1816178 (Refugee)

1816178 (Refugee) [2024] AATA 2429 (26 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Alim Lim
CASE NUMBER:  1816178
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Patricia Tyson
DATE:26 March 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 26 March 2024 at 1:01pm
CATCHWORDS
REFUGEE – Protection Visa – Indonesia – high level of criminal activities – racial discrimination – race – ethnic Chinese – feared harm from anti-Chinese native born Indonesians – being Christian – experienced three incidents of criminal theft – not satisfied there is a real risk of the applicants experiencing violent crime – decision under review affirmed

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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 May 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of Indonesia, are a mother and her [age] year old Australian-born daughter. The applicant mother initially applied for the visa on 24 February 2018 and then later submitted a further application form on 26 April 2018 which included her daughter as an applicant. The delegate categorised the applicant’s claims as relating to crime and criminal activity and refused to grant the visas on the basis that the applicants were not persons in respect of whom Australia had protection obligations.
CLAIMS AND EVIDENCE
Evidence to the Department
In her visa application, the applicant made the following claims:
·She was born in Medan, Sumatera Utara, Indonesia. She is of Asian ethnicity and Christian religion.
·The applicant claims she left Indonesia because of the high level of criminal activities. She claims there were many robberies in her home town. People would ride motorbikes and stop people on the road, take money and even kill. This happened a lot to women.
·On one occasion in 2013 the applicant was approached by some men who threatened her with a knife to her neck and took her wallet before running off with their motorbikes. It left her traumatised. She reported it to police but they did not do anything much.
·She has read about these things happening to many women and them being scratched and sliced with knives if they do not give their wallets or money.
·The applicant fears she would be harmed again. These problems have spread to many areas. There is no safe place as it left her with trauma. If she stayed in Indonesia she would be too afraid to do activities or go out for shopping.
The applicant submitted to the Department copies of her own Indonesian passport, her daughter’s Indonesian passport, her daughter’s New South Wales birth certificate and a further untranslated document.
The applicants were not invited to an interview by the delegate.
Evidence to the Tribunal
The applicants were represented in relation to the review. The Tribunal received written submissions from the applicant’s representative on 29 February 2024. In addition to making legal arguments, the submissions make new claims on behalf of the applicant mother:
·The applicant fears returning to Indonesia by virtue of experiences of racial discrimination as an ethnic Chinese. It is claimed her fear is exacerbated by historical riots, particularly violent events in 1998 which targeted Chinese individuals. The recent election of Prabowo Subianto as President adds to her fears. The applicant would no longer be able to enjoy the freedom she has in Australia if she were to go back to Indonesia. She has been robbed on the street, experienced assault, encountered racial slurs and derogatory name-calling, and faced explicit threats based on her Chinese ethnicity.
·In 2009 the applicant experienced a targeted robbery in her home where intruders specifically chose her as a victim, focusing on extorting money due to her Chinese ethnicity. Perpetrators forcefully entered her house, wielding knives, causing distress and taking her money and phone. This impacted her psychological state and compelled her to seek refuge in Australia.
·The applicant returned to Jakarta in 2013 and was again targeted. She was mugged by a ‘native Indonesian’ on a motorcycle, who shouted ‘Chinese die’ and violently snatched her bag. She suffered minor injuries.
·The applicant was also mugged on the street in 2009. She was on her way home from school and was the target of another hostile incident due to her Chinese ethnicity.
·The applicant visited the police station seeking assistance but encountered a discouraging response. Initially they inquired about her Chinese ethnicity and then after a brief discussion informed the applicant that they required money to take on the report. They insisted their involvement would only proceed with the payment of a bribe. The applicant was left with no choice but to leave the station without assistance. The applicant claims it is highly likely the police were not willing to help because she was not considered a fellow Indigenous person.
The applicant appeared before the Tribunal on 6 March 2024 to give evidence and present arguments on behalf of herself and her daughter. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages. The applicant presented her current Indonesian passport, which was issued in Sydney in [2019]
At the hearing, the applicant provided further evidence in relation to the claims outlined in her application and the submission, clarified some matters, and added new claims regarding discrimination and insults she had experienced in relation to her ethnicity. The applicant’s representative conceded that some parts of the submission had been included in error and did not relate to the applicant. The representative was asked at the end of the hearing whether there were any further questions or issues he thought the Tribunal should raise with the applicant, and he said she had mentioned having difficulties obtaining official documents. The applicant then gave further evidence on this point. The representative did not raise any other matters. Both the representative and applicant were given the opportunity to raise anything further and both confirmed there was nothing further to add beyond what had been discussed in the hearing. The applicant’s evidence at the hearing is discussed in further detail below.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. ‘Persecution’ involves serious harm. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
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.
FINDINGS AND REASONS
The issues in this review are whether the applicant’s claims about past events in Indonesia are credible and whether there is a real chance or risk of the applicants suffering harm in the future that would amount to persecution or significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality and third country protection
The applicant has provided a copy of her and her daughter’s current Indonesian passports, along with her previous passport. Based on this and her evidence at the hearing which demonstrated obvious familiarity with Indonesia, I am satisfied that the applicants are nationals of that country. I accept that the applicant daughter is the child of the applicant mother, as evidenced in the birth certificate. There is no evidence before me to suggest either applicant has a right to enter and reside in any other country, and I find s 36(3) does not apply.
Background
The applicants are a mother, aged in her [age], and her [age] year old daughter. The applicant mother was born and grew up in Medan, Sumatera Utara. She is of Chinese ethnicity and Christian religion. At the hearing, the applicant said that her own mother lives in [Country 1] and has done since 1999. She is married to a [Country 1] national. The applicant has a sister who resides in Jakarta. Her father is an Indonesian national but the applicant has not had any relationship with him since she was young. She grew up living with her grandmother.
The applicant mother first arrived in Australia as a teenager in October 2011 on a student visa. She studied various courses over the six years following her arrival, completing [courses]. She began but withdrew from a [course] in 2017. She has worked in [a specified] positions. According to the applicant’s migration history included in the delegate’s decision which was submitted by the applicant to the Tribunal, the information in her visa application and evidence to the Tribunal, the applicant returned to Indonesia for short visits in February 2012 and again in June or July 2013. The applicant said at the hearing that these trips were to visit her grandmother, who was unwell and who passed away in 2013. In March 2017, in Australia, the applicant mother married a fellow Indonesian citizen who, according to her evidence at the hearing, is also of Chinese ethnicity. Their daughter was born in Australia. Her husband has a temporary visa that allows him to work in a regional area.
At the hearing, the application said her visa was prepared with the assistance of ‘student agents’ which she explained to mean people who helped with the application while she was a student. She confirmed that the form was completed on the basis of the information she gave these people and that the information put into the application was true and correct. Asked about her fears, the applicant said that she did not want to return to Indonesia because she had been threatened, mugged and robbed by native born Indonesians, and was afraid she would be discriminated against, threatened and that unpleasant things would happen if she returned. She feared this harm from anti-Chinese native born Indonesians. She said that authorities do not help much if she had a problem.
By way of background, according to the Australian Department of Foreign Affairs and Trade (DFAT), Indonesia is one of the world’s most ethnically diverse countries. Approximately 40 per cent of the population is Javanese, 15 per cent Sundanese, and 3.7 per cent Malay. Successive waves of immigration to Indonesia from China have resulted in well-established ethnically Chinese Indonesian communities throughout the country. Many Chinese Indonesians can trace their history in Indonesia back many generations, may no longer identify as Chinese, and may not speak a Chinese language. Indonesians of Chinese descent comprise approximately 1.2 per cent of the population. Most Chinese Indonesians belong to a religious minority, either Buddhism or a Christian denomination. The regime of previous president Suharto implemented a range of discriminatory measures against Chinese language, education and cultural expression. During the 1997 Asian Financial Crisis, Indonesia experienced high inflation, unemployment and bank and company collapses. At this time, riots and looting occurred, particularly targeting the Chinese-Indonesian community. Suharto resigned as president in May 1998. DFAT states that memories of the 1998 violence are still fresh in the memories of many ethnically Chinese Indonesians.[1]
[1] DFAT, ‘Country Information Report Indonesia’, 24 July 2023.
While I consider that the applicant has presented a mostly credible account of her past experiences in Indonesia, for the reasons below I find that some elements of her claims have been embellished.
Robbery/mugging incident in 2013
There were elements of the applicant’s evidence about a robbery incident in 2013 which differed between her visa application, the submissions and her evidence at hearing. These differences related to whether or not she had a knife held to her throat and, significantly, the motivation for the robbery.
·   In her visa application, the applicant described an incident she experienced in 2013 where she was out shopping and some men approached her, threatened her with a knife to her neck and took her wallet. They ran off with their motorbikes. She said she did not have any idea who those men were. She claimed that she had since read online that this happened to many women.
·   The submissions similarly claim that the applicant experienced a mugging in 2013. However, there it is stated that the robbery was carried out by a ‘native Indonesian’ that it was driven by animosity and he specifically direct hateful words relating to her ethnicity, shouting ‘Chinese die’.
·   At the hearing, the applicant described the incident in similar terms to those in the submissions. She said two people on a motorbike grabbed her bag and yelled out ‘die Chinese’. Although they approached her from the back, she said they would have known she was Chinese because in that area everyone was Chinese. She claimed she had been able to see their faces enough to see that they were native Indonesians. She claimed that when she looked back she could see one of them had a knife.
As raised with the applicant at the hearing, her written claims in the visa application suggest that these sort of attacks were being carried out against women. The written claims refer several times to criminals targeting women. They make no mention of the ethnicity of the assailants, or of the assailants making any sort of reference to the applicant’s Chinese ethnicity. When the discrepancy was raised with the applicant, she claimed she had explained these matters to the people who were helping her with the visa application. She asserted that she had been discriminated against and been called bad things relating to her ethnicity. I also asked her about her claim in the statement that a knife had been held to her neck which differed from her evidence at the hearing. She stated that she saw the knife in his hand and he did not put it to her neck. This is directly inconsistent with the written claims. While I take into account that the claims in the visa application were brief, they clearly imply that there was a gendered element to the attack and I find the omission of any reference to a racial motivation concerning. It seems that the claims have shifted since the application.
Robbery/mugging incident in 2009
The submissions refer to the applicant being targeted because of her ethnicity and mugged on the street in 2009 when on her way home from school. At the hearing, the applicant said she had stopped on her way home from school to buy lunch for her grandmother, and while she was waiting for her food, people on a motorbike came and took her wallet. She went to police but they gave a similar response to the 2013 incident and said they cannot do anything. The applicant said she believed she was targeted for this robbery because of her ethnicity, because Chinese people are always thought of as wealthy. She said only she was targeted, even though there were other people standing next to her. However, when I asked if the people who took her wallet had said anything in particular to make her think it was because of her ethnicity, she stated that they had not said anything, just laughed at her. The applicant’s suggestion that she was targeted because of her ethnicity seems no more than speculation or assumption.
Approaches to police
The applicant’s evidence about her approach to police differed between the written submissions and the hearing, specifically in relation to whether the police had made any reference to her ethnicity.
· The written submission states that the applicant visited a police station seeking assistance but encountered a discouraging response. It says that initially, the police inquired about her Chinese ethnicity and then after a brief discussion, informed the applicant that their willingness to take on the report was contingent upon being given payment. They cited her Chinese ethnicity as a reason for this request and insisted that they would only proceed with payment of a bribe, which she did not pay. She left the station without assistance. The submission claims it is highly likely police were not willing to help because she was not a fellow indigenous person.
· The visa application states that she went to police but they ‘got nothing and could not do anything’ and did not proceed with anything. The applicant made a similar claim at the hearing. She said that after the 2013 robbery, people helped her to go to the police station, that the response of the police was not that pleasant, and they said there is not a lot that could be done about it. She made no mention of police asking for payment or inquiring about or otherwise referring to her ethnicity.

I put to the applicant the difference between her evidence at hearing and in the visa application, and the claims made in the submission. She then asserted that the version in the submission was true, that if you go to the police in Indonesia they ask questions about ethnicity and that is something commonly experienced by Chinese people. When I asked why she had not told me about that earlier in the hearing when giving evidence about going to the police, she claimed she did not pay that much attention. I do not accept this explanation. While I take into account country information that there is a culture of bribery and petty corruption is common in the police service[2], I do not accept that the applicant would have omitted to mention the police asking about her ethnicity and refusing to help without payment if that had in fact occurred.
Robbery at home in 2009
[2] DFAT, ‘Country Information Report Indonesia’, 24 July 2023.
