1817133 (Refugee)

1817133 (Refugee) [2023] AATA 2076 (24 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1817133
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Wendy Banfield
DATE:24 March 2023
PLACE OF DECISION:  Canberra
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 March 2023 at 1:19pm
CATCHWORDS
REFUGEE – protection visa – Indonesia – race – Chinese – religion – Catholic – victim of domestic violence from ex-boyfriend – discrimination in race, religion and employment opportunities – ex-boyfriend’s connections with police – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 423A, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
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 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).
The applicant who claims to be a citizen of Indonesia applied for the visa on 22 May 2017. The delegate refused to grant the visa on the basis that the applicant was not a person in respect to whom Australia has protection obligation under s.36(2)(a) and s.36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 21 October 2022 to give evidence and present arguments. The Tribunal also received oral evidence from [Witness A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.
CRITERIA FOR A PROTECTION VISA
Refugee criteria
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.
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
Complementary protection criteria
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.
Applicant’s identity and country of reference
The applicant stated in her application for a protection visa that she was born on [date] in Indonesia. The applicant provided a copy of her Indonesian passport to the Department. There is no evidence to suggest this is a bogus document and, as such, the Tribunal accepts the applicant's identity.
There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country.
Based on the document provided by the applicant and accepted by the Department, the Tribunal finds that she is a citizen of Indonesia and as such her protection claim will be assessed against Indonesia as the country of reference and 'receiving country' respectively.
Migration History
The applicant arrived in Australia [in] February 2017 holding Visitor visa subclass FA-600 and has not departed since.
Claims for protection and supporting documentation
The applicant’s claims at the time of application were set out in the Department’s decision record. The Tribunal is satisfied it is an accurate summary of her claims for protection.
·She left Indonesia to avoid being harmed by her ex-boyfriend, whom she has known since high school. In 1991 he raped her, then forced her to stay at home after graduating
·In 1999 they separated, but in 2010 he forced her to be his girlfriend again
·In May 2015, he tortured her for talking with the father of one of her students
·She reported this to police, but they did not want to investigate because they were a couple
·She tried living with friends but he would find her because his brother is a police officer
·She fears being harmed by him again if she returns to Indonesia
Prior to the hearing the applicant submitted a response to the hearing invitation that included:
· Written statement by the applicant entitled “Statement of Police Report” dated [June] 2015.
· Witness statement in the name of [Witness B] dated 25 October 2022.
The applicant made additional claims at the hearing related to her race and religion that were not raised before the primary decision was made.
Evidence at the hearing
The applicant advised a friend had helped her complete her application for protection. She stated the claims made are true and correct. The applicant is a citizen of Indonesia and does not have citizenship anywhere else. She stated she had not visited other countries apart from Australia. In Indonesia, the applicant has a sister, and her father who lived some distance away. She had been living is a suburb of Jakarta. The applicant does not have family in Australia. The applicant stated she obtained a diploma in foreign languages in Indonesia and had been a primary school [profession].
In Australia, the applicant completed a Certificate IV in [course] but does not have experience in [the industry]. She is working at [workplace]. The applicant arrived in Australia [in] February 2017 holding a Visitor visa. She came to Australia to find healing because life was hard in Indonesia, and she wanted a new environment. The applicant was asked to explain her reasons for fearing returning to Indonesia. The applicant said she is part of a particular ethnic group, that being Chinese ethnicity and people do not like this group. She said her religion is not the dominant religion as she is a Catholic. Regarding difficulties she had in her home country, the applicant claimed said she does not feel she had freedom to go to church, and if she goes out of the house, she finds there are words and opinions used such as reference to her being Chinese. The Tribunal put to the applicant that Indonesia has a population of ethnic Chinese people and Christians. She was asked what was particularly difficult for her. The applicant said there is a feeling she is not acknowledged as part of Indonesia and discrimination when dealing with officials. The applicant explained discrimination depends on the area, as well as the social status of the person and referred to finding a job. The Tribunal noted however that the applicant did have a job, as a [profession]. She said it was only in the last year, and she had only got the job through a friend.
The Tribunal referred to DFAT country information that states freedom of religion and worship is guaranteed in Indonesia and while there is religious intolerance, people are able to practice their religion. The applicant said it is correct in theory but in practice it is difficult. She was asked if she experienced any type of harm when practising her religion. The applicant claimed going to church was difficult and “they” would try to prevent her going and stop her using public transport. When asked to explain who “they” were, she said it was “the people in the surrounding area”. The applicant claimed people would recognise that she was going to church because of her habits. She said she attended [a named] Catholic Church in Jakarta.
The Tribunal explained the refugee criteria to the applicant. The applicant was advised that the Tribunal accepted ethnic Chinese Christians may face some discrimination in a majority Muslim country such as Indonesia, but she must demonstrate that she will face serious harm if she returns to Indonesia. She was asked if there was any other reason she feared returning to Indonesia. The applicant referred to the statement she made about a police report and submitted to the Tribunal. She was asked to explain the claim that it refers to. The applicant said she experienced abuse from her ex-boyfriend, and he came back into her life through force. She had met him in high school, and they broke up after three years which was in 1994 or 1995. The applicant claimed her ex-boyfriend was with another woman for two years and then “committed some acts of terror” to come back into her life. She said he would come to her house, ask the neighbours where she was and wait for her.
The applicant was asked why this meant she feared returning to Indonesia. She claimed that if he knows she is back, he will attempt to do the same things. She was asked how he would know because Jakarta is a big city. The applicant claimed her ex-boyfriend’s elder sibling is in the police. The Tribunal put to her that she has been away from Indonesia for a long time, but the applicant claimed he is obsessive. She does not know if he is aware she is in Australia. The Tribunal suggested the ex-boyfriend is unlikely to still be looking for her after five years. According to the applicant, her sister told her he had come to her house looking for her. She claimed that “once in a while” he still comes to her sister’s house.
The Tribunal asked what the applicant fears will happen if she returns to Indonesia. She said she fears her life will return to how it was, that she will be underappreciated, and she will suffer. She said her ex-boyfriend told her that if she tries to get away, he will kill her. The applicant claimed she was forced to have sexual relations with her ex-boyfriend, and it had last happened just before she came to Australia, in 2017. The applicant claimed there was no follow up after she made a police report. She then said she had made other reports, but nothing was done because the ex-boyfriend’s relative was in the police. The applicant was asked if she ever accessed services for women experiencing domestic violence. The applicant said she did not seek help because she was embarrassed. She confirmed she did not provide her police statement to the Department at the time of application.
The applicant was asked about her claim that she had been raped by her former boyfriend but went on to have a further relationship with him in 2010. It was put to her that she has since claimed she did not have another relationship with him. The applicant said she meant she cut off contact since coming to Australia, but she had been assaulted sexually before 2017, which was why she sought healing in Australia. She was asked to explain her claim that she was “forced to be his girlfriend”. The applicant then said she did have a relationship with him again, but it was on and off.
The Tribunal put to the applicant that she did not make any claims for protection based on her race or religion at the time of application. The applicant said she was helped by a friend, and she was not sure at the time. The applicant was asked if she could live in another area of Indonesia. She said she had lived with her sister before, about 14 hours away. The Tribunal put to the applicant that Jakarta is a city of 11 million people, and it would be difficult for someone to find her. She said it would be easy for her ex-boyfriend due to his family member being in the police.
Evidence of witness – [Witness A]
[Witness A] said she was a former colleague of the applicant and they worked together as [professionals] from 2004 to 2010. The witness said she is aware the applicant was terrorised by her ex-boyfriend. When asked when, [Witness A] said she was with him from 1998 to 1999 but he reappeared from 2010 to 2015 and she had been told by the applicant that he hit her. [Witness A] said she last saw the applicant in 2014, before she went to Australia in 2015. The Tribunal asked the witness what she knows about the applicant’s fears of returning to Indonesia. She claimed the applicant’s mother is no longer alive, she would not be protected, and her ex-boyfriend will terrorise her. According to [Witness A], the ex-boyfriend has friends and is a person with a lot of power. [Witness A] said she met him once or twice at the applicant’s house. When asked if she saw any instances of abuse, she said she saw him yell at her.
Further evidence of the applicant
The applicant wanted to add that in Indonesia, women are always blamed even if the woman has done everything right. The Tribunal put to the applicant that [Witness A] had said they worked together as [professionals] between 2004 and 2010 when she had claimed to have only been a [profession] from 2014 to 2017. The applicant said she did not know about that but offered the witness may have forgotten the year. She repeated her claim that she was a [profession] from 2014 to 2017. The applicant stated she wants to stay in Australia. She concluded by stating the police in Indonesia will not provide any support because of her ex-boyfriend’s family.
Written statement by [Witness B]
The witness stated the applicant suffered abusive treatment from her ex-boyfriend, he would come to her house and ask neighbours where she is. She claimed the person would wait all day. [Witness B] stated that in 2015 the applicant reported her ex-boyfriend to police, but no action was taken. The witness said the reason was likely to be because most of the ex-boyfriend’s family were police officers. She said she heard the applicant went to Australia in 2017 for healing and they sometime keep in touch.
Country Information – Indonesia
Women
Women participate in all areas of Indonesian society. However, societal, cultural and religious barriers limit the extent of that participation. Indonesia ranked 113th (out of 188) on UNDP’s 2016 Gender Inequality Index, which is a composite measure reflecting inequality in achievement between women and men in relation to reproductive health, ‘empowerment’ (in political spheres and in relation to education) and the labour market. The government has made efforts to promote women’s rights and Indonesia has ratified the Convention for the Elimination of Discrimination Against Women.
…
A nationwide survey carried out by Indonesia’s Central Statistics Agency in 2017 revealed that a third of Indonesian women had experienced either physical, sexual, emotional or economic violence in their lifetime. Over 33 per cent of women aged 15 to 64 years had experienced physical or sexual violence in their lifetime, and approximately a quarter of married women had experienced violence at the hands of their husbands. The survey found that women living in urban areas and with higher levels of educational attainment were more likely to report experiencing violence than those in rural areas. This may reflect a greater willingness and capacity to report and does not necessarily mean that they experience more violence than poorer and rural women.
Domestic violence safe houses exist but are few in number. The availability of facilities varies between local government areas. Rules in these facilities are strict, including time limits for stays of approximately a week. NGOs or village heads may make local arrangements to protect women on a temporary and ad hoc basis. Police protection is inconsistent. Some police encourage women to return to their abusers. Men will sometimes report a woman fleeing violence to police for abandoning her children. Women who are financially dependent on their husbands are unlikely to report abuse for fear that he will be arrested, and she will thus be left without an income.
According to the National Commission on Violence against Women, most sexual violence occurs in remote areas and villages, including gang rapes. Many victims are reluctant to report rape due to cultural stigma, while a high burden of proof and weak legal definitions make prosecutions of rapists and other sex offenders difficult. Police reportedly often focus on the victim’s dress and behaviour when investigating cases of sexual assault.[1]
Domestic Violence
Domestic violence is common but underreported by victims. The law prohibits rape, domestic abuse, and other forms of violence against women.[2] The National Commission on Violence against Women reported a significant increase in known cases of all types of violence against women in 2021 and suggested that more women were willing to report their abuse despite more cases going unreported.[3] Reportedly, many victims are reluctant to report incidents of domestic violence due to a fear of social stigma, shame and a lack of support from family and friends.[4] Police protection is inconsistent. Some police encourage women to return to their abusers. Men will sometimes report a woman fleeing violence to police for abandoning her children. Women who are financially dependent on their husbands are unlikely to report abuse for fear that he will be arrested, and she will thus be left without an income.[5]
Rape and other forms of sexual violence are criminal offences. Rape outside of marriage is punishable under the Penal Code by prison terms of four to 14 years and a substantial fine.[6] In April 2022, parliament passed the sexual violence law that recognises nine forms of sexual violence including physical and non-physical sexual abuse, forced contraception, forced sterilisation, forced marriage, sexual torture, sexual exploitation, sexual slavery, and online sexual violence. The sexual violence law has provisions for protection and recovery for victims. Victims of sexual violence receive restitution and counselling. The sexual violence law also stipulates those police cannot refuse a report of sexual abuse and are duty-bound to investigate.[7]
Limited support services are available for women and children across Indonesia. Civil society organisations run integrated service centres for women and children (P2TPA) in all 34 provinces and approximately 436 districts, which provide counselling and other support to victims of violence. The larger provincial service centres provide more comprehensive psychosocial services, while the quality of support at the district-level centres varies.[8] Women living in rural areas or districts where no centre has been established have difficulty accessing support services and some centres are only open for six hours a day. Nationwide, police operate ‘special crisis rooms’ or ‘women’s desks’ where female officers receive reports from female and child victims of sexual assault and trafficking and where victims can seek temporary shelter. NGOs or village heads may make local arrangements for the temporary protection of women.[9]
Police
The Indonesian police force is constrained by resourcing. The Indonesian National Police (INP)
is responsible for internal security and is assisted by the Indonesian National Armed Forces under certain circumstances to provide operational support.[10] The INP has more than 400,000 police officers and civilian employees deployed to 32 regional police forces across the archipelago. Some 13,000 women and many religious and ethnic minorities serve in the police. Chinese Indonesians and Christians, particularly Catholics, serve in both the national police and the military.[11] Despite the ethno-religious diversity, the police force does not tolerate LGBTI officers.[12] Police are limited in their ability ‘to respond quickly and efficiently to reports of crime and other emergencies due to insufficient transportation, inadequate training, and limited investigative ability.’[13]
There are reports of misconduct within the police force and corruption is rife. During 2021 there were reports of police using excessive force during detention and interrogation, particularly in Papua. There were also reports of arbitrary arrests by police, primarily by the Criminal Investigation Department. Additionally, the media and NGOs report police temporarily detained persons for participating in peaceful demonstrations and other nonviolent activities advocating self-determination, notably in Papua and West Papua.[14] Corruption is reportedly endemic within the police force.[15] According to NGOs and media reports, police commonly demanded bribes ranging from minor payoffs in traffic cases to large amounts in criminal investigations.[16]
