1811745 (Refugee)

1811745 (Refugee) [2024] AATA 4382 (3 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1811745
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Patricia Tyson
DATE:3 September 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 03 September 2024 at 5:10pm
CATCHWORDS
REFUGEE – protection visa – Indonesia – young widow sexually harassed by bosses and other men – debts and capacity to subsist – conversion from Buddhism to Christianity – property disputes with brothers and husband’s sister – late claim of cousin’s criminal connections and threat to kill – delays in departing and applying for protection – passage of time and applicant’s current age – ethnicity – current husband from another country on bridging visa – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1), 5J(4)(b), (5), 36(2)(a), (aa), (2A), 65, 424A, 426(1A)(b), 426(1C)(a)
Migration Regulations 1994 (Cth), Schedule 2
CASE
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
BACKGROUND TO THE REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 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 20 February 2017. The delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia owed protection obligations.
CLAIMS AND EVIDENCE
In her visa application, the applicant made claims to be of Indonesian Chinese ethnicity and Christian Pentecostal religion. She stated that she is widowed, her husband having passed away in October 2009. Her claims for protection as set out in the visa application can be summarised as follows:
·As a single, widowed mother, the applicant had to leave Indonesia for the safety of her children and mother.
·The applicant had no support from male relatives and nobody could help her to feed her family using a clean way. She was forced and mistreated usually by her boss to do inappropriate things to attract customers and entertain their clients. She left Indonesia because she does not want this to occur to her daughters.
·The applicant experienced harm including sexual harassment and rape at the hands of her bosses and men taking advantage of her situation as a young widow. If she refused her boss would fire her. The applicant feels depressed and it impacted her psychologically.
·The applicant does not have a good education and it is almost impossible to find a job to survive, pay debts and support her family. She does not want a job that will require her to sell or use her body. She does not have male support or relatives. If she returns, it will be a danger for her children and mother. She fears she will have a mental and emotional breakdown, men will want to take advantage of her, the bank will keep looking for her to pay her debts and her children’s welfare will be in danger because she will not be able to provide good food, a good environment and education.
·The government says they will help but in reality it is not enough, there are too many people with the same case and she is of lesser concern because she is still young. The queue for help was too long and the government workers said her case was not as bad as others because she was still young and could easily find a man to marry and help her. Even if she moves she cannot find a good job because she does not have good education, and the situation is still the same.
The applicant had made two earlier protection visa applications in September and December 2016 that were found to be invalid. In those applications, she presented similar claims to those in the valid February 2017 application, although with greater detail about her debt and less express reference to her experiences at work. She stated she will not be able to pay her debt and provide for her children. She does not have assets. She said she had a debt with [Bank] of approximately $6000 that she needed to repay monthly. Her husband died and left her with nothing to support her family. She has to work from morning till late at night which puts her children in danger. She referred to men taking advantage of her situation, thinking she is an easy woman. She said she experienced sexual harassment and if she referred her boss will fire her from work. She does not have money to move anywhere because to transfer her children’s school requires paperwork and money. She claims she will have a mental and emotional breakdown.
Proceedings and evidence before the Tribunal
The Tribunal originally listed this matter for hearing on 16 April 2024. The applicant did not appear, and on 19 April 2024 the Tribunal dismissed the application under s 426(1A)(b) of the Act. On 2 May 2024 the applicant sent the Tribunal a partially completed Form 866 protection visa application, dated 28 April 2024, which set out claims for protection. The Tribunal took this to be a request for reinstatement of her review application. On 3 May 2024 the Tribunal decided to reinstate the application in accordance with s 426A(1C)(a) of the Act. The background to and reasons for the initial dismissal and subsequent reinstatement are set out in separate decision records. At the later Tribunal hearing, the applicant explained that she had not attended the hearing because she had been afraid of immigration officials.
Written claims to Tribunal
In the April 2024 Form 866, the applicant made additional claims for protection. In summary, she said:
·Her husband died in an accident and many people wanted to do lewd things and insult her. She was not comfortable or safe in her own country.
·She has [children] and a mother, they had a hard time getting food and a decent life. Her salary was very low and her life was sad.
·She went to church to calm her heart and changed from being a Buddhist. She was ostracized and insulted by her brothers. They threatened to take the inheritance from their ancestors because they were of different religions. They threatened she should pay a certain amount of money.
·The applicant decided to borrow money from a friend to go to Australia.
·Last year, they finally seized the inheritance from her ancestors and robbed her of her rights. In Indonesia there are many cases of land and houses having only one certificate and it not being distributed to children and grandchildren.
·The applicant has been kicked out of the house that her children inherited and her mother rented. Her late husband’s house has now been confiscated by his brother. They have seized her husband’s inheritance because she did not have a marriage certificate. She does not have a home in Indonesia. The inheritance was confiscated and the house destroyed. Their lives are struggling and the applicant might have committed suicide it if was not for God.
·The applicant wants to return to Indonesia to see her mother and then return to Australia. Her parents are seriously ill. At the moment she does not want to go back but will if she is able to return to Australia with a different status. She has been robbed of her human rights in her own country.
·Indonesia is always serious about problems and religion. Australia is safer and in her church she has bible study. She fears she will be ostracised because of the existing problems and her Christian religion.
·She cannot seek protection because the family have more money than her and can bribe the government.
Tribunal hearings
The applicant appeared before the Tribunal on 17 July and 1 August 2024 to give evidence and present arguments. Both hearings were conducted with the assistance of an interpreter in the Indonesian and English languages. The applicant’s evidence at the hearing was broadly consistent with her written claims and is discussed in greater detail below, as relevant.