The applicant also made a claim about a further robbery that occurred in her home in 2009. In the submissions, this incident is described as a targeted robbery, where intruders specifically chose her as a victim, focusing on extorting money due to her Chinese ethnicity. It describes the perpetrators forcefully entering her house, wielding knives and taking her money and phone. It made claims about this incident having a significant impact on her psychological state and asserted that she was compelled to seek refuge in Australia as a coping mechanism. At the hearing, the applicant described an incident where she was at home with her grandmother and a person came to the door, claiming he was collecting money for a water bill. She confirmed it was usual practice in Indonesia for payment to be collected in this way. She opened the door and the person came in and showed her a bill. When she went upstairs to get money, the person followed her. She gave him the money and he left, and she then discovered that her mobile phone was missing. She claimed that she had later discovered that the same thing had happened to some of her neighbours, which made her think that he was not genuinely coming for payment of a bill. She believes it was racially motivated, because in her neighbourhood everyone is Chinese. She did not go to the police on this occasion. I asked the applicant about the claim in the submission that intruders had forcefully entered the home wielding knives. She said she did not remember the issue of a knife but that it was true they had come to the house and taken goods. It is apparent from the applicant’s evidence at the hearing that the account of this incident in the written submission is significantly exaggerated and I prefer her evidence at the hearing. Again, her assertion that she was targeted because of her ethnicity is speculation or assumption.
Other incidents of harm
I asked the applicant if, apart from the two incidents in 2009 and the mugging in 2013, she had experienced any other harm. She said that she had been harmed mentally, discriminated against, treated poorly and insulted by native born Indonesians. She clarified this to mean things like being laughed at, insulted and harassed when she walked past ethnic Indonesians. She said her elder sister had experienced similar treatment, being oral insults. She said she did not receive any sort of mental health treatment. While I accept the applicant experienced such treatment and that this may have caused her some distress, I am not satisfied that the applicant suffered or suffers from any sort of mental health condition.
When I asked the applicant’s representative if there was anything further I should ask the applicant, he said she had mentioned having difficulties obtaining official documents. Questioned about this, the applicant said she had difficulty when she wanted to get an ID card. She indicated that before she had come to Australia, she was asked for documents beyond those which needed to be provided, and to pay money for faster processing. She said she did not know what documents they had asked for because her grandmother was helping to arrange that. Her grandmother said that they did not need to bother processing it, so she had not got the card in the end. The applicant was not sure if there was a particular reason that they asked for additional documents. I asked about the consequences of not having an ID card and she said it was better to have one so that you do not have to carry your passport wherever you go. I am not satisfied on this evidence that what the applicant experienced was anything other than normal bureaucratic procedure, that there was any sort of discriminatory basis behind the request for additional documents or an extra fee for fast processing, or that her failure to obtain the ID card amounted to any harm.
The applicant also said her husband had difficulty when he wanted to extend his passport and driving licence. She claimed he had been asked to pay extra money, a type of bribe, and for documents not connected to what was needed to extend the passport. She said the passport had eventually been issued. When I asked if she thought here was any particular reason he had been asked for a bribe and extra documents, she said probably because the person arranging the passport knew he needed it as soon as possible. He had also been asked for extra money when getting his drivers licence. Later, she claimed that if a native born Indonesian needed the documents, they would get help. I am not satisfied on her evidence that there was any discriminatory basis behind the requests made of her husband, or that it was anything other than opportunistic extortion.
There are a number of incidents described in the submissions that do not obviously relate to the applicant’s circumstances. These claims were clarified at the hearing as set out below.
·   The submission refers to the applicant considering seeking refuge in neighbouring [countries] . When I asked the applicant if she had ever considered seeking protection in another country, she said for now just Australia. When I later raised with her what was in the submission, she said that when she was young her mother had taken her to [Country 2] to see how things were, and that [Country 1] does not give assistance to refugees.
