1814133 (Refugee)

[2024] AATA 2165

1814133 (Refugee) [2024] AATA 2165 (19 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1814133

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Matthew Tubridy

DATE:19 March 2024

PLACE OF DECISION:  Sydney

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

Statement made on 19 March 2024 at 11:28am

CATCHWORDS
REFUGEE – protection visa – Indonesia – riot, racism, corruption, terrorism and crime – no previous harm – economic conditions, employment and safety – third applicant’s return to home country with no current visa – consent to decision without hearing – country information – ethnic and religious majority on home island – national education, and employment opportunities in local tourist area – petty corruption and weak enforcement – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), 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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 May 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The three review applicants (the applciants) claim to be citizens of Indonesia, and to be cousins and members of the same family unit, and on 30 September 2017 they lodge a combined application for a Protection visa. On 4 May 2018 the delegate refused to grant the visa. The delegate was not satisfied that any of the applicants would face a real chance of persecution in their receiving country for any of the reasons mention in s.5J(1)(a). Neither was the delegate satisfied that as necessary and foreseeable consequence of being removed to Indonesia, there was a real risk that any one of the applicants would suffer significant harm.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.

7. 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

8. 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

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Receiving Country

10. The applicants all claim to be citizens of Indonesia and no other country. The applicants have each provided a copy of the biodata page of their respective Indonesian passports, all of which present the nationality of each applicant as: Indonesia. These also indicate that all three applicants were born in Indonesia as follows: [the first named applicant] born in [Year], [the second named applicant) born in [Year], and [the third named applicant] born in [Year]. I note that the time the three applicants were born, Indonesia’s Law No. 62 of 1958 provided that citizens of the Republic of Indonesia were: persons who at their birth have a legal family relationship with their father, a citizen of the Republic of Indonesia, with the understanding that said citizenship of the Republic of Indonesia starts as from the existence of that legal family relationship and that said legal family relationship is created before the persons concerned have reached the age of 18 or before they are married at an earlier age; and also: persons whose mother is a citizen of the Republic of Indonesia at their birth, if at that time they have no legal family relationship with their father.[1] I note that all three applicant’s have indicated that both of their parents were citizens of Indonesia, and I have no reason to doubt this. I note also that Indonesia’s current citizenship law, Law No. 12 of 2006, left undisturbed the status of anyone who had by previous law already become citizens of the Republic of Indonesia.[2]

    [1] 'Law No. 62 of 1958, Law on the Citizenship of the Republic of Indonesia (Unofficial translation)', Government of Indonesia, August 1958, CX271848; Harijanti, S.D. 'Report on Citizenship Law - Indonesia', GlobalCit, February 2017, CISEDB50AD5927.

    [2] ‘Law No. 12 of 2006 on Citizenship of the Republic of Indonesia', Government of Indonesia, August 2006, CIS20125; Harijanti, S.D. 'Report on Citizenship Law - Indonesia', GlobalCit, February 2017, CISEDB50AD5927.

11. I accept that the applicants are all citizens of Indonesia, and I find them to be nationals of Indonesia, and I find Indonesia to be there receiving country for the purpose of this review. 

    Claims to Protection  

12. The applicants put forward protection claims in writing as part of the Protection visa application form which they lodged on 30 September 2017. Asked to provide reason why they had left their country, each applicant responded: riot, racism, corruption, and terrorism and crime. Asked if they had ever experienced any harm in their country, each applicant answered: no. Asked what they thought would happen to them if they returned to their country, they each responded: joblessness, that they would not survive, and would be without safety. Asked if the authorities in their country could protect them, the applicants all submitted that Indonesia’s authorities were themselves needed protection, and questioned whether in such circumstances Indonesia’s authorities could provide protection to others. Asked if they had ever tried to find safety in another part of their country, they all asserted that any other part of the country was more horrible.

13. I note, with respect to the above and by way of background, that all three applicants presented themselves in their Protection visa application as unmarried men, and as Indonesian speaking ethnic Balinese (of the Hindu faith) who (prior to their September 2017 arrival in Australia) had resided in Kuta on the island of Bali. The Protection visa application form asked them for details of their education, and whether they had ever studied, and all three applicants responded: No. Asked if they had ever been employed, all three applicants responded: No. The Protection visa application form asked them for details of how they had occupied their time and financially supported themselves during their unemployment, and all three responded: Home duties; and: Self financial support.

    [The third applicant]’s June 2023 return to Indonesia

14. On 1 February 2024 the Tribunal wrote to the applicants by email and put information to them which, subject to their comments, would be the reason, or a part of the reason, for affirming the decision under review. It was put to the applicants that in June 2023 [the third applicant] departed Australia on a flight destined for Indonesia, and that his Bridging visa also ceased on this date, and that he did not currently hold a visa that would permit his return to Australia. It was explained to the applicants that this was relevant because: s.36(2) of the Migration Act requires that an applicant for a protection visa must be a non-citizen in Australia; and that: this means that a protection visa can only be granted if the applicant is in Australia; and that: if the Tribunal found that [the third applicant] was not in Australia the Tribunal would affirm the decision not to grant [the third applicant] a protection via on this basis (because he does not meet the requirement of being in Australia).

15. On 15 February 2024, [the first applicant] responded that: We confirm that [the third applicant] has departed Australia for Indonesia in June 2023; and that he (that is, [the first applicant]) was responding for [the second applicant] also, and they were both still in Australia and entitled to have their review processed.

16. The Tribunal is satisfied from the circumstances set out above that [the third applicant] is not in Australia. Therefore, [the third named applicant] does not satisfy the requirements of s 36(2) and cannot be granted a protection visa. The Tribunal affirms the decision not to grant the third named applicant a protection visa.

    The protection claims of [the first and second applicants]

17. In writing to the applicants on 1 February 2024 about [the third applicant]’s June 2023 departure from Australia for Indonesia, the Tribunal put it to the applicants that this information was also relevant because it may lead the Tribunal to conclude that: [the third applicant] had returned to Indonesia because he did not fear harm in Indonesia; and that: this was because he was not at risk of any harm in Indonesia; and that: this may lead the Tribunal to conclude that [the first and second applicants] would similarly not be at risk of any harm if they were to return to Indonesia; and that if this were the case, then the Tribunal would affirm the decision to refuse to grant the visa to [the first or second applicant] on the basis that neither faced  well-founded fear of persecution, or a real risk of significant harm, in Indonesia.

18. As noted already, on 15 February 2024, [the first applicant] responded that: We confirmed that [the third applicant] has departed Australia for Indonesia in June 2023; and: [the first applicant] is responding for [the first and second applicants], and we are both still in Australia and entitled for our review to be processed. I note that [the first applicant] (and who expressly stated he was speaking on behalf of [the second applicant] also) had nothing specific to say with respect to the Tribunal’s concern that the June 2023 return to Indonesia of [the third applicant] suggested that they would not be at risk of any harm if they returned to Indonesia.

19. On 22 February 2024 the Tribunal wrote to [the first and second applicants] that it had considered the material before it but was unable to make a favourable decision on this information alone, and they were invited to appear before the Tribunal at a hearing on 3 April 2024 to give evidence and present arguments relating to the issues arising in their case. On 29 February 2024 [the first and second applicants] indicated that they would not participate in the hearing and that they consented to the Tribunal making a decision on the papers without taking further steps to allow them to appear.

20. As noted above, the applicants put forward protection claims in writing as part of the Protection visa application form which they lodged on 30 September 2017. Asked to provide reasons why they had left their country, each applicant responded: riot, racism, corruption, and terrorism and crime. Asked if they had ever experienced any harm in their country, each applicant answered: no. Asked what they thought would happen to them if they returned to their country, they each responded: joblessness, that they would not survive, and would be without safety. Asked if the authorities in their country could protect them, the applicants all submitted that Indonesia’s authorities were themselves needed protection, and questioned whether in such circumstances Indonesia’s authorities could provide protection to others. Asked if they had ever tried to find safety in another part of their country, they all asserted that any other part of the country was more horrible.

21. As noted above, [the first and second applicants], and also [the third applicant], have all claimed to be Indonesian speaking ethnic Balinese (of the Hindu faith) who (prior to their September 2017 arrival in Australia) had resided in Kuta on the island of Bali. Their Indonesian passports were all issued from Singaraja, the capital of Bali’s Buleleng Regency,[3] and all three list the applicants as having been born in Buleleng or [Location] (with the latter being a location within the Buleleng Regency in northern Bali);[4] which, like the island of Bali more broadly, is home to a largely Balinese Hindu population (with 80 percent of the island identifying as Hindu).[5] The applicants have provided no evidence to establish their claim that they subsequently resided in the southern Bali area of Kuta, but I have no reason to doubt this; and I note that Kuta (notwithstanding the manner in which its principal industry of tourism has also attracted jobseekers from other Indonesian communities, like Javanese Muslims) has nonetheless remained dominated by Balinese Hindus.[6]

