1810295 (Refugee)

1810295 (Refugee) [2021] AATA 214 (12 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1810295

COUNTRY OF REFERENCE: Indonesia
MEMBER:Meena Sripathy
DATE:12 January 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 12 January 2021 at 12:30pm
CATCHWORDS
REFUGEE – protection visa – Indonesia – Federal Circuit Court remittal – race – ethnic Chinese – fear of kidnapping – fear of killing – extortion – protection money – fear of robbery – credibility concerns – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 36, 65, 91R, 91S
Migration Regulations 1994, Schedule 2
CASES
MIMA v Rajalingam (1993) FCR 220
Selvadurai v MIEA& Anor (1994) 34 ALD 347
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Indonesia, applied for the visa on 14 November 2014 and the delegate refused to grant the visa on 12 May 2015. The applicant sought a review of the decision to the Administration Appeals Tribunal (AAT), and on 14 June 2017 the AAT (differently constituted) (‘the first Tribunal’) affirmed the decision.
[In] April 2018 the Federal Circuit Court of Australia made orders by consent remitting the matter to the AAT to be re-considered according to law. The basis for the remittal by consent was a concession that the Tribunal had erred in law by failing to comply with s424A(1) or s424AA(1) with regard to information that was the subject of a Certificate issued under s438 of the Act.
The matter is before the present Tribunal to be re-considered according to law. The Tribunal has before it the Department and first Tribunal’s files.
The issues in this review are whether the applicant has a well-founded fear of persecution in Indonesia for one or more of the five reasons set out in the Refugees Convention; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Indonesia, there is a real risk that she will suffer significant harm.
The applicant appeared before the Tribunal on 10 November 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.
Refugee criterion
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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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 a protection 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 the applicant 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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS END EVIDENCE
Evidence before the Department
In her application form the applicant provided information that she was born in Pontianak, Kalimantan, Indonesia in [year]. She is single. She speaks Indonesian and Chinese Hakka languages and is of Chinese ethnicity and Buddhist religion. She arrived in Australia [in] August 2014 as a visitor, travelling on her own passport issued in [2010] and valid to [2015]. Prior to her arrival to Australia she had travelled to [Country 1], [Country 2] and [Country 3] between 2011 and 2013. She provided details of education up to [specified] school level and indicated that she was a [store owner] between 2010 and 2014.
In her reasons for claiming protection the applicant provided the following information:
·She suffered discrimination because of her Chinese ethnicity. Both her parents were Indonesians of Chinese ethnicity. They passed away in the riots in 1998 when she was [age] years old. She lived with her aunt thereafter. Her aunt’s family also suffered discrimination from neighbours and other indigenous Indonesians.
·After she finished high school, she rented her own place and started a business selling [products]. Her business went well and she started selling [associated products] after the first year.
·In 2014, several indigenous Indonesian males went to her shop and asked her for money for security fees. When she refused to give them any money they told her that they could not protect her shop if she did not pay the money. On the following day her shop was smashed and robbed. She was scared so she paid the men some money when they returned to her shop. They told her that they deserve money from Indonesian Chinese like her because Indonesian Chinese took the local people’s businesses and money. They kept asking her for more and more money and she could not afford to pay them any more so she closed down her shop.
·After she closed down the shop the indigenous Indonesian men continued to ask her for money and started to follow her. She got scared and reported them to the police. The police could not help her as she had no evidence. She knew they did not want to help her because they were also indigenous Indonesians. She feared being kidnapped or killed by indigenous Indonesians so she came to Australia to seek protection.
·If she returns to Indonesia she fears being kidnapped or killed by indigenous Indonesians.
The applicant was invited to an interview with the Department to discuss her claims on 11 May 2015. She failed to attend the interview.
Also included on the Department file is a copy of the applicant’s Application for a Visitor visa lodged on 21 July 2014. In this application she provides details that she is married, and has a son born in [year]. In her visitor visa application she indicates a residential address in [Jakarta] and states that she is employed as [an Occupation 1] at [Business 1], a company owned by her brother in law. She provided various supporting documents with her visitor visa application including a (untranslated) birth certificate and family card indicating she has a husband and child.