In her hearing response form, the applicant had requested that the Tribunal take evidence from her mother and daughter in Indonesia, referring to claims that her land was taken and sold and her house destroyed. At the second hearing the Tribunal received evidence over the telephone from the applicant’s mother. Although the applicant had previously indicated that her mother required a Hokkien interpreter, and the Tribunal had one available by telephone for the hearing, at the commencement of the hearing the applicant indicated that her mother could speak through an Indonesian interpreter. This was clarified a number of times, and the applicant confirmed an Indonesian interpreter would be suitable.
The applicant had also requested that her daughter give evidence over the telephone. She had indicated both her mother and daughter would give evidence relating to her the loss of their home in Indonesia. When asked at the first hearing about what evidence they might give, the applicant did not clearly identify any matters that one would speak to that the other could not. In the absence of any clear explanation as to what additional evidence her daughter might give, I determined to take evidence only from the applicant’s mother.
Documents to Tribunal
At the 17 July 2024 hearing the applicant submitted a number of documents:
·Various documents in Indonesian said to relate to her late husband, his property and a legal dispute over the property.
·A letter from her current landlord which refers to the applicant being unable to pay rent on time and having a substantial debt to the landlord.
·Tax invoices and medical records for the applicant in Australia in 2022.
·Medical documents relating to her mother.
·Letter from [named Church] Sydney dated 15 July 2024 which states that the applicant is a permanent member of the congregation, actively involved in church services and a member of the church gospel. The church is described as Pentecostal. She also provided a certificate of completion indicating she had filled the requirements of first year of [specified course], dated [May] 2024.
On 22 July 2024 the applicant sent a number of emails to the Tribunal attaching videos. Most of the videos show a property which appears to be in the process of demolition or renovation, although with possessions still inside, perhaps being packed. In some of the videos there are people having a conversation in a language other than English. Some are described as relating to the applicant’s mother’s evicted house. There is a screenshot of what looks to be the applicant on a video call showing a property. The applicant appears to have been crying. Another video is described as showing the applicant’s mother collapsing. There is a woman lying on a bed and other women and a child also in the room with her, and another woman on a video call. There is another email attaching a video which is said to be a record from CCTV relating to the applicant’s deceased husband’s family wanting her to sign a certificate and pay money, and that they have already signed a certificate to their name, and querying how she can pay.
There are emails which contain links to google drive and Instagram which I was unable to access. There is a description referring to Muslims making problems for Christians and a Muslim who went to the US to defend the truth and report that humanity in Indonesia needs help. The applicant says some governments say they are tolerant but in fact it is not so. There are a further two emails that could not be opened. A Tribunal Officer emailed the applicant to advise that the Tribunal was unable to access the links and asking her to provide direct attachments.
At the 1 August 2024 hearing the applicant provided additional documentary evidence:
·A statement asking for the opportunity to seek refuge and to be given permission to work in Australia, stating that she is really afraid of returning to Indonesia even though she misses her family and her mother is sick and needs money. She says it is very dangerous and for her safety her mother forbids her from returning.
·Witness statement from [Mr A] dated 31 July 2024 and identity document. He states that it is true there were eviction threats against the applicant which resulted in argument and a person named [B] threatened to kill the applicant if she returned to Indonesia.
·Witness statement of [C] dated 31 July 2024 and identity document. The writer states they are a friend of the applicant’s daughter. They refer to the eviction from the house the applicant inherited, conflict in the family and an argument. The writer states that a family member gave IDR 81 million to the applicant’s mother but [B] disagreed and asked for the money back. He has threatened to pay someone to kill the applicant if she returns and threatened to spit on her child. Most of the money has now been used for the applicant’s mother’s treatment and for the applicant’s child’s education in [Country 1]. The applicant needs money for her mother’s medical expenses and borrowed 47 million rupiah from the writer.
The applicant brought a hard drive to the 1 August hearing which she said contained the videos she had been unable to provide to the Tribunal by email. I advised the applicant that I was not able to access the hard drive on the Tribunal network and requested that she save and email it in a format that could be opened as an attachment rather than a link. The applicant indicated she would do so, but after the hearing again attempted to provide a google drive link. She was advised by return email to provide it in a different format or on CD or USB, but the Tribunal has received nothing further since that time. I understand from the applicant’s evidence at the hearing that what she was attempting to provide was an Instagram video relating to the treatment of Christians. I have obtained information relating to that issue.
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. The criteria for a protection visa, and related definitions, are set out in the attachment to this decision.
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.
Persecution must involve serious harm to the person: ss 5J(1)(b) and 5J(4)(b). For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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. These ‘instances’ are not exhaustive, but are illustrative of what might amount to serious harm for s 5J(4)(b).
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 below.
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 below.
‘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. The definition of ‘torture’ includes reference to an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person. ‘Cruel or inhuman treatment or punishment’ is defined to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is 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. Degrading treatment or punishment is defined to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
FINDINGS AND REASONS
The issue in this case is whether the applicant’s claims are credible and whether there is a real chance of her being seriously harmed in the reasonably foreseeable future in Indonesia, or a real risk of her suffering significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality and background

The applicant presented her Indonesian passport at the hearing and she gave evidence in the Indonesian language. I accept that the applicant is a national of Indonesia and that her identity is as claimed.
At the hearings, the applicant provided evidence about her background and life in Indonesia. In summary, she stated that she is from Medan, Sumatra Utara. Her mother remains in Indonesia and her father passed away in 2010. The applicant is their only living child. The applicant lived with her parents in [Location] until marrying her first husband in around 2003. After marriage she lived at her husband’s home which was nearby. Her husband passed away in late 2009.
Around 40 days after her husband’s death the applicant went to Surabaya to work with a [relative]. She did this work for around six months and then worked for [herself]. She stopped this work around a year later after a client did not pay a debt. After this she worked in an office for a business that sold [products], doing [work]. She said she did this for around nine months. In total the applicant said she remained in Suarabaya for perhaps three years. She also worked in Medan as [an occupation], and doing [work] in [another area] while waiting for her Australian visa.
The applicant travelled to Australia in September 2014 on a tourist visa. The visa expired in December 2014 and the applicant remained unlawfully until lodging a valid protection visa application in February 2017. She had first attempted to lodge a protection visa application in September 2016.
The applicant and her late husband have three children. The eldest, a daughter, is currently working and studying [in] [Country 2]. The second child, a son, is working and studying [in] [Country 1]. Her youngest daughter remains in Indonesia with the applicant’s mother and is [studying].
The applicant has remarried in Australia. Her husband is a [Country 2] national who is also on a bridging visa.
In her visa application the applicant declares a significant amount of travel between 2011 and 2014, which is also reflected in stamps in her passport. She states she has travelled to [Countries, including Country 2]. Most of this travel appears to be short trips of less than two weeks. Although in her visa application the applicant described much of this travel as work trips, at the hearing she said that the travel was holidays. She said she paid for the travel herself, and referred to receiving bonuses from her work at the [job].
Conversion to Christianity and harm from father’s family
The applicant gave evidence that in Indonesia she converted from Buddhism to Christianity in 2014, while still in Indonesia. She said she is Protestant, and I note the church letter she submitted refers to the church being Pentecostal which I accept is a form of Protestantism.
The applicant claims that one of the children of her paternal uncle (ie her cousin), who is named [B], opposed her change of religion. This relative was described at different times using male and female pronouns, which I believe may have been an interpretation issue. The house where the applicant had lived with her mother had been owned by her father’s grandparents. Her mother and daughter remained there after the applicant came to Australia. According to the applicant, the title should have been shared between her and her uncle’s family. However, when she was converting to Christianity her cousin threatened her that she would lose her right to the home. She had not believed this would really occur.
Recently, the cousin sold the house belonging to her father’s family, and the applicant’s mother and daughter were evicted. The applicant said that the money from the sale was split between the family members who had not converted to Christianity. On the applicant’s evidence, a relative felt sorry for her mother and gave her mother 81 million rupiah. However, [B] was unhappy about that and asked for the mother to return the money. [B] had an argument with the applicant about it over the phone and also made a threat to spit on the applicant’s son. The applicant’s mother no longer has the money, it was used to send the applicant’s son to [Country 1] to study, and for medical expenses. The applicant said her daughter had issues with her mental health after the eviction and had been treated by a psychiatrist.
The applicant said that she had another relative who also converted. That person also had pressure and stress from relatives and was threatened. She clarified that this was a threat relating to inheritance. That relative ran away to [Country 3]. The applicant said this relative had stress and pressure from relatives. When I asked what she meant, she said they would say ‘you have no shame, you are like a native person changing religion’.
The applicant submitted various videos which she said related to the house. I accept that the videos she submitted show events relating to the sale or destruction of the house and eviction of her mother and daughter. I accept that the applicant’s conversion to Christianity caused conflict in the family, that the applicant’s cousin threatened to disinherit her and that the applicant’s mother and daughter were removed from the family home. I accept the applicant was not given a share of the proceeds of the sale, and that although a relative gave her mother some money, they have since requested that this be repaid.
However, I find some of the evidence regarding the cousin and threats against the applicant not credible. At the first hearing I asked if the applicant would do anything about this issue with the house if she returned to Indonesia and she said she cannot do anything. I asked if she was still in contact with the relative who sold the house and she said no. She said it was like her relatives did not want to know her anymore and seemed to really hate her. I acknowledged that losing her home would be very upsetting but asked if there was any other type of harm she feared from her relatives if she returned to Indonesia. She said she was not able to predict the harm and then went on to refer to having promised to repay her debt to her landlord in Australia. She also said she had argued with her relative on the phone so it would be worse if they met face to face.
At the second hearing, the applicant made a new claim that last year [B] had told the applicant’s mother that he/she would kill the applicant or have her killed if the money was not returned. I put to the applicant that at the first hearing she had mentioned a threat to spit on her son, but not a threat that she would be killed. The applicant claimed that her mother had only told her about the threat after the hearing because she knew the applicant would be worried. When I asked the applicant whether she was aware of this cousin having committed violent acts in the past, the applicant claimed the cousin was in something like the mafia.
The applicant provided two supporting letters, described above, which purport to corroborate that [B] threatened to kill her. In her oral evidence, the applicant’s mother corroborated the applicant’s claims about being evicted because the family did not approve of the applicant’s conversion. She also said that [B] wanted to kill the applicant, and for that reason she (the mother) had told the applicant not to return.
However, the applicant’s mother gave evidence that undermined the applicant’s explanation that she had not mentioned the death threat from [B] at the first hearing because she had only learnt of it afterwards. When asked when [B] said that they wanted to kill the applicant, and the applicant’s mother said it was a long time ago. She said [B] had made this threat directly to her (the mother). I asked if it had been when the applicant was in Indonesia or Australia, and she said she did not remember. I asked if the applicant was aware of the threat, and the mother said she had told the applicant and had told her not to come home yet. I asked when she had told the applicant that, and she said it was quite a long time ago. She said it was when she was ill, when she had the [health] problem, which was more or less a year ago. I asked if she had told the applicant that [B] had threatened to kill her and she said she had. She said the threat was because of the applicant’s religion. When asked if there was anything that made her think [B] actually would kill the applicant, or if [B] had ever been violent in the past, the applicant’s mother said [B] had made the threat so she had to be careful and pay attention to it, and that [B] had spat on the applicant’s son and wanted to find someone to kill the applicant. The applicant’s mother otherwise corroborated the applicant’s claim about having debt and about fearing for the applicant.
The applicant’s failure to mention at the first hearing that [B] was in the mafia or that she had threatened to kill the applicant, even when specifically asked what harm she feared, causes me to doubt over the credibility of the claim. When I put my concern to the applicant, she gave a different explanation for her omission to that she had given earlier. She said that she had not wanted me to think she was exaggerating, that she did not have evidence or witnesses, but her mother had encouraged her to tell about it, and the witnesses had said they were willing to make statements. I reminded her she had earlier said she only learnt of the threat after the first hearing and she confirmed that was correct. The applicant’s own explanation about why she had not earlier raised the claim about [B] threatening to kill her has varied, detracting from its credibility.
I put some of the applicant’s mother’s evidence to the applicant in accordance with s 424A, including that her mother had given evidence that the threat was a long time ago, that she had told the applicant about the threat around a year ago, and that her mother had not mentioned the relative being in the mafia. As explained to the applicant, this undermines the applicant’s evidence that she had not mentioned the threat at the last hearing because she had only learnt about it since that time and her claim that [B] is in the mafia. In response, the applicant stated that I had not previously asked her what [B] does. She reiterated she had only recently learnt of the threat and referred to it being said to one of the witnesses, and her son also hearing of it. She also said her mother’s hearing is not good.
In relying on the mother’s evidence, I take into account that the applicant had earlier indicated that it would be easier for her mother to use a Hokkien interpreter but that the mother ultimately gave evidence through an Indonesian interpreter (on the applicant’s advice). I take into account the applicant’s evidence that her mother is illiterate and has hearing difficulty. However, I note that the mother’s evidence was responsive to and engaged with the questions I asked and that she was able to elaborate in response to further questions and provide additional detail. I am satisfied that the mother’s evidence was not impacted by interpretation, hearing or other difficulties.
While I take into account the witness letters presented by the applicant, these do not overcome my concerns about the applicant’s failure to mention the threat at the first hearing, her shifting explanations and the evidence given by her mother which undermines her explanations. Overall, I do not find the claim that [B] is in the mafia or that he/she has threatened to kill the applicant credible. Whether or not she had evidence, I do not accept that the applicant would have failed to mention that [B] had threatened to kill her if that had in fact occurred. Even if it were the case that the applicant was not aware of the threat until after the first hearing, this does not explain why she would have failed to mention that [B] was in the mafia when describing her fears. In any event, I do not accept the explanation that the applicant was not aware of the threat until later, given it is undermined by her mother’s evidence.
The applicant also suggested at the second hearing that she may kill [B], even though she knew this may be a sin. While I accept the applicant is angry and upset over the situation, she has claimed no history of violent crime and I find this far-fetched and implausible.
I accept that the applicant has lost her family home and has been deprived of what she should have inherited from her father, and that the family is facing pressure to repay the 81 million given to her mother. I accept that the applicant’s religious conversion has caused animosity and that she may well face further pressure, verbal insults and ostracism from her relatives. However, I am not satisfied that there is a real chance or risk of the applicant facing any harm from her relatives beyond this.
Christian religion
I have also considered whether the applicant may face harm more generally because of her Christian faith. The applicant referred in her evidence to ill-treatment of Christians, to reading on social media about incidents in Indonesia, people not being allowed to worship at home, leading to evictions or demolition and to people being fanatical.
Asked about her religious practice in Australia, the applicant said that she does bible studies and goes to church. She referred to being in a religious group that worships and listens to sermons.
Although majority Muslim, Indonesia is officially a religiously pluralist state, with freedom of religion guaranteed in the constitution subject to restrictions in the interests of morality, religious values, security and public order. Indonesia recognises six official faiths, including Protestantism.[1] Christianity is the second largest religion in Indonesia after Islam and there are Christians in every province of Indonesia.[2] There have been recent symbolic moves towards inclusivity of Christianity, such as government bodies using the Christian name for Christian holidays rather than Islamic terminology. One survey reported increased religious harmony over the past five years.[3]
[1] Department of Foreign Affairs and Trade (DFAT), 'Country Information Report - Indonesia ', 24 July 2023; United States Department of State, 'International Religious Freedom Report for 2023 - Indonesia', 26 June 2024.
[2] DFAT, 'Country Information Report - Indonesia ', 24 July 2023.
[3] United States Department of State, 'International Religious Freedom Report for 2023 - Indonesia', 26 June 2024.
Protestants make up 7.4 per cent of the Indonesian population.[4] Many Protestant churches operate in Indonesia, including mainline Protestant churches and evangelical and Pentecostal churches, as well as non-denominational independent churches.[5]
[4] DFAT, 'Country Information Report - Indonesia ', 24 July 2023; United States Department of State, 'International Religious Freedom Report for 2023 - Indonesia', 26 June 2024.
[5] DFAT, 'Country Information Report - Indonesia ', 24 July 2023.
The applicant made claims about the treatment of Christians and said she was attempting to provide a video about Muslims making problems for Christians when they pray and worship. She referred to an activist named Permadi. I have located a media article relating to similar matters to those described by the applicant. The article refers to a video showing Muslims halting worship of a church service in March. The article quotes rights activist Permadi Arya calling for equal treatment for Christians in regards to where they can worship. The article refers to Islamic extremists using a lack of building permits as a pretext for closing or attacking churches. The article also refers to a report indicating that Indonesian society has adopted a more conservative Islamic character, and churches involved in evangelistic outreach are at risk of being targeted by Islamic extremist groups.[6]
[6] ‘Video of Halted Christian Worship in March Surfaces in Indonesia’, Morning Star News, 29 July 2024, >
Other information similarly refers to religious minorities including Christians having difficulties in terms of building permissions from local government.[7] There have also been instances of violence, including highly organised attacks. DFAT refers to an attack on a church in Makassar in March 2021 which injured 21 people, and a 2020 attack in East Indonesia Mujahidin by an ISIS-linked group that injured four. DFAT reports a further planned attack in the Papua provinces which was foiled by authorities in 2021. However, DFAT reports that police sometimes provide armed protection to churches, especially during religious festivals, have disrupted and investigated attacks and charged those responsible for attacks. DFAT assesses that while violence does occur, this is not the day to day experience of most Christians.[8]
[7] DFAT, 'Country Information Report - Indonesia ', 24 July 2023; United States Department of State, 'International Religious Freedom Report for 2023 - Indonesia', 26 June 2024.
[8] DFAT, 'Country Information Report - Indonesia ', 24 July 2023.
DFAT states that Christians are generally able to practise their faith freely throughout Indonesia and have reported they do not generally experience discrimination. In general, Christians have good relations between denominations and with other religions, including regular dialogue and a generally peaceful coexistence. Overall, DFAT assesses that Christians residing in areas where they are a majority do not face either official or societal discrimination. Even in areas where conservative Islam is prevalent, Christians face only a low risk of societal discrimination in the form of impediments to worship.[9]
[9] DFAT, 'Country Information Report - Indonesia ', 24 July 2023.
I discussed country information with the applicant about the treatment of Christians in Indonesia, including DFAT’s assessment. The applicant stated that it may be that the majority of people are fine, but that was not the case in some areas. She referred to having videos from social media and was scared about what would happen to her if she returned.
The applicant is Pentecostal. On her evidence, her religious activity consists of church attendance, small group worship and bible study. She did not claim any kind of evangelism or proselytising. Apart from her experiences with her relative, she did not describe experiencing any harm or barriers to practicing her religion while in Indonesia, or that she is aware of this happening in her own area. I am not satisfied there is a real chance of the applicant being prevented from worshipping or otherwise experiencing harm in Indonesia in relation to her religion in the reasonably foreseeable future.
Conversion to Islam in 2018
The applicant also made a claim at the first hearing that in 2018 she had briefly converted to Islam while dating a Muslim man. She said friends of his had posted about it on social media because they were proud that a Christian had converted. However, after the applicant returned to Christianity a few months later, she was slammed on social media by Indonesian people and accused of playing with their religion. She claimed that the person who had posted about her had threatened in 2018 that if she was in Indonesia he would kill her. Others had also made threats against her. She is scared this is still on social media or that people will remember.
The applicant gave evidence that the person who threatened her lives in Java. She has blocked him and has had no contact from him since he returned to Indonesia. When I asked the applicant if she thought this issue would cause a problem for her if she returned to Indonesia she said she was not sure. She said she had not mentioned it in the protection visa claims submitted to the Tribunal in May 2024 because it had occurred in 2018, although added that it was worrying her that her face was still on social media. She said the last threats had been in 2018.

According to DFAT, apostasy is not a crime in Indonesia and religious conversions do occur.[10] The US State Department reports a former Islamic cleric who converted to Christianity being charged with blasphemy and hate speech, but that person appears to have posted hundreds of videos critical of Islam on social media.[11] When I put to the applicant that country information did not suggest a risk of harm from the Muslim community because of her conversion to Islam and then back to Christianity, she stated that she could not make predications.
[10] DFAT, 'Country Information Report - Indonesia ', 24 July 2023.
[11] United States Department of State, 'International Religious Freedom Report for 2023 - Indonesia', 26 June 2024.
I am willing to accept that the applicant briefly converted to Islam and was threatened on social media by her boyfriend’s friend and a number of others after converting back to Christianity. On the applicant’s evidence, these events occurred in 2018. She does not report any further threats since that time. The main protagonist lives in a different part of Indonesia. I find that the possibility of the applicant being harmed in the future because of these events is remote and does not rise to the level of a real chance.
Husband’s family
The applicant gave evidence that her husband’s sister had taken the home where the applicant and her first husband had lived during their marriage. She said this home had been bought by the husband’s mother shortly before their marriage, partially with money of the husband’s sister. It seems from the applicant’s evidence that the sister had promised the house would be transferred to the applicant’s son, but this had not occurred. She said the sister had instead transferred it to her own name. The applicant’s evidence about this was confusing. She said several times during the hearing that the sister had in fact already transferred it, but also referred to the sister needing the applicant’s signature which she had not provided, and so being unable to take the house. Although I asked several times for clarification, the applicant repeated both that the sister had put the house in her own name, but also that she needed the applicant’s signature. Referring to the documents she had brought to the hearing, the applicant said that one of them showed the property under her late husband’s name, and another showed it under the sister’s name.
The applicant said the land in question was subject to litigation. A relative of the previous owner is disputing the sale contract and is suing all of the houses on the land. The applicant said that the husband’s sister will not be able to win the litigation because somebody had said during that hearing that the applicant’s husband had a wife and children and the sister did not have the right. It may be that the sister’s need for the applicant’s signature is related to this issue. The applicant said that some of the documents she presented related to the court proceedings. During the first hearing, the interpreter viewed these documents and described them as summonses relating to litigation over the house. The husband’s name was on the certificate and the sister’s name was on the summons.
The applicant claimed that the sister had been paying taxes on the land and had told the applicant that if she wanted the home, she would need to repay this money to the sister. When I asked what the consequences would be for not paying, the applicant said that the sister would take everything. She did not suggest there would be additional harm beyond this. I asked the applicant specifically what harm she feared in relation to these matters and she referred to the land litigation, debts and the sister wanting money. She confirmed there was nothing else she feared from her husband’s family.
In contrast, at the second hearing when I asked the applicant if there was anything she would like to say in relation to whether the situation with her husband’s family would lead to serious or significant harm, she suggested that anything could happen when they were quarrelling face to face. She claimed that in the past when she was pregnant with her first child her sister in law had slapped and pushed her. She claimed the sister in law was very sensitive when it came to the applicant. This claim about a risk of physical harm was made for the first time at the end of the second hearing in response to me raising concerns over whether the applicant’s claims would fall within the criteria for the visa. Even if it is true that the sister in law did on that occasion harm the applicant, it was many years ago, noting that the applicant’s eldest child is now an adult. I find it remote that the applicant would be subjected to any sort of physical harm from her sister in law.
Country information confirms that widows do not have equal inheritance rights and women generally have poor rights to marital property.[12] I accept that the applicant’s late husband’s family have retained his property and not fulfilled a promise to transfer it to her son. I accept that unless the applicant repays her husband’s sister the money she has spent on taxes, the applicant or her son will not have ownership of the property. The applicant has not specified any particular fear in relation to the litigation. I accept that whether because of the actions of her sister in law or the litigation, the applicant will likely not have ownership of her husband’s home for the reasonably foreseeable future. I note that the applicant has not lived in this home since her husband’s death. While the permanent loss of the home is understandably upsetting for the applicant, I am not satisfied that this amounts to serious harm, or that these matters otherwise give rise to a real chance of harm to the applicant in the reasonably foreseeable future.
Single woman/widow
[12] United States Department of State, 'International Religious Freedom Report for 2023 - Indonesia', 26 June 2024; Freedom House, 'Freedom in the World 2024 - Indonesia', 1 March 2024.
In her written claims the applicant had referred to sexual harassment and rape, and having to use her body to make money. Asked at the first hearing about problems she experienced after her husband died and she became a widow, she said that there was someone who promised they would work together to form a business, that they were in the car together and he took her to a hotel and seemed like he was going to do something to her. He went to the bathroom and she managed to run away. She said because she was young and a widow there were many people who tried to do things. I asked the applicant if she feared these types of problems if she returned and she said it was possible because she saw a lot of rape cases on tv. She did not think it would make a difference that she was now married, as she thought it would be difficult for her and her husband to see each other.
At the second hearing, the applicant gave further evidence about the man who had taken her to the hotel. He was a neighbour of her husband and this incident had occurred on one occasion when she returned from Surabaya to Medan to visit. She did not experience any further harm from him because he was afraid she would share his shameful behaviour. She had not gone to police because she was young.
At the second hearing I asked the applicant if she had any other problems with men in Indonesia, and she initially said no. I referred to her written claims about being forced and mistreated by her boss to do inappropriate things, to having experienced sexual harassment and rape and to men taking advantage of her situation as a young widow. When I asked if she remembered making those claims the applicant said she was embarrassed telling those things. In response to further questioning the applicant disclosed that she had a relationship or encounter on a number of occasions with a close friend of her husband. She said at the beginning there had been some forcing but she had then become willingly involved, and so was embarrassed to talk about it.
The applicant also described an issue with her boss at the [job]. She said that he had tried to do something inappropriate and she had threatened to tell his wife. In return, he had threatened to withhold her school certificate. She left the job after this, and he returned her certificate. She did not see him again after that time. She said this is what she had meant when she had talked in the statement about entertaining customers and using her body. The applicant clarified that when she had referred to rape in the written claims, she meant the incident in the hotel when the man had tried to rape her.
Information from DFAT set out below supports the applicant’s claim of facing sexual harassment as a widow. To the extent there are differences between the applicant’s written and oral evidence, I prefer her evidence at the hearing. I accept her account about the attempted rape in a hotel room by a neighbour of her late husband. I accept that her evidence about the friend of her husband and that this initially involved some pressure or forcing. I am also willing to accept that she was subject to sexual harassment by her employer. To the extent the written claims imply she was engaged in some form of sexual conduct with clients, I do not accept that was the case.
The applicant confirmed she did not fear any future harm from these particular men. She said the hotel man knows she is married now, her former boss is old now, and her husband’s friend has moved to another city.
The applicant claimed at the second hearing that one of the reasons she had left Indonesia was that she felt unsafe from men. As discussed with the applicant, her visa was issued in July 2014 yet she did not depart until September 2014. The applicant referred to having to move her things and make preparations. I also raised that she had not applied for a protection visa until two years after her arrival. The applicant referred to having first applied to go to a [school] but someone had taken her money. She said her pastor had eventually suggested she apply for a protection visa. It seems from her evidence that she had been aware of protection visas prior to then, because she said she had thought about it but some friends had told her there was no use and she would be caught and arrested or people would take her money.
While I accept departing the country would have involved some preparation, the delay between the visa being issued and the applicant’s departure suggests there was no real urgency to her situation. I accept the applicant may have had some fear of Australian authorities after overstaying her visa and may have received incorrect advice from friends, but on her evidence she was aware of the possibility of applying for a protection visa and I do not accept that she could not have applied earlier had she truly been in fear of returning. The applicant’s delay first in departing Indonesia despite having the ability to do so, and then the lengthy delay in applying for protection, suggests to me that she did not genuinely fear further harm in Indonesia at that time.
In considering the possibility of future harm to the applicant, I have taken into account country information about the situation for women in Indonesia, including widows and single women. While rape is prohibited by law, the law is not always enforced effectively. Sexual harassment is reported to be a problem country-wide.[13] DFAT reports that women who are not married may face social stigma or harassment, including sexual harassment, especially if they are divorced. Indonesian society is patriarchal and women without husbands have less ‘social access’; they are less likely to have networks or be invited to social events. This, in turn, can lead to fewer opportunities for social and economic advancement. DFAT assesses that it is possible, but difficult, to live as a single person (whether through choosing to remain unmarried, or through widowhood or divorce). DFAT assesses that single women experience a moderate risk of societal discrimination. DFAT is not aware of official discrimination against single women. [14]
[13] United States Department of State, 'International Religious Freedom Report for 2023 - Indonesia', 26 June 2024.
[14] DFAT, 'Country Information Report - Indonesia ', 24 July 2023.
At the second hearing I discussed country information about the situation for widowed or single women in Indonesia. The applicant suggested that now that she is older she would not accept the kind of treatment she did in the past, and the situation could perhaps turn into a physical confrontation and be fatal.
The applicant was previously able to obtain employment after her husband passed away. While I accept that the applicant was sexually harassed by a previous employer, she also had other jobs which she did not claim involved sexual harassment. At the time she left Indonesia, the applicant was a young widow. Her situation has now changed somewhat, given that she has remarried. Although I accept there may be barriers to her husband living with her in Indonesia, the applicant herself suggested her new marriage as a reason she would not face further harm from one of her past attackers who was aware she had remarried. Taking into account the country information, I accept that the applicant may experience sexual harassment in the nature of unwanted advances or inappropriate comments, and that she may also face some social stigma because she will not have a husband present with her. However, overall, I am not satisfied that there is a real chance or risk of the applicant experiencing discrimination, stigma, harassment or other treatment at a level that would, individually or cumulatively, amount to serious harm, including when considered together with the financial circumstances considered below, and my earlier findings about her relatives and husband’s sister. While of course not impossible, I find that the prospect of her being subject to more severe harassment, sexual assault, or of becoming engaged in a physical confrontation, does not rise to that of a real chance.
Debts and financial circumstances
As set out above, I accept that the applicant’s relatives have requested that her mother repay money given to her from the sale of the applicant’s father’s land, and that the applicant is perceived as responsible for this debt. I accept that her late husband’s sister has requested the applicant repay money if she wishes to have her husband’s house.
The applicant referred at the first hearing to having borrowed money from her daughter’s friend in Indonesia to fund her mother’s medical treatment. She has also submitted a letter from this friend which confirms the applicant has borrowed money. I accept this to be the case. At the first hearing, the applicant said that this friend had told her that she could just pay the debt whenever she can. I asked what would happen if she did not repay it and the applicant said if she goes back it will be like suicide because there are so many problems. I again asked specifically about failure to repay the debt and she said the person is fine now but if she goes back she cannot pay and does not know how angry they will be or what they would do.
In one of her earlier visa applications the applicant had referred to a bank debt. However, the applicant confirmed at the first hearing that she had no debts in Indonesia other than those she had described to her relative, her daughter’s friend and potentially her husband’s sister. When asked specifically about the bank debt claim at the second hearing, the applicant said she had no debt to that bank and did not remember making the claim. I accept that the applicant does not have a bank debt.
At the hearing the applicant referred to her debt to her landlord in Australia when asked about other reasons for not wanting to return to Indonesia. She has submitted a letter from her landlord, described above, and I accept that she owes outstanding rent. She has not suggested that she would be harmed in Indonesia because of this.
While I am willing to accept that the applicant’s relatives are pressuring her to repay the money given to her mother, for the reasons given above I am not satisfied there is a real chance they will harm her if this money is not repaid.
Country information indicates that Indonesia has a growing economy and poverty has more than halved since the turn of the century. However, it is higher in rural areas, and there are nonetheless a substantial number of Indonesians vulnerable to falling into poverty. The unemployment rate is relatively low, at 5.8 per cent in 2022. Informal work can be obtained without much difficulty in big cities including Surabaya. Personal connections are helpful but not essential. Those without an income or who are poor may be eligible to access welfare services, although the system may be difficult to navigate and payments may not be adequate for subsistence.[15]
[15] DFAT, ‘Country Information Report Indonesia ', 24 July 2023.
I discussed country information regarding the economic situation in Indonesia with the applicant and asked why she feared difficult economic circumstances in the future. She referred to the salary being low and her mother being unwell. The applicant said that her salary was not enough, and that the information might only apply to some people that the lower classes are suffering difficulty.
I accept that the applicant will return to Indonesia with outstanding debts and that, as I have said above, she has lost her father’s home and will lose her husband’s property unless she is able to repay her sister in law. However, I am of the view that the applicant’s current financial difficulties are largely a result of her lack of work rights in Australia rather than reflecting her past or future financial circumstances in Indonesia. As I put to the applicant at the hearing, while she claimed that she experienced financial difficulty in Indonesia, on her evidence she had relatively steady employment and was able to afford frequent international travel. I accept the death of her first husband would have had an impact on the applicant’s financial circumstances, and I accept she perceived that she would have greater financial opportunity in Australia, but I am not satisfied that she was facing financial difficulty at the time she left Indonesia as she claims.
For the reasons given above, I do not accept that the applicant was limited only to work that required her to use her body. While I take into account the information above regarding the more limited opportunities available to single women, I find that were the applicant to return to Indonesia, she would be able to secure employment as she did in the past that is free from sexual harassment or mistreatment. The applicant’s children are now adults. She has given evidence that her son who is working in [Country 1] sometimes gives her money when he can. I accept that the applicant’s mother and, for the time being, her youngest daughter, are financially dependent on her, that she would need to find accommodation, having now lost her previous homes, would likely pay for further medical treatment for her mother, and that she has debts to repay. However, these are private debts to friends and relatives and I am not satisfied on the evidence that there is a real chance or risk of harm to the applicant if she fails to repay them or to repay them quickly. Considering the applicant’s circumstances as whole, including the matters I have accepted above, I am not satisfied there is a real chance of her facing financial difficulty to a level that would threaten her capacity to subsist or otherwise amount to serious harm.
Chinese ethnicity
Although not expressly claimed by the applicant, I raised with her country information about the treatment of Indonesians of Chinese ethnicity. DFAT reports that since 1998 successive governments have removed official policy discriminating against ethnic Chinese Indonesians. The government promotes racial tolerance, and legislation prohibiting racial discrimination and vilification has been in force since 2008. DFAT states that low-level ethnic discrimination, like stereotypes and the use of racist slurs, occurs in Indonesia and that non-Javanese are worse affected, but ethnic chauvinism occurs among members of all ethnic groups. DFAT states that Chinese Indonesians experience societal discrimination in the form of negative stereotypes. In DFAT’s assessment, risk of societal discrimination against Chinese Indonesians depends on individual circumstances. Those without such networks or wealth would be more at risk of discrimination, but that applies to all Indonesians, not just Chinese Indonesians. DFAT states that violence has occurred in the past but is not an everyday experience for Chinese Indonesians.[16] The applicant referred to riots which occurred in 1998, and to being friendly but people taking advantage. The applicant did not detail having experienced any past harm on account of her ethnicity, or particularise any specific future harm she fears. I am not satisfied there is a real chance or risk of harm to her in this regard.
Other claims
[16] DFAT, ‘Country Information Report Indonesia’, 24 July 2023.

The applicant made a number of references in her evidence to emotional or mental breakdown and to suicide. When I asked what she meant, she said that going back to Indonesia was the same as committing suicide in terms of material things, and the threat and condition. She said she had never received any mental health treatment. She claimed not to know if she could access mental health treatment in Indonesia. I pointed out she had mentioned her daughter had seen a psychiatrist, and asked if there was any reason she could not seek psychiatric help if she needed to. She said there was no reason. In any event, I am not satisfied the applicant has any mental health condition or that there is a real chance of any harm to her in this regard.
The applicant also referred to not wanting to be separated from her husband, who she said could not return to Indonesia with her as he is not Indonesian. I accept that being separated from her husband would be upsetting and difficult for the applicant, but this of itself is not a matter that falls within the criteria for the visa.
Conclusion on refugee criterion
I have accepted above that the applicant has lost her inheritance from her father and may face further harm including insults, pressure and ostracism from her relatives because of her religion. I accept she may face sexual harassment, stigma and discrimination as a single woman/widow. I have accepted that she has likely lost her husband’s property, and that she has debt and may face some financial difficulty. However, even considering this treatment in cumulation, I am not satisfied that it is at a level that amounts to serious harm. Taking her circumstances as a whole, I am not otherwise satisfied there is a real chance of any harm to the applicant in the reasonably foreseeable future.
I find that the applicant does not have a well-founded fear of persecution within the meaning of s 5J and is not a refugee within the meaning of s 5H.
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).
Alternative criterion for the visa
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).
I have found above that the applicant has lost her inheritance from her father and may face further harm including insults, pressure and ostracism from her relatives because of her religion. I accept she may face sexual harassment, stigma and discrimination as a single woman/widow. I have accepted that she has likely lost her husband’s property, and that she has debt and may face some financial difficulty. I am satisfied there is a real risk of her experiencing such treatment and circumstances.
I have considered whether such treatment amounts to significant harm as defined. I am not satisfied that there is a real risk of her being subject to the death penalty or arbitrarily deprived of her life. While I accept that the treatment of the applicant would entail a degree of suffering and humiliation, on the reasoning and country information set out above I am not satisfied there is a real risk of her experiencing treatment that would, even cumulatively, involve severe pain or suffering, pain or suffering, pain or suffering from an act or omission that could, in all the circumstances, reasonably be regarded as cruel or inhuman in nature, or extreme humiliation which is unreasonable. I am not satisfied the treatment that I have found the applicant may experience amounts to significant harm as defined.
Beyond this, I have found there is not a real chance of the applicant being harmed. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act. For the reasons given in making my no real chance finding above, I find there is no real risk of the applicant otherwise suffering harm.
There are not 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 the applicant will suffer significant harm. The applicant does not satisfy 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.
Patricia Tyson
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 4382

3 September 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Natural Justice

Statutory Construction

Appeal