1816178 (Refugee)

This matter concerned an application for protection visas by an Indonesian mother and her Australian-born daughter. The applicants claimed they feared harm if returned to Indonesia due to the mother's experiences of criminal activity and racial discrimination as an ethnic Chinese Christian. The delegate refused to grant the visas, finding that Australia did not have protection obligations towards the applicants.

The primary legal issues before the Tribunal were whether the applicants met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth) as refugees, or alternatively, under section 36(2)(aa) as persons facing a real risk of significant harm if returned to Indonesia. This required the Tribunal to assess whether the applicants had a well-founded fear of persecution for reasons of race, religion, nationality, or membership of a particular social group, or whether there were substantial grounds for believing they would suffer significant harm.

The Tribunal considered the applicant's evidence of past incidents, including theft and verbal harassment, and submissions regarding the potential impact of the recent Indonesian presidential election on ethnic Chinese Indonesians. However, the Tribunal found that the applicant's past experiences, while distressing, did not amount to serious harm as defined by the Act. The Tribunal also noted a lack of specific evidence to support the assertion that the election of the new president would lead to a substantive deterioration of the situation for ethnic Chinese Indonesians in the foreseeable future. Applying the legal standards for "real chance" and "real risk" of serious or significant harm, the Tribunal was not satisfied that the applicants had a well-founded fear of persecution or faced a real risk of significant harm.

Consequently, the Tribunal affirmed the delegate's decision not to grant the protection visas, finding that Australia did not have protection obligations towards the applicants under either section 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth).