1816720 (Refugee)

[2024] AATA 2462

1816720 (Refugee) [2024] AATA 2462 (4 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Malintha Prakash De Mel

CASE NUMBER:  1816720

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Jennifer Ermert

DATE:4 April 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 April 2024 at 11:44am

CATCHWORDS
REFUGEE – protection visa – Indonesia – leader of Catholic youth group – clashes with local Muslim groups – application prepared by agent and claims untrue – new claims of Chinese ethnicity and Catholic religion – discrimination in community, education and employment – neglected and beaten by single mother – de facto adopted by neighbouring family – adopted sister’s extra-marital affair – applicant and brother-in-law confronted boyfriend and brother-in-law attacked him – boyfriend’s complaint to police and applicant’s payment of bribe to avoid jail – passage of time and sister and boyfriend now married – country information – societal discrimination not to level of serious harm – decision under review affirmed

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

CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
Guo v MIEA (1996) 64 FCR 151
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347

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 5 June 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of Indonesia, applied for the visa on 6 October 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as he did not meet any of the criteria in s 36(2).

3. The applicant appeared before the Tribunal on 19 March 2024 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.  The applicant was represented in relation to the review by Mr Malintha De Mel, who also attended the hearing.

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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.

5. 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

1. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether or not the applicant is a person in respect of whom Australia has protection obligations under s 36(2) because he is either a refugee or a person who engages complementary protection obligations, or because he is a member of the same family unit of such as person and that person holds a protection visa of the same class as that applied for by the applicant. 

Identity and country of nationality

1. The applicant claims to be a citizen of Indonesia. He provided a certified copy of the biodata page of his Indonesian passport to the Department. In the absence of evidence that the identity document provided was a bogus document within the meaning of s 5(1) of the Act, the Department accepted the applicant is a national of Indonesia and has considered and assessed the applicant’s protection claims against Indonesia in relation to s 36(2)(a) and s 36(2)(aa) of the Act.

2. The Tribunal has considered the identity document on the applicant’s departmental file. The Tribunal has also had regard to the original of the applicant’s Indonesian passport sighted at the hearing, and in respect of which a scanned copy was provided to the Tribunal. The Tribunal is satisfied that the applicant is a citizen of Indonesia in the absence of contrary evidence. The Tribunal therefore finds Indonesia is the applicant’s country of nationality for the purposes of s 36(2)(a) and s 36(2)(aa) of the Act.

Immigration history and protection claims

1. The applicant arrived in Australia [in] September 2017 on a Class FA Subclass 600 Visitor Visa, and has not departed since.  On 6 October 2017, the applicant lodged his application for the grant of a protection visa.

2. The applicant’s original claims as articulated in his protection visa application were that he was the leader of a Catholic youth group in his district, which frequently conducted activities such as retreat to reach other youths. This led to clashes with local Muslim groups including the Islamic Defenders’ Front (‘FPI’), which accused the Catholic youth group of attempting to covert Muslims to Catholics. The FPI invited the applicant and a couple of his friends to a meeting where they were allegedly attacked and forced to sign a paper agreeing never to engage in religious activities again. The applicant claimed the FPI made a video recording of him and his friends naked and then blackmailed them to pay money if they did not want the video to be published. The applicant claimed that thereafter, the FPI constantly demanded money and if he and his friends did not pay, they were beaten.  After living in fear for a couple of months the applicant decided to flee Indonesia.

3. In pre-hearing submissions made on 15 March 2024 by way of a statutory declaration, the applicant claimed (in summary):

   ·The information given in his protection visa application was incorrect.

   ·He engaged a [Mr A] who he felt a sense of affinity with due to their shared Chinese Christian background to act as his migration agent and paid him $1,000 to handle his protection visa application. 

   ·However, he now suspects [Mr A] was not a legitimate migration agent, and that [Mr A] did not include relevant claims in his protection visa application.

   ·He has been trying to contact [Mr A] without success.

   ·His protection claims in relation to Indonesia are based on his Chinese ethnicity and his religion as a Catholic.

   ·He has endured constant racial discrimination since childhood which affected his self-esteem and made him feel like an outsider in his own country, such as being excluded from the Takbiran parade for being ethnically Chinese.

   ·He also felt unsafe and misunderstood as a Catholic in Indonesia, where his beliefs and practices were viewed by some as heretical and were ridiculed.

   ·He also fears repercussions from his previous interference in his sister’s extra-marital affair, where physical altercation with his sister’s boyfriend led to a police complaint against him.

4. The applicant’s pre-hearing submissions are accompanied by supporting photographs.

Evidence at hearing

1. The applicant confirmed at hearing that the claims made in his protection visa application with respect to physical attack and blackmail from local FPI members were untrue and were made up by [Mr A].  

2. The applicant confirmed he is a Chinese-Indonesian and a practising Catholic. He gave evidence that he was born to a single mother, who neglected him and frequently beat him as a child.  He gave evidence that he spent most of his time living with his Chinese Christian neighbours, who looked after him and became his de facto/adopted family.

3. Since high school, the applicant would help out after school at his adopted mother’s [business] (which, among other things, installed [products]).  He did [a job task] but was not really that interested in the running of the business.  The applicant entered university after completing high school, but dropped out after only a year following the death of his adopted mother.

4. In 2017, the applicant’s adopted mother became seriously ill due to cancer. During this time, the applicant became suspicious of his adopted sister who, instead of spending time looking after his seriously ill adopted mother or spending time with her family, was frequently absent. With a GPS device he secretly installed in his adopted sister’s car, he tracked and discovered that his adopted sister was having an extra-marital affair with a supplier’s marketing/sales representative who frequently stopped by the [business], and who the applicant had seen flirting and interacting with his adopted sister in a way that seemed unnaturally familiar.

5. Angry with his adopted sister and believing that she should not be engaging in conduct that threatened the unity of the family at a time when his adopted mother was so ill, the applicant decided to tell his (now former) brother-in-law about the affair. Together they went to the boyfriend’s house and warned him to stay away from the adopted sister. However, the affair continued.

6. Fearing news of his adopted sister’s infidelity could exacerbate his adopted mother’s health condition, the applicant told his adopted father about the affair in the hope that he would be able to exert pressure on his adopted sister to end it.  He also visited the boyfriend with his former brother-in-law a couple more times in an attempt to persuade the boyfriend to end the affair, to no avail. On the third visit, his former brother-in-law got so frustrated that he physically attacked the boyfriend. When the Tribunal asked if he was also involved in the attack, the applicant said ‘no’ and said that he tried to break up the boyfriend and his former brother-in-law.

7. The altercation led to an angry confrontation the next day from his adopted sister, who demanded that the applicant stay out of her business.  The applicant claimed her adopted sister’s reaction greatly disappointed him because he just wanted their family to stay whole. The applicant claimed his adopted mother’s conditions worsened after she heard news of the adopted sister’s affair, and she passed away not long after.

8. The applicant claimed that the boyfriend lodged a police complaint for the physical altercation, which resulted in him and his former brother-in-law being summoned to the police station. The applicant claimed that they had to pay a bribe to avoid going to jail. When the Tribunal asked why he would go to jail given it was his former brother-in-law rather than him who had attacked the boyfriend, the applicant claimed the boyfriend had connections and that in Indonesia, if you had connections you could ‘buy the law’. The applicant claimed his adopted sister’s anger towards him (for ruining her reputation) and the involvement of the police made him feel unsafe, and he started to focus on finding ways to get away.

9. The Tribunal asked the applicant if he has had any contact with his adopted family since coming to Australia. The applicant responded he has not been in contact with his adopted family after their relationship soured because of the adopted sister’s affair. The only contact he has had with them was a communication from his adopted sister Christmas two years ago to inform him of the death of his adopted father.

