1820510 (Refugee)

1820510 (Refugee) [2024] AATA 4275 (19 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Malintha Prakash De Mel (MARN: 1460644)
CASE NUMBER:  1820510
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Paul Noonan
DATE:19 July 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 19 July 2024 at 12:19pm

CATCHWORDS
REFUGEE – protection visa – Indonesia – written claims prepared by another person and acknowledged not to be correct – first applicant husband’s new claim of owing money to person affiliated with criminal gangs and with connections to authorities – factory fire of unknown cause – second applicant wife’s new claim of fear of harm from ex-partners and as Chinese Indonesian – unfavourable inference drawn – extended residence in another country without applying for protection there – no recent direct contact, threats or legal action – anonymous allegations not able to be tested and given no weight – combined hearing with review of one child’s separate decision – special needs of another Australian-born child (not an applicant) – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 423A
Migration Regulations 1994 (Cth), Schedule 2

CASES
Kavun v MIMA [2000] FCA 370
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Selvadurai v MIEA (1994) 34 ALD 347
Subramaniam v MIMA (1998) VG310 of 1997
Zhang v RRT [1997] FCA 423
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 11 July 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
[The applicants] claim to be citizens of Indonesia. In the original claim the applicant made claims for protection and the second named applicant relied on the claims of the applicant and did not make her own separate claims. They applied for the visas on 6 October 2017. The delegate refused to grant the visas on the basis that the Indonesian authorities can provide protection to them, should they require it, and as such there is no real chance of serious harm or real risk of significant harm to them for any reason claimed with respect to the applicant’s stated fear of persecution.
The applicants appeared before the Tribunal on 8 May 2024 and, in a continuation of the first hearing, on 13 June 2024 to give evidence and present arguments. In the first hearing the Tribunal received oral evidence from the applicants and their witnesses as follows: [Ms A] (the applicant’s child), [Mr B] (ex-employee of the applicant), [Ms C] (the second named applicant’s child), [Ms D] (the second named applicant’s child), [Mr E] (the applicant’s child), [Mr F] (ex-employee of the applicant), [Mr G] (ex-employee of the applicant), and [Mr H] (the husband of [Ms D]).
In the second hearing the applicant and the second named applicant appeared together with their representative. The applicant and the second named applicant presented at the hearing with young children. To enable the hearing to proceed in an orderly fashion the second named applicant stepped outside the hearing to look after the children and was called in later to give evidence and to discuss claims that she made during the course of the hearing.
In addition, a separate appeal lodged by [Mr E] was heard as a combined hearing with this matter (Tribunal case number 2404803). [Mr E] participated and gave evidence at both hearings. Separate reasons have been issued with respect to that appeal. This matter was combined with [Mr E]’s appeal at the request of the applicant’s and [Mr E]’s representative. This request was made on the basis that [Mr E] is the underage son of the applicant and his claims in part are related to the claims made by the applicant.
In addition, the applicant lodged a duplicate appeal with the Tribunal (Tribunal case number 1820508). The Tribunal wrote to the applicant on 16 July 2018 and advised him of this case and requested that he consider withdrawing this duplicate appeal. The applicant has not subsequently withdrawn this appeal and as such a separate decision has also been issued with respect to that appeal number with a ‘No Jurisdiction’ decision by the Tribunal.
The Tribunal hearings were conducted with the assistance of an interpreter in the Indonesian and English languages.
The applicants were represented in relation to the review. The representative attended the Tribunal hearings.
The applicants were not interviewed by the delegate. They supplied the Tribunal with a copy of the delegate’s decision.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicants are persons in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or are members of the same family unit as such a person and that person holds a protection visa of the same class.
Country of nationality
The delegate was satisfied that the applicants’ country of nationality is Indonesia, and the Tribunal is also satisfied that this is the case, on the basis of the biodata with respect to their Indonesian passports, copies of which are retained on the Department’s systems and file, and accordingly has assessed their claims with respect to Indonesia as the country of reference or receiving country for the purposes of this appeal.
The applicants’ personal backgrounds and original claim forms
The applicant disclosed in his application for protection that he was born in [Year]. The second named applicant was named as his partner. The applicant stated (and the second named applicant confirmed in her application) that the second named applicant was not raising claims separate to the applicant.
