, the Tribunal finds that the applicant will not be able to avail herself of effective state protection due to her membership of a PSG, being a woman in Indonesia, or a woman in Indonesia who is the victim of sexual assault.

9. Therefore, based on the available country information and the applicant’s evidence the Tribunal accepts that as a woman in Indonesia there is a real chance she will be seriously harmed if she is returned to Indonesia as a result of being sexually assaulted. In addition, based on the applicant’s evidence, the Tribunal accepts that there is a real chance she will be seriously harmed as a result of threats to harm her by the perpetrator of her sexual assault as claimed.

CONCLUSIONS

1. Having considered the applicant’s claims singularly and cumulatively, the Tribunal finds that, if she is removed from Australia to Indonesia, there is a real chance she will suffer serious harm as a woman in Indonesia and as a woman who has suffered sexual assault in Indonesia.

1. For the reasons given above, the Tribunal is satisfied that the applicant, is a person in respect of whom Australia has protection obligations. Therefore, this applicant satisfies the criterion set out in s 36(2)(a) of the Act.

DECISION

1. The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Act.

Jason Pennell
Senior Member

Annexure ‘A’

Women[55]

[55] DFAT Report at p.29

3.94 Women participate in all areas of Indonesian society. However, societal, cultural and religious barriers limit the extent of that participation. Indonesia ranked 113th (out of 188) on UNDP’s 2016 Gender Inequality Index, which is a composite measure reflecting inequality in achievement between women and men in relation to reproductive health, ‘empowerment’ (in political spheres and in relation to education) and the labour market. The government has made efforts to promote women’s rights and Indonesia has ratified the Convention for the Elimination of Discrimination Against Women.

3.95 Although a 2008 law requires that 30 per cent of a political party’s candidates and board members must be women, the proportion of seats held by women in the national parliament has remained steady over the past five years at around 17 per cent. In part, this reflects a popular view that politics is a male occupation: female candidates face considerable difficulties in gaining financial support to campaign, and in securing winnable positions on party lists.

3.96 Despite steady economic growth and increased urbanisation, the participation of women in the workforce has stagnated in recent decades at just over 50 per cent. Employers may prevent women from working at night, ostensibly for their own safety. Participation is lowest for married women and women with children. Cultural norms play a part in the strong gender segregation of industries. A large percentage of women who work are in the informal sector, particularly in low paying and low-skilled sectors such as agriculture, trade, retail (including as street vendors) and domestic service. Migration to foreign countries for employment opportunities is an important source of income for Indonesian women. Local sources say sexual harassment in the workplace occurs, but that the situation is improving as awareness of the issue grows.

3.97 A nationwide survey carried out by Indonesia’s Central Statistics Agency in 2017 revealed that a third of Indonesian women had experienced either physical, sexual, emotional or economic violence in their lifetime. Over 33 per cent of women aged 15 to 64 years had experienced physical or sexual violence in their lifetime, and approximately a quarter of married women had experienced violence at the hands of their husbands. The survey found that women living in urban areas and with higher levels of educational attainment were more likely to report experiencing violence than those in rural areas. This may reflect a greater willingness and capacity to report and does not necessarily mean that they experience more violence than poorer and rural women.

3.98 Domestic violence safe houses exist but are few in number. The availability of facilities varies between local government areas. Rules in these facilities are strict, including time limits for stays of approximately a week. NGOs or village heads may make local arrangements to protect women on a temporary and ad hoc basis. Police protection is inconsistent. Some police encourage women to return to their abusers. Men will sometimes report a woman fleeing violence to police for abandoning her children. Women who are financially dependent on their husbands are unlikely to report abuse for fear that he will be arrested and she will thus be left without an income.

3.99 According to the National Commission on Violence against Women, most sexual violence occurs in remote areas and villages, including gang rapes. Many victims are reluctant to report rape due to cultural stigma, while a high burden of proof and weak legal definitions make prosecutions of rapists and other sex offenders difficult. Police reportedly often focus on the victim’s dress and behaviour when investigating cases of sexual assault.

3.100 Indonesia has made significant gains in reducing child marriage, which disproportionately affects girls, over the past three decades. Notwithstanding such gains, at least one in six girls still marries before the age of 18, while in Sulawesi and Kalimantan the figure is one in three. Girls in rural areas and from poor backgrounds are particularly vulnerable to early or forced marriages. National data likely underestimates figures due to the high rate of unregistered marriages among the poor. There is an inconsistency between the Marriage Law, which places the legal age of marriage with parental consent for girls at 16 (19 for boys) and the Child Protection Law (2014), which prohibits marriage before 18 under any circumstance. Parents can petition district-level religious judges or marriage officials for permission to marry their daughters at any age, with judges usually granting such petitions.

3.101 The Marriage Law designates the husband as the head of the family. The Marriage Law considers property acquired during the marriage as joint marital property, but property brought into the marriage by one party or acquired separately as either a gift or inheritance is deemed to remain the property of the person concerned. The consent of both parties is required in relation to any decision affecting joint marital property. Debts and obligations incurred by one party during marriage are generally considered a joint obligation, and claims must be satisfied out of the joint property. Debts acquired prior to marriage continue as personal debts. Children are considered minors up to the age of 18 or until they are married (in the case of women marrying before the age of 18).

3.102 Divorces must be heard in court. Religious courts have jurisdiction over Muslim marriages and divorce. ‘Triple talaq’ divorces, in which the husband may unilaterally divorce his wife, have been banned since 1991. According to the Marriage Law, the husband and father of children is responsible for his children’s wellbeing until the age of 21. A court can order that he pays spousal maintenance after divorce

3.103 Polygamy is legally allowed, but is uncommon. According to the law, a man must seek judicial approval, which includes an assessment about whether he can equally maintain more than one wife and that an existing wife is incurably ill or incapacitated or that she is unable to have children. Permission from existing wives must also be sought. Polygamous marriages that are not approved by courts also exist in the form of unregistered religious marriages.

3.104 Women who are not married or who are divorced may legally be head of a household in their own right. A birth can be registered in the absence of a marriage certificate. In-country contacts report that these processes are bureaucratic and can be slow on a case-to-case basis. Women who are not married may face social stigma or harassment, including sexual harassment, especially if they are divorced. Some women may choose to move to Jakarta for more independence. This option may not be available to women who are financially dependent on their families or lack work connections in their hometown and in Jakarta. Marriages that are not formalised by the state, which constitute up to 70% of marriages in some districts, also continue to be a major barrier to women and children in accessing services and exercising their legal rights

3.105 Abortion is illegal except where a woman has been raped and in that case only within 40 days of conception. Some victims of rape are not aware of their pregnancy within 40 days due to the typical signs of pregnancy not being apparent in that time, according to women’s advocates. Abortion is a criminal offence both for the woman undergoing the procedure and the person performing the procedure. Local sources report that illegal abortions are common and that they may be performed by non-medically trained clinicians.

………………………………………….

Police[56]

[56] DFAT report at p.41

5.6 The Indonesian National Police (INP) has more than 400,000 police officers and civilian employees (including 13,000 women), deployed to 32 regional police forces across the archipelago. The INP was formally separated from the military in 2000. The Law Concerning the State Police of the Republic of Indonesia (2002) gives the INP the lead role in handling non-defence related security matters. The president appoints the national police chief, subject to confirmation by parliament.

5.7 Many religious and ethnic minorities serve in the police. Chinese Indonesians and Christians, particularly Catholics, serve in both the national police and the military. Human rights organisations have criticised the INP for including virginity testing and assessments of physical beauty in recruiting female police.

5.8 A semi-independent government advisory body (KOMPOLNAS) maintains oversight of the INP and acts as an alternative advisor to the president on policing matters. KOMPOLNAS has limited investigative powers and can recommend (but not order) follow-up actions.

5.9 The INP does not enjoy the same high public esteem as the TNI: a 2013 poll by Transparency International found that the police ranked as the least trusted public body in Indonesia. Professionalism varies across the police. Shortages of equipment, a lack of training, a low investigative capacity, and corruption limit the effectiveness of the police. Reports of police abuses are common, including unnecessary or excessive use of force while dispersing protests and the abuse of suspects in detention.

5.10 An elite counter-terrorism unit known as Densus-88 was formed in June 2003 the wake of the October 2002 Bali bombings, in which 202 people including many Indonesians and Australians died. Local and international observers regard Densus-88 as high performing. Officers, who are highly trained in intelligence gathering, have successfully intervened to prevent numerous attacks. Densus-88 also investigates terrorist activity. Human rights organisations have expressed concerns over the number of terrorism suspects the unit has killed rather than brought to trial.

5.11 Human rights organisations claim police are rarely held to account for abuses. While police can be tried under criminal jurisdiction, impartial criminal investigations into police actions are uncommon. The usual practice is for police to conduct their own investigation, which often results in minor disciplinary actions. Such actions, usually against junior or mid-ranking officers, include short periods of detention, demotions and deferral of training opportunities. Details of investigations, court proceedings and verdicts are rarely made public.
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.

…