A file note on the Department file indicates that investigations were conducted into the employment reference from [Business 1] provided by the applicant in her visitor visa application and it was found to be fraudulent. The company name and address were not listed in Telkom directory and the phone number provided did not have the correct prefix for the claimed area.
On 12 May 2015, the delegate made a decision to refuse her application on the basis that the delegate was not satisfied she faced a well founded fear of persecution upon return to Indonesia or that she faced a real risk of significant harm.
Evidence before the first Tribunal (Case reference 1507995)
The applicant appeared before the first Tribunal at a hearing on 26 April 2017. An audio recording of the hearing is included in the Tribunal file. A summary of evidence provided at the hearing is included in the first Tribunal’s Decision Record which is before the present Tribunal.
Tribunal hearing 10 November 2020
At the outset of the hearing the Tribunal discussed with the applicant the existence of a Certificate issued under s438 of the Act relating to information in folio 36 on Department file [number]. The Tribunal explained that it did not consider the Certificate to be valid because it considered the reason given was not one that could form the basis for a claim of public interest immunity. The Tribunal explained to the applicant that during the course of the hearing it would discuss this information with her and provide her an opportunity to comment or respond to it.
The applicant provided the following evidence at the hearing. She is living at her current address with her partner, [named], and their two children who were born in Australia in [specified years]. She met her partner after she came to Australia around November 2014 (after she lodged this application) and did not know him previously in Indonesia. He was already in Australia when she arrived and she does not know his visa status. She is not presently working but has worked on and off since she arrived in Australia. She is financially supported by her partner, who works [in a specified occupation].
Prior to this relationship, she said she had a partner in Indonesia who had a child. She was not specific about how long they were together, but it was around 2012- 2013. They were going to marry but it did not work out in the end and they separated. She knew him by his Chinese name “[Mr A]”, and he had a child named [Child B] who was [age]-[age] years old when they were together. She had already separated from him when she applied for a visa to come to Australia.
The Tribunal asked, apart from the above, what other family does she have. She said she has no one else, no parents and no siblings. The Tribunal indicated that in her visitor visa application she provided different information about her family composition. She said there she had a husband named [Mr C] and a child named [Child D], born in [year], and that she was intending to travel to Australia with her older sister. She provided a family card and birth certificate in support of that application. The Tribunal showed the applicant the documents[1] provided in her visitor visa application and she confirmed that these were her family card and birth certificate documents she gave to the agent arranging her application. She confirmed the name of her mother as stated in the birth certificate. Regarding the reference to husband and child on the family card she said that they were planning to marry but then things didn’t go to plan and they separated about one year before she came here in 2013. She never got around to changing the details on her family card. The applicant denies she has any sister called [Ms E]. The Tribunal put to her that a document on the Department file indicates [Ms E] provided a birth certificate indicating a mother with the same name. She responded that she does not know anything about that.
[1] [File number], folios 42, 37-38
The Tribunal asked about her address history in Indonesia. She said she lived in Jakarta but she cannot remember the address now because it was so long ago. When the Tribunal put to her the address she had stated in her visitor visa application to her she agreed that it was that address. Before that she lived in Serang, but she cannot remember that address either. Before Serang she lived in Pontianak since birth until she completed school. The Tribunal asked when she finished school and left Pontianak. She said she cannot remember, it may have been around [year] or [year]. The Tribunal noted that in her application she said she finished school in [year] she then said that may be correct. She said straight after finishing school she went to Serang to open a business. The Tribunal asked how she was able to do that immediately following completion of high school. She said she moved with her aunty to Serang to open the business. She said her friends at school suggested it to her and they thought it was a good location. The Tribunal asked what her address was in Pontianak where she lived since birth. She could not remember that because it was so long ago. She was unable to recollect the address stated in the protection visa application.
The Tribunal put to the applicant its concerns about her vague and, what it considered evasive, responses to basic questions about her background circumstances and that it may find it difficult to accept she is being truthful about her circumstances in Indonesia and this may lead the Tribunal to reject her claims about what happened to her there. She repeated that it was all so long ago she cannot remember.
The Tribunal asked why she left Indonesia. She said she had some problems with indigenous people when she opened up her shop and she feels that indigenous people are racist against ethnic Chinese people and that is why she left Indonesia and cannot return.
The Tribunal asked her to elaborate on her claims. She said when she opened her business, she cannot recall what year, a group of people came and demanded money. The business was a small [shop]. It was in an area where there were more indigenous Indonesians and they felt she was competing with them. They often came and caused her trouble. In less than one year she closed the shop and then came to Australia.
The Tribunal asked what happened to her parents. She said they died in 1998, around the time of Chinese new year. She was left with some people and later her aunty came to pick her up and informed her that her parents were ‘gone’. This occurred when they were living in Pontianak. She doesn’t know anything else about the incident or circumstances of their death. After that she remained living in the same area of Pontianak and went to school there. Nothing else happened to her or her aunty after that. After she left school she had no other jobs or employment before opening the shop.

The Tribunal noted that her evidence so far was very sparse and lacking in detail and it may find it hard to be satisfied that these events occurred as claimed and accept she is telling the truth about her circumstances. The Tribunal also has concerns about the timeline of her account compared with the information before it. Her application states that she left school in [year] and came to Australia in 2014 but her oral evidence was that as soon as she finished school she opened a shop which lasted less than a year before she came to Australia. The applicant offered no comment or further explanation.
It asked her why she was asked for money at the shop. She said she doesn’t know but they told her it was to provide security for the shop. She paid them at first. They asked for more but she gave them 300,000 rupiah. She only gave them that money once. After that they came and damaged her shop one night. She went to the police but they did nothing to investigate it. She was scared and didn’t know what to do. So she decided to close the shop. She doesn’t remember exactly when that was, but it was a few months before she came to Australia. After that she did no other work.
The Tribunal noted that she said earlier she lived in Jakarta before she came to Australia, but the shop was in Serang. She said she moved to Jakarta after closing the shop. It asked whether anything else happened to her after that. She said they sometimes watched and followed her and she did not feel safe. When asked who ‘they’ were she said the thugs who were unknown indigenous Indonesians.
The Tribunal asked where her aunty is. She said she passed away two years ago. When she closed the shop she and her aunty moved to Jakarta and her aunty stayed there alone when she came to Australia. The applicant said she had by this time separated from her partner and his child. The Tribunal noted that this is inconsistent with the information she provided in her visitor visa application.
When asked why she came to Australia she said she had no path for herself in Indonesia and did not feel safe because of the problems she had in the past. The Tribunal asked why she did not go back to Pontianak. She said she has no one there and nothing to do there.
The Tribunal put to the applicant that independent information it had before it about riots in 1998 in Indonesia against ethnic Chinese indicated that this occurred mostly in Jakarta and other urban cities and it had no information about riots in Pontianak in early 1998 targeting ethnic Chinese (although there was information about riots between indigenous Dayaks and immigrant Madurese in this period in this area) and this may lead the Tribunal to doubt her claims about her parents death in this way in 1998. She made no comment on this.
The Tribunal asked the applicant if, apart from the shop, she had any other jobs or employment before coming to Australia. She said she did not. It put to her that she referred to being [an Occupation 1] at [Business 1] in her visitor visa application. She said she doesn’t know anything about that. She has never worked there and doesn’t know what that place is.
The Tribunal asked the applicant what she is afraid of if she returned to Indonesia now, given the passage of time since she left in 2014. She said she does not know what will happen in the future. She is worried about her children and that they will face the same racism she experienced and will be alienated. They do not speak Indonesian. She has no one and nothing in Indonesia. The Tribunal asked if her partner is Indonesian and if he has family there. She said he is ethnic Chinese Indonesian like her, she does not know his family but believes he has parents there. She did not indicate any other fears for herself other than not knowing how she will raise her children.
The Tribunal put to the applicant that country information before it regarding the risk of anti Chinese violence now in Indonesia indicates it is very low and there have been few to no reports of riots or violence, and only low level social discrimination and this may lead the Tribunal to find she will not face a real chance of serious harm if she returned there now. In response she said that there are small groups of dangerous people and the ethnic Chinese community suffer problems of robbery and theft.
The Tribunal put to the applicant under s424AA of the Act particulars of the adverse information in her visitor visa application and departmental file notes relating to that application, explaining that if relied on, it may contribute to its adverse credibility assessment against her and contribute to the reasons to affirm the decision under review. Specifically the Tribunal put to her the following particulars of information in her visitor visa application: that she indicated she was married and had a son; that she lived in Jakarta; and that she worked as [an Occupation 1] at [Business 1]. It put to her that she provided a family card and birth certificate to support this information about her identity and family composition. The Tribunal also put to her information that investigations were undertaken by the Department into the reference from [Business 1] and they were unable to find any listing of that company name or phone number. The applicant did not request additional time to respond to the information and repeated that she does not know about what was provided in that application because it was arranged by an agent. She had no further comment.
No further evidence or information was provided to the Tribunal after the hearing.
FINDINGS AND REASONS
Nationality
On the basis of the evidence of her current and expired passports, the originals and copies of which were sighted by the Tribunal, and the absence of any other information to cast doubt about the validity of this documentation, the Tribunal accepts the applicant is a national of the Republic of Indonesia and considers Indonesia is the country of nationality and the receiving country for the purpose of assessing her claims against the refugee and complementary protection criteria respectively.
Consideration of applicant’s claims
When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of credibility of the applicant. When doing so the Tribunal is mindful of the difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1993) FCR 220). However it is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see Selvadurai v MIEA& Anor (1994) 34 ALD 347 at 348).
The applicant claims she suffered discrimination because of her Chinese ethnicity. She claims her parents passed away in riots in 1998 in her home town of Pontianak. She claims after leaving school she opened a [shop] and protection money was demanded from her by indigenous Indonesians. She claims the shop was attacked when she could not pay the money and she had to close it. She fears harm from indigenous Indonesians on the basis of her Chinese ethnicity and she fears she cannot support her children if she were to return to Indonesia in the future.
The Tribunal found the applicant’s evidence in her written application and oral testimony to be vague and lacking in convincing detail. It found it very difficult to obtain specific responses from her to basic background questions as to her address history and timeline of activity after she left school. Other than her oral and written claims there is no evidence to support her claims regarding the death of her parents or the existence of her [shop]. Her claim that her parents died in riots in Pontianak in 1998 is not clearly supported in country information considered by the Tribunal, although the Tribunal acknowledges that there is some evidence of ethnic tensions in that area around that period.Specifically, the Tribunal located some information regarding conflict in Kalimantan around the time indicated by the applicant in her claims, however this mainly related to ethnic conflicts between indigenous Dayaks and immigrants from Madura, a densely populated island in the centre of the Indonesian archipelago. Specifically, in 1997 there were reports of thousands of Dayaks raiding towns and villages to drive out the Madurese: At least 300 people have died. More than 1,000 houses have been destroyed and tens of thousands have fled their villages. The army has sent in some 3,000 soldiers to bolster the local garrisons.
The Dayaks and the Madurese share little but proximity and hostility. The government began moving people to Kalimantan in the 1960s to ease overcrowding on Madura. The settlers still account for less than 8% of the province's population. The Dayaks and Malays each comprise 40%; the ethnic Chinese 12%. The Dayaks are Christians and animists. The Madurese are Muslim. But religion does not cleave them. Poverty does. Economic power in the area is held mainly by the Chinese, who are more established and assimilated than the Madurese. The fight is for what's left. The settlers have moved into the lower rungs of the economy, crowding out the Dayaks. The rainforest the Dayaks relied on has been replaced by rice fields and plantations….
…The conflict broke into the open in late December. It happened at a pop concert. Soon after, five Madurese died in clashes around the village of Sanggau Ledo, and thousands were forced to flee their homes. They took refuge at a nearby military airfield and in the regional capital of Pontianak, the only city where Madurese outnumber Dayaks. On Jan. 29, Madurese attacked a Christian dormitory in Pontianak, injuring two women. The government imposed a curfew and troops went on alert. "We sleep with knives under our beds," said one Pontianak Dayak. But in the countryside, it was the Madurese who began fearing for their lives. The Dayaks were passing the red bowl. [2]
[2] Susan Berfield and Keith Loveard,'Kalimantan's killing fields', Asiaweek, 07 March 1997, CX21724
Given the applicant’s young age at the time and in light of the above information, the Tribunal is prepared to proceed on the basis that it is possible, if not certain, that her parents died in riots in Pontianak when she was a young child.
However, the Tribunal has more serious concerns about the veracity of her claims regarding ownership of a [shop] and her claim that she was pursued for protection money on the basis of her Chinese ethnicity prior to coming to Australia. Her evidence about these matters was vague, lacking in any convincing detail, internally inconsistent with information she provided in her application and to the Department, and implausible. She claims she opened the business straight after leaving school but was unable to provide any details of how or why she was able to open a business in a town far away (on another island) from her home town at such a young age. There is no evidence of documentation relating to the establishment of the business such as registration documents, evidence of purchase of stock or receipts to support her claims. She was unable to provide any convincing detail of the operation of the business. Her timeline of leaving school, opening the business and closing it within one year is inconsistent with the information provided in her written application about her education and employment history and generally lacked credibility or plausibility.
On the evidence before it, the Tribunal is not satisfied that the applicant had a [business] as claimed. While the Tribunal accepts that applicants for protection cannot and do not have to have corroborating evidence for their claims to be accepted, it is also not required to accept uncritically any or all claims made by an applicant and is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. It is for an applicant to satisfy the Tribunal of her claims and in this instance, her evidence was so vague and lacking in detail that the Tribunal is unable to be satisfied of her claims.
Given that the Tribunal does not accept she had a [shop], it does not accept she was asked to pay protection money by a group of indigenous Indonesians on the basis of her Chinese ethnicity or that she paid them any money or that her shop was subsequently attacked. The Tribunal also does not accept that she was subsequently followed by indigenous Indonesians. Again, the Tribunal found her oral testimony about these matters to be vague and lacking in any convincing detail.
The Tribunal accepts that the applicant is an Indonesian national of Chinese ethnicity. Despite rejecting her claims that she had a business which was attacked and money was demanded from her by indigenous Indonesians in the past, it has considered her fear of harm upon return on the basis of her Chinese ethnicity.
Regarding her family composition and ties in Indonesia, given inconsistent information she provided to the Department in her visitor visa application about her family composition, the Tribunal has concerns about the credibility of her claims that she has no close family ties there. Before the Tribunal she has claimed that she has a partner and two children here. She indicated that her current partner is Chinese Indonesian and that he has parents in Indonesia. For the purposes of assessing her protection claims, the Tribunal accepts the applicant is an orphan, but has a current Chinese Indonesian partner, who has parents in Indonesia, and she has two Australian born children with this partner.
Country information before the Tribunal indicates that, leading up to the fall of Suharto in 1998, and in the wake of the Asian financial crisis in 1997, looting and rioting occurred in Jakarta, much of which targeted the minority ethnic Chinese Indonesian community. Specifically, in May 1998, rioters targeted the ethnic Chinese community due to their perceived wealth. As many as 1,000 Chinese Indonesians died in incidents related to the riots, women were raped, and businesses were burned or looted.[3] It is acknowledged that the Suhatro -era New order regime implemented a range of measures that discriminated against Chinese Indonesians, but since the end of the New Order regime in 1998, successive governments have removed most of those official policy measures.
[3] DFAT Country Information Report Indonesia 19 December 2019, paragraph 3.6
The most recent DFAT Country Report on Indonesia (December 2019) reports the following in more recent period:
3.9 In 2012, President Widodo faced strong criticism from conservative Islamist groups in his campaign for the Governorship of Jakarta for having a Chinese Indonesian and Christian running mate, Basuki Tjahaja Purnama, popularly known as ‘Ahok’, who later succeeded him. After succeeding Widodo as governor, some of Ahok’s policies were controversial and politically divisive, such as slum-clearing, which was perceived as anti-poor. Later, after he was accused of blasphemy in late 2016, a range of groups with complex agendas united to use Ahok’s ethnic and religious background as a means to mobilise large crowds of demonstrators (see Blasphemy and Defamation of Religion). Ahok was later convicted of blasphemy and imprisoned.
3.10 Anti-Chinese sentiment in Indonesia intersects with religious and economic issues. Islamic organisations blamed China for a supposed upsurge in communist sentiment, a politically sensitive subject (see also Recent History), in mid-2016. Increased Chinese investment in Indonesia has also caused local critics to express concerns about imported Chinese labour and Chinese control over national assets.
3.11 Small-scale local riots took place in a town in North Sumatra in 2016, following an allegation of blasphemy against a Chinese Indonesian woman (see Blasphemy and Defamation of Religion). While the riots were ostensibly anti-Buddhist, most Indonesian Buddhists are ethnically Chinese and local media described the riots as anti-Chinese and stated that some Chinese families had fled the region. A number of youths were arrested, prosecuted and imprisoned in the wake of the riots.
3.12 DFAT is aware of reports of Chinese Indonesians facing discrimination in relation to buying land in Yogyakarta. Yogyakarta is a special administrative region run as a sultanate, in which the sultan is also the governor. In March 2018, a regional court upheld a 1975 law that only allows ‘native Indonesians’, which has been construed to exclude ethnic Chinese, to own land in Yogyakarta.
3.13 With the notable exception of the 2016 riots, which may have been partly motivated by racial tensions, anti-Chinese violence has been low since events in 1998. Although memories of the crisis have caused continued anxiety amongst many members of the Chinese Indonesian community, exacerbated by events such as the Ahok blasphemy trial and the 2016 riots, DFAT assesses that Chinese Indonesians currently face a low risk of violence. Persistent anti-Chinese sentiment may lead to low levels of societal discrimination.
Having regard to the above independent country information, the applicant’s ethnicity and current family composition, and the circumstances of her lengthy absence from the country, the Tribunal accepts that she may feel apprehension about returning to Indonesia. While the country information cited above suggests that persistent anti-Chinese sentiment may lead to societal discrimination, there is nothing in the applicant’s background and circumstances, as found above, that indicates she would experience such discrimination, or not at the level that amounts to serious harm in any case. The Tribunal has rejected her claims that she experienced serious harm in the past on this basis, and it is not satisfied that the evidence before it supports a conclusion that she faces a real chance of violence or discrimination amounting to serious harm on the basis of her Chinese ethnicity in future.
The Tribunal is not satisfied that the applicant faces a real chance of serious harm on the basis of her ethnicity or for any other Convention based reason, upon return to Indonesia in the reasonably foreseeable future.
The Tribunal has considered the applicant’s fears about raising and supporting her family if returned to Indonesia. While acknowledging her subjective fear of financial hardship upon return, the Tribunal is not satisfied that this amounts to serious harm as contemplated by that term, nor for a Convention reason.
For the reasons given above, and considering her claims individually and cumulatively, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore she does not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). Specifically, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Indonesia, there is a real risk she will suffer significant harm. Having regard to the findings above, rejecting her claims of having had her business attacked and money demanded from her on the basis of her Chinese ethnicity or any other reason, and independent information about anti-Chinese sentiment and treatment in the current climate in Indonesia, the Tribunal is not satisfied that there is a real risk the applicant will be arbitrarily deprived of her life; or the death penalty will be carried out on her or that she will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment for reasons of her ethnicity or for any other reason if she is returned to Indonesia. The Tribunal has considered her claims of fears about how she will raise her children if she has to return to Indonesia, and while it accepts that she may face financial or economic difficulties after a long absence from the country, with or without her children, such hardships or difficulties do not constitute significant harm as defined in the Act. In respect of her fears on behalf of her children, the Tribunal observes that they are not applicants for a visa in this review.

For these reasons, and considering her claims individually and cumulatively, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
The applicant told the Tribunal that she does not know the visa status of her partner. He did not attend to give evidence to the Tribunal about this or any other matter. There is no evidence or suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Meena Sripathy
Member

[2021] AATA 214

12 January 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction