1825203 (Refugee)

1825203 (Refugee) [2024] AATA 2940 (28 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Alim Lim
CASE NUMBER:  1825203
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Christine Cody
DATE:28 June 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 June 2024 at 4:45pm

CATCHWORDS
REFUGEE – protection visa – Indonesia – political opinion and ethnicity – attended demonstrations against electoral system and discrimination against ethnic Chinese – arrested and detained, and fear of further arrest – discrimination, insults and threats as ethnic Chinese – legal and cultural biases, and statements by politicians – credibility – inconsistencies, some written claims disavowed, new claims made and vague and evasive evidence – no reasonable explanation and adverse inference drawn – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65, 423A
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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 3 August 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 who claims to be a citizen of Indonesia, was granted a visitor visa on 30 October 2017. He arrived in Australia on [date] November 2017. He applied for the protection visa on 2 February 2018[1].
[1] Source: Delegate’s decision record provided to the Tribunal by the applicant. The application form stated that the applicant had departed his home country legally on [date] November 2017, and arrived in Australia on [date] November 2017. Nothing turns on whether he arrived on [date] or [date] November 2017.
Departmental file
The applicant provided his protection visa application forms, lodged 2 February 2018, and the biopage of his passport issued [in] 2017.
Protection visa application forms
According to the protection visa application forms, the applicant was born in Jakarta to Indonesian parents, and he is [Age] years of age. He is of Chinese ethnicity and he is Christian. He speaks and reads in Indonesian. He has never been married or in a de facto relationship. The only relatives listed are his parents who are in Indonesia.
He resided at a single address all of his life in Indonesia.
He completed high school in [Year]. His occupation is [work task]. He started work in [work task] at a [named] [workplace] (July 2009- June 2012). Then from July 2012-Oct 2017 he undertook [work task] for a [named] company.
He is not in contact with his relatives outside Australia and he has no personal contacts in Australia. He has never travelled anywhere other than Australia.
When asked if he is aware that he is the subject of a criminal investigation or has current charges pending against him he said no. He has not been the subject of an arrest warrant nor has he been charged with any offence that is currently awaiting legal action.
The applicant left Indonesia, and fears returning, for the following reason:
I left Indonesia in order to avoid a risk of being arrested by Indonesian government. Indonesian government intends to arrest me because I attended demonstrations against unfair election system and discrimination against Chinese ethnicity in Indonesia. I was harmed and discriminated in Indonesia because my ethnicity is Chinese. The election system in Indonesia is very unfair.
In December 2015 I attended a demonstration against unfair election system and discrimination against Chinese ethnicity in Indonesia. I was arrested and detained for 6 days.
In September 2017 I was detained for 4 days because I attended a demonstration against unfair election system and discrimination against Chinese ethnicity in Indonesia.
I believe I will be arrested by Indonesia government if i go back to Indonesia because I attended demonstrations.
He stated that he did not seek help because no one can help him and he did not relocate because there is no safe place in Indonesia.
He was not represented by a registered migration agent, and he did not receive assistance with the application.
The delegate’s decision
The delegate refused to grant the visa. The delegate stated:
I have considered the… country information and the applicant’s claims. I note that the applicant has claimed he attended demonstrations in December 2015 and September 2017 where he was detained. The applicant has provided no detail about his role in the demonstrations and based on the information he has provided it appears that he was a general participant.
I note that demonstrations and protests occur on a regular basis in Indonesia particularly in the large cities. There is no evidence before me to indicate that people who join in with protests or demonstrations are arrested and detained or otherwise harmed by the Indonesian authorities. While I accept that there have been large numbers of demonstrations in Indonesia, in the present case the written material does not provide a sufficient basis to be satisfied that the applicant would be arrested for participating in a demonstration, or that he would face harm of any kind for such a reason on return to Indonesia.
Echoing the headline of a 2016 South China Morning post article, there is evidence that Chinese- Indonesians no longer have to hide their ethnicity. The intensity of resentment against Chinese Indonesians has eased. There have been recent reports of an increase in anti-Chinese sentiment since the election of Jakarta’s new governor and the imprisonment of the defeated incumbent who is of Chinese ethnicity. However, on balance, whilst country information indicates that Chinese Indonesians may face some low-level societal discrimination, there is no reason to believe the applicant would have a real chance or real risk or experiencing serious or significant harm in Indonesia because of his ethnicity.
In the light of all the information before me, considered individually and cumulatively, I am unable to be satisfied there is a real chance that on return to Indonesia the applicant would suffer persecution for reasons relating to his claim that he would be arrested and detained as he attended demonstrations or that he would be harmed because of his ethnicity as a Chinese Indonesian. The applicant does not claim to fear harm in Indonesia for any other s5J(1)(a) reason and no other reason is apparent on the face of the information before me.
The Tribunal
The applicant lodged an application for review with the Tribunal on 29 August 2018. A copy of the delegate’s decision record and notification of refusal letter was provided to the Tribunal. His application was acknowledged on the same day and he was informed that if he wished to provide material or written arguments , he should do so as soon as possible. No response was received.
On 31 January 2024 he was sent a request for information: In your application for a protection visa you would have provided reasons or made claims as to why you need Australia to grant you protection. Do you want to give any more information about your claims for protection? Are there any other reasons why you are afraid to return to your home country? He was also advised that: If you want to submit any further evidence to the Tribunal, please provide it in writing as soon as you can. There was no response.
On 18 March 2024 the applicant was informed that on the material before it, it was unable to make a positive decision, and he was invited to attend a hearing. The applicant then appointed an agent (from 21 March 2024).
The applicant was invited to attend a hearing on 9 April 2024. Written submissions were provided by his representative dated 3 April 2024 which included the following:
·As a preliminary issue, the Applicant wishes to clarify that the migration agent who assisted him in lodging his protection visa application made several errors and misinterpreted his claims. Therefore, we have been instructed to clarify the Applicant’s stance regarding his protection visa claim.
·Being a person of Chinese descent, he had encountered racial discrimination of the gross kind, exacerbated by historical events such as the violent 1998 riots targeting Chinese individuals, which led to injuries, sexual assaults and widespread looting. The recent election of Prabowo Subianto, who was associated with the 1998 anti-Chinese riots, further heightened the Applicant’s concerns of persecution.
·The Applicant applied for a Protection Visa out of a profound concern for the potential loss of his basic human rights upon returning to Indonesia. He holds a strong belief that as an individual of Chinese heritage, his life would undergo significant changes, depriving him of the freedoms he has enjoyed in Australia.
·He has faced a series of troubling incidents in Indonesia, which have deeply ingrained fear in him. These include harsh discrimination from Muslim Indonesians, enduring racial insults and being called derogatory names, as well as explicit threats due to his Chinese background. These distressing encounters have left the Applicant genuinely worried about his safety and wellbeing, rendering the thought of returning to Indonesia deeply unsettling and alarming.
The incidents included:
Incident 1: 1998 riots
The Applicant, who was born and raised in Jakarta, Indonesia, experienced the significant riots of 1998 firsthand. At the age of [Age], the Applicant witnessed their family’s [business] being targeted and looted during the riots. They were physically assaulted and verbally abused by the rioters. The Applicant, fearing further violence, had to hide upstairs to avoid the rioters. The rioters demanded money or threatened expulsion, extorting goods from their shop without payment. Constant harassment and extortion due to their Chinese ethnicity left the Applicant deeply traumatised by the brutality and cruelty of the rioters.
Incident 2: Derogatory names
The Applicant faced verbal abuse in public spaces, often being derogatorily labelled as “Babi Cina” or Chinese pig”. This verbal abuse, reflecting a wider pattern of discrimination against Chinese Indonesians, frequently escalated into physical assaults. The Applicant felt constantly vulnerable in public settings, as local Muslims frequently provoked confrontations during these verbal attacks. Discrimination persisted due to physical features such as small eyes and lighter skin compared to the majority population.
Many Chinese Indonesians, including the Applicant, were subjected to targeting by native Indonesians through acts of force and threats, fostering an atmosphere of fear and distrust. This hostile environment led to challenges for businesses owned by Chinese Indonesians, some of which became targets for vandalism and extortion. The once harmonious community relations began to deteriorate due to the impact of prejudice.
The hostile and unsafe conditions in Indonesia, driven by ethnic tensions, played a pivotal role in his decision to seek safety and protection from the Government in Australia.
It is submitted that the applicant is a member of a particular social group: his Chinese ethnicity distinguishes him from society and the authorities failed to provide protection. He faces a real chance of persecution on this basis.
It is also submitted that he continues to be haunted by the May 1998 riots, and he is concerned that his ethnic background will persistently expose him to discrimination in Indonesia, and he is sceptical about receiving any form of support or protection from the government should he becomes the target in the future. Recent incidents have seen Chinese Indonesians still experiencing discrimination, including being subject to legal proceedings on charges of blasphemy and imprisonment.
Concerning complementary protection it is submitted that he has faced past harm, especially psychological harm, and he believes that as a person of Chinese ethnicity if he returns to Indonesia he will face degrading treatment.
It is stated that the applicant cannot relocate as there is deep rooted discrimination against people of Chinese ethnicity with inadequate legal protection, cultural and system biases. The applicant may be fearful to seek protection. He does not have any relatives or friends in other cities. He also does not have a source of income elsewhere. He would not have enough money to support himself in another city.
Articles are referred to which are stated to support that exploitation of anti-Chinese sentiments for political gain and the recurrence of the "Chinese threat" is a divisive issue and it is submitted that considering the riots history, there is a real risk that an anti-Chinese president or political forces might resort to discriminatory measures, which could lead to the marginalization and persecution of the Chinese Indonesian community once again. The articles note that there has been a significant improvement after the 1998 riots and post-Suharto era, but that there is still an anti-Chinese narrative that can be used for the purposes of political mobilisation when circumstances are prime. It is submitted that those of Chinese ethnicity still have a fear and there is still discrimination.
The applicant’s evidence
The applicant appeared before the Tribunal on 9 April 2024 to give evidence and present arguments. The agent also attended. The Tribunal hearing was conducted with the assistance of an interpreter who appeared by video in the Indonesian and English languages. Some of his evidence was as follows:
·     He finished [studies] at university in [year] and then looked for work for 1 year and then he started to work for the family business with his father.
·     He worked there for 4 years, starting in about 2012. He finished working there just before he came to Australia. His role was [wide-ranging].
·     His father is no longer running the business, he is retired. His mother had passed away when he was [Age].
·     He has [siblings]: [details deleted].
·     The applicant started work 2 months after he came to Australia, helping his friend who he met here to [work]. Since then he works in [other roles] in a company producing [products]; first as a casual for 1 year and he has now worked full time for approximately 3 years.
·     The Tribunal asked the reasons why he doesn’t want to go back to Indonesia and he said because he and his family experienced trauma in 1998. He then said the person behind those riots is the next president in Indonesia. The Tribunal asked him whether he has informed himself about Prabowo, and in particular whether Prabowo now presents with a different attitude since the riots in 1998. The applicant said he reads and hears the news and there is no difference. The Tribunal put to him that if he had listened and read news he would be aware that Prabowo did not run on nor is he based on presenting an anti-Chinese platform[2]. The applicant changed his response and acknowledged that the President doesn’t provide anti-Chinese rhetoric in public. The applicant said he considers he is anti-Chinese because he experienced what happened in 1998.
·     The Tribunal noted that the applicant and his family remained living in Indonesia after the riots and if the country conditions were so difficult for a person of Chinese ethnicity, he could have applied to study overseas. He said his parents lost a lot of money when their business was looted and they had to start over again. People of Chinese ethnicity don’t have success in business. The Tribunal put to him that according to the DFAT report, this assertion is not correct. He then said he didn’t mean that every ethnic Chinese is unsuccessful, just that his parents were. The Tribunal noted that they brought up [children] and were able to afford for the applicant to attend university in Indonesia.
·     The Tribunal put to the applicant that if he had been subjected to frequent physical assaults, it would be reasonable to expect that he would have gone to the police. His reasons for not seeking protection changed during the hearing: initially he said you can only go to the police if you have money; the Tribunal noted that he did have money; he was educated in Indonesia, he worked there, he could afford to come to Australia and not work here for 2 months. He then changed and said that he could not go to the police because of his Chinese ethnicity. He later said that he could not go to the police because there is no CCTV to provide evidence.
[2] Discussed below.
Further relevant evidence is set out below.
The Tribunal put to the applicant that it had credibility concerns, and concerns about his claims, although it had not made up its mind. It discussed relevant country information with him.
CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS AND REASONS
The issue in this case is whether or not the applicant meets the definition of refugee or is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of reference
The applicant produced his passport to the Department, who accepted that he was an Indonesian citizen and national, and assessed his claims against Indonesia. The Tribunal accepts that he is a national of Indonesia, and that the appropriate country of reference for the assessment of his refugee claims, and the receiving country for the purposes of his complementary protection claims, is Indonesia.
Credibility
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded”, or that it is for the reason claimed. Similarly, the fact that the applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
Pursuant to s 5AAA of the Act, it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.
Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–70).
The Tribunal put to the applicant its concerns about inconsistencies and new claims, which undermined his credibility and claims about his circumstances in Indonesia and in Australia.
As put to the applicant at hearing, his protection visa application claims were significantly different to his claims made to the Tribunal, including the submissions received prior to the hearing, and his evidence at hearing. The Tribunal was also concerned with the applicant’s evidence that he could not recall the claims that he would have made in his protection visa application form. The Tribunal’s concerns in this regard are set out below:

Firstly, the applicant was unable to explain what was or would have been included in his protection visa application form, and gave changing evidence as to how he completed these forms[3].
[3] More discussion of this occurs in the fifth point)
Concerning the completion of the forms, the applicant confirmed to the Tribunal that he lodged his protection visa application a few months after he arrived in Australia. His evidence, however, as to how this was completed, was changing and difficult to accept. He was shown his signature on the form and he agreed that this was his signature. He initially said that he completed the forms himself. Then he changed his evidence and said that he did not complete it himself. When the Tribunal noted this was a change in his evidence, he said it was a misunderstanding. He said that his former agent completed it. He said he gave the agent just a few incidents, then the agent made a lengthy story and then asked him to sign it. He only found out about the contents of his form several years later when the agent sent it to him.
When the Tribunal asked if he read the forms at the time he signed them, he said no. The Tribunal put to him that he signed and declared the form to be true and correct. The Tribunal put to him that he is an intelligent person who is educated and has work experience in business, and he is now suggesting he did not even read his protection visa application. After more questions the applicant then changed his evidence and he said that he signed it and he read it at the time; it was true and correct.
When the Tribunal asked whether there anything missing from his form, he then said that he can’t really give a clear answer, he has already forgotten about the application, he doesn’t clearly remember everything, and it was made a long time ago.
The Tribunal put to him that the form was his basis for seeking protection in Australia, and he is saying that he doesn’t know what he claimed in his application. He said that he doesn’t really recall what was in the application nor the reasons why he would have said that he wanted to stay in Australia. This response was of concern.
The Tribunal asked him what he thought he would have included in his protection visa application form. He said that it would have been what he told the agent, but he only told the agent several instances. The Tribunal asked what exactly he told the agent. He said that it is a long story. The Tribunal asked him on a number of occasions for the details of what he told the agent and he was unable to provide any details. He just repeated that it was a long time ago and he told the agent he experienced racism and discrimination because of his ethnicity.
The applicant was given numerous opportunities to explain what he would have told the agent to include in his protection visa application form, but he was unable to do so. The Tribunal considers that if he had experienced discriminatory abuse or harm, and if he had used an agent to complete his protection visa application, he would have recalled the incidents he had referred to in his protection visa application form. The Tribunal considers that his vague and evasive evidence undermines that he did experience discrimination and harm in Indonesia, and that he had made a truthful protection visa application to the Department.
Secondly, the applicant’s evidence at hearing was inconsistent with his protection visa application form and the submissions made by his agent to the Tribunal in a number of significant respects concerning past harm:
·     In his protection visa application form he claimed that he had been arrested and detained twice because of his attendance at demonstrations against unfair the election system and discrimination, and a general claim that he had faced discrimination because of his Chinese ethnicity.
·     As noted above, the applicant’s claims before the hearing, in his agent’s submissions, were numerous and varied, including that he had experienced frequent physical assaults, acts of force and threats, and gross/ harsh discrimination involving racial insults and derogatory names.
·     However, his evidence at hearing about what had happened to him in Indonesia was significantly different again. As the applicant was not able to tell the Tribunal what incidences he told the agent about when drafting his protection visa application form, the Tribunal asked him to tell it what had happened to him back in Indonesia. The applicant stated as follows:
oIn Indonesia the Chinese community experienced a very big incident in 1998. He also experienced it, his family’s business was looted and burnt, and his mother died because of the shock she had received.
oWherever he went he did not feel safe to go out of the home as he felt racism, people ridiculed him and said he had small eyes. The Tribunal put to him that he did leave his home, he did not live his life inside his home, he went out to school and work. The applicant changed his evidence and said this did not occur every day. He then changed again and said it was every day, it happened every time he left the home.
oThe applicant said that there was nothing else that had happened to him in Indonesia that he had not told the Tribunal; he has told the Tribunal everything.
The applicant had omitted to claim at hearing that he had attended demonstrations and that he had been subject to frequent physical assaults (as set out in the submissions from the agent).
Even when the Tribunal prompted the applicant, asking him whether he had read the submissions from his agent, and asked whether there was anything else that had happened to him that he had not told the Tribunal, he said he had read the submissions, and there was nothing else to add except he feels he has freedom in Australia and he doesn’t experience racism like in Indonesia.
Even after the applicant was asked to explain what he feared would happen if he returned, he still did not make any claims that he had been physically harmed (in accordance with the agent’s submissions) nor did he make any claims about his political opinion/ harm feared as a result of attendances at demonstrations including being arrested in the future.
The Tribunal considered that his failure to mention the claims of frequent physical assaults (made in his agent’s submissions) undermined his credibility and those claims. Discussion of the claims in his protection visa application form is referred to later.
Thirdly, the applicant continued to make new claims of past harm to the Tribunal even after he had been given numerous opportunities to do so, and after he had said that there was nothing else that had happened to him (which he repeated on a number of other occasions). This occurred as follows:
Late claims of past physical harm: The applicant made late claims of physical harm when giving evidence, after he was asked if he had read his agent’s submissions, and only after he was prompted by the Tribunal with the specific words “physical harm”. He then said he had experienced physical harm:
· In 2011 he was robbed on public [transport]. They took his wallet with his ID and his jacket.
· In 2008 he was [deleted]. He was walking home and he was beaten by several people. He had injuries on his face and blood on his lip and he reported it to his parents but they didn’t report it to the police.
The Tribunal put to him that these late claims that he had suffered physical harm were inconsistent with his previous evidence that nothing else had occurred. It said it was concerned that he was changing his evidence. He disagreed and said that he had not been asked before. The Tribunal does not accept this explanation, given the number of times he was asked to tell the Tribunal what had happened to him in Indonesia and the number of times he had said nothing else had happened to him. The Tribunal does not accept his explanation for failing to mention physical harm until after he was prompted to do so by the Tribunal.
The Tribunal’s concerns with these claims of 2 physical assaults are heightened also because they are inconsistent with the submissions that he experienced “frequent assaults”.