10. The Tribunal asked the applicant why he fears returning to Indonesia and what he believes would happen if he returned.  The applicant claimed the boyfriend, who has since married his adopted sister and had a child with her, might seek revenge for the physical altercation or for ruining his adopted sister’s reputation by exposing the affair.  The applicant claimed that because the boyfriend and his adopted sister know he is working in Australia and has some money, they might try to extort him.  The Tribunal asked the applicant whether he could avoid this by not letting the boyfriend and the adopted sister know about his return to Indonesia and/or relocating, to which the applicant responded that the boyfriend’s connections, which have become stronger since he joined the family business (which is now his adopted sister’s following the passing of both of his adopted parents), would enable the boyfriend to find him.

11. The applicant also claimed fear of returning to Indonesia because of his Chinese ethnicity and his religion as a Christian. In addition to being excluded from the Takbiran parade as a child, he had to pay more money than native Indonesian students to enter a public university. He had more difficulty than his native Indonesian (and Muslim) friend in getting employment.  He was also frequently mocked for being a Chinese-Indonesian, although he has not otherwise experienced any harm.  The applicant believes the mocking would resume if he returned to Indonesia because Indonesians don’t like people of Chinese background. He also fears becoming the victim of bomb attacks on churches, and claimed that the risk of something like this occurring would make him feel unsafe to practise his religion.

12. The Tribunal put to the applicant that it was having some difficulty accepting that the applicant would be subjected to targeted harm from the boyfriend upon return, given the exposure of the extra-marital affair with his adopted sister and the subsequent physical altercation happened a long time ago (almost 7 years).  The Tribunal also put to the applicant country information from the 24 July 2023 DFAT Country Information Report which indicates that since the end of the ‘New Order’ regime in 1998, successive governments have removed official policy measures discriminating against Chinese-Indonesians.  Although some societal discrimination and racial stereotypes remain, the situation for Chinese-Indonesians is generally safe. The same report also indicates that Christians are generally able to practise their faith freely; localised discrimination is possible especially for Christians living in areas dominated by conservative Muslims, but the risk is low.  

13. In response to the Tribunal’s invitation to comment on the issue and country information the Tribunal raised, the applicant stated he still does not want to go back to Indonesia because he does not have a family there anymore and he does not feel safe.

14. In addition to the oral evidence given at the hearing, the applicant has provided a statement from his cousin [Ms A] in support of the applicant not returning to Indonesia because it is in his best interests due to the problem he has with his adopted sister. 

REASONS FOR THE TRIBUNAL’S DECISION

1. For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed because the applicant does not meet any of the criteria in s 36(2) for the grant of a protection visa.

Credibility of the applicant’s evidence

1. The first step in determining whether the applicant is eligible for the grant of a protection visa is to determine the credibility of his claims. The Tribunal is aware of the importance of adopting a reasonable approach in making credibility findings. In Guo v MIEA (1996) 64 FCR 151, the Full Court of the Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary comments made by Foster J at [94]:

   “care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.”

2. The Tribunal also notes the United Nations Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 1992) states at paragraph [196] that “…if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.”

3. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make a finding with confidence it must proceed to assess the claim on the basis that it might possibly be true: MIMA v Rajalingam (1999) 93 FCR 220.

4. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out: Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA & Another (1994) 34 ALD 347 at [348] per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

5. The Tribunal accepts the applicant’s explanation that the claims in the protection visa application were not his.  The Tribunal accepts that the purported migration agent [Mr A] accepted money from the applicant to help him make a protection visa application, but he made up the claims contained therein without consulting with the applicant.  Accordingly, the Tribunal disregards and does not give any weight to the claims in the protection visa application. 

6. As the Tribunal accepts the applicant’s explanation for the late inclusion of the claims and evidence he now relies on, the Tribunal finds that s 423A of the Act, which requires the Tribunal to draw an unfavourable credibility inference to claims and evidence not raised or presented before the primary decision was made if there is not a reasonable explanation, does not apply in this case.  The Tribunal will base this review on the applicant’s pre-hearing submissions and oral evidence at the hearing, which the Tribunal has assessed to be credible overall. 

1. Having considered the applicant’s claims and evidence, the Tribunal accepts he was neglected as a child by his biological mother and that he grew up under the care of his neighbours who became his de facto/adopted family. The Tribunal accepts the applicant was angry with his adopted sister after he discovered her extra-marital affair, especially as the affair occurred while his adopted mother, who the Tribunal got the impression the applicant was particularly close to, battled cancer.  The Tribunal accepts the applicant attempted to end his adopted sister’s affair by telling his former brother-in-law and visiting the boyfriend with his former brother-in-law.  The Tribunal accepts the discussions with the boyfriend did not achieve the desired outcome of bringing about the termination of the affair, and that the third visit ended in physical altercation between his former brother-in-law and the boyfriend. The Tribunal accepts the boyfriend made a police complaint against the applicant and his former brother-in-law, which they settled by bribing the police.

2. The Tribunal accepts the applicant has had no contact with his adopted family since he departed Indonesia due to the souring of his relationship with his adopted family following the commotion with respect to his adopted sister’s extra-marital affair and following the death of his adopted mother, except for the communication he received two years ago regarding his adopted father’s death.  The Tribunal also accepts the applicant is a Chinese-Indonesian and for that reason, he was excluded from the Takbiran parade as a child, he had to pay more money for his entrance into a public university, and he faced greater job barrier than his Muslim and native Indonesian friend. The Tribunal accepts the applicant experienced race-based mocking throughout his life.

Assessment of refugee status

1. To be eligible for the grant of a protection visa on the basis of satisfying the refugee criterion in s 36(2)(a), the applicant must show he has a well-founded fear of persecution in Indonesia, and owing to that fear, is unable or unwilling to avail himself of the protection of Indonesia. This requires an assessment of whether there is a real chance that the applicant would be persecuted because of his race, religion, nationality, membership of a particular social group or political opinion.

2. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.

3. Although the Tribunal accepts the overall credibility of the applicant’s claims and evidence with respect to his background and the events leading up to his departure from Indonesia, the Tribunal does not accept they demonstrate there is a real chance that the applicant would suffer serious harm if he returned to Indonesia. 

Claimed harm from adopted sister and boyfriend

1. The Tribunal does not accept the applicant’s claim that he would be the subject of revenge attack from his adopted sister and/or her current husband (the boyfriend), or that he would be extorted for money by them. 

2. As the Tribunal raised with the applicant during the hearing, the exposure by him of his adopted sister’s extra-marital affair with the boyfriend occurred almost 7 years ago.  The affair has since ‘ended happily’ with their marriage and the birth of a child.  There is no reason for the Tribunal to believe that his adopted sister and/or the boyfriend harbour an ongoing grudge against the applicant over what happened.  Indeed, the fact that the applicant’s adopted sister reached out to him two years ago to inform him of the passing of his adopted father suggests that his adopted sister has already let go of any anger she felt towards him for meddling in her personal relationship previously.  

3. Insofar as the applicant’s claimed fear of financial extortion by his adopted sister and/or the boyfriend is concerned, the Tribunal finds this to be a mere speculation that is not supported by any probative material or evidence, and rejects it accordingly.

4. Even if the Tribunal was wrong in its finding about the adopted sister and/or the boyfriend’s lack of motivation to harm him, the Tribunal considers it is both possible and reasonable for the applicant to relocate to another part of Indonesia to avoid the harm.  The applicant is a [Age] year old man in the prime of his life. He has demonstrated through his settlement in Australia that he is capable of finding employment and housing to support himself.  To the extent that the applicant claimed the boyfriend’s connections have grown since he married the applicant’s adopted sister and joined the family business so that he would be able to find the applicant even if the applicant relocated, the Tribunal does not accept this to be likely, given Indonesia is a large country with a population of more than 275 million people. 

5. For the reasons discussed, the Tribunal finds there is not a real chance that the applicant would be harmed by his adopted sister and/or the boyfriend should he return to Indonesia, now or in the reasonably foreseeable future.  The Tribunal has also had regard to the statement made by the applicant’s cousin in support of the applicant not returning to Indonesia, but finds that it does not bear on nor change the Tribunal’s finding. 

Claim of race-based harm

1. As already discussed, the Tribunal accepts the applicant’s claims that as a Chinese-Indonesian, he was excluded from the Takbiran parade as a child, he had to pay more money for entrance into a public university, and he faced greater job barrier than his native Indonesian and Muslim friend. The Tribunal also accepts the applicant experienced race-based mocking throughout his life. 

2. However, as unpleasant as these discriminatory treatments the applicant experienced were, they were not so severe as to constitute serious harm.  Further, as the Tribunal indicated to the applicant at the hearing, available country information suggests that the situation for Chinese-Indonesians in Indonesia is generally safe at the present time.  In its Country Information Report for Indonesia dated 24 July 2023, DFAT reported that:

   “The Suharto-era New Order regime implemented a range of discriminatory measures, prohibiting Chinese language newspapers, schools and cultural expression and requiring Indonesian names. Violence and looting targeting Chinese Indonesians and their homes and businesses peaked during the Asian Financial Crisis. Since the end of the New Order regime in 1998, successive governments have removed official policy measures discriminating against ethnically Chinese Indonesians. 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.

   Hundreds of thousands of protesters demonstrated in Jakarta on several occasions in 2016 to demand the detention of the Christian and Chinese-Indonesian Governor of Jakarta, Basuki Tjahaja Purnama (often referred to as ‘Ahok’), after he was arrested for allegedly insulting Islam. Violence between protesters and police was reported, but not violence against ordinary citizens, as occurred in 1998.

   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. Discrimination of this type increased around the outbreak of the COVID-19 pandemic due to the extensive media coverage of China and various claims about the origins of the virus at the time.

   Risk of societal discrimination against Chinese Indonesians depends on individual circumstances. Individuals with wealth are less affected; they can use their wealth and connections with powerful people 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.

   Memories of the 1998 violence and 2016 protests are still fresh in the memories of many ethnically 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. Violence has occurred in the past but is not an everyday experience for Chinese Indonesians.”[1]

   [1] Department of Foreign Affairs and Trade Country Information Report – Indonesia, 24 July 2023, pg. 11-12, [3.7] – [3.11].

3. Based on the applicant’s previous experience and having regard to the above country information, the Tribunal accepts the applicant’s claim that the mocking and casual racism he previously experienced is likely to resume upon his return to Indonesia.  However, there is nothing to suggest that the mocking and racism would be so severe that it would rise to the level of serious harm.  Therefore, the Tribunal finds there is not a real chance that the applicant would be persecuted in the reasonably foreseeable future because of his status as a Chinese-Indonesian.

Claims of harm based on religion

1. The Tribunal now turns to the applicant’s claimed fear of harm based on his religion as a Catholic Christian.

2. The same DFAT Country Information Report referred to above reports that:

   “Christianity is Indonesia’s second-largest religion after Islam. Many Christians live in the Papua provinces, parts of North Sumatra, East Nusa Tenggara, North Sulawesi, and Maluku islands, but also in Jakarta and other parts of the country. There are Christians in every province of Indonesia. Many Indonesians of Chinese descent are Catholic. Along with the Catholic church, many Protestant churches operate in Indonesia, including mainline Protestant churches (especially Lutheran denominations), and evangelical and Pentecostal churches, as well as non-denominational independent churches. Christians are generally able to practise their faith freely throughout Indonesia. In general, Christians have good relations between denominations and with other religions, including regular dialogue and a generally peaceful coexistence.

   In country sources told DFAT that they do not generally experience discrimination, for example, because of the faith listed on their identity cards, when publishing literature, or for having Christian websites. Localised discrimination from local governments is possible. For example, the Indonesian Christian Church (GKI) won a 2010 Supreme Court challenge against the revocation of its building permit in Bogor, near Jakarta. The Church remains sealed by the local government at the time of writing despite the court ruling.

   Religious intolerance against Christians occurs occasionally with a small possibility of violence. Police sometimes provide armed protection to churches, especially during religious festivals. In-country sources told DFAT that most churchgoers feel safe going to church on Sundays.

   Attacks against Christians can be highly organised, and police investigate and sometimes disrupt these threats. For example, a bomb attack in Makassar in March 2021 on Sacred Heart Cathedral injured about 20 people. Police arrested 53 people for the attack, who were charged with terrorism offences. In May 2021, police disrupted plans to kill a Catholic bishop in the Papua provinces and attack several other churches. In November 2020, ISIS-linked terrorist group East Indonesia Mujahidin (MIT) carried out an attack on several homes and a Salvation Army church in Central Sulawesi, killing four.

   DFAT assesses that Christians residing in areas where they are a majority do not face either official or societal discrimination. Christians residing in areas where conservative Islam is prevalent face a low risk of societal discrimination in the form of impediments to worship. Violence does occur and there are recent high-profile examples, but this is not the day-to-day experience of most Christians.”[2]

   [2] Department of Foreign Affairs and Trade Country Information Report – Indonesia, 24 July 2023, pg. 15-16, [3.37] – [3.41].

3. The applicant claimed fear of becoming a victim of bomb attacks on churches. The Tribunal acknowledges this fear and finds the applicant’s fear is likely to be due to incidents of attacks on Christians and Christian churches in Indonesia as reported in the DFAT Country Information Report.

4. Nevertheless, the Tribunal does not accept this means there is a real chance that the applicant would be seriously harmed because of his religion. Whilst the possibility of the applicant being unlucky enough to be caught up in a future bomb attack on Christian churches cannot be completely discounted, the Tribunal finds the likelihood of this occurring is remote.  On the basis of the DFAT Country Information Report, the Tribunal is satisfied that the applicant would be able to continue practising his Christian faith on return to Indonesia without a real chance of being harmed in the reasonably foreseeable future.

5. In conclusion, having carefully considered the applicant’s claims and the evidence he presented in supported of his claims, including against country information where relevant, the Tribunal does not accept there is a real chance that the applicant would be seriously harmed in the foreseeable future because of his previous conflict with his adopted sister and/or the boyfriend, or because of his status as a Chinese-Indonesian and a Christian, if he returned to Indonesia.  Accordingly, the Tribunal finds the applicant is not a ‘refugee’ and he does not meet the criterion in s 36(2)(a) of the Act.  

Complementary protection assessment

1. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered whether the applicant’s circumstances are such as to give the Tribunal substantial grounds to believe that there is a real risk that the applicant would suffer significant harm as a necessary and foreseeable consequence of his removal from Australia to Indonesia. 

2. In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test as it applies to complementary protection imposes the same standard as the ‘real chance’ test applicable to the assessment of the refugee criterion in s 36(2)(a).

3. For the same reasons that the Tribunal does not accept there is a real chance that the applicant would be seriously harmed in the reasonably foreseeable future if he returned to Indonesia because of his previous conflict with his adopted sister and/or the boyfriend and because of his status as a Chinese-Indonesian and a Christian, the Tribunal does not accept there are substantial grounds for it to believe that if the applicant was removed from Australia to Indonesia, there is a real risk that he would suffer significant harm as a necessary and foreseeable consequence of that removal. 

4. Therefore, the Tribunal finds the applicant is not a person in respect of whom Australia has protection obligations on the basis of the complementary protection criterion under s 36(2)(aa) of the Act.

Other criteria – member of family unit

1. Finally, there is no evidence before the Tribunal to suggest that the applicant is a member of the same family unit as another person who satisfies s 36(2)(a) or (aa) and who holds a protection visa of the same class as that applied for by the applicant. Therefore, the Tribunal finds that the applicant does not satisfy s 36(2)(b) or (c) of the Act. 

DECISION

1. The Tribunal affirms the decision not to grant the applicant a protection visa.

Jennifer Ermert
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.

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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.

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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.

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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.

1. 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.

2. 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.

3. 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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1. Protection visas – criteria provided for by this Act

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1. 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.

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