    [3] Diasana Putra, I.D.G.A. & I.B. Gde WIRAWIBAWA, ‘Cultural Sustainability and Evoking Architectural Identity in Buleleng-Bali, Indonesia’, Civil Engineering and Architecture 11(5): 2023 pp. 2618-2630, ;

    [4] Sumarta, P.Y.E. et all, ‘Declaration of Complete Land Registration in Buleleng Regency’, Marcapada: Jurnal Kebijakan Pertanahan, vol.2: no.1, November 2022, pp.43-63,

    [5] Diasana Putra, I.D.G.A. & I.B. Gde WIRAWIBAWA, ‘Cultural Sustainability and Evoking Architectural Identity in Buleleng-Bali, Indonesia’, Civil Engineering and Architecture 11(5): 2023 pp. 2618-2630; DFAT, ‘DFAT Country Information Report: Indonesia’, 24 July 2023, 20230724102537, 3.51.

    [6] Sumadi, K. ‘Tourism Development Basis in Traditional Village of Kuta’, International Journal of Linguistics Literature and Culture 2(3):102, September 2016, ; Rudia Adiputra, I.G. ‘The retention of Hindu religion in the cultural village of Kuta’, Int. J. Adv. Multidiscip. Res. Vol.4: no.3, pp.11-22, 2017,

22. I do, however, have real doubts about the applicants’ claim that they fear riot, racism, corruption, and terrorism and crime in Indonesia, and that if they returned to Indonesia they would face joblessness and a situation in which they would be unable to survive and be without safety, and that they have had no education, and no employment, and that their previous activities were limited to home duties, and that they were nonetheless financially self-supported. With respect to their claim to have undertaken no study, I note that Indonesia had already progressed into a modern state of high rates of school attendance by the time the applicants were of school age. Indonesia’s school enrolment rates increased among children aged seven to 12, from 69% in 1973 to 83% by 1985; and in 1984 Indonesia’s government established a six-year compulsory education policy, and in the following decade, raised the length of the compulsory study to nine years.[7] Given that the applicants were born between [Year] and [Year], I am not satisfied and I do not accept that they undertook no study at all.

    [7] Sukmayadi, V. & A.H. Yahya, ‘Indonesian Education Landscape and the 21st Century Challenges’, Journal of Social Studies Education Research, vol.11: no.4, 2020, pp. 219-234,

23. Neither am I satisfied that they were never employed given that they were living in Kuta at a time when its tourism industry was reportedly flourishing to the extent that it attracted job seeking migrants not only from other parts of Bali from other parts of Indonesia.[8] As will be discussed below, this region did see an economic downturn as a direct result of lower overseas tourism arrivals in the immediate aftermath of Bali’s 2002 and 2005 bombings (owing to the manner in which tourism dominates Bali’s economy), and a resulting period of higher unemployment, but it is also reported that Bali’s tourism industry proved resilient and recovered within a few years of each occasion;[9] such that while Bali’s employment rate hit a record low of 93.96% in 2006, by 2009 it was at 96.69%, and thereafter largely grew steadily, and was consistently above 97% every year from 2014 through to the applicants’ departure from Indonesia in 2017.63 percent.[10] I note, moreover, that in 2018 Minority Rights Group International (MRG) reported that, although there has been a sizeable influx of migrants into Bali from Java (Javanese make up 40 percent of Indonesia’s largely Muslim population of 279.5 million,[11] while the Hindu Balinese number just over 3 million), the Balinese have avoided the discrimination other minorities in other parts of Indonesia have suffered, as Bali’s Balinese have retained control over their land, over job opportunities and over political office.[12]

    [8] Sumadi, K. ‘Tourism Development Basis in Traditional Village of Kuta’, International Journal of Linguistics Literature and Culture 2(3):102, September 2016; Rudia Adiputra, I.G. ‘The retention of Hindu religion in the cultural village of Kuta’, Int. J. Adv. Multidiscip. Res. Vol.4: no.3, pp.11-22, 2017.

    [9] See Figure 1 in: Maulana, A. ‘The Resilience Pattern of the International Tourism Demand Resulting from Bali Bombings I & II’, Journal of Tourism & Development, no.41, 2023, pp.215-229,

    [10] CEIC, ‘Indonesia Employment Rate: Bali’,

    [11] DFAT, ‘DFAT Country Information Report: Indonesia’, 24 July 2023, 20230724102537, 3.2,

    [12] MRG, 'World Directory of Minorities and Indigenous Peoples - Indonesia Balinese and Hindus', January 2018, CIS7B83941388

1. In July 2023 Australia’s Department of Foreign Affairs and Trade (DFAT) reported on the extent to which Indonesia is affected by racism, and note the circumstances of some specific communities in this regard; and that ethnic Papuans can experience racism, and that there have been historical instances of riots which have targeted the ethnic Chinese community. But DFAT gave no indication that Balinese have been affected by riots or that they were particularly affected by racism; with DFAT commenting that more broadly, as in other parts of the world there was always the possibility of low-level ethnic discrimination, like stereotypes and the use of racist slurs. DFAT also reported it was not aware of a pattern of incidents of official discrimination based on race or ethnicity.[13]

   [13] DFAT, ‘DFAT Country Information Report: Indonesia’, 24 July 2023, 20230724102537, 3.4-3.17.

2. DFAT also assessed that (though Hindus living in other parts of the country where they are a small minority may face low-level societal discrimination) Hindus living in Bali do not face societal discrimination or violence based on their religion; and DFAT reported it was not aware of reports of official discrimination against Hindus.[14] I note, moreover, that DFAT also reported that the tourism industry in Bali was among the places in Indonesia where informal employment could be obtained without much difficulty.[15] I note also that, even with the COVID-19 pandemic and the resulting downturn in tourism, Bali’s returning workforce helped bring Bali’s unemployment rate down by 0.58% to 4.84% (with manufacturing, warehousing, and transportation sectors showing the biggest jump in employment figures, as the manufacturing of clothing, cultural goods, and specialist foods, are now key focus areas);[16] and that by November 2023 Bali’s unemployment rate was just 2.69%, and unlike other provinces in Indonesia was thus little affected by a rise in unemployment which was affecting the country more broadly.[17]

   [14] DFAT, ‘DFAT Country Information Report: Indonesia’, 24 July 2023, 20230724102537, 3.54.

   [15] DFAT, ‘DFAT Country Information Report: Indonesia’, 24 July 2023, 20230724102537, 2.10-2.11.

   [16] Bali Sun, ‘Bali Unemployment Rate Begins Return To Pre-Pandemic Levels’, 10 May 2022,

   [17] Rizka, A. ‘Indonesia Unemployment Rates Soars to 7,86 Million inn 2023’, Social Expat, 11 November 2023,

3. Given that [the first and second applicants] previously made their home in Bali I consider that this is where they would return were they to return to Indonesia; and given this, and given the country information noted above (and given that I consider that the applicants they not been forthcoming about the full extent of their respective levels of education and employment experience), I am not satisfied that there is a real chance that either [the first or second applicant] would for the foreseeable future be affected by joblessness, or that they would not be able to survive, or that they would be affected by riots, or that they would experience racism of any kind beyond a racist slur or stereotype (and which I am not satisfied would amount to serious harm), if they were to return to Indonesia.

4. [The first and second applicants] also claim to fear terrorism and crime, and it is true that Kuta was the scene of the two most significant series of terror attacks to have occurred in Bali. The first of these occurred on 12 October 2002, when the militant Islamist group Jemaah Islamiyah bombed two sites in Kuta, and a site in Sanur. The Sanur bombing took place close to the United States’s Bali consulate. The Kuta attacks occurred at Paddy’s Bar and the Sari Club, which were frequented regularly by regional tourists from countries such as Australia and Japan, and tourists from Western countries such as the United States, the United Kingdom, Ireland, and Germany.[18] The Kuta attacks caused 202 deaths (and injury to as many as 500 others), including the deaths of 38 Indonesians, while the remainder were almost entirely westerners.[19] The content of the subsequent claims of responsibility, and details of interviews with the subsequently arrested perpetrators, have indicated that the bombings were intended to target westerners[20] (though it has also been speculated that Jemaah Islamiyah may have considered Bali an attractive place to stage the attacks as the Balinese who are Hindu, and non-Muslim, and may be seen as complicit in American counterterrorism operations against Islamic groups).[21]

   [18] Chasdi, R.J. ‘Chapter 32: Prevention of Major Economic Disruptions Following Acts of Terrorism - The Case of the 2002 and 2005 Bali Bombings’, p.991, in Schmid, A.P. (ed), Handbook of Terrorism Prevention and Preparedness, ICCT, July 2021,

   [19] 'Indonesia executes Bali bombers', Jakarta Post, The, 09 November 2008, CX213858.

   [20] Fealy, G. ‘Hating Americans: Jemaah Islamiyah and the Bali Bombings’, IIAS Newsletter, no.31, July 2003, pp.3-4, Chasdi, R.J. ‘Chapter 32: Prevention of Major Economic Disruptions Following Acts of Terrorism - The Case of the 2002 and 2005 Bali Bombings’, p.992, in Schmid, A.P. (ed), Handbook of Terrorism Prevention and Preparedness, ICCT, July 2021

Following the 12 October 2022 attacks, 2003 saw Bali’s world tourist arrival rates drop by 25 percent; leading to increased unemployment among the ranks of local workers such as small merchants and taxi drivers (at that time 90 percent of Bali’s revenue was tourism driven).[22] However, it also prompted a significant response by Indonesia’s government to provide financial assistance to the Bali region to sustain its recovery, and an ongoing effort to cooperate with the United States and Australia to better police suspected sources of terrorism in Indonesia.[23]

[22] Chasdi, R.J. ‘Chapter 32: Prevention of Major Economic Disruptions Following Acts of Terrorism - The Case of the 2002 and 2005 Bali Bombings’, p.994, in Schmid, A.P. (ed), Handbook of Terrorism Prevention and Preparedness, ICCT, July 2021.

[23] Chasdi, R.J. ‘Chapter 32: Prevention of Major Economic Disruptions Following Acts of Terrorism - The Case of the 2002 and 2005 Bali Bombings’, pp.995-999, in Schmid, A.P. (ed), Handbook of Terrorism Prevention and Preparedness, ICCT, July 2021.

However, and even with the arrests which followed as a consequence (over the subsequent 3 years well over 250 men, and one woman, were arrested by Indonesian police for involvement in terrorist activities),[24] Jemaah Islamiyah and its associated networks remained a significant threat and on 1 October 2005 a Jemaah Islamiyah splinter group known as al-Qaeda in the Malay Archipelago (Tanzim Qaedat al-Jihad; and led by Noordin Mohammad Top) carried out bombings at two family-run eateries in Kuta’s Jimbaran Beach and at a restaurant in the central square of Kuta. These resulted in the deaths of 20 persons and injury to more thana hundred others.[25] Fifteen Indonesians and four Australians were killed in the 2005 blasts.[26] Bali’s tourism industry again saw a significant drop in world tourist arrival rates in the subsequent year (this time a drop of 20 percent).[27]

[24] Jones, S. ‘The Lessons from the Latest Bali Bombings’, ICG, 4 October 2005,

[25] Chasdi, R.J. ‘Chapter 32: Prevention of Major Economic Disruptions Following Acts of Terrorism - The Case of the 2002 and 2005 Bali Bombings’, pp.1001-1002, in Schmid, A.P. (ed), Handbook of Terrorism Prevention and Preparedness, ICCT, July 2021.

[26] Symons-Browm, B. ‘2005 Bali bombings: Victim harbours no anger towards terrorists as Australia marks 10th anniversary of attacks’, ABC News, 1 October 2015,

[27] Chasdi, R.J. ‘Chapter 32: Prevention of Major Economic Disruptions Following Acts of Terrorism - The Case of the 2002 and 2005 Bali Bombings’, p.1004, in Schmid, A.P. (ed), Handbook of Terrorism Prevention and Preparedness, ICCT, July 2021.

Bali has not, however, seen a repeat of such attacks in more than a decade; and although it is generally reported that the risk of future such attacks has not disappeared altogether, it is also widely reported that the Indonesian authorities have made considerable progress since 2005 and have been largely successful in preventing further large scale attacks in recent years (although some smaller incidents have occurred, though not in Bali).[28] Beyond terrorism, with regard to the broader issue of crime, in July 2023 DFAT reported that while crime remains a persistent threat (some parts of Jakarta, Surabaya and Makassar, for example, experience street crime), Indonesia is generally safe.[29] Given this, I am not satisfied that there is a real chance that either [the first or second applicant] would face a real chance of harm of any kind on the basis of crime and/or of terrorism, and/or of being without safety or security more broadly.

[28] DFAT, ‘DFAT Country Information Report: Indonesia’, 24 July 2023, 20230724102537, 2.33; Engel, D. ‘Indonesia’s response to terrorist threats has grown much stronger since Bali bombings’, ASPI, 12 October 2022, ; USDOS, 'Country Reports on Terrorism 2022: Indonesia', US Department of State, 30 November 2023, 20231211110743; Ismail, N.H. 'Indonesia’s recurring nightmare – freed terrorists who return to path of violence', Straits Times, The, 06 November 2023, 20231107094030;

[29] DFAT, ‘DFAT Country Information Report: Indonesia’, 24 July 2023, 20230724102537, 2.34.

[The first and second applicants] also claim to fear harm because of corruption. Corruption is a longstanding issue in Indonesia, from petty day-to-day issues to examples of large-scale corruption. Indonesia ranked 110th out of 180 countries in the 2022 Corruption Perceptions Index published by Transparency International. Judicial and bureaucratic decision-making and police interaction are, at times, susceptible to the payment of bribes. Notwithstanding strong laws against corruption, international commentators have observed weak enforcement of anti-corruption legislation, ineffective regulatory mechanisms and conflict legislation, a culture of nepotism and favouritism, and bribery in the public service, judiciary, police and politics. Petty corruption is common in areas such as policing and education, particularly higher education.[30] Even so, it is not apparent from this how such a situation would actually result in either [the first or second applicant] facing a real chance or harm as a consequence of such corruption, and I am not satisfied that there is a real chance they would face any problems from corruption that could be considered harm, let alone serious harm.

[30] DFAT, ‘DFAT Country Information Report: Indonesia’, 24 July 2023, 20230724102537, 21.12-2.13.

As has been noted above, on 1 February 2024 the Tribunal wrote to the applicants by email and put information to them which, subject to their comments, would be the reason, or a part of the reason, for affirming the decision under review. As has been noted already, it was put to the applicants that the Tribunal might conclude that [the third applicant] returned to Indonesia in June 2023 because he did not fear harm in Indonesia, and that this was because [the third applicant] was not at risk of any harm in Indonesia, and that this might lead the Tribunal to conclude that [the first or second applicant] would similarly not be at risk of any harm if they were to return to Indonesia. As noted already, on 15 February 2024, [the first applicant] responded that: We confirmed that [the third applicant] has departed Australia for Indonesia in June 2023; and: [the first applicant] is responding for [the first and second applicants], and we are both still in Australia and entitled for our review to be processed. I note that [the first applicant] (and who expressly stated he was speaking on behalf of [the second applicant] also) had nothing specific to say with respect to the Tribunal’s concern that the June 2023 return to Indonesia of [the third applicant] suggested that they would not be at risk of any harm if they returned to Indonesia. No explanation was volunteered either for why [the third applicant] would have returned to Indonesia if he was actually at risk of harm of some kind, or alternatively, why his circumstances might be different from those of [the first and/or second applicant], such that [the first and/or second applicant] would be at risk of harm while [the third applicant] was not.

Given this, and given that the claims of all three applicants have been put forward in an identical manner, and given that their circumstances are broadly the same aside from a slight difference in age, I consider that [the third applicant]’s return to Indonesia is compelling evidence that neither he, nor [the first and second applicants], would for the foreseeable future face a real chance of harm of any kind for any reason in Indonesia. Given this, and given the findings I have reached above with respect to each of the reasons which [the first and second applicants] have raised for fearing harm in Indonesia, and given the totality of the evidence with respect to their circumstances, I am not satisfied that either [the first or second applicant] would for the foreseeable face a real chance of harm of any kind for any reason if they were to return to Indonesia. I am therefore not satisfied that either [the first or second applicant] have a well-founded fear of persecution.

For the reasons given above, the Tribunal is not satisfied that either [the first named applicant] or [the second named applicant] is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that neither [the first or second applicant] meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). But for the reasons already given above, with respect to their claim to fear racism were they to return to Indonesia, I am not satisfied that there is a real risk that they would experience anything other than a racist slur or stereotype, and I am not satisfied that this would amount to significant harm (since I am not satisfied it would involve the kind of extreme humiliation that would amount to degrading treatment or punishment; or the kind of physical or mental pain or suffering that would amount to either cruel or inhuman treatment or punishment, or the kind of physical or mental severe pain or suffering that would amount to torture, or that it would amount to the death penalty, or to the applicants being arbitrarily deprived of their lives). More broadly, for the reasons already given above, I am not satisfied either [the first or second applicant] would face a real risk of harm of any kind for any reason were they to return to Indonesia.

I am therefore not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen (either [the first or second applicant]) being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm. The Tribunal is not satisfied that either [the first named applicant] or [the second named applicant] is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

There is no suggestion that any of the applicants 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, none of the applicants satisfy the criterion in s 36(2).

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

DECISION

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

Matthew Tubridy
Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

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cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

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36     Protection visas – criteria provided for by this Act

…

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

…