Late claim of additional cost to obtain a driver’s licence: Further, when the Tribunal asked him, again, whether there was anything else he had not told the Tribunal, he confirmed nothing else happened to him. He later claimed that to get a driver’s licence when he was aged [age] years it cost him double. The Tribunal considers that if this had occurred, he would have mentioned it to the Tribunal when asked whether anything else had happened in Indonesia.
The Tribunal then offered him yet another chance to say whether anything else had happened and noted that he kept on adding claims after he had said there was nothing further. He said nothing else happened.
Late claim that his family suffered and continues to suffer from racism/ discrimination: The applicant told the Tribunal that he had a father and siblings. While he claimed that his mother suffered and died (as a result of the riots), he made no claim that his father or siblings had or continued to suffer discrimination or harm.
At the end of the hearing when the Tribunal was discussing whether the applicant faced a real chance of serious harm or a real risk of significant harm, it put to him that his father and siblings appear to be fine in Indonesia. He said how do you know the family is ok and the Tribunal said this is because he had been asked if he had anything else to tell the Tribunal and he had made no claim that his family had suffered.
Further, the Tribunal put to him that his agent had just provided detailed submissions to the Tribunal, and it would expect that if his family was suffering, he would have mentioned this in the submissions. In response he said the question is too broad. The Tribunal does not accept that the question was too broad. The Tribunal considers that if the applicant or his family had faced harm in Indonesia, he could have told the Tribunal this on numerous occasions. When he was asked what his family suffered, he said he said that he calls his family once/ twice per month and they are still experiencing the same things to date: when they leave the home, on occasion, they are subjected to racism. Because of that he is afraid to go back to Indonesia.
The Tribunal was concerned that throughout the hearing the applicant continued to make new claims after saying that nothing else had happened to him (and that he had nothing else to tell the Tribunal), which undermined his credibility and these new claims.
Fourthly, the applicants claims at hearing were thus as follows:
·     Initially he claimed that there were 3 instances of harm suffered in Indonesia: firstly, the looting of his family business during the 1998 riots, secondly that his mother had died as a direct result of the 1998 riots, and thirdly that every day when he left home he felt racism and he was ridiculed for example he was told he had small eyes.
·     He later claimed 2 instances of physical assault,
·     He later claimed being charged double to obtain his driver’s licence.
·     He later claimed his father and siblings are subjected to racism which is a reason why he is afraid to go back to Indonesia.
The Tribunal put to the applicant that while it accepted he had made a general assertion that he had faced discrimination and harm on the basis of his ethnicity in his protection visa application form, there were many new specific claims made to the Tribunal that are reasonable to expect would have been contained in his protection visa application form, and presented to the Department from the very beginning, and their absence causes concern. It noted that some of the new claims were not even referred to in the detailed clarifying prehearing submissions provided by his new agent. The Tribunal referred to s423A of the Act and asked whether he had a reasonable explanation for omitting to mention these claims when his case was before the Department.
The claims as to what happened to his parents’ business and that his mother died because of the trauma of those events was not mentioned while his case was before the Department.
In response the applicant: that incident happened a long time ago, it is not just like something that happened yesterday that I could recall. I have been living in Australia and I feel free. I have to recall these incidents 1 by 1. I did not think I had to put in all the incidents because then I would have to remember them all. The Tribunal considers that the death of his mother as a result of the riots and his claim that they lost their whole business and could not re-establish themselves again are not matters that he would forget. It is not satisfied that he has a reasonable explanation for the omission of these claims while his case was before the Department. The Tribunal’s concerns with these new claims are heightened because while the agent’s submissions actually referred to the business being looted, there was no reference to the applicant’s mother dying.
The claim that had to pay more for driver’s licence: The applicant’s explanation for not referring to this when his case was before the Department was that the Tribunal asked him the question so he referred to it. While, as noted above, the applicant did make a general claim of discrimination in his application form, the Tribunal considers it reasonable, when asked in his application form to provide details of his past harm, that he would have mentioned this. The Tribunal is not satisfied that he has a reasonable explanation for the omission of this claim. The Tribunal’s concerns with this new claim are heightened because the agent’s clarifying submissions do not refer to this claim, and as noted above the applicant raised this claim after saying nothing further had happened to him. The Tribunal considers that if the applicant had actually experienced a form of extortion through discrimination, he would have mentioned this in his protection visa application form (or even in his agent’s submissions to the Tribunal).
The claim that his father and siblings continue to suffer racism/discrimination and this is why he doesn’t want to return to Indonesia: The applicant was asked why he didn’t raise this claim when his case was before the Department and he said that he is just answering questions now, he didn’t tell everything to his agent, it is too general. The Tribunal is not satisfied that he has a reasonable explanation for omitting this claim (which was also not mentioned in is agent’s clarifying submissions).
Conclusion as to whether there is a reasonable explanation pursuant to s423A:
Even if it did not draw an adverse inference by operation of s 423A of the Act, the Tribunal would, however, have drawn an adverse inference as to the credibility of these new claims because the applicant only made these claims to the Tribunal (mostly at hearing), and not previously, despite having the opportunity to do so (and being requested by the Tribunal since his application for review was lodged to provide relevant evidence and information).
In coming to the conclusion that he does not have a reasonable explanation for omitting these claims when his case was before the Department, the Tribunal had considered his assertions that he was essentially not responsible for his protection visa application form; it was the fault of his agent who assisted him at the time. Having regard to the evasive, changing and inconsistent evidence about this, the Tribunal is not satisfied that the applicant was not responsible for what was claimed to the Department (and what was not claimed to the Department). Further discussion of this argument is set out below.
Fifthly, the Tribunal was concerned that the applicant’s protection visa application form contained claims which were subsequently disavowed by the applicant.
When the Tribunal put to the applicant the claims made in his protection visa application form, noting the significant change in his claims, he responded that he had never attended a demonstration or been arrested or detained and the claims in his protection visa application form are not true. The applicant said that his agent made these up and he thinks the agent has been arrested for this. The Tribunal put to him that if this was the case, it does not understand why he told the Tribunal earlier that he had read the claims in his protection visa application form and they were true and correct. He responded at that time the agent didn’t tell him about it, he was told to sign several documents that were to be filled in. He said that he only told the agent he experienced discrimination and the agent then said he will write the application. The Tribunal put to him that he did not, earlier, claim that he had read a document containing blank spaces and signed it; he had told the Tribunal that he read it and signed it and it was true and correct. The applicant’s evidence then changed to: I signed it and I didn’t read the story and my previous agent didn’t give me the paper.
The Tribunal put to the applicant that his protection visa application form did not record that he had received the assistance of an agent. He said he could not recall that. He said that he paid him several times and there was news he was arrested, he could not contact him again. The Tribunal asked whether he made any complaint about his case to anyone, he said no. The Tribunal noted he said the agent had been arrested for fabricating claims; when he read that, did he think of checking his own claims. He responded no.
The Tribunal is not satisfied with the applicant’s changing evidence about the preparation of and the contents of his protection visa application form (as set out in this paragraph and above paragraphs). The Tribunal considers that his evidence indicates that he had difficulty recalling what was in his application because he did not experience any serious or significant harm in Indonesia and for this reason he could not recall any specifics to tell the Tribunal. Further, it considers that his evidence as to how his application was completed is not reliable.
Having regard to the above, the Tribunal is not satisfied that the applicant is a credible witness in relation to his background and claims.
Other matters
The Tribunal has considered that the applicant may have been nervous when giving his evidence, however it is not satisfied that this can explain the difficulties with his evidence.
Credibility summary
Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility as discussed above lead the Tribunal to conclude that he has not been a witness of truth when making claims in these proceedings. The Tribunal considers that the applicant is prepared to make up claims and change his evidence in order to be granted a protection visa.
Findings on the applicant’s claims
The Tribunal accepts that the applicant is of Chinese ethnicity. It accepts that he claimed in his application form to be Christian (however he did not tell the Tribunal that he faced any harm for this reason). It accepts that he was educated and has worked in Indonesia and has work experience in Australia. It accepts that he lived with his family members in Jakarta which is his home area. It accepts that [a number] of his siblings live and work in Indonesia and one is married and lives in [Country].
Having considered all of the evidence, and on the basis of the adverse credibility finding, the Tribunal does not otherwise accept that he is a witness of truth. The Tribunal does not accept that the applicant did not know, at the time of lodgement, the claims made in his protection visa application form (even if he did have the assistance of an agent). It finds that he could not recall the specific claims made because he has made up his claims to have experienced discrimination and harm in Indonesia to the extent claimed. It finds that he has also made up his claims that his family members had experienced harm during the riots, that his mother died as a result of harm inflicted during the riots, that his family lost their business and suffered harassment and struggled financially thereafter. The Tribunal does not accept that the applicant attended demonstrations, believed that the election system was unfair, was arrested or detained, nor that he suffered from gross racial discrimination, harsh discrimination from Muslim Indonesians or explicit threats, acts of force, frequent (or any) physical assaults and robbery, extortion when seeking to obtain his licence, persistent racial insults/ derogatory names. It does not accept that he was fearful of leaving the home nor that he was insulted every day. The Tribunal does not accept that the applicant’s family members have suffered discrimination as claimed. It does not accept these claims and any claims that flow from these claims. It finds that he has fabricated these claims.

The Tribunal does not accept that the applicant left Indonesia because he experienced harm or discrimination or feared harm or discrimination in Indonesia. It does not accept that he has a profound concern for (or worry about) the state of human rights nor that he did not have freedom to be himself in Indonesia.
The Tribunal does not accept that the applicant has political views that he would seek to express if not for fear, and it does not accept that he faces being imputed with a political opinion that would lead to him facing a real chance of serious harm or a real risk of significant harm.
