1810895 (Refugee)

1810895 (Refugee) [2024] AATA 2384 (24 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1810895

COUNTRY OF REFERENCE: Indonesia
MEMBER:Jessica McLeod
DATE:24 April 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 April 2024 at 10.36am

CATCHWORDS
REFUGEE – protection visa – Indonesia – particular social group – applicant’s marriage rejected by family – victim of loan shark – employment – physical assault – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 April 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Indonesia, applied for the visa on 22 January 2018. The delegate refused to grant the visa on the basis that the applicant had not raised any claims to fear harm for a reason mentioned in s 5J(1)(a) and there was no information to suggest she would be denied protection or assistance from the Indonesian authorities should she require it. The delegate was not satisfied the applicant would face a real chance of persecution or a real risk of significant harm if she returned to Indonesia.
The applicant appeared before the Tribunal on 21 February 2024 to give evidence and present arguments. Her husband, adult daughter and a close friend also attended as support persons and the Tribunal received oral evidence from her husband. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.
At the commencement of the hearing, (the Tribunal Member) spoke with the applicant privately (with the assistance of the interpreter) to ensure it was her voluntary and independent wish that they all attended. It was explained to her that if there were any issues and if she did not want all of any of them present in the hearing, the Tribunal could manage it appropriately. However, the applicant confirmed that she was comfortable with all the parties being present and that there was nothing she wanted to discuss in private. On confirming that she was ready and comfortable to have the parties join, they re-entered the room.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
The issue in this case is whether the applicant, a claimed Indonesian national, is a refugee, meaning she has a well-founded fear of being persecuted in Indonesia for one or more of the five reasons set out in s 5J(1)(a) 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 she will suffer significant harm.
Protection visa application form
In her written protection visa application lodged in January 2018, the applicant claimed that she left Indonesia because her husband (whom she described as her ‘main family member’) had been exiled from the family and she herself had been “treated” (which I accept to mean ‘mistreated’).
Tribunal hearing
At the Tribunal hearing on 21 February 2024, the applicant claimed she left Indonesia because she did not feel safe there as she feared her family who had always rejected her marriage. She also raised new claims about fearing harm because she had unpaid debts with loan sharks, and that she doesn’t have a house and wouldn’t know where to live on return and would be unable to obtain work.
By way of family background, the applicant said in the hearing that her parents have died, and she [has specified family members], all of whom still live in the Madiun area (East Java, Indonesia). While one of her [children] is Indonesia, her husband and [one] daughter are here with her in Australia (and they attended the hearing as support persons and in the case of the husband, also gave evidence). The applicant and her husband said they have the same visa status, and her husband referred to his as a “Protection C visa”, though they don’t think he is still waiting to have his case heard. They are both working in Australia, [in a specified role] for the same company. Their [age] year old daughter arrived in Australia a year ago and it was submitted that she holds a Bridging Visa A. At the time of the hearing, this daughter was unemployed and looking for work.
Fear of family
The applicant said she met her husband in school and has been together with him ever since. They married in 1991 despite her family’s strong rejection of the marriage. In addition to the daughter who is here in Australia (mentioned above), they also have [a specified child] who was born in [specified year], and who the applicant states she was not allowed to raise. That [child] was instead raised by the applicant’s mother and older sibling [and] is now [age] years old and lives with the applicant’s family members in Java. The applicant has tried to maintain a relationship with [them], but [that child’s] mobile phone has now been taken by the applicant’s brother who threatened to hit the applicant.
The applicant said that her parents have always been against her marriage. She said that early on, her parents’ refusal was natural because her husband was unemployed, and she was still in school. But her family continued to dislike him for being unemployed. When asked if this was the only reason the family had a problem with their marriage, the applicant responded “[T]hat’s all”. When asked why her family still take issue with their marriage now (30 years later), she said “I don’t know, maybe because of the hatred”. When asked about how her husband’s family felt about their marriage, she said their relationship with his family was okay. When asked if they supported the marriage, she said “[Y]es”.
The applicant said that she and her husband had both been physically harmed by her family. Her husband was beaten by them, and she was also beaten by them on some occasions. Then she ran away, and they got married.
They lived together in her [Brother A’s] house, about five hours away (still in the Madiun region but closer to [Village 1]). This brother also did not support the marriage, but the applicant said “…maybe he took pity” on her because [another] brother had been so adamant and almost hit her. However, the applicant and her husband only stayed with the [Brother A] briefly. They ran away from there to stay at her husband’s father’s place in [Town 1] (close to Bali) but they were too afraid to stay there longer. In 1999- 2011 she lived and worked in [Country 1]. She also said that for the last five years she was in Indonesia, she and her husband were living in Bali to avoid her family. While five years before her 2017 departure would be from around 2011 or 2012, the applicant also specified at another point in the hearing that she moved to Bali n 2010.
I noted to the applicant that it seemed she had moved a number of times because of her family, and she agreed. I asked why she wasn’t able to feel safe anywhere and she responded that she only feels safe here (in Australia). When asked why she didn’t feel safe in Bali or [Town 1] or anywhere else she lived, she said she did not feel safe and comfortable in those places and she also had debts that she had had to take on, as her husband was unemployed, and they had [children] to feed.
The applicant mentioned that her husband has been in and out of Bali since 1996. She said he would go to [Town 1]. As for herself, she did not have a fixed pattern but sometimes when she herself left Bali, she would go to either [Town 1] or Madiun so she could secretly visit her [child].
The applicant said she was in Bali when she decided to leave Indonesia for Australia. She said she was in a very confused state in 2017; she had been too afraid to return to her family home area in Madiun, East Java, so she decided to come to Australia.
The applicant claims that she is afraid to return to Indonesia because her family is still very angry about their marriage. She said she doesn’t know what will happen if she returns, but her family has threatened her, and they will beat her again.
When asked which family member she fears will harm her, she said “[A specified] brother” (and she also confirmed later in the hearing that this is the only brother she fears). I noted to the applicant that she and her husband have now been married 30 years, that they have not lived in Madiun since at least 2010 and they have been in Australia for seven years. In this context I asked what makes her think this brother would harm her now. She responded that even when they speak on the phone, he still gets angry. She said the last time she spoke to him was two years ago and he told her not to come home if she could not let go of her husband. I asked what she thinks will happen if she does go home and said her family would get angry with her and she wouldn’t know where to live because she doesn’t have a house. When asked what they would do if they got angry, she said usually they would slap her.
I put to the applicant that Indonesia is a big place with many places and many millions of people, so how would they know she has returned? She responded that her family visits difference places and they have people in their network who will give them information.
When asked if she had ever tried going to the police or getting help from any authorities in Indonesia, the applicant said that she did try, in [year], when her [child] was still very young, but there was no follow-up.
Fear of loan sharks
At the hearing, the applicant said that she also feared returning to Indonesia because she owed money to loan sharks. She said because her husband was unemployed and she had [children] to feed, she had taken out loans here and there while living in Java and Bali. She borrowed from some loan sharks to pay off others and the debts accumulated. She has managed to pay some of her debts down while living in Australia, but she still currently owes around AUD $[amount] to ten different loan sharks.
When asked if her husband ever took out any loans, she said that he rarely did, but she doesn’t know if he might have taken some out after she left Indonesia.
When asked why her husband was always unemployed, she said it was because he was so afraid – as he feared he would bump into her family members or that one of her brothers would come and find him in Bali.
When asked (in the context of the debts) what she thinks will happen if she returns to Indonesia, she said the loan sharks will ask her to pay them off, and if she can’t, “...usually people will start using violence there”. When asked if she has ever been physically harmed or threatened in relation to her debts, she said “[Y]es” and that the last time was in 2011 when she was hit on the head. She confirmed again that 2011 was the last time she was ever hit or threatened over the debts. I noted to her that she had lived in Indonesia for another six years after that and she agreed, but she said she had lived in hiding and didn’t open the door. Mindful that the applicant had said she was working (selling [product 1]) in Bali, I asked her what she meant when she said she had lived in hiding. She responded that they were afraid to leave the house because people would come and ask them to pay. She said they stayed living in the same house, but her husband was so scared he sometimes hid at friends’ places. I asked why she was able to stay at home if her husband wasn’t and she said she stayed because of her daughter.
I asked the applicant if she has had any contact with any of her lenders since she has been in Australia and she said that she had previously, but she has since changed her number because she was scared about receiving their calls. When asked what they would say in these phone calls, she said they would ask why she hasn’t paid them yet; they weren’t aware that she was in Australia.
I asked the applicant why she believes the lenders would use violence against her if she returned and she referred to being hit on the head before, in 2011.
I asked the applicant how the lenders would know that she has returned to Indonesia, and she said they would bump into each other, and other people would notify them if she returned.
Economic claims
The applicant said in the Tribunal hearing that she also fears returning to Indonesia because she doesn’t know where she would live on return. She said she has no house there and doesn’t know where to go. Her husband also mentioned in his evidence that they were concerned about having somewhere to live. She also said she would be unable to find work.
I asked the applicant how she had managed to establish herself in Bali. She said that settling there had been unplanned; she was just trying to get away from her family and was looking for somewhere to stay and she arrived there. When asked how she had managed to find a place, she said she isn’t sure, she just found a place. She went to Bali on instinct, and she suggested to her husband to come join her.
I put to the applicant that she has been able to re-establish herself in new places before. For example, I noted to her – and she agreed – that she has established herself in a new location before, in Bali. I asked if there was any reason why she could not re-establish her again. She responded that she doesn’t have a house and doesn’t know where to live or how to do and that they don’t have the money. I asked the applicant if there was any reason why she would be unable to find work had she said that she is already considered ‘old age’ and getting employment in Indonesia at her age is very difficult.
I asked the applicant if there was anything she thought I had missed or misunderstood that she would like to discuss, and she declined. I asked her if she would like to provide any further information following the hearing and she responded “none”.
I discussed with the applicant the concepts of serious and significant harm. I explained that, although economic hardship or a denial of a capacity to earn a livelihood could sometimes amount to serious harm, the degree of this would need to be such that it would threaten her capacity to subsist. I put to her that I might not be able to accept that her circumstances meet the criteria for serious harm. I invited her to comment, but she declined. I also explained that in considering whether she would face significant harm, the issue of whether someone would intend for her to suffer significant harm would be a relevant consideration. I invited the applicant comment, but she declined.
Husband’s evidence
The applicant’s husband also gave evidence at the Tribunal hearing. Consistent with the applicant’s claims, he said their problems started when they wanted to get married in 1991 and the applicant’s family wouldn’t consent. They tried some friendly negotiations, but the family still refused because he wasn’t permanently employed. They threatened to hit him, so he avoided them. I asked why he thought they would still face an issue after all these years, and he said it was because some family members still didn’t agree with their marriage because they looked down on him for not being permanently employed. I asked if he thought the situation would be different now that they had been in Australia and he and his wife had both been working here and he said it was possible. I asked what he thought would happen if the applicant returned and he said there would be arguments, but the more pressing issue is that they don’t have a house or a destination to go to. I asked if there were any other reasons for him to be concerned about the applicant returning to Indonesia and he said he worried her family might hit her because of their marriage, even though, he said, their refusal was directed at him. I asked if there was anything else he wanted to tell the Tribunal, but he said “[T]hat’s all”. I asked the applicant if there was any other useful information her husband could provide, and she said “[N]o”.
ANALYSIS AND FINDINGS
There are no obvious issues or concerns with the applicant’s claimed Indonesian nationality or identity. I accept they are as claimed, and that Indonesia is the receiving country for the purpose of this review.
Family and loan shark problems
I explained to the applicant at the hearing that I would need to consider whether she would face a real chance or a real risk of being harmed by her family, loan sharks or anyone else if she returned to Indonesia now, or in the reasonably foreseeable future.

The applicant had mentioned in the hearing that in relation to her husband, in addition to his fearing her family, her husband had been afraid that people would try to find him in relation to his religion. When asked what the problem with religion was, she said she isn’t sure herself, but her husband would know in detail; she was only concerned about hiding from her family, fearing they would come hit her, and with trying to take care of her [children]. She raised this issue again in the context of my raising the s 5J(1)(a) reasons. I raised with the applicant that she did not appear to be fearing harm, or that anyone would be seeking to harm her, for a refugee reason – for her race, religion, nationality, membership of a particular social group or political opinion. She responded that her husband’s reason might be related to religion. I asked if she feared being harmed over that reason and she said she’s just afraid of her own family, as they have hurt her in the past. I directly asked the applicant if she had any fears relating to the religious issue and she responded “no”. I explained to the applicant that the assessment on her case was about her, what she fears and what might happen to her. She made no further comment.
I asked the applicant if there was any other information that she wanted to tell the Tribunal or anything I might have missed, and she responded ‘no’ on both counts.
I have considered the applicant’s evidence including her responses, and the evidence given by her husband carefully. I am prepared to accept that the applicant’s family has never been supportive of her marriage and that many years ago, she was physically harmed by them, and that her [child] was raised by her mother and siblings. I accept too, that the applicant has in the past, taken out loans with unlicenced money lenders or loan sharks and that she was assaulted in relation to one of her debts in 2011.
However, for a combination of reasons, I do not accept various other aspects of her evidence to be credible.
Fear of family
The evidence given in relation to the reasons the applicant’s family have continued so strongly to reject their marriage over the past 30 years was vague and unpersuasive. I note they claim that they met in school and while it is plausible the applicant’s family were initially against their relationship, as he was unemployed after finishing school, the applicant’s response when asked why they still have a problem with it 30 years later, she said she didn’t know, but suggested it was “because of the hatred”. Noting the applicant’s other [child] lives with the brother she fears, and the applicant said she would sneak back to Madiun to see [that child], and noting too that she claims she spoke to this brother about the marriage issue as recently as two years ago, I do not accept she would not have some clearer idea of why the family feel so strongly about her husband after all this time. It is implausible too that the family’s distain for the husband stemming from his not working made him too fearful to work, particularly when they lived away from the family.
I also do not accept the applicant’s claims about the family’s continued motivation to harm the applicant, or about their living in hiding. I put to the applicant at the hearing that she has been able to live in Indonesia since 1991 (when she married despite her family’s rejection)[1], and that she had also been able to live in Indonesia for the several years after taking out loans. I noted that while she claims her family have continued threatening her, it doesn’t seem as though they had followed-though or taken further steps to harm her in several years. She responded by showing me a scar from being hit with a rock in 1991. I explained that while I could accept that that happened to her in 1991, the issue to be considered is whether she would be harmed in that way or another way now, or in the reasonably foreseeable future if she returned. I put to her that she had been living in Indonesia for over 20 years without her family taking further steps to harm her and she responded that she had been living in hiding.
[1] I note the applicant also lived in [Country 1] from 1999 – 2001.
On considering the evidence, I do not accept the applicant and her husband have been living in fear and hiding from her family since they married in 1991, or that she protected herself from multiple loan sharks over several years by not opening her door. I note she referred to working as a street vendor selling [product 1], living in the same residence in Bali (even remaining there when her husband stayed elsewhere) since they moved there in 2010, and that she and her husband also came and went over the years between Bali, [Town 1] and Madiun. I do not accept this was all undertaken in hiding and the fact that the applicant to Madiun where her feared persecutors lived from time to time (even if it was to see her [child]), also gives cause for concern about her subjective fear of them. I also have concerns about their willingness to visit [Town 1] from time to time, when the husband’s family was from there and would be a logical place her family would look for them, and when they claimed they had not felt safe there. I also find it implausible that they never sought help from the police or authorities after 1992, particularly when the claimed impact was so great that they lived in hiding, and the applicant’s husband was too afraid to work.
Also unconvincing is that when I raised the prospect of her living somewhere else in Indonesia to avoid harm, such as Jakarta or anywhere else in the country, the applicant said she hadn’t thought about it. Given her claims of having moved around and lived in hiding for more than twenty years and that her last residence felt unsafe to her, I find it difficult to accept she had never thought about living anywhere else in the country apart from in East Java or Bali.
The circumstance with the applicant’s [child] (who is now [age] years old) being raised by her mother and brother and the mobile phone being taken away was also vague and as I consider that the applicant has embellished on her family problems, and there is no credible evidence to support her claims about [this child], I do not accept them.
For the reasons above, I do not accept the applicant’s claims regarding the continuing problems with her family or fearing harm from her brother or any member of her family on return are credible. I do not accept she will have to live with people who do not accept her, and I find that she does not face a real chance of any harm, nor a real risk of any harm from any family members now, or in the reasonably foreseeable future. She does not meet s 5J(1)(b) and therefore does not have a well-founded fear of persecution under s 5J(1), is not a refugee under s 5H(1) and therefore does not meet s 36(2)(a).
Further, noting that the applicant’s confirmation that she herself does not have any fears relating to the religious issue that may be affecting her husband, even if I did accept the applicant’s claims regarding her family (which I do not), I find that she does not fear harm for the essential and significant reason of her race, religion, nationality, membership of a particular social group or political opinion. She does not therefore, meet the criteria in ss 5J(1)(a) and (b) of the Act. On this basis as well, she is not a refugee under s 5H(1) and therefore does not meet s 36(2)(a).
As for the complementary protection criterion, noting that my above finding related to ‘any harm’ and that ‘real chance’ and ‘real risk’ involve the same standard,[2] I find there are not substantial grounds for believing that there is a real risk the applicant would suffer significant harm from her family, as a necessary and foreseeable consequence of being removed to Indonesia. Accordingly, I find that the applicant does not meet s 36(2)(aa).
Fear of loan sharks
[2] MIAC v SZQRB (2013) 210 FCR 505.
In relation to the loan sharks, I have accepted that the applicant has in the past, taken out loans with unlicenced money lenders or loan sharks and that she was assaulted in relation to one of her debts in 2011. However, I find she has embellished on the extent of her loans and the problems faced.
The applicant gave unconvincing evidence about how her husband had been unemployed out of fear and that while she had had to work and take out loans with 10 different loan sharks, he “rarely” took out any debts and she doesn’t know if he took out any loans after she left Indonesia. I find the applicant’s evidence about her husband’s debts was vague and given the apparent closeness of their relationship and that being in debt to lenders is a reason she fears harm, it is difficult to accept she would not know whether her husband took out further debts. It is also difficult to accept that he could not have done some work over the years to contribute to the family’s finances. Although it was consistent with her husband’s I find that the applicant has not given a truthful account of her husband’s employment situation.
I note the last time the applicant claimed she was harmed or threatened by any of her lenders was in 2011, though she claimed this was only because she was living in hiding and would not open the door. I put to the applicant that she had been able to reside in Indonesia for several years while she has been owing people money. The applicant declined the invitation to comment.
I do not accept that any of the loan sharks have been motivated to harm the applicant since 2011, that she protected herself by hiding and not opening the door, or that there is a real chance she would be harmed on return. I note that the applicant worked among street vendors, in a public space, and on her own evidence, loan sharks knew where the applicant lived - yet the last time they harmed her was in 2011. Had they wanted to harm the applicant at any time after 2011, I find they could have done so. She says that after coming to Australia, they would call her, asking her why she hasn’t paid her debts yet, and while she changed her number to avoid their future calls, she gave no indication that they threatened her, or that their tone was threatening. When asked what she thought they would do if she returned, she said they will ask her to repay their money and gave a generic suggestion that “...usually people will start using violence there”. I do not accept the loan sharks have indicated they would take any steps to personally hurt her.
Overall, I do not find the applicant’s claims regarding fearing that loan sharks will come after her and harm her on return are credible. I find that she does not face a real chance of any harm, nor a real risk of any harm from any loan sharks or lenders upon return. She does not meet s 5J(1)(b) and therefore does not have a well-founded fear of persecution under s 5J(1), is not a refugee under s 5H(1) and therefore does not meet s 36(2)(a).
Further, as with the family claim and noting that the applicant’s confirmation that she herself does not have any fears relating to the religious issue that may be affecting her husband, even if I did (though I do not) accept that the loan sharks may harm her on return, I find that she does not fear harm for the essential and significant reason of any reason mentioned in s 5J(1)(a). She does not therefore, meet the criteria in ss 5J(1)(a) and (b) of the Act. On this basis as well, she is not a refugee under s 5H(1) and therefore does not meet s 36(2)(a).
I also find that the applicant is not owed complementary protection in relation to this claim. I have found above that the applicant would not face a real risk of any harm from any loan sharks or lenders upon return. As such, I find there are not substantial grounds for believing that there is a real risk the applicant would suffer significant harm from any loan sharks, as a necessary and foreseeable consequence of being removed to Indonesia. Accordingly, I find that the applicant does not meet s 36(2)(aa).
Husband’s religious issue
The applicant had little knowledge and no understanding of why her husband feared that people might try to find him for religious reasons, and she twice indicated she wasn’t concerned about it in relation to her own safety. She expressly confirmed she does not have any fears relating to her husband’s religious issue. She gave no indication of facing any problems in Indonesia herself except in relation to her family’s non-acceptance of her marriage, the loan shark debts, and her financial concerns about not having money or a house to return to. On this basis, and because there is no credible objective evidence indicating otherwise, I find that the applicant does not face a real chance of any harm including serious harm now or in the reasonably foreseeable future in relation to any religious issue of her husband’s. For the same reasons, I also find there is no real risk that the applicant will face any harm including significant harm on this basis.
I find that she does not face a real chance or a real risk of any harm (including serious or significant harm) and that she does not meet s36(2)(a) or s 36(2)(aa) on the basis of any religious issue relating to her husband.
Economic claims
I accept the applicant is concerned about re-establishing herself and earning a living on return, and that she is concerned that her age will negatively impact her ability to get work.
Information from DFAT indicates that Indonesia’s economy is the largest in Southeast Asia and sixteenth largest globally, as measured by GDP. After a fall in 2020 (the first year of the COVID-19 pandemic), the economy recovered in 2021 and was growing in 2022 and 2023. In August 2022, the unemployment rate was 5.8 per cent.[3]
[3] DFAT, ‘DFAT Country Information Report: Indonesia’ 24 July 2023
According to nationally representative data, more than half of Indonesians aged over 60 are working, but age discrimination in employment does occur and competition for work is said to further marginalise older workers, forcing them into the least profitable roles. There are less opportunities for older workers in the formal sector due the sector’s prioritisation of the qualifications and skills of workers.[4] Thus, the vast majority (86 per cent) of older workers are in the informal sector. The percentage is higher among men than women (65 per cent vs 38 per cent), but those in non-working categories are predominantly found to be ‘taking care of the household’ (31 per cent), rather than being without employment (1 per cent). Of those classified as working, nearly half work 35 or more hours per week.[5] DFAT reports that many Indonesians work in the informal sector, including in small and medium enterprises, as contractors, or in the ‘gig economy’. Informal work can reportedly be obtained without much difficulty in big cities (e.g. Jakarta, Makassar, Surabaya, or in the tourism industry in Bali). Personal connections, for example through family, previous work or within one’s own ethnic group, are helpful, but not essential, for finding informal employment.[6]
[4] Elisabeth Schröder-Butterfill, Nathan Porath et al in Progress in Development Studies (Sage Journals), ‘Vulnerable, Heroic … or Invisible? Representations Versus Realities of Later Life in Indonesia’ Volume 23 Issue 4, October 2023, Elisabeth Schröder-Butterfill, Nathan Porath et al in Progress in Development Studies (Sage Journals), ‘Vulnerable, Heroic … or Invisible? Representations Versus Realities of Later Life in Indonesia’ Volume 23 Issue 4, October 2023,
[6] DFAT, ‘DFAT Country Information Report: Indonesia’ 24 July 2023
The applicant is [age] years old, and she has limited previous work experience, doing street vending (selling [product 1]) in Bali, [a specified role] in Australia and (many years ago, in 1999-2000), caring for the elderly in [Country 1]. I accept the applicant may experience some discrimination and may have fewer opportunities than a younger worker (and a more educated or qualified worker). I also note that her earning capacity in Indonesia may be lower than it is in Australia, that work in the informal sector comes with no social security, rights or fixed income, and that she claims she has needed to borrow money in the past and still has debts to repay.[7]
[7] Elisabeth Schröder-Butterfill, Nathan Porath et al in Progress in Development Studies (Sage Journals), ‘Vulnerable, Heroic … or Invisible? Representations Versus Realities of Later Life in Indonesia’ Volume 23 Issue 4, October 2023,
Nevertheless, she does have experience across different industries and different countries, and she has re-established herself and found work in new places before. The information indicates that informal sector work can be found, including in Bali where the applicant lived previously, and that it can be found without much difficulty. I am not satisfied the applicant will be unable to find some kind of work and earn a living, and, if it is necessary, contribute towards the payment of any remaining debts. I note too, that the applicant’s husband has been working in Australia and her [age] daughter has been applying for jobs in Australia. They both attended the applicant’s hearing as support persons for her and they appeared to be a closeknit family. I also have not accepted the claims regarding the husband’s long term unemployment and fear of working in Indonesia. I do not accept that should the applicant return to Indonesia, her husband and daughter would not seek to contribute, if required, from wherever they reside. I have not accepted either the applicant faces a real chance of harm from her family in Madiun, East Java or any loan sharks or that she would need to live in hiding on return. She referred in the hearing to people knowing her in Bali, and that her relationship is her husband’s family is not problematic. I find that should she need to, she will have some connections and networks she can draw upon while re-establishing herself and finding work.
Having regard to all the circumstances, I am not satisfied that the applicant would be denied the capacity to earn a livelihood of any kind or suffer significant economic hardship such as would threaten her capacity to subsist. Nor am I satisfied she faces a real chance of any other harm that would amount to serious harm arising from difficulties finding work, or economic challenges. Nor am I satisfied that such difficulties or challenges would themselves amount to, or otherwise lead to, a real chance of the applicant facing any harm that would amount to serious harm.
I find that the applicant does not have a well-founded fear of persecution on this basis. I find that the applicant does not have a well-founded fear of persecution under s 5J(1), is not a refugee under s 5H(1) and therefore does not meet s 36(2)(a).
For the same reasons outlined above in relation to there being no real chance of serious harm arising from difficulties relating to work or her financial situation, I am also not satisfied there is a real risk of the applicant facing any harm that would amount to significant harm as defined in the Act.
I find that there are not substantial grounds for believing that there is a real risk the applicant would suffer significant harm as a necessary and foreseeable consequence of being removed to Indonesia. Accordingly, I find that the applicant does not meet s 36(2)(aa).
CONCLUSIONS
I have summarised the applicant’s and her husband’s evidence and my analysis and findings above. At the end of the hearing, I asked the applicant if there was anything she thought I had missed or misunderstood that she would like to discuss, and she declined. I asked her if she would like to provide any further information following the hearing and she responded “none”.

I have considered the applicant’s claims in their totality, but I am not satisfied she will face a real chance of serious harm or a real risk of significant harm from anyone in Indonesia for any one of, or for any combination of, the reasons given, even when considered cumulatively.
I am not satisfied that the applicant has a well-founded fear of persecution, or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed to Indonesia, that there is a real risk she will suffer significant harm.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under 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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no 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.
Jessica McLeod
Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 2384

24 April 2024

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