1816278 (Refugee)

1816278 (Refugee) [2024] AATA 2170 (20 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1816278

COUNTRY OF REFERENCE: Indonesia
MEMBER:Jessica McLeod
DATE:20 March 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 March 2024 at 11.36am

CATCHWORDS
REFUGEE – protection visa – Indonesia – economic conditions – employment – financial hardship – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is a review of a decision on a protection visa application.
The applicant is a citizen of Indonesia who arrived in Australia [in] March 2017. He applied for the protection visa on 22 November 2017 and on 30 May 2018, a delegate of the Minister for Home Affairs refused to grant the visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant lodged an application for a review of that decision with the Tribunal on 4 June 2018. On 27 February 2024, he appeared before the Tribunal to give evidence and present arguments in a hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue to be determined in this case is whether the applicant is a refugee, meaning he has a well-founded fear of being persecuted in Indonesia for one or more of the five reasons set out in s 5J and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to Indonesia, there is a real risk he will suffer significant harm.
In his protection visa application lodged in November 2017, the applicant claimed to be a citizen of Indonesia, from Ponorogo. He referred to the worsening Indonesian economy and rising cost of living against the background of population growth, and to the issue of employability. He claimed that he could not find a job that fit his skills and qualifications, or with enough pay to support his life. He indicated that he had not experienced harm in Indonesia, nor did he think he would be harmed or mistreated on return.
At the Tribunal hearing on 27 February 2024, the applicant reiterated the claims raised in his protection visa application form. He also provided further detail about his background and personal circumstances.
I find that the applicant has given a truthful and unembellished account of his background and circumstances, the reasons he came to Australia and his concerns about returning. I find that his evidence has been credible in all respects.
I accept the applicant has lived most of his life in Ponorogo, working as a farmer on his family’s small farm, and as a labourer on other people’s farms. For a while he worked as [an occupation 1] in Kalimantan and in Borneo but he earned little in those roles. In Australia he has been working on farms.
I accept he lived in Ponorogo with his wife and child. He has been supporting his parents who are not in good health. His mother needs to visit the hospital monthly; this is why he returned from his Kalimantan job, to look after her. Now that he is in Australia, his [brother] takes his mother to the clinic. His brother does not work as he has struggled to find a job. They do have some family outside of Java, in Kalimantan, but they have little contact, usually just speaking around the end of Ramadan.
I accept that the applicant came to Australia because the cost of living was very high and he was finding it difficult to get work. It was very difficult as he was supporting his wife and child, his parents and [brother]. He borrowed the money to come to Australia from a relative, and has since repaid this loan.
I accept that around two years after he came to Australia, he and his wife divorced. She has a new boyfriend.
I accept as the applicant confirmed during the hearing, that he fears returning now because of his financial responsibilities supporting his family members. His ex-wife does not want to look after their son, who is now [age] years old and entering university. His parents are too old or unwell to work. His mother’s medical condition requires her to get treatment and his [brother] has found it difficult to get work.
I accept the applicant’s fears as to his economic hardship and the financial responsibilities he is worried about meeting for his family members. I acknowledged this to the applicant directly, at the hearing. I advised that I believed he has been truthful with the Tribunal.
However, I explained to him the purpose of the protection visa and that it is intended to protect people who might be harmed. He said he did not know that. When asked what he had thought the visa was intended for, he said he had applied for a business visa because he had difficulty finding work in Indonesia.
I put to him that it seems as though his hardship arises from the economic and employment situation affecting everyone in Indonesia and that it doesn’t appear he would be denied any particular opportunity that might be afforded to somebody else. He agreed.
When asked if there was a particular reason he had missed out on certain jobs in Indonesia, or if it were due to an employment situation which affects a lot of people, he responded “[I]t affects everyone”. When asked if he had ever experienced discrimination or felt he had been disadvantaged compared to anyone else in Indonesia, he said “[N]o”.
When asked if there were any other reasons he could not return to Indonesia, he said “[N]o”. When asked if he had any concerns for his personal safety if he went back, he said there will not be enough money to support his child and his other family members.
I raised with the applicant that he does not appear to be fearing harm for reasons of his race, religion, nationality, membership of a particular social group or political opinion for the purposes of the refugee assessment. He said he does not disagree, but he wants more time in Australia to support his family. When he goes back, he will have no wife and he will still have to look after his son and his son’s education.
I discussed with the applicant the concept of serious harm with him and explained that, although examples of serious harm in the Act include significant economic hardship and denial of capacity to earn a livelihood or access basic services, the degree of seriousness would need to be such that it threatens his capacity to subsist. I put to him that it did not appear as though he would face harm amounting to serious harm, nor harm that would amount to significant harm for the purposes of complementary protection.
I explained that in the circumstances, I might not be able to find that he meets the refugee or complementary protection criteria. He made no further comment.
When asked if he had anything else to say, the applicant declined. When asked if he considered there was anything I might had missed or misunderstood about his situation, he said confirmed there was not. When offered a break to reflect for a while outside of the hearing room and talking again, the applicant declined. When asked if he wanted more time to provide further information after the hearing, the applicant declined.
FINDINGS
I have found the applicant’s claims to be credible. However, for the reasons that follow, I find he does not meet the refugee or complementary protection criteria:
On the applicant’s own evidence, he came to Australia purely for economic reasons. He confirmed in his protection visa application and at the hearing that he has not been harmed in Indonesia before, and but for difficulties finding suitable work, he does not think he would be harmed or mistreated on return. He confirmed at the hearing that he has not previously faced discriminatory treatment and he agreed that his difficulties finding work arises from the economic and employment situation affecting everyone in Indonesia and he does not think would be denied any particular opportunity for any reason.
While I accept his responsibilities weigh heavily on him and he will continue to face financial hardship upon return, I give weight to the fact that he was previously able to sustain a living and while he now has university related costs weighing on his mind, he does not claim to be still needing to support his wife. And while he was unable to work away from home in the past (he had to return from Kalimantan to assist his parents), while the applicant has been in Australia, his brother has been assisting with the care of their parents. On the applicant’s return, there may opportunity for him to work elsewhere internally in Indonesia while his brother continues that role, or for them to share the load with the parents and both work. The applicant confirmed at the hearing that his parents own their home (or that it is his ‘mother’s house’) and there is nothing to suggest he could not return and reside with his parents, at least initially while he resettles and finds work. He is experienced in [occupation 1], labouring and doing farming work and I am not satisfied the applicant will be unable to find work and earn a living to support himself, his son, his parents and his [brother] (and contribute to his wife, if that is required).
I am not satisfied that any difficulties he might face in getting work, or any other difficulties he might face financially, arise from a reason mentioned in s 5J(1)(a). Nor am I satisfied any such difficulties would be the result of discriminatory conduct or intentional acts or omissions. Nor am I satisfied that such difficulties or challenges would themselves amount to, or otherwise lead to, a real chance of the applicant facing any harm that would amount to serious harm.
I find that the applicant does not meet the criteria in s 5J(1)(a) of the Act. Nor does he meet the criteria in s.5J(4)(a), (b) or (c) of the Act. I find that he does not have a well-founded fear of persecution, he is not a refugee under s 5H(1) and therefore does not meet s 36(2)(a).
As for complementary protection, I find that the applicant does not face a real risk of facing the death penalty or being arbitrarily of his life or being tortured. Nor does he face a real risk of being subject to any intentional acts or omissions that would result in his suffering cruel or inhuman treatment or punishment or degrading treatment or punishment. I am not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk of him suffering any harm that would amount to significant harm.
Further, the risk of harm to the applicant arising out of the state of the Indonesian economy is one faced by the population of Indonesia generally, rather than by the applicant personally. In such circumstances, s 36(2B)(c) has the effect that there is taken not to be a real risk the applicant will suffer significant harm.
There are not substantial grounds for believing that there is a real risk the applicant would suffer significant harm as a necessary and foreseeable consequence of being removed to Indonesia. Accordingly, I find that the applicant does not meet s 36(2)(aa).
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Jessica McLeod
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 2170

20 March 2024

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Immigration

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