Steps are being taken to address corruption and a lack of public confidence, but progress is limited. A semi-independent government advisory body (KOMPOLNAS) maintains oversight of the police and acts as an alternative advisor to the president on policing matters; however, KOMPOLNAS has limited investigative powers and can only recommend follow-up actions.[17] The Corruption Eradication Commission investigates and prosecutes officials suspected of corruption at all levels of government, including in the police force. Police recruits undergo training on proportionate use of force and human rights. Programs such as the US Government International Criminal Investigative Training Assistance Program, the US Government Anti-Terrorism Assistance Program, and the Bangkok-based International Law Enforcement Academy are working to improve skills within the police force.[18] Human rights organisations claim that police are rarely held to account for abuses, with most investigations of police misconduct conducted internally and often resulting in only minor disciplinary actions.[19]
[1] DFAT Country Information Report Indonesia – 25 January 2019
[2] 'Country Reports on Human Rights Practices for 2021 Indonesia', US Department of State, 12 April 2022, Section 6, 20220413103703; ‘Indonesia passes landmark bill to tackle sexual violence’, Aljazeera, 12 April 2022, 20230309120549; ‘Why is Indonesia’s sexual violence law so important?’, Aljazeera, 14 April 2022, 20230309125152; 'Indonesian Parliament Passes Long-Awaited Sexual Violence Bill', The Diplomat, 13 April 2022, 20220414104720
[3] ’Violence against women soars in 2021 Komnas Perempuan’, The Jakarta Post, 9 March 2022, 20230309132132
[4] 'Country Reports on Human Rights Practices for 2021 Indonesia', US Department of State, 12 April 2022, Section 6, 20220413103703
[5] ‘DFAT Country Information Report Indonesia’, Department of Foreign Affairs and Trade (DFAT), 25 January 2019, section 3.98, p.29, 20190125124336
[6] 'Country Reports on Human Rights Practices for 2021 Indonesia', US Department of State, 12 April 2022, Section 6, 20220413103703
[7] ‘Indonesia finally has a law to protect victims of sexual violence. But the struggle is not over yet’, The University of Melbourne, 20 April 2022, 20230309142733; ‘Why is Indonesia’s sexual violence law so important?’, Aljazeera, 14 April 2022, 20230309125152
[8] 'Country Reports on Human Rights Practices for 2021 Indonesia', US Department of State, 12 April 2022, Section 6, 20220413103703
[9] DFAT Country Information Report Indonesia’, Department of Foreign Affairs and Trade (DFAT), 25 January 2019, section 5.6, p.41, 20190125124336
[10] 'Indonesia Country Security Report', Overseas Security Advisory Council (OSAC), 30 January 2023, 20230309093827
[11] ‘DFAT Country Information Report Indonesia’, Department of Foreign Affairs and Trade (DFAT), 25 January 2019, section 5.6, p.41, 20190125124336
[12] 'BTI 2022 Country Report - Indonesia', Bertelsmann Stiftung, 22 February 2022, pp.21-22, 20220225113058
[13] ‘DFAT Country Information Report Indonesia’, Department of Foreign Affairs and Trade (DFAT), 25 January 2019, section 5.9, p.41, 20190125124336; 'Indonesia Country Security Report', Overseas Security Advisory Council (OSAC), 30 January 2023, 20230309093827
[14] 'Country Reports on Human Rights Practices for 2021 Indonesia', US Department of State, 12 April 2022, Section 1d, 20220413103703; 'Freedom in the World 2022: Indonesia', Freedom House, 2 March 2022, F2, 20220304135655
[15] 'Freedom in the World 2022: Indonesia', Freedom House, 2 March 2022, C2, 20220304135655
[16] 'Country Reports on Human Rights Practices for 2021 Indonesia', US Department of State, 12 April 2022, Section 4, 20220413103703
[17] ‘DFAT Country Information Report Indonesia’, Department of Foreign Affairs and Trade (DFAT), 25 January 2019, section 5.8, p.41, 20190125124336
[18] Country Reports on Human Rights Practices for 2021 Indonesia', US Department of State, 12 April 2022, Section 1c, 20220413103703; 'Indonesia Country Security Report', Overseas Security Advisory Council (OSAC), 30 January 2023, 20230309093827
[19] ‘DFAT Country Information Report Indonesia’, Department of Foreign Affairs and Trade (DFAT), 25 January 2019, section 5.11, p.41, 20190125124336
CONSIDERATION OF Claims and evidence

The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Is the applicant a person in respect of whom Australia has protection obligations because she is a refugee?
Summary of claims
The applicant initially claimed she feared being persecuted if she returned to Indonesia due to violence that she says she suffered during and after a past relationship. Her claim included a lack of action by police. In her evidence to the Tribunal the applicant added additional claims to the Tribunal were not raised at the time of application. These were that she would suffer discrimination due to being an Indonesian of Chinese ethnicity and because of her Catholic religion. The applicant made other claims about social attitudes towards women in Indonesia.
Section 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made, or evidence not presented before the primary decision was made. The applicant was asked to comment during the hearing, and she stated that when she applied for a protection visa, she was not aware what could be claimed. The applicant said a friend had helped her make the application based on her relationship with an ex-boyfriend. The Tribunal is not satisfied the applicant has a reasonable explanation for why she did not raise her ethnicity or religion as reasons to fear returning to Indonesia at the time of application. Therefore, the Tribunal draws an inference unfavourable to the credibility of those claims.
Accepted facts
The Tribunal accepts the following information as fact in the applicant’s case:
·     The applicant completed her education in Indonesia and had been working prior to travelling to Australia.
·     The applicant has never married but had a relationship with a boyfriend in the past.
·     The applicant suffered a level of abuse during the relationship with her former boyfriend.
Assessment
The applicant gave evidence that she had an on/off relationship with an Indonesian man that she had known since high school. In her evidence at the time of application, the applicant claimed that in 1991 her boyfriend raped her. She declared that they separated in 1999 but in 2010 he had forced her to be his girlfriend again. The applicant claimed that in 2015 he tortured her and that she reported this to police, however, they did not want to investigate. At the Tribunal hearing, the applicant began by giving evidence about the discrimination and difficulties she had faced in Indonesia as a member of an ethnic minority, and as a Catholic. She claimed she was prevented from attending church by residents in her neighbourhood who recognised from her habits and dress where she was going. The applicant made general claims that Indonesian people do not like her because she is a person of Chinese heritage and that comments are made about her ethnicity.
The Tribunal considered the applicants new claims for protection based on her ethnicity and religion but does not find them credible. As stated in this decision, the Tribunal is not satisfied the applicant had an adequate explanation for why she did not include those claims before the primary decision was made. In her oral evidence, the applicant’s claims of being prevented from going to church or taking public transport were vague and unconvincing. The applicant did not explain how, when or where she was prevented from carrying out these activities. When asked what church she had attended in Jakarta, the applicant stated she went to [a named] Catholic Church which indicates she did have a regular place of worship. The applicant referred in her oral evidence to discriminatory practices by Muslim Indonesians, but she did not claim to fear persecution or serious harm for reasons of her ethnicity or religion. Therefore, the Tribunal is not satisfied the applicant has a well-founded fear of persecution for reasons of her Chinese ethnicity of Catholic religion if she returns to Indonesia.
The Tribunal then considered the applicant’s claims that she suffered violence and abuse perpetrated by a former boyfriend who forced her to resume their relationship between 2010 and 2015. The applicant claimed she was assaulted by her boyfriend in 2015 and submitted a statement that was said to have been provided to police. The applicant alleged her ex-boyfriend has family members who are in the police force, that no action was taken about her complaint, and that he will know where she is if she returns to Indonesia. The Tribunal also received evidence from two witnesses who were friends of the applicant and claimed to have had some awareness of her relationship with her ex-boyfriend.
The Tribunal found that some of the applicant’s evidence did not appear credible due to inconsistencies and a lack of detail. In her police statement provided to the Tribunal in evidence, the applicant declared she had a relationship with her ex-boyfriend from 1998 to 1999 and from 2010 to 2015. She reported that she was raped as a teenager. The applicant’s statement reports that she met her ex-boyfriend again in 2010, he forced her to be his girlfriend and she could not refuse because she loved him. She declared that her boyfriend continued to treat her badly but does not explain in her police statement what that entailed. The Tribunal finds the evidence in the police statement is very vague and contains some inconsistencies from that provided to the Department at the time of application. In her application for a protection visa it was submitted that she had been raped by her boyfriend in 1991 then forced her to stay at home after graduating until they separated in 1999. This indicates the initial relationship was of a much longer period than that allegedly reported to police.
The Tribunal also addressed with the applicant inconsistencies in evidence provided by her witness during the hearing. [Witness A] advised the Tribunal that she and the applicant had been [in that profession] between 2004 and 2010. However, the applicant had declared she could only secure a [position] in 2014. When this was put to the applicant for comment, she said she did know why the discrepancy occurred and could only say that [Witness A] must have forgotten the year. The Tribunal is not satisfied this is the reason for the significant difference in information provided by the applicant and her witness and it affects the applicant’s credibility overall.
The Tribunal accepts the applicant may have suffered abuse by a former boyfriend as she reports. The Tribunal is also prepared to accept that her friends at the time were aware of the abusive relationship. However, the Tribunal found the applicant’s evidence to be lacking in detail and inconsistent. She claimed her former boyfriend has a family member in the police force but did not provide independent evidence of this, or convincing oral testimony. Country information states The Tribunal is not persuaded the applicant is at risk of significant harm by a former boyfriend, or anyone else if she returns to Indonesia. The applicant has shown herself to be a resourceful, independent adult who has been able to live in Australia and support herself. The Tribunal is satisfied she would be able to return to Jakarta, or elsewhere in Indonesia without being at risk or persecution or serious harm due to a failed past relationship. The Tribunal notes the applicant has been away from Indonesia for six years and her relationship with her former boyfriend ended approximately eight years ago. The Tribunal does not find it credible that the person would be searching for her in Jakarta or elsewhere, or that he would be aware of her return to Indonesia in future.
The applicant made general claims about social attitudes in Indonesia including women always being blamed. She claimed the police will not protect her because her ex-boyfriend has a sibling in the police force. The Tribunal understands that Indonesia is a patriarchal society and that as a single woman, she may face a level of discrimination. However, The Tribunal has not accepted that the applicant is at risk of harm from her former boyfriend, and it follows that she is unlikely to require police assistance or intervention for that reason. In addition, country information indicates there are some community services available to women in Indonesia. While limited in number and resourcing, they are available if victims of domestic violence require support. Country information also states Indonesia has a large, diverse police force in which Chinese Indonesians and Christians, particularly Catholics, serve. The reputation of the police in Indonesia suffers significantly due to corruption and ineffective disciplinary measures but nevertheless, an extensive law enforcement agency does exist.
DFAT country information reports that rape and other forms of sexual violence are criminal offences. Recent reforms to sexual violence laws in Indonesia now recognise a wide range of sexual violence including physical and non-physical sexual abuse, The sexual violence law has provisions for protection and recovery for victims and it now stipulates those police cannot refuse a report of sexual abuse and are duty-bound to investigate. For these reasons, the Tribunal finds there are adequate forms of protection available in Indonesia.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. 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. In this case the Tribunal is not satisfied the applicant holds a fear of being persecuted if she returns to Indonesia, or that there is a real chance she would be persecuted.
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).
Does Australia have protection obligations to the applicant under the complementary protection criterion?
As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a protection visa pursuant to the complementary protection criterion.
Section 36(2)(aa) of the Act refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB[20] the Full Federal Court held that a ‘real risk’ test imposes the same test as the ‘real chance’ test applicable to the assessment of ‘well-founded’ fear’ in the Refugee Convention definition.
[20] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagott JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342]
‘Significant harm’ is defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to 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.
In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if she returns to Indonesia now or in the reasonably foreseeable future.
The Tribunal accepts the applicant was in a relationship with an Indonesian male at times while she was a resident. The Tribunal accepts the relationship may have been abusive and that she did not want to continue or be associated with the person concerned. However, the Tribunal has not accepted that the applicant’s former boyfriend is continuing to try and locate her, or that he would be a threat to the applicant if she returns to Indonesia in future. The Tribunal has also found the applicant would not suffer significant harm due to her ethnicity as an Indonesian citizen of Chinese heritage, or because or her Catholic religion.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, the Tribunal is not satisfied that there is a real risk that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on her, she will be subjected to torture or cruel or inhuman treatment or punishment or she will be subjected to degrading treatment or punishment if she returns to Indonesia now or in the reasonably foreseeable future.
Accordingly, the Tribunal is not satisfied that that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia, there is a real risk that she will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.
Conclusion
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.
Wendy Banfield
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.
…

[2023] AATA 2076

24 March 2023

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