The applicant declared that he did not have assistance in filling out his written claim for protection and that all written communication should be sent to himself. Both he and the second named applicant signed the application forms and dated them 5 October 2017. The applicant declared that he did not receive assistance from an interpreter in completing the form.
The applicant stated that he was born in Jakarta, Indonesia. He stated that he speaks, reads and writes the Indonesian and English languages. His ethnic group is Chinese and his religion is Christian. He declared that he is married. He did not list any other family members residing either in Australia or overseas. He declared that he is not in contact with relatives outside of Australia. He declared that he has no other friends, family members or acquaintances in Australia. He declared that he entered Australia using a visitor visa. He declared that he visited [Country 1] between [Day] July 2017 and [Day] July 2017 for the purpose of visiting his boss. He stated that in Indonesia he had worked as a chief manager in a [business] in Jakarta between June 2002 and April 2017. Prior to that he had worked in [job task] roles as an administrator. He declared that he completed university studies in Jakarta in [Year].
The second named applicant disclosed that she was born in [Year] in Sulawesi Selatan, Indonesia. She stated that she speaks, reads and writes the Indonesian and English languages. Her ethnic group is Chinese and her religion is Christian. She did not list any other family members residing either in Australia or overseas. She declared that she is not in contact with relatives outside of Australia. She declared that she visited [Country 1] between [Day] July 2017 and [Day] July 2017 for the purpose of visiting her husband’s boss. She declared past work in administration in Indonesia. She declared that she was not making her own claims for protection.
Documents submitted to the Tribunal
The Tribunal notes that there have been several submissions made directly to the Tribunal with respect to the claimed activities of the applicants while they have been living in Australia. These submissions were made anonymously and claim that the applicants’ applications for protection are fraudulent and fake. The submissions generally purport to highlight country information without citations and to state that their claims have no basis in fact. The Tribunal advised the applicants of these submissions. The Tribunal also advised them that it would be placing no weight upon the submissions as it is not possible to ascertain how the informant gained their knowledge and whether they have a vested interest in making such allegations or not. Accordingly natural justice would not be served by affording the submissions any weight in such circumstances.
CLAIMS FOR PROTECTION
In his written protection claim the applicant stated (in summary) that he fears persecution from Islamic extremists. This was because he and his boss became involved in the political campaign of Teman Ahok who was affiliated with Christian Chinese Indonesians. He was beaten and the Islamic extremists destroyed his factory. He feared for his life and travelled to Thailand to meet up with his boss who advised him to travel to Australia to seek asylum.
The Tribunal asked the applicant to confirm if he currently fears persecution in Indonesia. The applicant submitted that his original claim for protection was not correct. He resiled from his claim that he was a supporter of the politician Ahok. When asked why he had made this claim he submitted that this had been his agent’s claim and not his own.
He stated that he does not fear harm due to his Chinese ethnicity but then qualified this statement by stating that he did think he may be subjected to some discrimination for this reason. He also stated that he does not fear harm due to his Christian religion although he did think he may be subjected to some discrimination for this reason.
Claim – owing money to a man affiliated with criminal gangs
The applicant informed the Tribunal that he actually fears harm from a man named [Mr I]. He fears harm from this man because he owes him money and he is affiliated with criminal gangs and also has connections with the authorities which he claims caused them to open bogus investigations into him.
The second named applicant also introduced new claims to fear harm directly to the Tribunal with respect to the applicant’s ex-partner and from her ex-partner and because of her Chinese ethnicity. She also made a submission that she fears harm because she has a young child with special needs.
As discussed at the first hearing, section 423A of the Act states as follows:
How Tribunal is to deal with new claims or evidence
(1)  This section applies if, in relation to an application for review of a Part   7 - reviewable decision (the primary decision), the applicant:
(a)  raises a claim that was not raised before the primary decision was made; or
(b)  presents evidence in the application that was not presented before the primary decision was made.
(2)  In making a decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.
The applicant responded to concerns set out by the Tribunal with respect to this new claim that the original application was prepared by [Mr J] as his appointed immigration agent. The Tribunal notes that the applicant gave inconsistent answers with respect to the [Mr J]. He variously described [Mr J] as a scammer who made up the application and as a normal friend who he simply did not tell all his claims to. When asked where [Mr J] currently is, the applicant claimed that he is no longer in the country and he has no ability to contact him. He stated that he paid [Mr J] $2,000. He then claimed that he did not read back or check the accuracy of the claims made by [Mr J]. He just signed it without checking it.
