1827291 (Refugee)

1827291 (Refugee) [2024] AATA 2303 (7 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1827291

COUNTRY OF REFERENCE: Indonesia
MEMBER:Jessica McLeod
DATE:7 June 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 7 June 2024 at 3.48pm
CATCHWORDS
REFUGEE – protection visa – Indonesia – victim of money lender – fear of revenge killing – physical violence – attack on home – economic conditions – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
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 12 September 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is an Indonesian citizen who arrived in Australia in 2013. He applied for the protection visa on 12 May 2018, claiming he would face harm on return due to economic hardship and a money lender wanting to kill him over unpaid debts.
At the primary stage, the delegate decided the application on the papers. The delegate refused to grant the visa, noting the applicant had not claimed he would be harmed or denied protection for a reason mentioned in s 5J(1)(a), and finding that he could obtain protection from the Indonesian authorities such that there would not be a real risk of him suffering significant harm.
The applicant appeared in a video hearing before the Tribunal on 25 March 2024 to give evidence and present arguments.[1] The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.
[1] The hearing was conducted via video because the applicant had indicated he would face difficulties attending an in-person hearing.
A package of documentary evidence and photographs was also provided post-hearing.
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
RECEIVING COUNTRY
The applicant has consistently claimed to be a national of Indonesia who has no other citizenships or residency rights elsewhere. He has provided a photocopy of his Indonesian passport, which he entered Australia on, and there are no obvious issues with his identity or nationality claims. I accept his nationality and identity are as claimed, and that Indonesia is the receiving country for the purpose of this review.
CONSIDERATION OF PROTECTION CLAIMS AND EVIDENCE
The issue to be determined in this case is whether the applicant is a refugee, meaning he has a well-founded fear of being persecuted in Indonesia for one or more of the five reasons set out in s 5J(1)(a) and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Indonesia, there is a real risk he will suffer significant harm.
For the following reasons, I have concluded that the decision under review should be affirmed.
Information before the delegate
In his protection visa application lodged in 2018, the applicant claimed to be from Tegal, in Central Java. He said he had left Indonesia because the business he had borrowed money to set-up wasn’t running well and he was unable to repay the money. He said he knew the lender through an advertisement to provide funding and now he wanted to kill him over the unpaid debt, and the amount is increasing. He said he tried seeking help from family and friends, but they don’t care because they are themselves living in bad conditions and they hoped he would be killed as they didn’t want to take responsibility. He tried moving to another area of Indonesia, but they have a very big gang and they found him. He tried to lodge a report with his local police, but they paid no attention due to corruption and the gang. He also referred to facing economic problems generally (aside from the business debt) and that he was having to work too hard every day. He said he is trying to improve his life and his family’s “economy”.
Information provided to the Tribunal
Pre-hearing information form
In his pre-hearing information form the applicant completed for the Tribunal on 6 February 2024, the applicant said he was a [foreign exchange] trader who had generated significant profits in his trading. However, he said, his investments did not go according to plan, and he experienced a series of significant trading losses. He found himself trapped in large debts to several colleagues and friends. Colleagues who were once considered friends and business associates started aggressively demanding payment. They threatened to use physical violence if he did not repay his debts within a specified timeframe. He felt threatened and believed that his life was in danger. In desperation, he decided to seek protection in another country by applying for a protection visa. He said it has been extremely difficult to gather supporting evidence for his claims as all the evidence was stored on his computer in Indonesia.
Tribunal hearing
At the Tribunal hearing on 25 March 2024, the applicant provided more detail on his background and protection claims. This is summarised as follows:
He is married and has [number] children. They are still in Indonesia. [Ages of children deleted.] His children and wife are all living in Denpasar, Bali. His wife runs a [business 1], which she works in with his oldest child. His own parents passed away about a year after he came to Australia, a month apart, from different conditions. He believes they died from the stress of his situation; he blames himself.
In the past, in 2007-2008, he started his own business selling [product 1]. After two years, he had achieved considerable success and had expanded his business to send [products] to several cities. By 2009-2010, he was able to provide for his parents as well as his wife and child and was able to buy things they wanted as well as needed.
In 2011, he met with a friend who was buying and selling shares online. The applicant then set up his own account on the [named] platform (used for buying and selling foreign currencies, gold and other commodities). He had never studied beyond completing high school; he had not done any financial training or studies. However, he managed to teach himself by using the demo site for three months, and when he was able to analyse things to make a profit, he set up a real account, starting with IDR [amount][2].
[2] AUD [amount] as at 9 April 2024: xe.com
He performed well with [this platform]. He increased his profit margin and along with his trading, his [product 1] business also improved. A friend of his from Banyuwangi understood that the applicant’s trading was profitable, and he gave the applicant some money as an investment; the applicant acted as his broker. Two months later, his friend, ‘A’ introduced the applicant to his parents who always wanted to invest – they gave the applicant IDR [amount][3] and within one to two months, the applicant had made them a profit, which they shared. They then gave him a further IDR [amount][4] (therefore, IDR [amount][5] in total). Other people invested with him as well. Altogether, 15 people invested, including neighbours and old school friends, though they didn’t put much money in. None of his family members invested; they didn’t know he was involved with trading.
[3] AUD [amount] as at 9 April 2024: xe.com
[4] AUD [amount] as at 9 April 2024: xe.com
[5] AUD [amount] as at 9 April 2024: xe.com
The applicant traded on [the platform] with other people’s investments for approximately two years. However, the trading didn’t always go smoothly, and he started to suffer losses. But he wasn’t brave enough to tell them, so he took profits out of his [product 1] business to pay them profits. The money in his trading account was depleting and eventually he couldn’t run his [product 1] business because he could not [replenish stock]. Eventually, in mid-2011, he told the people who had entrusted money to him that their money was gone. That is when the real problems started.
When he told his friend A and A’s father, they were shocked. They didn’t want to accept the loss of their money. When his friend’s father finally understood that the money was gone, he suffered a stroke from the shock and about a month later, he died. The applicant’s friend became angry with him.
The applicant avoided his friend. But at the end of 2012, the applicant was on his way back from meeting with someone about selling [stock] when the friend ambushed him on a secluded path, with four other people. His friend said that one life had to be taken to compensate for the other life that was lost. They beat him and attacked him with a sharp weapon, leaving him with injuries to [specified body parts]. He was found by the driver of a motorcycle taxi who took him to a hospital.
That was the last time he ever saw his friend. He never spoke to him again either, as from then on, he was on the run, moving to different places to avoid his friend, who wanted revenge. He said this friend had a lot of gangster friends. He did not know what particular gang they might be affiliated with, but they were always able to find him.
He first went to Makassar on Sulawesi island to stay with his [Relative A], but he only stayed for about 10 days because his friend contacted him there and threatened him. Then he went to [a distant location] for about one month, but there was tribal violence and he feared he was in danger. Then he moved his family to Denpasar, Bali, and made preparations to come to Australia.
Approximately five years ago (while the applicant was in Australia), someone came and threatened his wife in her [business 1] in Bali that if the applicant returned to Indonesia, she should not hope to see him. Since then, every month, a person goes past her [business 1]. The applicant does not know exactly who does this, but his wife has said they are people associated with his friend. When asked if they have ever spoken to her or how she knows this, the applicant said she knows by the way they stop and look into her workplace, and by their gangster clothing. When asked if they had ever spoken to her, he said “no” but they have spoken to other people in the area, asking if her husband has come back yet. When asked where they think he is, the applicant said he does not know, but his wife has never told anyone where he is. He said his wife tells him not to come home as she worries that he will be harmed. He confirmed that neither his wife nor his children have ever been hurt.
When asked if there were other reasons he feared returning (apart from the situation with his friend whose father died), the applicant said “no”. When asked if this friend and his associates were the only people he feared, the applicant said “yes”.
When asked if he had concerns about the other people that invested money with him, the applicant said he is concerned about the people that lived near his place in Tegal, because they have formed a negative view of him and consider him a liar. When asked what he thought would happen if he ever saw any of those other investors again, he said that socially, he would be ostracised, so he is not brave enough to return. He also referred to his friend who had threatened him with revenge for his father’s death.
When asked if he had ever tried getting help from the police or any authorities in Indonesia, the applicant said he had not. He said he had not been brave enough because he believed this would create a threat for his wife and children. He said that during the 2012 incident, his friend had threatened that his wife and child would be targeted if he went to the police. He also confirmed that his wife had never gone to the police.
Issues put to the applicant at hearing
I put to the applicant that there were some apparent discrepancies between his written protection visa application from 2018, his pre-hearing information form given to the Tribunal in February 2024 and his evidence given orally to the Tribunal during the hearing. For example:
a.Whereas in his written application, the applicant said the lender who wanted to kill him was someone he knew from an advertisement, in the pre-hearing information form he said it was his friends and colleagues who had invested money.
b.Whereas in his written application and pre-hearing information form, the applicant indicated the reason he was being threatened and targeted was over unpaid debts, at the hearing he said it was because his friend blamed him for his father’s death.
c.Whereas in his written application, the applicant said he had lodged a police report, at the hearing he said he had never gone to the police.
The applicant responded that when he was applying for the protection visa, he did not know how to do it and didn’t know any English, so a friend, ‘H’, helped him do the form and gave him written reasons. I clarified with the applicant whether he meant that he told H what to write, or whether H had devised his protection claims. The applicant responded that H had asked him what problems he had had in Indonesia, and he had told H “debts and threats, and that’s all”. He confirmed that he did not give H any further details or explanation about what he meant by “debts and threats”.
The applicant then confirmed that what was written in his written application – about someone looking for him and wanting to kill him or make him pay – was incorrect. He also confirmed that the detail in the pre-hearing information form about friends and colleagues aggressively demanding payment and threatening him with physical violence was also incorrect. He said he had gotten into large debts with friends and colleagues, that they never threatened him directly (though they had through his parents, the last time being in 2014 but they never found him) and he does fear them, in the sense that he is traumatised, but it was only his friend A, and A’s people, that directly threatened him with physical violence and ambushed and hurt him. He said a friend at work had helped him complete the pre-hearing information form, and he had told his friend some of the details about the trading difficulties, but he had not wanted to disclose too much detail.
I noted to the applicant that I had concerns about the long delay between his 2013 arrival to Australia and the lodging of his protection visa application in 2018. The applicant responded that he didn’t know how to apply. He said that friends had told him he needed a lot of money to get protection, so that’s why it took him so long. He said he only learned that he could apply when he met H in 2018. I asked the applicant why he had not done his own research or asked the Department of Home Affairs what was involved in applying for protection and he said he had known some people who were taken by the Department of Home Affairs by force so he was reluctant to approach them, and his English was poor so he couldn’t help himself.
I put to the applicant that I also had concerns about other matters, noting that in his written application and his pre-hearing information form, he made no mention of having been attacked with a weapon (the 2012 incident), nor of anyone making threats to his parents or wife, nor about someone going past her [business 1] in Denpasar, nor asking after him through others in Denpasar. I explained that these issues were leading me to question his overall credibility. The applicant responded that because he faced limitations in relation to what he could provide in written form, he was waiting for his hearing to tell the Tribunal face-to-face and provide all the information.
I put to the applicant that I would be considering whether it is plausible or not that someone like himself, with no education beyond high school and no training in business or financial trading, would have been entrusted with investing other people’s money, which consisted of the money of up to 15 people. The applicant responded that they were just ordinary people who had assessed that, based on his economic circumstances at the time (with his [product 1] business and trading/investments all going really well, and knowing he had a vehicle), it was worth entrusting their money with him.
I put to the applicant that I would be considering whether it is plausible or not that he was tracked to different locations across Indonesia. The applicant responded that in Indonesia, the islands and cities are not that big, and the social and cultural norms should be considered, as many people mix and many people know each other. For example, there are people from Banyuwangi everywhere. People find each other quickly. I put to him that even so, there are millions upon millions of people in Indonesia so there is still a question in mind as to whether he would be located. I also noted, that in the context of his wife being located, a Google search result indicated there are 4.3 million in Bali and more than 800,000 people just in Denpasar. Given this, I put to the applicant that I would also need to consider whether it was plausible that his wife was found. He responded that many people come to use his wife’s [business 1] every day and she has been there many years now, so it is easy to find her.

At the hearing, I shared with the applicant some of my considerations going to the issue of whether he would face a real risk of being harmed in Indonesia. I noted that a long time has passed since the 2012 incident and the other threats he had received, and he has now been in Australia for around 11 years. I acknowledged the threats he claims were issued via his parents (in 2014) and wife in more recent times, but I put to him that I would firstly need to consider if I accepted those claims, and secondly, whether anyone would be motivated to act on those threats, and follow-through to harm him if he were to return. The applicant responded that they would follow through “for sure”, because A’s quest for revenge is so large. He said he had already been tracked to various places in Indonesia, they threatened his wife and parents and his wife keeps telling him not to return. He also said the threat continues to feel real for him, even physically as [one] injury from the 2012 incident pains him whenever he gets cold.
At the hearing, I noted that the applicant had not provided any independent evidence or any other evidence to support his claims. I noted that in his pre-hearing information form he had referred to there being evidence on a laptop that was back in Indonesia and too difficult to obtain, but I said I would be open to receiving any other evidence or further information, or further responses to anything raised in the hearing, within the two weeks following the hearing, up until 8 April 2024. I advised that should he need additional time to provide evidence or further information, or to respond to anything raised in the hearing, he could ask the Tribunal for an extension and explain his reasons for needing one before that date, and it would be considered.
Following the hearing, the applicant provided the following:
-His family card, his wife and [one child’s] identity cards, [another child’s] birth certificate and his [Relative A’s] identity card;
-Photographs of his wife and children, his parents’ graves and his wife’s [business 1] in Denpasar;
-A photograph showing a damaged, unliveable property (which he described as his damaged house in [a location in] Tegal);
-A photograph showing a scar [on his body], which he described as being from abuse with a sharp weapon; and
-A screenshot from 12 May 2018 from someone referring to the submission of his Australian immigration application.
REASONS AND FINDINGS
For the reasons discussed below, I accept some, but not all of the applicant’s claims and I am not satisfied he faces a real chance or a real risk of any harm now, or in the reasonably foreseeable future.
Harm arising from [trading] losses
Firstly, the applicant confirmed during the hearing that his initial written claim, about the lender he knew through an advertisement trying to kill him over unpaid debts, was not correct; those are not his true claims. Given this, I find that these things did not occur, and he does not face a real chance of harm, or a real risk of any harm in relation to those claims. I find he does not meet s 36(2)(a) or s 36(2)(aa) in relation to those claims.
Similarly, the applicant confirmed during the hearing that the claim in his pre-hearing information form regarding his colleagues and friends threatening him with physical violence over money owing to them was incorrect – rather, it was only his friend A and his associates who threatened and harmed him, in revenge for A’s father’s death, and this is who he fears. Given the applicant’s oral evidence, I find that that he was not threatened with physical violence by friends/colleagues demanding he pay them money within a specified timeframe. I find he does not face a real chance of harm, or a real risk of any harm in relation to those claims. I find he does not meet s 36(2)(a) or s 36(2)(aa) in relation to those claims.
The applicant also confirmed in the hearing that he had not sought police help at all, nor had his wife. I accept his oral evidence on this and find that his written claim about lodging a report with the police, who didn’t help him, was incorrect.
In terms of the applicant’s background and the claims about his problems arising with the [trading] losses and A’s father’s death, I accept parts of this were true and that he does hold some fear of returning over this. I accept the applicant’s explanations about the discrepancies between his written application, pre-hearing information form and oral evidence at the hearing, and about his considerable delay in applying for a protection visa, and about his omission of certain information from his earlier forms. I consider the applicant has provided reasonable explanations about these matters and I draw no adverse inferences from these issues.
I accept the applicant’s claimed background and evidence about the success of his [product 1] business and that his wife runs a [business 1] in Bali. I accept the documentary evidence and photos he provided following the hearing are genuine. I also accept that he managed to teach himself and make some money on [trading], and that he lost some money his friend’s father (A’s father) invested with him, and that this father tragically died in the month after learning his money was lost. I am prepared to accept too, that the incident in which he was ambushed and cut with a knife by his friend A and his people did occur, and that the applicant feels shame and fears being ostracised by his local Tegal community who would know about these financial losses.
However, I consider the applicant has embellished his account regarding the amounts of money he was entrusted with and the sale of his client base, as well as in relation to his claims about himself and his wife being found and threatened or surveyed by A’s people in different locations.
Even taking into account his previous successful [product 1] business and that it appeared to others that he was doing well in his trading and investments, it is difficult to accept that the friend’s parents invested amounts of up to IDR [amount] (close to AUD [amount]) with him, and that he carried so many clients on an apparently informal arrangement, without qualifications or a licence. In addition, noting he has been in Australia for 11 years now, given the nature of the operation was electronic and web based, it is difficult to conceive that even without access to his physical laptop, he would have no ability to provide any records of evidence of any of the investments, trading or transactions. I do accept he invested and lost some people’s money (including A’s family’s), but I am not prepared to accept that the investments and losses were to the extent claimed.
I accept that A retaliated soon after his father’s death and that he and his friends or associates did ambush and cut the applicant with a knife as claimed. I also accept that the applicant’s house in Tegal has been severely damaged. However, my concerns discussed with the applicant at hearing about the implausibility of him being tracked and found in different locations throughout Indonesia have not abated, nor have my doubts about people being motivated to harm him if he were to return.
I have considered the applicant’s responses about social and cultural norms meaning that people end up throughout Indonesia and know people wherever they go. However, it is difficult to conceive that, in a country with an estimated population of 279.5 million people[6], including more than 800,000 in Denpasar[7] and over four million in Bali, even with a high degree of population movement, someone (or a member of their family) who did not want to be found, could be located in two places, on two different islands. I have considered the evidence about people warning his wife that he should not come home, and about people she believes to be gangsters stopping and looking into her workplace. However, I do not find this to be persuasive evidence of it being A’s people, or anyone, looking to harm the applicant. It has now been almost 12 years since the 2012 incident and 11 years that the applicant has been in Australia, and had A and his people really found the applicant’s family and maintained an interest in killing or otherwise harming him over the past 11 years, I consider they would have taken other steps to pressure his wife or children (or his parents who he claims were last threatened in 2014) for information on his whereabouts, or taken steps against his family that might coerce him to come home. While I accept the applicant has a subjective fear because of these things, I do not consider some questions being asked around her community about where her husband is (particularly when he has been absent for so long), someone saying to her five years ago she should hope he does not return and someone stopping to look into her [business 1] workplace from time to time is indicative of it being A and his people, or indicative of them, or anyone else, looking for the applicant and intending to harm him.
[6] Australian Department of Foreign Affairs and Trade (DFAT), ‘DFAT Country Information Report: Indonesia’ 24 July 2023
[7] This was the figure put to the applicant, although another source places the population at over one million: World Population Review, ‘Denpasar Population 2024’, https//:worldpopulationreview.com/world-cities/denpasar-population, accessed 1 June 2024; World Population Review, ‘Bali Population 2024’, https//:worldpopulationreview.com/territories/bali-population, accessed 1 June 2024
Having considered the applicant’s evidence overall, while I can accept that the applicant is subjectively afraid, I do not accept that A or his people, or anyone, has been seeking him out, watching his wife and children or communicating any threats or messages in the 11 years the applicant has been in Australia. I do not accept that A or anyone would be motivated to find and harm him if he were to return to Indonesia now, or in the reasonably foreseeable future. Given this, I do not consider there is a real chance or a real risk of any harm if he returned to Indonesia (whether to Denpasar, or Tegal, nor elsewhere).
I find that in relation to all the problems that arose from [his] trading and the applicant’s problems with A following A’s father’s death, the applicant does not face a real chance of any harm upon return to Indonesia now or in the reasonably foreseeable future, he does not meet s 5J(1)(b) and therefore does not have a well-founded fear of persecution under s 5J(1), and he is not a refugee under s 5H(1) and therefore does not meet s 36(2)(a).
Furthermore, even if I did accept there to be a real chance of harm (which I do not), at the hearing, I raised with the applicant that he did not appear to be fearing harm for a refugee reason, that is, because of his race, religion, nationality, membership of a particular social group or political opinion. Rather, I noted that he seemed to be fearing harm arising from a financial dispute which became a personal dispute and retaliation issue. The applicant responded he just didn’t want to go back because he was being threatened and because of his personal experiences there, which have prevented him from being with his family. He asked why there should be a difference in asylum matters because “threats are threats”. I explained to the applicant that if I determined that he does not meet the refugee criteria, his claims regarding the threats would be considered under the complementary protection criteria.
I have considered the applicant’s claims and circumstances. I find that he does not fear harm from A, A’s people, or anyone, for the essential and significant reason of his race, religion, nationality, membership of a particular social group or political opinion. He does not therefore, meet the criteria in ss 5J(1)(a) and (b) of the Act. On this basis as well, he is not a refugee under s 5H(1) and therefore does not meet s 36(2)(a).
As for the complementary protection criterion, noting that my above finding related to ‘any harm’ and that ‘real chance’ and ‘real risk’ involve the same standard,[8] I find that in relation to these claims, there are not substantial grounds for believing that there is a real risk the applicant would suffer significant harm from A, A’s people or anyone else, as a necessary and foreseeable consequence of being removed to Indonesia. I find he does not face a real risk of any harm relating to these claims. Accordingly, I find that the applicant does not meet s 36(2)(aa).
[8] MIAC v SZQRB (2013) 210 FCR 505
Economic hardship
I accept that the applicant is stressed about his and his family’s financial future. When discussed at the hearing, the applicant said he had struggled to save money for his family, but he referred to the pressure he faced due to the above problems and circumstances, and that he wasn’t able to work without fear. When asked if there was any other reason he thought he would not be able to earn a living or access basic services or support himself if he returned, he said he wouldn’t know where to go; his Tegal home has been ruined and is not suitable, and there is a negative stigma attached, because people think of him as a liar and person that caused others financial losses. When asked why he didn’t think he could find a job or earn a living in Denpasar, he broke down and said there is no job for him there and no security, but all he wants to do is see his wife and hold his [child] he left at [a young age], who is now [specified age].
I have sympathy for the applicant. As above, I have accepted some of his claims and I accept he has been fearful because of the [trading] losses and his problems with A, and he feels immense guilt and pain, believing that he caused his parents’ deaths and had to leave his young family.
However, as explained above, I found the applicant does not face a real chance or a real risk of harm in Indonesia for the reasons related to the [trading] losses and A. While I accept the applicant will face financial challenges on return, he has run a business that was for a while successful enough to expand, and his wife has been running her [business 1] in Bali for several years. In Australia he has been doing intermittent [specified occupations] work. I do not accept the evidence points to the applicant being unable to find any work at all (even if it is low paid work, or lower paid than he is earning in Australia). Nor does it appear as though anyone has denied him the opportunity to find work or to access basic services in the past, and I do not accept that anyone (including A and his people, or anyone else who suffered the [trading] losses) would be motivated to stop him earning money or working on return.
I find that any hardship the applicant might experience on return arises from the economic and employment situation in Indonesia, not from any refugee reason mentioned in s 5J(1)(a) or from any systematic and discriminatory conduct or intentional acts or omissions that cause harm. Also, I find the hardship he might experience would not be of such a nature as to constitute serious harm or persecution for the purposes of the refugee assessment.
I find that in relation to these claims, the applicant does not meet the criteria in s 5J(1)(a) of the Act. Nor does he meet the criteria in s 5J(4)(a), (b) or (c) of the Act. I find that he is not a refugee under s 5H(1) and therefore does not meet s 36(2)(a).
As for complementary protection, I find that the applicant does not face a real risk of facing the death penalty or being arbitrarily deprived of his life or being tortured. Nor does he face a real risk of being subject to any intentional acts or omissions that would result in him suffering cruel or inhuman treatment or punishment or degrading treatment or punishment. I am not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk of him suffering any harm that would amount to significant harm.
Further, the risk of harm to the applicant arising out of the state of the Indonesian economy and employment framework is one faced by the population of Indonesia generally, rather than by the applicant personally. In such circumstances, s 36(2B)(c) has the effect that there is taken not to be a real risk the applicant will suffer significant harm.
There are not substantial grounds for believing that there is a real risk the applicant would suffer significant harm as a necessary and foreseeable consequence of being removed to Indonesia. Accordingly, I find that the applicant does not meet s 36(2)(aa) on the basis of economic hardship.
CONCLUSIONS
I have considered whether the applicant’s claims, when considered cumulatively, might give rise to a real chance of persecution or a real risk of significant harm. However, I am not satisfied that they would do so even when taken cumulatively.
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 criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Jessica McLeod
Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 2303

7 June 2024

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