·   The submission refers to her continuing to be traumatised by May 1998 riots, that she witnessed the brutal violence and had to hide at home to avoid being attacked by violent indigenous and Muslim Indonesians who went on a rampage in Jakarta. It states she wanted to leave the country but had nowhere to go. At the hearing, I asked the applicant if she had any memory of the May 1998 riots, which would have occurred when she was around [age] years old. She said she remembered there were actions outside and her grandmother would turn off the lights and tell them to be quiet. She said she was living in Medan at the time. When I raised what was in the submission, she said that the submission was correct, she had been in Medan but had seen the riots in Jakarta on television. Her representative later stated that the incident when her grandmother had to turn of the lights was in Medan, not Jakarta.
·   The submission further states that the applicant’s home was robbed during the riot, threatening to end her and her mother’s life. The applicant clarified at the hearing that she saw the unrest happening in front of the house, but it did not come into the house.
·   The submission also referred to a school bullying incident resulting in broken bones in her shoulder. The applicant confirmed that had not occurred.
The applicant’s representative acknowledged there were errors in the submission.
Delay in seeking protection
At the hearing, I raised with the applicant that, as set out in the delegate’s decision, she arrived in Australia in 2011 but did not apply for a protection visa until 2018, after she had been refused a further student visa and the Tribunal had affirmed that application in November 2017. I asked the applicant why she had waited so long, and she claimed she had not heard about protection visas when she arrived in 2011, that it was only after 2018 that she heard about them. I find it difficult to accept that the applicant had not heard about protection visas for a period of over six years in Australia, or that she could not have made inquiries about them earlier if she truly feared harm as claimed. As I put to the applicant, the delay in seeking protection, along with her having returned to Indonesia during that time, could suggest that she did not really have a fear of harm there. The application responded that she had gone back to visit her grandmother.
Conclusions on past events
Considering the evidence as a whole, I have reached the view that some of the claims at the hearing and particularly those in the submission have been exaggerated. I am willing to accept that the applicant was mugged in 2009 and again in 2013, and that a person came into her home and took money and her phone under the pretence of collecting payment for a bill in 2009. While the applicant claims one of the assailants in the 2013 incident had a knife, her evidence about this was inconsistent and I am not satisfied that was the case. The applicant’s evidence was that the only physical harm she experienced was grazes on her knees from falling as her bag was pulled. I do not accept that these incidents involved any sort of violent attack on her. Although I take into account that the claims in the visa application are brief and were written without qualified legal or migration assistance, I find the omission of any reference to the applicant believing she had been harmed or fearing future harm because of her ethnicity concerning. The written claims clearly imply that she believed attacks were targeted at women. I do not accept that the applicant would have omitted to mention that the incident was racially motivated if it were true that the assailants had called out a racial slur. Similarly, I do not accept that the applicant would have failed to mention the police having asked about her ethnicity or requested payment for that reason in both the visa application and her initial evidence at hearing, if that had in fact occurred. I am not satisfied on the applicant’s evidence about the 2009 mugging incident or the theft from her home that there was a racial motivation for either of these things. Rather, I find that they are random, opportunistic criminal incidents. I do not accept any of these incidents were motivated by her ethnicity or gender or that the police requested a bribe or failed to assist her for that reason.
Given the country information set out below, I am willing to accept that the applicant has experienced verbal insults and harassment in the past. I am willing to accept that the applicant has some recollection of staying in her home during unrest in 1998, but I find the claims in the submission about her having witnessed the violence and having been robbed and threatened either errors or exaggeration, as is the claim about her suffering broken bones from a bullying incident. I am not satisfied on her evidence that any difficulty experienced by the applicant or her husband in obtaining documents, or requests to pay bribes, were related to their Chinese ethnicity.
Real chance or risk of harm
The applicant claims that she fears harm in the future for herself and her daughter similar to that she says she experienced in the past, such as being discriminated against, harassed, threatened, mugged and robbed. I asked the applicant what sort of harm she feared in the future because of claimed problems with getting documents and she said financial harm, and wasting time by getting documents.
The submissions assert that the applicant fears losing her fundamental human rights. It states that she fears harm on account of her particular social group consisting of her Chinese ethnicity and being Christian. However, neither the applicant nor the representative raised any incidents or fear of harm relating to her religion at the hearing; they were all framed in terms of her ethnicity. The submission goes on to assert that the ‘most significant’ claim is the failure of the Indonesian authorities to provide adequate protection to individuals of Chinese descent. The submission refers to the applicant fearing discrimination and to Chinese Indonesians facing discrimination including legal actions based on blasphemy. It claims that many Chinese Indonesians are targeted by native Indonesians, with force and threats, vandalism and extortion impacting business. It makes a number of statements regarding the treatment of Chinese Indonesians and their inability to obtain protection. No citation or further information is provided to support these assertions. The submissions make argument that there is a real chance of the applicant experiencing serious harm, and a real risk of her suffering significant harm. They argue that the applicant cannot relocate to another area or obtain protection from authorities.
At the hearing I discussed country information with the applicant that could suggest that any harm or discrimination she may experience would be low level and would not satisfy the criteria for the visa. 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. Chinese New Year is a national public holiday, Confucianism is an officially recognised religion, Chinese-language newspapers are published, and there are no barriers to Chinese cultural celebrations or education.[3] There were violent protests in Jakarta in 2016 demanding the detention of the Chinese Indonesian governor after he was arrested for allegedly insulting Islam. However, this involved violence between police and protesters, rather than against ordinary citizens.[4]
[3] DFAT, ‘Country Information Report Indonesia’, 24 July 2023.
[4] DFAT, ‘Country Information Report Indonesia’, 24 July 2023.
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, consistently with the applicant’s claims, Chinese Indonesians experience societal discrimination in the form of negative stereotypes that portray them as greedy, as criminals or as being associated with China and its policies. In DFAT’s assessment, risk of societal discrimination against Chinese Indonesians depends on individual circumstances. Those with wealth are less affected and better able to protect themselves. Many Chinese Indonesians work in family businesses or within their own ethnic community, which reduces the chances of discrimination at work. Those without such networks or wealth would be more at risk of discrimination, but that applies to all Indonesians, not just Chinese Indonesians. Some jealousy of perceived wealth can lead to threats and some Chinese Indonesians keep a low profile as a result. Anti-minority sentiment is also heightened during election campaigns. DFAT states that violence has occurred in the past but is not an everyday experience for Chinese Indonesians.[5]
[5] DFAT, ‘Country Information Report Indonesia’, 24 July 2023.
Overall, DFAT assesses that Chinese Indonesians currently face a low risk of societal violence and a moderate risk of low-level societal discrimination. DFAT is not aware of official discrimination against Chinese Indonesians.[6]
[6] DFAT, ‘Country Information Report Indonesia’, 24 July 2023.
Regarding crime, DFAT reports that crime is a persistent threat and some areas experience street crime, but Indonesia is generally safe. While DFAT indicates that police and other officials may request bribes, it does not suggest there is any sort of racial element to that behaviour. [7]
[7] DFAT, ‘Country Information Report Indonesia’, 24 July 2023.
I note information that Indonesian presidential elections held in February 2024 were won by Prabowo Subianto, a former military general who has been accused of past human rights breaches. He succeeds and was endorsed by outgoing President Joko “Jokowi” Widodo, whose son was Prabowo’s running mate.[8] The submissions argues that Prabowo allegedly had a role in inciting the 1998 riots in order to shift public dissent away from Soharto, and states that with his controversial human rights record and ascent to a prominent leadership role, Chinese Indonesians fear future persecution. The submission cites an article written in May 2023 arguing that the country’s political elite are not above exploiting prejudice against the Chinese minority to score political points and predicting that such sentiment may be used in upcoming election campaigns, and referencing backlash in 2017 against a rising Indonesian Chinese politician who was charged with blasphemy.[9] The submission makes arguments that the applicant’s fears are enhanced by the outcome of the elections in Indonesia, arguing that an anti-Chinese president or political forces might resort to discriminatory measures leading to marginalisation and persecution of the Chinese community. The applicant asserted at the hearing that her human rights will be further threatened with Prabowo becoming president.
[8] Han Yong Hong, ‘What Prabowo’s victory could mean for Indonesia-China relations’, Think China, 16 Feb 2024, Johannes Nugroho, ‘The danger of anti-Chinese sentiment in Indonesia’s election campaign’, The Interpreter, Lowy Institute, 22 May 2023, >
DFAT’s assessment about the treatment of Indonesians of Chinese ethnicity was made prior to these recent elections. I take into account information that during a 2019 election campaign, Prabowo had at one point criticised Jokowi on an anti-Chinese narrative but note that, as discussed at the hearing, that same article refers to more recent indications of Prabowo indicating respect for China, at least in terms of foreign relations.[10] As I raised with the representative at the hearing, there are no citations to support many of the assertions in the submissions. Beyond an article speculating about possible use of anti-Chinese sentiment during an election campaign, the submission does not refer to any recent or specific information about the use of anti-Chinese rhetoric or policies during the election campaign or afterwards, and nor has the applicant provided any other information to support her assertion that Probowo would encourage or implement discrimination or harm against ethnic Chinese Indonesians. I am not satisfied on the evidence that the election of Probowo will lead to any substantive deterioration of the situation for Chinese Indonesians in the reasonably foreseeable future.
[10] Han Yong Hong, ‘What Prabowo’s victory could mean for Indonesia-China relations’, Think China, 16 Feb 2024, >
The criteria for the visa requires a real chance of serious harm to satisfy the refugee criterion or, alternatively, a real risk of significant harm to satisfy the complementary protection criterion. The Federal Court has held that ‘real risk’ imposes the same standard as the ‘real chance’ test.[11] For the purpose of the refugee criterion and s 5J, 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.
[11] MIAC v SZQRB (2013) 210 FCR 505.

‘Significant harm’ for the purpose of the complementary protection criterion in s 36(2)(aa) is exhaustively defined by s 36(2A) to include arbitrary deprivation of life, the death penalty being carried out, or being subjected to torture, 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. Treatment that would meet these definitions involves an act or omission that intentionally inflicts ‘severe’ physical or mental pain or suffering, an act or omission that could reasonably be regarded as cruel or inhuman in nature that intentionally inflicts pain or suffering, or an act or omission that intentionally causes extreme humiliation which is unreasonable.
I raised with the applicant the possibility that the type of treatment she has and may again experience may not amount to serious or significant harm. She referred to the incidents she experienced having made her afraid for her and her child’s safety, and afraid to return to Indonesia. On the applicant’s evidence, she experienced three incidents of criminal theft in Indonesia. I accept that these events would understandably have caused her distress and been very frightening, particularly considering her young age at the time. On her evidence these events did not involve violence, although she said she fell during the 2013 incident, suffering cuts or grazes as a result. She was not physically harmed in the other incidents. Beyond this, the harm she has experienced has been limited to verbal insults and harassment and, she claims, administrative hurdles in obtaining documents and requests for payment. While the applicant referred to psychological harm and I accept she has experienced some distress from her past experiences, she has not sought treatment of any sort nor indicated she intends to in the future and I have not accepted that she has any sort of mental health condition.
While I take into account the assertions in the submission, I prefer DFAT’s assessment that Indonesia is generally safe, and that Chinese Indonesians face societal discrimination but only a low risk of societal violence and do not face official discrimination. Having regard to the applicant’s past experiences and the information from DFAT, I accept that the applicant and her daughter may in the future experience the kind of low level discrimination and verbal harassment the applicant mother did in the past. I cannot rule out that they may experience opportunistic muggings or robbery, but I am not satisfied there is a real risk of the applicants experiencing violent crime. I accept on the country information that police or other officials may request bribes or that the applicants may at times experience administrative hurdles in obtaining documents, but I am not satisfied that officials would be unwilling to assist them, or that this treatment would be due to the applicants’ ethnicity. Considering the country information and the applicant’s own past experiences, I am not satisfied there is a real chance of the applicant or her daughter experiencing discrimination, occasional incidents of theft, harassment, insults, psychological harm, requests for bribes, administrative hurdles or any other harm to an extent that would reach the threshold of serious harm, even taken cumulatively.
I am similarly not satisfied that there is a real risk of the applicants experiencing treatment that would, individually or cumulatively, involve the type of pain, suffering or humiliation described in the definitions of torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment, nor that would otherwise meet the definition of significant harm in s.36(2A).
I am not satisfied that there is a real chance of the applicants suffering serious harm amounting to persecution in the reasonably foreseeable future for any reason. The applicants do not have a well-founded fear of persecution within the meaning of s 5J.
I am further not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of either applicant being removed from Australia to Indonesia, there is a real risk that either applicant will suffer significant harm.
For the reasons given above, the Tribunal is not satisfied that either applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a). Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that either applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
The Tribunal is not satisfied that either 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.
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 2429

26 March 2024

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