The Tribunal considers that the applicant has given an unsatisfactory answer as to why he did not provide accurate claims and then has introduced new claims not raised before the primary decision was made. This is because, if the applicant had fled Indonesia for fear of harm due to owing a large debt, the Tribunal would expect that he would have sought to make this clear in his claim for protection. Instead, he provided false and detailed claims specific to his own personal situation about fearing harm due to political and ethnic grounds. For instance, the original written claim mentions the destruction of his factory in Indonesia by fire. This is knowledge specific to the applicant and reflects that he was careful to include some detail accurately, for which he had some documentary and witness proof. Further, as noted, the application form states that he filled out the claim without assistance and that it was signed and dated by him. Unconvincingly the applicant was also unable to provide any details about [Mr J] and his claims about [Mr J]’s association with him were inconsistently given.
Due to these considerations the Tribunal considers that the weight of the evidence reflects that the applicant completed the original claim form himself and without any assistance from [Mr J]. The applicant’s explanations as to why the claim to owe money to a person associated with criminal gangs was not made before the primary decision (being he relied on [Mr J] to complete the form and [Mr J] made incorrect claims on his behalf), is therefore, in the Tribunals view an unsatisfactory explanation.
Accordingly, the Tribunal is required to draw an inference unfavourable to the credibility of this claim. In doing so the Tribunal is satisfied that the applicant completed the claim form himself and the Tribunal considers that he has subsequently altered his claims in an attempt to strengthen his claim for protection.
The Tribunal spoke to three witnesses based in Indonesia. These were [Mr B], [Mr G] and [Mr F]. All three witnesses informed the Tribunal that they used to work with the applicant in various capacities associated with his [factory] in Indonesia. They all confirmed that at some stage one of the applicant’s factories was destroyed in a fire. The witnesses gave widely varying accounts of when this occurred. No witness knew the cause of the fire and variously speculated that it may have been an accident or deliberately lit by competitors. [Mr G] stated that he was a manager at the [factory]. He stated that the applicant’s other factory ceased running around 2013 as the applicant ran into financial problems. No witness appeared to have any knowledge of past or ongoing threats of harm to the applicant from a [Mr I].
All three Indonesian based witnesses appeared to have little first-hand knowledge of the applicant’s situation and provided largely speculative evidence as to the cause of the factory fire and the applicant’s subsequent move to Australia which each in turn speculated may have been for financial reasons. In conjunction with photos of a factory or storage fire, submitted by the applicant, the Tribunal accepts that, at some stage, possibly around 2013, a factory that the applicant owned was burnt down. This is the only aspect of the applicant’s original claim that has remained consistent.
The Tribunal notes that the applicant gave evidence that he had first moved from Indonesia to [Country 2] in 2014 where he had resided for three years which was a fact not disclosed in his original claim form. The Tribunal put to the applicant that if he genuinely feared harm from [Mr I] it may expect that he would have claimed asylum at the first available opportunity. When asked why he did not do so in [Country 2] the applicant simply stated that he had no one there that he could trust, which is simply an implausible explanation. The applicant’s lack of urgency in seeking protection certainty in this regard further causes the Tribunal to doubt that he owes [Mr I] money or that he fears harm from [Mr I] for this reason.
Delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm.[1] Even a three-month delay in lodging a protection visa application has been held to be a legitimate matter to be taken into account when assessing the genuineness or depth of an applicant’s fear of persecution.[2] In Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 the Court observed in regard to a delay in lodgement of a protection application: ‘In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth of the applicant’s alleged fear of persecution. It is a rational consideration open on the material’. In the Tribunal’s view the applicants have delayed lodging a protection visa application when they had many years to do so in [Country 2] which further suggests that the basis of the claim for protection should not be accepted.
[1] Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370.
[2] Subramaniam v MIMA (1998) VG310 of 1997.

