1806834 (Refugee)

[2024] AATA 1817

1806834 (Refugee) [2024] AATA 1817 (30 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Alim Lim

CASE NUMBER:  1806834

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Kylie Allen

DATE:30 May 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 30 May 2024 at 1:04pm

CATCHWORDS

REFUGEE – Protection Visa – Indonesia – race – ethnic Chinese – ongoing extortion demands and threats posed by local Muslims – claims are uncorroborated and lacking in detail – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 499

Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 15 February 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first applicant and second applicant are husband and wife. The third applicant is their minor son. The applicants have a second younger son who does not form part of this application. He was born after the Department’s decision.

3. The applicants, who claim to be citizens of Indonesia, applied for the visas on 21 January 2016. The delegate refused to grant the visas on the basis that the applicants are not owed protection.

4. The first and second applicants appeared before the Tribunal on 16 May 2024 to give evidence and present arguments in relation to their claims.

5. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

   EVIDENCE BEFORE THE TRIBUNAL

   Mandatory considerations

6. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

7. The Tribunal has also taken into account material provided by the applicant to the Department and the Tribunal as well as material provided by the Department to the Tribunal. The key information is summarised below.

   Protection visa application and decision

8. On 21 January 2016, the applicants applied for a protection visa. In that protection application the first applicant made claims for protection and the second and third applicants relied on his claims. The first applicant’s claims included the following:

   ·     He was born in [year] in [City 1], West Kalimantan, Indonesia but lived and worked in Jakarta. He is a Chinese Buddhist Indonesian.

   ·     In 2008 he and his wife travelled to Australia for the first time as she was on a student visa. He worked in Sydney and they travelled regularly back and forth between Indonesia and Australia until 2015.

   ·     Between March 2013 and September 2015 he ran a small business in Jakarta.

   ·     He had to pay bribes to corrupt government officials in order to run a small shop in Indonesia.

   ·     In October 2014 and again in May 2015 he was arrested and detained, each time for three days, after attending anti-corruption demonstrations.

   ·     In October 2015 he attended another anti-corruption demonstration and ran away when the police arrived.

   ·     He fears being arrested if he returns to Indonesia.

9. On 15 February 2018, a delegate of the Minister made a decision to refuse the grant of the visas on the basis that the applicants were not owed protection.

   Application to Tribunal

10. On 14 March 2018, the applicants lodged an application for a review of the decision with the Tribunal.

    Pre-hearing submissions

11. On 13 May 2024, the applicants’ newly appointed representative provided the Tribunal with pre-hearing submissions. They included the following claims:

    ·     They applied for protection visas due to their concern about returning to their country of origin, stemming from experiences of racial discrimination as ethnic Chinese individuals in Indonesia.

    ·     The main reason for their application for a protection visa is the ongoing extortion demands and threats posed by local Muslims, which further intensify their fear and insecurity.

    ·     Their main claim is the failure of Indonesian authorities to provide adequate protection to individuals of Chinese descent in Indonesia.

    ·     The applicants never attended any demonstrations in Indonesia.

    ·     The first incident occurred between 2005 and 2008 in Pontianak, Kalimantan. There is a perception in the community that Chinese people are wealthy, so they are often targeted by robbers. The applicants recalled that a local Muslim Indonesian extorted a total of 12,000,000 Indonesian Rupiah (IDR) from their business, which is equivalent to $1200 Australian Dollars (AUD). They reported the incident to the Police who did nothing.

    ·     The second incident occurred between 2013 and 2015 in [District 1], Jakarta. They ran a [business at] [District 1] Market in Jakarta and faced recurring harassment from local Muslims. These individuals would arrive uninvited at their store every month, demanding money and issuing threats of property damage if payment was not made.

    ·     They visited a police station seeking assistance but encountered a discouraging response. Initially, the police inquired about their Chinese ethnicity. Subsequently, after a brief discussion, they informed them that their willingness to take on the report was contingent upon being given payment of money. The police cited their Chinese ethnicity as a reason for this request.

    Hearing

12. The first and second applicants attending a hearing before the Tribunal on 16 May 2024 to give evidence and present arguments in relation to their claims. The hearing was conducted with the assistance of an interpreter in the Indonesian and English languages. Where relevant, the applicants’ oral evidence at the hearing is referred to in my analysis below.

    Post hearing submissions to Tribunal

13. The applicant’s pre-hearing submission made reference to country information related to the ethnic Chinese community in Indonesia which was provided in full to the Tribunal after the hearing. It included the following articles:

    ·     Oliver Homes, “Jakarta's violent identity crisis: behind the vilification of Chinese Indonesians”, The Guardian, 25 November 2016.

    ·     Taufiq Tanasaldy, “From Official to Grassroots Racism: Transformation of Anti-Chinese Sentiment in Indonesia”, The Political Quarterly, July/September 2022.

    ·     Randy Mulyanto & Charlenne Kayla Roeslie, “Chinese Indonesians reflect on life 25 years from Soeharto’s fall”, Al Jazeera, 24 May 2023.

    ·     Kate Lamb, “Woman jailed in Indonesia for complaining that call to prayer is too loud”, The Guardian, 23 August 2018.

    ·     Vincent Bevins, “Ethnic Chinese still grapple with discrimination despite generations in Indonesia, The Washington Post, 18 March 2017.

    ·     Antonia Timmerman, “What do the May 1998 riots mean for young Chinese Indonesians?”, The Diplomat,

    CONSIDERATION OF CLAIMS AND EVIDENCE

    REFUGEE ASSESSMENT

14. Section 5H(1) of the Act provides that a person is a refugee if, in a case where the person has a nationality, he or she 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 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.

15. Under s.5J of the Act ‘well-founded fear of persecution’ involves a number of components  which include that:

    ·     the person fears persecution and there is a real chance that the person would be persecuted

    ·     the real chance of persecution relates to all areas of the receiving country

    ·     the persecution involves serious harm and systematic and discriminatory conduct

    ·     the essential and significant reason (or reasons) for the persecution is race, religion, nationality, membership of a particular social group or political opinion

    ·     the person does not have a well-founded fear of persecution if effective protection measures are available to the person, and

    ·     the person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour, other than certain types of modification.

16. The issue in this case is whether the applicants are owed protection as refugees or as persons entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Nationality and identity

17. The first and second applicants claim to have been born in [City 1] and [City 2], West Kalimantan, Indonesia, respectively. The third applicant was born in Jakarta, Indonesia. In support of their claimed identities they provided copies of their Indonesian passports. At hearing they gave a description of their life in Indonesia which accorded with their claims of nationality. The Tribunal is satisfied that the applicants’ identities are as claimed and accepts that they are nationals of Indonesia. The Tribunal considers that if returned to Indonesia, they would likely return to Jakarta where they most recently lived and ran a business. They also indicated that they could live in West Kalimantan where they have family but noted there are more opportunities in Jakarta.

18. The applicants claim that they are Indonesians with Chinese ethnicity. DFAT reports[1] that 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. Indonesians of Chinese descent comprise approximately 1.2 per cent of the total population. In West Kalimantan (where the first and second applicant were born) the percentage is closer to 37% of the population. The Tribunal accepts the evidence provided by the applicants as to their actual and perceived Chinese ethnicity.

    Protection claims

    [1] DFAT, “DFAT Country Information Report Indonesia”, 24 July 2023

19. The applicants initially claimed that they were seeking protection in Australia because the first applicant had been required to bribe local officials and therefore became involved in anti-corruption protests. The applicants claimed he had been detained and was of interest to the police. The applicants resiled from this claim in 2024 in their pre-hearing submission. At hearing they confirmed that these were not their claims and that they had been manufactured by their former representative. The Tribunal accepts that the applicants now claim that they never had to pay bribes to local officials, they were not involved in anti-corruption demonstrations and the first applicant was not ever detained or wanted by police because of his political activity. The Tribunal accepts that they do not fear persecution on the basis of the claims set out in the protection visa application and therefore the Tribunal has not considered those claims further in this decision.

20. The applicants current claims as set out in their pre-hearing submission and discussed at hearing are that they fear persecution in Indonesia on the basis of their Chinese ethnicity. Specifically, they claim that as a result of their ethnicity they faced ongoing extortion demands and threats from local Muslims, and that the Indonesian authorities fail to provide adequate protection to individuals of Chinese descent in Indonesia.

21. The Tribunal has considered the applicants claim that, as a result of their ethnicity they faced ongoing extortion demands and threats from local Muslims. In their written submission to the Tribunal, the applicants described two periods of harm they faced on the basis of their ethnicity. The first they claim occurred in Pontianak in Kalimantan between 2005 and 2008. They claimed that a local Muslim Indonesian extorted a total of 12 million IDR from their business, which they say is equivalent to $1200 AUD over a period of 3 to 4 years. They said that there is a perception in the community that Chinese people are wealthy, so they are often targeted by robbers.

22. At hearing the first applicant explained that they opened a [specified business] in [City 2] which is a number of hours’ drive north of Pontianak. He said that local Muslims came to the shop every day with kerosene and a pistol asking for money. Once a gang of 6 people asked for 12 million IDR. He said that generally they came every month and usually there were 6 to 8 people. Different people came each time and he does not know if they were connected. He said that every month they gave the men tens of millions of IDR and they were targeted because they look Chinese.

23. At hearing, the second applicant’s account was that when they had the shop in [City 2], every day gangsters asked for them for money and if they do not give it to them they would threaten them and some carry a pistol. She said they do not know who the people are only that they know they are gangsters. She said her husband knows who they are. She said they asked for money, 12 million IDR every month.

24. At hearing, the applicants’ evidence about how many men came to the shop, and how often, and how much they had to pay these men, was not consistent. In particular, the Tribunal notes that the first applicant claimed that the total paid in extortion money was approximately 12 million IDR over a period of 3 to 4 years while the second applicant suggested that they took that amount monthly. This is significantly different. The Tribunal prefers the first applicant’s account as he was involved in the day to day running of the business and he was the person claimed to have been in contact with the criminals. Further, at hearing he provided a more detailed and compelling account of what occurred. The applicants both advised that they have relatives running businesses in [City 2] and extortion continues to be a problem. The Tribunal accepts that the applicants faced some extortion by criminals in [City 2] as they were business owners and perceived to have wealth.

25. The applicants claim that after they moved to Jakarta to run a [business] they also ran into problems with local Muslims extorting money from them. The first applicant said that 3 to 4 gangsters came to shop daily between 2013 and 2015 and often asked for money. He said that when they did not give them money they threatened them, they threatened to hit them and destroy the shop and house. On one occasion they damaged their motorcycle and they called them names because of their Chinese ethnicity. He said that each time they came he gave them 1 million IDR per person and that the shop made a loss every day. He was unsure of the total amount of money paid. The second applicant estimated that they paid a total 20,000,000 IDR (approximately $1800 AUD) over the period 2013 to 2015. The applicants were asked how they were able to live in Jakarta and have approximately 9 trips to and from Australia when they were losing money. They explained that in one week they grossed 30,000,000 IDR from the shop and they lived economically. The Tribunal accepts that the applicants may have faced some extortion by criminals in Jakarta.

26. The Tribunal has concerns about the extent to which the applicants were subject to extortion when they lived in [City 2] and Jakarta. The applicants appear to have come to Australia so that the second applicant could study and not because they could not subsist in Indonesia. The applicants gave evidence at hearing that they first travelled to Australia in March 2008 so that the second applicant could study. The first applicant came with her and worked at a [shop] while she studied in the period 2008 to 2013. During that time they visited Indonesia in 2009, 2011 and twice in 2012 to visit family. This willingness to travel back and forth does not support their claim that they feared serious harm in Indonesia as a result of events in [City 2] prior to 2008.

27. The applicants gave evidence that they returned to Jakarta in 2013 just prior to the birth of the third applicant. At hearing the second applicant advised that she did not complete her study in Australia because of her pregnancy. From 2013 to 2015 they ran the business in Jakarta but travelled back to Australia twice in 2014 and twice in 2015. The first applicant said that the second applicant missed Australia. The applicants also visited [Country 1] in this time. Again, this does not suggest that they were having trouble subsisting as a result of extortion by gangsters during that time. On their second visit to Australia on [date] October 2015 the applicants remained in Australia but did not make a protection visa application until 21 January 2016.

28. The Tribunal has considered the applicant’s claims and country information about the treatment of Chinese business people in Indonesia. There are reports[2] that extortion and protection racketeering are prevalent in Indonesia's informal economy, where syndicates control markets such as gambling and counterfeit goods. Historically, gangs of thugs and militias have controlled street markets and several types of economies, and new types of gangs and aggressive rent seekers continue to collect payments from local businesses. There is no suggestion in that report that such crime has a racial element. DFAT[3] reports that most Indonesians are affected by petty corruption in their day-to-day lives but does not indicate that ethnically Chinese Indonesians are affected more.

    [2] Global Organised Crime Index 2023 at Criminality in Indonesia - The Organized Crime Index (ocindex.net) accessed 27 May 2024

    [3] DFAT, “DFAT Country Information Report Indonesia”, 24 July 2023

29. The applicants provided a range of articles about the Chinese community in Indonesia which are cited above. These articles do not indicate that Chinese shopkeepers are targeted by gangs in the manner described by the applicants. The articles related to anti-Ahok protests in 2016, historical racism, the improvements in conditions for Chinese Indonesians years on from the New Order regime and religious elements to racism.

30. Having regard to the country information and the applicants’ evidence, the Tribunal accepts that they may have been subject to harassment by gangs and they may have had to pay bribes at times as part of the low level petty corruption which occurs in Indonesia and which affects all Indonesians. The Tribunal does not accept that the applicants were systematically targeted by Muslim gangs or that they were physically harmed or that they were required to make payments to gangs such that they were unable to subsist. The applicants only raised these claims in 2024 after the second applicant could no longer get a student visa and their initial protection visa application had been refused. The fact that the applicants were never physically harmed, were able to travel extensively over the period 2008-2015, open two businesses, rent a home and raise a family during that time all point to the applicants not being subject to serious harm in the past in Indonesia. The Tribunal also notes the applicants evidence that both sides of their families continue to live in West Kalimantan and Jakarta and some run businesses. While they may have had to pay extortion money or bribes, the applicants did not suggest that they have suffered any serious harm on the basis of their ethnicity.

1. The Tribunal has considered the applicants claim that the Indonesian authorities fail to provide adequate protection to individuals of Chinese descent in Indonesia. In their submission to the Tribunal, the applicants claimed that they visited a police station seeking assistance but encountered a discouraging response. Initially, the police inquired about their Chinese ethnicity. Subsequently, after a brief discussion, they informed them that their willingness to take on the report was contingent upon being given payment of money. The police cited their Chinese ethnicity as a reason for this request.

2. The applicants were asked about this claim at hearing. The first applicant advised that he reported the incident in [City 2] to police but he cannot recall when he made the report. He then said that he made several reports and they were asked to pay money to the police for them to investigate. He said that they did not trust the police and did not want to pay a bribe so nothing happened. He said that in 2014 they made police reports three times at the police station in Jakarta and they faced the same response. He had no records or copies of any police reports made in [City 2] or Jakarta and he did not recall when those reports were made. He did not mention the claim made in the submission that the police cited their Chinese ethnicity as a reason for the payment request. The second applicant stated that she made 3 reports to the police in [City 2] and they did not really respond unless they paid a bribe. She said they did not pay it because it was a huge amount 50,000,000 IDR. She said that her husband made police reports in person in Jakarta a few times but nothing happened. She did not have any dates or copies of any police reports.

3. The Tribunal did not find the applicants’ assertions of making police reports and being denied protection because of their Chinese ethnicity to be persuasive. Their claims are uncorroborated and lacking in detail and the applicants appeared to claim at hearing that the barrier to assistance was the payment of bribes more so than their Chinese ethnicity. DFAT[4] reports that crime is a persistent threat in Indonesia and some areas experience street crime, but Indonesia is generally safe. While DFAT indicates that police and other officials may request bribes, it does not suggest there is any sort of racial element to that behaviour. Overall the Tribunal does not accept the applicants claim that they made police reports and that they were refused protection because of their Chinese ethnicity.

   [4] DFAT, “DFAT Country Information Report Indonesia”, 24 July 2023

4. The applicants state they closed their business in Indonesia in 2015 before coming to Australia. They claim they applied for protection due to the ongoing extortion demands and threats posed by local Muslims, which further intensify their fear and insecurity. They have not indicated that they have been subject to any threats since they closed their business. They claim that they were not of interest to the authorities in Indonesia and did not have any difficulties travelling through the airport in Jakarta.

5. Overall, the Tribunal accepts that the applicants were subject to low level extortion in Indonesia and considers that this was likely part of the ‘cost of doing business’. The Tribunal also accepts that there was a racial element in them being targeted due to a perception of Chinese business people having more wealth. The Tribunal does not accept that the applicants were seriously harmed or that they were denied police protection because of their ethnicity.

6. After a break in the hearing the applicants were asked if they had any other fears of harm on their return to Indonesia. They stated that they felt their risk of harm on return was higher because of the election of Prabowo Subianto. In particular they said that during the events of 1998 many of the looters and rapists were members of the army. The applicants did not provide any evidence or citations to support their assertion that Chinese Indonesians were at risk of harm due to the election of Subianto. This was raised with the applicants and their representative at the hearing. In response the applicants advised that they are just worried. The Tribunal is not satisfied that there is any recent or specific information about the use of anti-Chinese rhetoric or policies during the election campaign or afterwards to support the assertion or speculation that Subianto would encourage or implement discrimination or harm against ethnic Chinese Indonesians. The Tribunal is not satisfied on the evidence that the election of Subianto will lead to any substantive deterioration of the situation for Chinese Indonesians in the reasonably foreseeable future.

7. The applicants have indicated that if they returned to Indonesia they would return to Jakarta or West Kalimantan. They have family running businesses and living in both locations. At the hearing I discussed country information with the applicants that could suggest that any harm or discrimination they may experience on their return to Indonesia would be low level. DFAT[5] reports that since 1998 successive governments have removed official policy discriminating against ethnic Chinese Indonesians. The government promotes racial tolerance, and legislation prohibiting racial discrimination and vilification has been in force since 2008. 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. The applicants provided country information about the violent protests in Jakarta in 2016 demanding the detention of the Chinese Indonesian governor after he was arrested for allegedly insulting Islam. However, this involved violence between police and protesters, rather than against ordinary citizens.

   [5] DFAT, “DFAT Country Information Report Indonesia”, 24 July 2023

8. DFAT states that low-level ethnic discrimination, like stereotypes and the use of racist slurs, occurs in Indonesia and that non-Javanese are worse affected, but ethnic chauvinism occurs among members of all ethnic groups. DFAT states that, consistently with the applicant’s claims, Chinese Indonesians experience societal discrimination in the form of negative stereotypes that portray them as greedy and additionally as criminals or as being associated with China and its policies. In DFAT’s assessment, risk of societal discrimination against Chinese Indonesians depends on individual circumstances. Those with wealth are less affected and better able 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. 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. DFAT states that violence has occurred in the past but is not an everyday experience for Chinese Indonesians.

9. Overall, 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. As noted above DFAT indicates that police and other officials may request bribes, it does not suggest there is any sort of racial element to that behaviour.

10. The Tribunal must be satisfied that the applicants would face a real chance of serious harm on their return to Indonesia. For the purpose of the refugee criterion and s 5J, s 5J(5) provides that serious harm includes but is not limited to a threat to the person’s life or liberty; significant physical harassment of the person; significant physical ill-treatment of the person; significant economic hardship that threatens the person’s capacity to subsist; denial of access to basic services, where the denial threatens the person’s capacity to subsist; and/or denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

11. At hearing it was put the applicants that the treatment they might face on their return to Indonesia may not amount to serious harm. In response they advised that they cannot return because they feel traumatised because of their past experiences and they are afraid for their safety. Their representative also speculated that eventually the gangsters might kill someone. The Tribunal accepts that the applicants are worried about being approached, threatened and called names by gangsters or thugs wanting money. However, on their own evidence the harm they have experienced in the past has been limited to verbal insults and harassment, damage to a motorcycle and requests for payment. It is noted that the applicants do not claim to have any mental or physical health condition as a result of this treatment and they have not indicated that they have sought treatment or that they intend to seek treatment for any mental health condition in the future.

12. While the Tribunal takes into account the assertions made by the applicants in the submission and at hearing and the assertions made by their representative, it prefers DFAT’s assessment that Indonesia is generally safe, and that Chinese Indonesians face societal discrimination but only a low chance of societal violence and do not face official discrimination. Having regard to the applicants’ past experiences and the information from DFAT, the Tribunal accepts that the applicants may in the future experience the kind of low level discrimination and verbal harassment that they did in the past. The Tribunal cannot rule out that they may experience opportunistic petty crime such as the damage to their motorcycle, but it is not satisfied there is a real chance of the applicants experiencing violent crime including rape or murder. The Tribunal accepts on the country information that police or other officials may request bribes, but is not satisfied that officials would be unwilling to assist them, or that this treatment would be due to the applicants’ ethnicity. Considering the country information and the applicants’ past experiences, the Tribunal is not satisfied there is a real chance of the applicants facing harm to an extent that would reach the threshold of serious harm, even taken cumulatively.

13. The Tribunal has considered all of the applicants’ circumstances and is not satisfied that if the applicants were to return to Indonesia, they would face a real chance of serious harm on the basis of their race, religion, nationality, membership of a particular social group or political opinion now or in the reasonably foreseeable future. Accordingly, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a). The applicants do not face a real chance of persecution.

14. Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).

    Refugee: conclusion

15. The applicants do not meet the requirements of the definition of refugee in s.5H(1). The applicants do not meet s.36(2)(a).

    COMPLEMENTARY PROTECTION ASSESSMENT

16. A criterion for a protection visa is that the applicant is a non-citizen in Australia (other than a person who is a refugee) in respect of whom the Minister is satisfied Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm.

17. Under s.36(2A), a person will suffer ‘significant harm’ if:

    ·     the person will be arbitrarily deprived of his or her life

    ·     the death penalty will be carried out on the person

    ·     the person will be subjected to torture

    ·     the person will be subjected to cruel or inhuman treatment or punishment, or

    ·     the person will be subjected to degrading treatment or punishment.

18. The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are in turn defined in s.5(1) of the Act.

19. The Tribunal has considered the applicant’s claims and the evidence they provided in his protection visa application and hearing. The Tribunal has accepted that the applicants may face low level discrimination and harassment on the basis of their ethnicity and that they may also be requested to pay money to thugs because they run businesses and are perceived as being wealthy. They may also be asked to pay a bribe to obtain assistance from police. The Tribunal appreciates the concerns that the applicants have as a result of these circumstances but the Tribunal is not satisfied that these conditions, in these circumstances constitute arbitrary deprivation of life, the death penalty or torture. Further the Tribunal does not consider that there is any requisite intention on the part of the Indonesian authorities to inflict pain or suffering that could reasonably be regarded as cruel or inhuman treatment or punishment, severe pain or suffering, whether physical or mental, or cause extreme humiliation, as required in the definitions of cruel or inhuman treatment or punishment or degrading treatment or punishment in the Act.

20. As set out above, the Tribunal has found that the applicants do not face a real chance of any harm in relation to the remainder of their claims. Real chance and real risk involve the same standard. On the same factual findings, the Tribunal is similarly not satisfied that the applicants face a real risk of suffering any harm, including significant harm, should they be returned to Indonesia.

Complementary protection: conclusion

1. There are not substantial grounds for believing that, as a necessary and foreseeable  consequence of being returned from Australia to a receiving country, there is a real risk that  the applicants will suffer significant harm.

2. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.

   DECISION

3. The Tribunal affirms the decision not to grant the applicants protection visas.

   Kylie Allen
   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.

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   36     Protection visas – criteria provided for by this Act

   …

   (2)A criterion for a protection visa is that the applicant for the visa is:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

   …