1811074 (Refugee)

1811074 (Refugee) [2024] AATA 1791 (16 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1811074
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Carolyn Wilson
DATE:16 February 2024
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 February 2024 at 11:10am
CATCHWORDS
REFUGEE – Protection Visa – Indonesia – in debt – economic problems – does not claim to have suffered any harm in the past from the money lenders – an unmarried man without children – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 48, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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 17 January 2018. The delegate refused to grant the visa on the basis that he had not raised any claims to fear persecution for a reason in s.5J(1)(a) and his economic claims did not give rise to a real risk of significant harm.
The applicant appeared before the Tribunal on 1 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.
CRITERIA FOR A PROTECTION VISA
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant claims to be an Indonesian national from Bali and provided a copy of his Indonesian passport to support this. Based on his passport, I accept he is a national of Indonesia and find Indonesia is his receiving country.
The applicant arrived in Australia in September 2015 as the holder of a Tourist visa and applied for this protection visa in January 2018. A previous protection visa application lodged in 2016 had been found invalid.
In his protection visa application the applicant said he left Indonesia because of economic problems. He said he was in debt because he never had a job. He was always looking for work to support his family but it was hard to find a proper job. He had no choice but to borrow money from family and friends to buy food and for other expenses. He cannot return to Indonesia because he may lose his direction in life and have problems because he owes people a lot of money. In answer to the question ‘did you experience harm in [Indonesia]’ he ticked the ‘no’ box. In answer to the question ‘do you think you will be harmed or mistreated in you return to [Indonesia]’ he ticked the ‘no’ box and wrote ‘N/A’.
At the hearing I asked the applicant to provide more detail about his background, as the information provided in his application form was limited. For example, he did not disclose any family apart from his wife, gave no employment history, denied ever travelling outside of Indonesia prior to coming to Australia, and listed only address for the [number] years he had lived in Bali. The applicant said he lived in a village with his mother and 5 older sisters as a young child, with his father mostly working away. When he was age [age] they moved to Denpasar where he lived with his mum until he graduated from high school. After finishing school, his parents moved back to the village and he lived with his uncle. He completed a [course] and then searched for work. He found work as a [occupation] with a [employer] based in [Country 1]. He returned to Bali after his mother died. As the son he was responsible for looking after his parents and had to borrow $5,500 to pay for her medical bills and cremation. He said he couldn’t get work in Bali so lived off money he borrowed from money lenders which he says amounted to around $50,000. He married in 2011. Although he had claimed never to have worked in Bali, he and his wife ran a [business] from home. Although he said in his application that he had never travelled outside of Indonesia, he said he was based in [Country 1] for the 4 years he worked [for the employer]. In addition to the [work] he did in [Country 1] he also had a 6 month contract for similar work in [Australia] in 2012.
The applicant said that since coming to Australia he was regularly sending money to his wife in Bali. This money was used to support her and the parents, and to pay back the money lenders. He doesn’t know how much she paid to the money lenders or what the current debt is. He said his wife has moved back in with her parents. She is not paying the money lenders anymore, and they have not followed her to her parents’ house to pursue any money. His wife was also saving money for him from what he sent back, which he was hoping to use one day to start a business. He does not think he can access that money now they are divorced. Since he stopped sending money to his wife he has been saving money in Australia, and estimates he had enough savings to live off for 5 months without working.
I found the applicant’s evidence about owing money to be vague and was unsupported by any documents. He has no paperwork to show he borrowed money, and has not provided any evidence of money transfers to Indonesia from his 8 years in Australia. In his application he spoke of borrowing from family and friends, but at the hearing raised for the first time that it was money lenders that he borrowed from. At the hearing he confirmed he does not owe money to family or friends, or have financial issues with them. He only owes money to money lenders. He does not know what amount he may owe now but says he borrowed around $50,000 to pay for his mum’s cremation and for his living costs. I consider it unlikely even illegal money lenders would lend him that much money if, as claimed, he had no property or formal ongoing work. He thinks he paid back around $2,000 before he left Bali in 2015. He does not claim to have suffered any harm in the past from the money lenders and said when he lived in Bali he just paid them money when he could. There is no evidence his wife was harassed, threatened or in any way harmed by the money lenders after he left. He does not claim to fear they will harm him if he returns, but rather that he fears having economic problems in Bali because he believes he won’t get reliable work like he’s had in Australia. I consider it is plausible he borrowed some money in Bali to pay for his mum’s cremation, but I do not accept he borrowed as much as $50,000. I consider his claim to have borrowed $50,000 is an exaggeration or embellishment. I have taken into account the lack of satisfactory evidence about how much he borrowed and whether he still has a debt, and the lack of past harm or threats, to find I am not satisfied the applicant faces a real chance of harm from money lenders for any debt he may have in Indonesia.
At the hearing the applicant said he fears returning to Bali because he fears he will be harmed through black magic. He said his father died in November 2021, and provided a death certificate as evidence of this. The certificate does not appear to list the cause to death but the applicant said the official reason given for his death was from Covid. His father’s brother had also died, around 8 months earlier. The applicant believes this is not a coincidence, and that their deaths occurring so close together indicates someone killed them through black magic. He said his family in Bali consulted religious people after his father died and they told them the death was caused by black magic. He thinks the person behind it is his cousin, who stands to inherit the house the uncle had in Denpasar now that the uncle and his father have died. If the applicant returns the cousin may also kill him with black magic because the cousin doesn’t like him and won’t want him living in the house. I asked if he had received any threats from the cousin and he said no. I asked if his sisters had been threatened or harmed by the cousin or anyone else since their father’s death and he said no. He said his sisters are married and therefore are considered to be members of their husbands’ families, not his family. He believes only he would be targeted by the cousin.
The applicant’s father was [age] years old when he died in 2021. Although he has not provided a death certificate for the uncle, for the purpose of this assessment I accept the uncle also died in 2021, and would also have been an elderly man. I do not accept the fact two elderly men died within 8 months of each other indicates someone was behind their deaths. There is no evidence the police are investigating the cousin, or anyone else, in relation to their deaths. The applicant’s claim that his life may be in danger from the cousin is based on someone in his family telling him they consulted religious people in Bali who told them the father’s death was caused by black magic. I accept there are people who may seek information from religious people in their community and believe such explanations, when they are coming to terms with the unexpected death of a family member. But there have been no actual threats made to the applicant, and there is no medical or legal evidence suggesting the father or uncle’s deaths were caused by anything other than medical issues. The claim is based on superstition and suspicion. I consider the claim is farfetched, and I do not accept the applicant faces a real chance of harm from his cousin, through black magic or otherwise.
The applicant claimed that since his father died he is the head of the family and bears responsibility of helping the family now. However, he also claims to be a single divorced man, and that his 5 sisters are all married and considered part of their husbands’ families. It is not clear who he feels he is responsible for as ‘head of the family’. He is no longer financially supporting anyone from Australia since his father passed away more than 2 years ago and his wife divorced him. He did express at the hearing that he worries he will be bullied or shamed on his return to Bali because he is man in his late [age] without children. He said he misses his home country and would return to Bali if he found another wife in Australia and was returning home with a child. It weighs on him that he is the last in the line of his family. I accept he is bothered by his single status and lack of children and family, but beyond his personal pride there is nothing to suggest any person or group would target him for harm for this reason. I do not accept he faces a real chance of harm if he returns to Bali as an unmarried man without children.
The applicant says he has a good job in Australia and provided a letter of support from his employer. He says that if he is returned to Bali he will have no job and nowhere to live. He says, for the reasons discussed above, he cannot return to his late uncle’s house in Denpasar, and although he has friends in Bali they are not doing that well either so he cannot live with them. He says there is nowhere else for him to live.
Indonesia’s economy is the largest in Southeast Asia and the sixteenth largest globally. Indonesia had strong GDP growth prior to Covid, and after a fall in 2020 the economy recovered in 2021 with 3.7 per cent GDP growth and strong indications of further growth in the years ahead. Poverty has more than halved since the turn of the century and the unemployment rate was officially 5.8 per cent in August 2022. Many Indonesians however work in the informal sector. DFAT reports Jakarta is the largest city with the most employment opportunities, but informal work can be obtained without much difficulty in other big cities and in the tourism industry in Bali. Personal connections are helpful for finding employment, but not essential.[1]
[1] DFAT, Country Information Report Indonesia, 24 July 2023.
I consider the applicant has exaggerated his difficulties in finding employment in the past. He claimed in his written application to have never worked prior to coming to Australia, but at the hearing admitted to working [for an employer] and running a home [business]. In Indonesia he completed high school and went on to study a [qualification] in tertiary education, indicating his family had some resources. I do not accept his claim that he will have nowhere to live in Bali if he cannot live in the late uncle’s house or with his friends. He has shown himself to be resourceful in finding a place to live and work in Australia. He said at the hearing he has sufficient savings to support himself for 5 months without working. If he returns to Bali now or in the reasonably foreseeable future I do not accept he faces a real chance of harm such as being denied the opportunity to work or that he would suffer significant economic hardship threatening his capacity to subsist. In any event there is nothing before me to indicate any difficulties he might encounter settling back in would be for any of the reasons in s.5J(1)(a).
For these reasons I find the applicant does not face a real chance of harm if he returns to Bali, Indonesia, in the reasonably foreseeable future, for any of the reasons claimed. I find he does not have a well-founded fear of persecution and does not meet the requirements to be a refugee under s.5H.
I have found the applicant does not face a real chance of harm from money lenders if he has an outstanding debt, or from his cousin, or any fear he has about black magic. ‘Real chance’ and ‘real risk’ has been found to equate to the same threshold. For the same reasons given above I am not satisfied there is a real risk of significant harm from money lenders for reason of borrowing or owing money, or from his cousin, or any fear of black magic.
Significant harm is exhaustively defined in the Act to include being arbitrarily deprived of life, the death penalty being carried out on the person, being subjected to torture, being subjected to cruel or inhuman treatment or punishment, or being subjected to degrading treatment or punishment. I do not accept any temporary difficulties the applicant may face in settling back in, looking for work and accommodation, or feeling shame or regret in not having his own family, amount to significant harm as defined.
I find there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Indonesia, there is a real risk that the applicant will suffer significant harm.
CONCLUSION
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.
Carolyn Wilson
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 1791

16 February 2024

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Immigration

Statutory Interpretation

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Procedural Fairness

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