In addition, the applicant confirmed that he has received no direct threats of harm and has not been contacted directly by [Mr I] in the ensuing 11 years or had any legal action served upon him that he could provide evidence of. The Tribunal finds this lack of action highly implausible. This is because, when asked how much he owed [Mr I], the applicant claimed to owe him in excess of IDR 10 billion or nearly AUD 1 million.[3] The Tribunal considers it highly implausible that [Mr I] would not have taken some form of tangible action, such as serving formal legal notices upon the applicant, to recover such an amount outstanding. The Tribunal considers it far more plausible that security would be required by the lender for such a large sum of money, in the form of factories or insurance claims, and that accordingly that security would be realised in satisfaction of outstanding debts upon default of repayments. Given the lack of any formal contact or debt recovery action against the applicant in over a decade it is far more plausible that security was given and this has been subsequently realised in satisfaction of any outstanding debt.
[3] 10 Billion Rupiahs (IDR) to Australian Dollars (AUD) - Currency Converter (currencyrate.today)
The Tribunal has considered bank statements submitted by the applicant reflecting large transfers of money to him from [Mr I] prior to 2013. The applicant gave evidence that [Mr I] had business arrangements with him and was a buyer of his products. The Tribunal accepts this to be the case but does not accept that such transfers demonstrate in any way that a debt is owed to [Mr I], rather they just reflect transfers of money many years ago, which could equally have been in satisfaction of business transactions, undertaken in the ordinary course of business. The Tribunal also considered a brief claimed text exchange in 2013 between the applicant and [Mr I] and notes some implied threats contained in these from [Mr I] with respect to monies owed. However there have been no further exchanges of this nature submitted post 2013, which would be reasonably expected if the debt remained outstanding, and this further reinforces the Tribunal’s view that any such outstanding debt has been satisfactorily repaid prior to the applicant departing Indonesia.
The Tribunal has also considered evidence given by the applicant’s children that they were contacted in 2020, while they were living in Bali, and claim they were asked about the applicant and [Mr E] was allegedly warned that the debt owed by the applicant would one day transfer to him if not paid. [Mr H] also gave evidence that the applicant had informed him on the day before the Tribunal hearing that he was being chased for money. He had previously been told about the factory fire in Indonesia.
The Tribunal gives the applicant’s closely associated witnesses evidence little weight with respect to this claim, in comparison to the significant credibility concerns set out above about this claim. The Tribunal accepts that the applicant may have departed Indonesia after his business failed in order to reset his finances in the West as speculated by his Indonesian based witnesses, firstly in [Country 2] and then in Australia, but it also does not accept this consideration outweighs the significant credibility concerns with respect to this claim, as set out in these reasons, with respect to the claim he still owes a large amount of money to [Mr I].
On balance, and having carefully considered and weighted the evidence before it in respect to this claim, the Tribunal finds that the applicant does not currently owe [Mr I] money as claimed. With reference to section 423A considerations set out above the Tribunal considers that the applicant has introduced this false claim, not before the original decision maker, because he believed that he had some evidence related to such a claim which he could use to construct this new claim in order to strengthen his claims for protection. The Tribunal rejects the applicant’s claim that he owes money to [Mr I] and that this has caused him to fear harm from criminal gangs associated with [Mr I], or that this has caused him to come to the adverse attention of the Indonesian authorities resulting in bogus investigations against him. It follows that there is no real chance of serious harm to the applicant for this reason and as such his fear of persecution is not well-founded.
Claim – harm from ex-partners
The second named applicant also introduced her own new claims to fear harm in Indonesia directly to the Tribunal. These were that she feared harm from her ex-partner and from the applicant’s ex-partner. The applicant also made claims in this regard. The second named applicant stated that this fear stems from hostility from these persons stemming from the start of her relationship with the applicant. The applicant also claimed to fear harm from the second named applicant’s ex-partner. The Tribunal accepts the credibility of the understandably emotional evidence of the second named applicant that she suffered domestic violence at the hands of her ex-partner. The Tribunal notes that the second named applicant’s daughters also gave evidence to this effect. The second named applicant also claimed that the applicant’s ex-partner threatened her when she found out that she was having an affair with the applicant.
The Tribunal asked for a history of the second named applicant’s interactions with her ex-partner and the applicant’s ex-partner. She confirmed that she had formally divorced her ex-partner in 2013. She has had no contact with her ex-partner since just before the divorce. She also confirmed that the last time she had any contact with the applicant’s ex-partner was in 2013 when she threatened her. The Tribunal discussed that, with the passage of time and her current long-term status of being in a relationship with the applicant, without any further action by either person since 2013 and no attempted contact from either person, that this claim to fear harm may appear highly speculative. The second named applicant responded that the children of that relationship told her that her ex-partner continued to be violent towards them after she had left him and they told her that he remained hostile towards her.
A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. In MIEA v Guo, the Court said:
Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.[4]
[4] MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293
As discussed at hearing the Tribunal considers that neither person that the second named applicant claims to fear harm from has made any attempt to contact her since 2013 which is a passage of time now in excess of ten years. She obtained a formal divorce in 2013 from her ex-partner and subsequently re-partnered. The Tribunal gives this history significant weight when weighing up the potential for either party to still retain any adverse interest in the second named applicant. The Tribunal is satisfied that these passage of time considerations and changes in the second named applicant’s personal circumstances of partnering in a long-term relationship with the applicant, since the claimed actual violence suffered at the hands of her ex-partner, significantly outweighs the evidence of her closely associated witnesses and some photos of claimed injuries to her from 2013 as a result of an attack by her ex-partner that her ex-partner remains adversely interested in her to this day.
The Tribunal noted some submitted translated written threats which purport to be warnings to the applicant and second named applicant from the second named applicant’s ex-partner about their relationship, but these appear to also stem from 2013 when the relationship first commenced. On balance, the lack of hostile action or contact in over ten years by either the second named applicant’s ex-partner or the applicant’s ex-partner, satisfies the Tribunal that neither party retains an adverse interest in harming the second named applicant or the applicant should they be required to return to Indonesia.
Overall the Tribunal considers that the fear of harm in this regard is highly speculative and accordingly the Tribunal does not accept that the threat is real. It follows that there is no real chance of serious harm to the second named applicant or the applicant for this reason and as such their fear of persecution is not well founded.
Claim – special needs child
The second named applicant submitted documentation with respect to claimed special needs in respect of an Australian born child of her and the applicant. The Tribunal accepts that the child has been assessed as having special needs in relation to speech and behavioural issues, as evidenced by Australian professional assessments submitted to the Tribunal. The second named applicant submitted that the purpose of making this submission was to demonstrate that the child is in need of the superior services available in Australia, when compared to that which would be available in Indonesia.
The Tribunal discussed with the second named applicant that the child is not a party to this matter (as was advised to them by the Tribunal in writing on 13 May 2024, after the applicant had attempted to add the children of her relationship with the applicant born in Australia, to this appeal). After discussing this claim with the Tribunal the second named applicant made no claim that a feared lower standard of special needs services in Indonesia for the child would result in harm to herself nor could the Tribunal identify any real chance of serious harm to her for this reason. The Tribunal finds that there is no real chance of serious harm for this reason to the second named applicant should she be required to return to Indonesia. It follows that the Tribunal does not accept the second named applicant has a well-founded fear of persecution for this claimed reason if she returns to Indonesia, either now or in the reasonably foreseeable future.
Claims – ethnicity and religion
The applicant submitted that he thinks his factory may have been burnt down for reason of either his competitors taking action against him or for reason of personal animosity due to his ethnicity. The Tribunal noted that the reason for the fire has been the subject of speculation from both the applicant and his witnesses and also the claimed speculated reason for the fire by the applicant has shifted to suit his claims. The Tribunal places no weight on the evidence of the fire at the applicant’s factory, with respect to the claim that it may have been linked to his ethnicity, due to the entirely speculative nature of the claim and with regard to the shifting and inconsistent claims with respect to this event as outlined.
The Tribunal put to the applicant and the second named applicant that for the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (a) a threat to the person’s life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person’s capacity to subsist; (e) denial of access to basic services, where the denial threatens the person’s capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
When the applicant’s claims with respect to ethnicity and religion were initially discussed with the applicant he stated that he did not fear harm for these reasons. He then proceeded to qualify this by stating that he feared that he may be discriminated against for these reasons. He made no claims to have suffered harm for reason of his ethnicity or religion in the past. The Tribunal discussed that, in addition to his evidence of no past harm for these reasons, DFAT assesses that there is a low risk of societal violence and a moderate risk of low-level societal discrimination against ethnic Chinese in Indonesia. DFAT is not aware of official discrimination against ethnically Chinese Indonesians. Violence has occurred in the past but is not an everyday experience for Chinese Indonesians. Chinese Indonesians with wealth are less likely to experience any form of discrimination.[5] The Tribunal also discussed this country information with the second named applicant when she raised this same claim to fear harm due to her Chinese ethnicity. She stated that she had suffered name calling and other forms of discrimination because of her Chinese ethnicity when she was younger.
[5] DFAT Country Information Report, Indonesia,24 July 2023, p. 11-12
The Tribunal also discussed with the applicant that DFAT assesses that Christianity is Indonesia’s second largest religion and that Christians outside conservative Islamic areas are free to practice their religion without official or societal discrimination.[6] There is no suggestion that the applicant comes from a conservative Islamic majority area of Indonesia, rather he comes from Jakarta, the capital of Indonesia.
[6] Ibid, p. 15
The Tribunal put to the applicant that this country information may reflect that, while he may experience some low level of discrimination for these reasons, he would be returning with some level of wealth, given his background and time in Australia, further lessening any chance of discrimination, and any low-level discrimination he may experience for these reasons would not rise to the level of serious or significant harm. The applicant’s representative submitted that the factory fire would rise to the level of significant harm and not too much should be read into country information when considering individual circumstances.
In assessing the real chance of serious harm the Tribunal notes that the applicant gave evidence that he did not fear serious harm for these reasons but then qualified this statement and said that he feared he may be discriminated against. The country information set out to the applicant reflects there is a low risk of societal violence against ethnic Chinese and a moderate risk of low-level societal discrimination. However, the applicant has not experienced past harm for reason of his ethnicity and he is a businessman with the means to have flown to and lived in [Country 2] for some years and then moved to Australia and established himself and his family here. This reflects that he has considerable financial resources available to him and DFAT assesses that ethnically Chinese Indonesians with access to financial resources are less likely to experience any form of discrimination.
With respect to the applicant’s Christianity he has not suffered any past harm for this reason and DFAT’s assessment reflects that Christians outside of predominately conservative Islamic areas are free from discrimination and able to practice their religion without impediment. The Tribunal confirmed with the applicant that he is from the Jakarta region which is not an area synonymous with conservative Islam.
The applicant submitted in response to this country information about ethnicity and religion that there is a lot of discrimination which is not reported. With respect to the country information about ethnicity the second named applicant stated that she has witnessed past violence in [Year] against Chinese Indonesians.
After weighing up the country information and the applicants’ evidence and profile as discussed, the Tribunal concludes that the weight of the evidence reflects that there is no real chance of serious harm to the applicant or the second named applicant for reason of their Chinese ethnicity, or the applicant’s Christian religion, should they be required to return to Indonesia. It follows that the Tribunal does not accept the applicants have a well-founded fear of persecution for the reasons claimed if they return to Indonesia, either now or in the reasonably foreseeable future.
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) when considering his individual claims to fear harm. The Tribunal has also considered the applicant’s accepted cumulative profile as a Christian Chinese Indonesian who has received threats of harm in the past from his partner’s ex-partner, and is not satisfied that Australia has protection obligations under s 36(2)(a) when considering his cumulative profile.
For the reasons given above, the Tribunal is not satisfied that the second named applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) when considering her individual claims to fear harm. The Tribunal has also considered the second named applicant’s accepted cumulative profile, as a Chinese Indonesian who has suffered domestic violence or other relationship-based threats of harm in the past and who has a child with special needs and is not satisfied that Australia has protection obligations under s 36(2)(a).
Complementary protection
In considering whether the applicants meet the complementary protection criterion under s 36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm.
In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[7] For the same reasons the Tribunal does not accept there to be a real risk the applicant will be subjected to significant harm for reason of a debt, his race or ethnicity or his religion or other due to relationship-based threats of harm in the past, as a necessary and foreseeable consequence of being removed from Australia and returned to Indonesia. Further, with respect to the second named applicant, for the same reasons set out above, the Tribunal does not accept there to be a real risk that she will be subjected to significant harm for reason of her race, past domestic violence or other relationship-based threats of harm in the past or because she has a child with special needs.
[7] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342]
Overall conclusions
For the reasons given above the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Paul Noonan
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 4275

19 July 2024

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