The Tribunal accepts that, generally, there has been discrimination and some harm in the past against those of Chinese ethnicity, and it notes that there are references to this in the written materials. The Tribunal has already found that the claims made about the applicant’s experiences in the written materials were unreliable and not true. The Tribunal does not consider that he is a reliable witness and it does not accept the submissions concerning his past experiences. The Tribunal does not accept that he has been marginalized/ discriminated against/ subjected to significant harm through societal attitudes or official law or policies.
The Tribunal noted that it had considered the country information put forward by the agent in the submissions, and raised by the applicant at hearing. The majority of the articles referred to in the submissions were dated prior to the DFAT report. The Tribunal put to the applicant that, when considering the country information including as set out in the DFAT report, it may be that the applicant did not appear to face a real chance of serious harm or a real risk of significant harm. It noted that DFAT assesses that Chinese Indonesians currently face a low risk of societal violence and a moderate risk of low-level societal discrimination[4]. DFAT is not aware of official discrimination against Chinese Indonesians. Regarding crime, DFAT reports that crime is a persistent threat and some areas experience street crime, but Indonesia is generally safe. While DFAT indicates that police and other officials may request bribes, it does not suggest there is any sort of racial element to that behaviour.
[4] Further background information from the DFAT report is provided in Annexure B
The Tribunal notes that Indonesian presidential elections held in February 2024 were won by Prabowo Subianto, a former military general who has been accused of past human rights breaches. He succeeds and was endorsed by outgoing President Joko “Jokowi” Widodo[5]. However, as put to the applicant at hearing, while there have been questions about Prabowo in the past, the Tribunal noted that the evidence produced does not indicate that there is a real chance or risk that Prabowo would, in the reasonably foreseeable future, encourage or implement discrimination or harm against ethnic Chinese Indonesians.
[5] Han Yong Hong, ‘What Prabowo’s victory could mean for Indonesia-China relations’, >
The Tribunal said that while accepting the riots occurred in 1998, the country information indicates that the situation has significantly improved since then, and although there are references to some worrying developments, the evidence did not appear to support that the applicant in the reasonably foreseeable future faces a real chance of serious harm or a real risk of significant harm on the basis of discrimination or a lack of human rights or that he faces a need for state protection. In response the applicant said that everything on the internet about Prabowo is positive and not anti-Chinese, but he has lived there and experienced things directly, and Prabowo takes away freedom of human rights and voting and he thinks he was banned by Australia in 2015 (he did not provide country information in support of this). While the Tribunal notes that the article referred to in the above paragraph states that Prabowo was banned from the USA, it states that this ban was revoked after he was made defence minister. The applicant did not provide any evidence to support that citizens of Chinese ethnicity do not have the right to vote, and this is not accepted.
The Tribunal is not satisfied on the evidence before it that the election of Prabowo will lead to any substantive deterioration of the situation for Indonesians of Chinese ethnicity in the reasonably foreseeable future such that the applicant faces a real chance of serious harm or a real risk of significant harm.
When considering the country information as a whole, the Tribunal is not satisfied that the country conditions are as difficult for ethnic Chinese as is portrayed in the submissions or by the applicant. The Tribunal has not accepted that the applicant’s family members, who are of Chinese ethnicity, are suffering discrimination of any significance (as it considers he would have made this claim if they were). The Tribunal does not accept that issues of prejudice and discrimination persist everywhere or to the extent that this means that the applicant faces a real chance of serious harm or a real risk of significant harm in the form of discrimination or physical harm or any other harm. It also does not accept that there is a real chance or a real risk that he will have a need for state protection or to relocate.
The Tribunal has considered all of the country information and it accepts DFAT’s assessment that Indonesia is generally safe, and that while Chinese Indonesians may face some low-level societal discrimination, there is only a low risk of societal violence and do not face official discrimination. The Tribunal is prepared to accept that the applicant may experience occasional racial slurs. While these are uncalled for and unpleasant, the Tribunal is not satisfied that they reach the level of serious or significant harm.
Refugee claims
The Tribunal is not satisfied that the applicant fears or that he actually faces a real chance of serious harm including in the form of discrimination on the basis of his ethnicity. The Tribunal does not accept that the applicant faces a real chance of serious harm at all, and in particular not for any of the 5 listed reasons including membership of a particular social group. It does not accept that he faces a real chance of being imputed with an adverse political opinion. It does not accept that he faces a real chance of serious harm in the form of financial or economic harm.
The Tribunal has considered the applicant’s claims individually and on a cumulative basis, in the context of its findings that the applicant is not a credible witness concerning past events or future harm feared, as well as the relevant country information, and, apart from those claims accepted above, the Tribunal rejects all the various claims made and finds that he does not have a well-founded fear of persecution as a refugee for any of the reasons put forward by him or on his behalf
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) (see Attachment A, which provides a summary of the relevant terms). The Tribunal has accepted that the applicant will return to Indonesia as a working age male with education, and work experience in Australia and Indonesia, and that he will return to his family home in Jakarta. It is not satisfied that he faces a real risk of discrimination that could rise to the level of significant harm for any reason.
The Tribunal has found that the applicant is not a witness of truth concerning his claims that he faces a real risk of significant harm.
The Tribunal is not satisfied that he faces a real risk of experiencing significant harm for any reason.
On the evidence presently before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this case Indonesia, there is a real risk that he will suffer significant harm for the purposes of s 36(2)(aa) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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.
Christine Cody
Member

ANNEXURE A- CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Annexure B- some further background information from DFAT report
Indonesia has made significant democratic gains in the post-New Order era, establishing pluralism in politics and the media, and undergoing multiple peaceful transfers of power. It has become a democracy with a genuine public contest of ideas, fair elections, and the freedom to analyse and criticise those elections. Article 28E of the constitution states Indonesians have the rights to the freedom to believe their faith and to express views and thoughts in accordance with their conscience; and to associate, to assemble and to express opinions.
Indonesia is one of the world’s most ethnically diverse countries. The government promotes racial tolerance, and legislation prohibiting racial discrimination and vilification has been in force since 2008. Online racial hate speech is banned by Indonesian law, however issues about race and discrimination are openly discussed in Indonesia. Article 28I(2) of the Constitution, among other articles, states that every person shall have the right to be free from discriminatory treatment based upon any grounds whatsoever and shall have the right to protection from such treatment.
People from different ethnicities and different parts of Indonesia are often visibly distinguishable by body and facial features, skin tone, or are recognisable by their name. Low-level ethnic discrimination, like stereotypes and the use of racist slurs, occurs in Indonesia, as in other parts of the world. Non-Javanese are worse affected, but ethnic chauvinism occurs among members of all ethnic groups.
Successive waves of immigration to Indonesia from China have resulted in well-established ethnically Chinese Indonesian communities throughout the country. Many Chinese Indonesians can trace their history in Indonesia back many generations, may no longer identify as Chinese, and may not speak a Chinese language. Most Chinese Indonesians belong to a religious minority, either Buddhism or a Christian denomination. 3.7 The Suharto-era New Order regime implemented a range of discriminatory measures, prohibiting Chinese language newspapers, schools and cultural expression and requiring Indonesian names. Violence and looting targeting Chinese Indonesians and their homes and businesses peaked during the Asian Financial Crisis (see Recent History). Since the end of the New Order regime in 1998, successive governments have removed official policy measures discriminating against ethnically Chinese Indonesians. Chinese New Year is a national public holiday, Confucianism is an officially recognised religion, Chinese-language newspapers are published, and there are no barriers to Chinese cultural celebrations or education.
Hundreds of thousands of protesters demonstrated in Jakarta on several occasions in 2016 to demand the detention of the Christian and Chinese-Indonesian Governor of Jakarta, Basuki Tjahaja Purnama (often referred to as ‘Ahok’), after he was arrested for allegedly insulting Islam. Violence between protesters and police was reported, but not violence against ordinary citizens, as occurred in 1998. Chinese Indonesians experience societal discrimination in the form of negative stereotypes that portray them as greedy, as criminals or as being associated with China and its policies. Discrimination of this type increased around the outbreak of the COVID-19 pandemic due to the aextensive media coverage of China and various claims about the origins of the virus at the time. Risk of societal discrimination against Chinese Indonesians depends on individual circumstances. Individuals with wealth are less affected; they can use their wealth and connections with powerful people to protect themselves. Many Chinese Indonesians work in family businesses or within their own ethnic community, which reduces the chances of discrimination at work. Those without such networks or wealth would be more at risk of discrimination, but that applies to all Indonesians, not just Chinese Indonesians. Memories of the 1998 violence and 2016 protests are still fresh in the memories of many ethnically Chinese Indonesians. Some jealousy of perceived wealth can lead to threats and some Chinese Indonesians keep a low profile as a result. Anti-minority sentiment is also heightened during election campaigns. Violence has occurred in the past but is not an everyday experience for Chinese Indonesians. DFAT assesses that Chinese Indonesians currently face a low risk of societal violence and a moderate risk of low-level societal discrimination. DFAT is not aware of official discrimination against Chinese Indonesians.
Christianity is Indonesia’s second-largest religion after Islam. In country sources told DFAT that they do not generally experience discrimination, for example, because of the faith listed on their identity cards, when publishing literature, or for having Christian websites. Localised discrimination from local governments is possible. In-country sources told DFAT that most churchgoers feel safe going to church on Sundays. DFAT assesses that Christians residing in areas where they are a majority do not face either official or societal discrimination. Christians residing in areas where conservative Islam is prevalent face a low risk of societal discrimination in the form of impediments to worship. Violence does occur and there are recent high-profile examples, but this is not the day-to-day experience of most Christians.
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 2940

28 June 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction