1829488 (Refugee)

[2024] AATA 4364

1829488 (Refugee) [2024] AATA 4364 (6 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Alim Lim (MARN: 9361253)

CASE NUMBER:  1829488

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Paul White

DATE:6 September 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 06 September 2024 at 5:57pm

CATCHWORDS
REFUGEE – protection visa – Indonesia – ethnicity and religion – husband Madurese Shia Muslim and wife Madurese Arab Sunni Muslim – cultural honour code – attacked after relocating – no attempt at reconciliation between families and no harm to wife after husband’s departure or husband during return – limited or no recent contact with family or community – delay in applying for protection – applied after period as unlawful non-citizens –country information – cross-sectarian marriages common – Australian-born child now citizen – real chance of hardship and harm if parents removed – referred for ministerial consideration – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65(1), 417, 424A
Migration Regulations 1994 (Cth), Schedule 2

CASE
Selvadurai v MIEA (1994) 34 ALD 347

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 September 2018 to refuse to grant an application for protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2.    The applicants are three members of a family of four. In these reasons for decision, the first applicant is referred to as the applicant, the second applicant as [the second applicant] and the third applicant as [the third applicant].

3.    The applicant and [the second applicant] are citizens of Indonesia, who were married in [Year]. They applied for protection visas on 15 September 2016 (PV application). Their two daughters were born in Australia and have not left Australia since their birth.  [The third applicant] is the applicant and [the second applicant]’s older daughter. Her citizenship and its consequences for the application for review are considered below. The applicant and [the second applicant]’s younger daughter, who was born in [Year], is not a party to this application.

4.    The delegate refused to grant protection visas on the basis that the delay in making the application cast doubts upon the genuineness of the applicants’ claims.  The delegate did not accept as credible the claims that [the second applicant]’s family objected to her marriage to the applicant.

5.    Both children attended the Tribunal hearing with their parents on 11 June 2024.

The third applicant

6.    [The third applicant] is now an Australian citizen. When the application for review was lodged on 20 September 2018, this was not the case. At that time, the application for review satisfied all the requirements for a valid application and so falls within jurisdiction. This gives rise to an obligation to review under s 414(1).

7.    [The third applicant] is an Australian citizen because she was ordinarily resident in Australia throughout a period of 10 years beginning on the day she was born: see s 12(1)(b) of the Australian Citizenship Act 2007 (Cth): She became eligible for citizenship under s 12(1)(b) in September 2022 and acquired Australian Citizenship on 30 September 2012.  A Citizenship Certificate dated [October] 2022 (Evidence No: [Reference]) issued to [the third applicant] was submitted to the Tribunal.

8. Under s 65(1) a visa may only be granted if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant for the visa is a non-citizen in Australia. This means that a protection visa can only be granted if an applicant is a non-citizen. As [the third applicant] is now an Australian citizen, she does not satisfy the requirements of s 36(2) and cannot be granted a protection visa. Therefore, her claims need not be considered except in relation to those of her parents.

Ministerial referral

9.    As indicated in the final paragraph below I refer her case to the Department for consideration by the Minister pursuant to s 417 of the Act, which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicants, if the Minister thinks that it is in the public interest to do so.

Background

10.      The applicant was granted a student visa on 1 December 2009.  He arrived in Australia three weeks later. After 18 months he returned to Indonesia [in] June 2011 and stayed for eight weeks before returning to Australia [in] July 2011. His student visa ceased on 29 August 2012. The applicant remained in Australia without a visa for four years until he applied for a protection visa on 15 September 2016. He was then granted a bridging visa linked to his PV application.

11.      [The second applicant] was granted a visa on 9 September 2011 that ceased on 29 August 2012.  She arrived in Australia [in] September 2011, remained in Australia without a visa for four years and applied for a Protection visa with her husband on 15 September 2016.

Claims to the Department

12.      The applicant made the following claims in writing to the Department in his PV application. 

I am seeking protection in Australia so that do not have to return to Indonesia. I left Indonesia because I never felt at peace in that country, and I feared for my life. My wife's family were going after me and threatening to kill me. I fear that I will be killed. My main fear is that I will be killed by my wife's family who disapproves of our marriage. This may be hard to believe until I tell you that my wife's family are Maduranese Arab who implements that concept of Carok. I believe once I explain below, you will appreciate that my fears are genuine and well founded.

By way of background, I met my wife through her uncle who went to school with me in Bondowoso. Bondowoso is a city whose population is mainly of Maduranese ethnic group. My wife's family happens to be Maduranese Arab who are also Sunni Muslim. I am a person of Maduranese descent, and my family are Shia Muslim. This is the main source of the problem. My wife's family view my wife's marriage as a disgrace because I am not of Arab descent, and I am not a Sunni Muslim. My wife's family practices the concept of "Carok" which in Maduranese means Fight with Honour. Among the Maduranese community Carok is practiced as a way of resolving disputes. It is normally implemented when the problem concerns honour or dignity of the people of Madura. Maduranese people have a distinct culture and Carok is part of their cultural identity. It is viewed as a way to restore dignity in disputes that involves property, throne, soil and women. It is common among Maduranese to believe that it is better to die than to live in disgrace. They do not believe in a peaceful dispute resolution when it comes to their honour.

My wife's family feels that they lose face due to my wife's marriage to me as I am not of Arab descent. This is why after I married her in Bondowoso in [Year], we moved to Kediri to escape any violence by my wife's family who practices Carok. My grandmother consented to our relationship and while she was alive, she fought to have my wife's (then girlfriend) family approve of our relationship. But unfortunately, she died about 3 months before we got married. Hence, we eloped and in [Year] manage to obtain a marriage certificate from the Department of Religious Affairs in Bondowoso. In [Year] we really felt that our lives were in danger, so we moved to Kediri to escape. But they found me in Kediri and attacked me and almost killed me. So, we then ran away and lived in Malang. But even in Malang they located us again, so we went to Kediri very briefly to organise our visa documents and then we started to organise my visa to Australia, and I escaped to Australia in 2009.

Back in 2007 in the city of Kediri I was attacked by my wife's family and that attack almost killed me and that attack still haunts me to this day. My [body part] has been permanently scarred as a consequence of that event. Carok is a tradition, and the police will act to protect me. The police themselves are afraid of the Maduranese. Normally after they kill someone, they will surrender themselves to the police.

After the 2007 attack in Kediri we moved to Malang, but even in Malang we were detected by my wife's family, and they were going after us. Hence in 2009 I escaped to Australia because my life was truly in danger. My wife joined me in 2011.

I fear history will repeat itself and I am not sure if I will come out of it alive if it happens again. I was very lucky to escape in the last attack. The Maduranese have a good network, and I fear that I will be detected and killed. This may be something that people in Australia may not even be begin, to understand. But Carok is a big problem in Indonesia, and it is only once a person experience this big problem, only then they will understand that this is a big cultural problem among the Maduranese. And I think if a person understands this problem, they will appreciate that my fears are genuine and well founded.

In Carok events the police never act and they themselves fear the Maduranese. The Maduranese are well known to walk around with a sickle knife (celurit) with them....

I have moved from Bondowoso to Kediri then from Kediri to Malang, but my wife's family still manage to find us.... So, I don't think I can relocate elsewhere other than Australia. If I stay in Indonesia, they will find me, and my life and my family's life are in danger. My wife's family are still often look for us and have to continue to persecute and injure my brother and father in order to obtain information of our whereabouts. Further, me and my wife have built a peaceful life in Australia with our daughter who was born in Australia, and we cannot imagine going back to Indonesia.

13.      The applicant provided materials to the Department including video footage of graphic images of slashings of persons that do not appear to be related to the applicant’s particular circumstances. He provided no background information linking the video images to his personal circumstances. He also submitted various document including passports, marriage certificate, family cards and letters from family members.

14.      The delegate interviewed the applicant on 18 September 2018. The applicant claimed to the Department that he fears being killed on return to Indonesia because he eloped with his wife without the consent of her family. He claimed two of her uncles were her guardians after her parents left her in the care of her grandmother when she was 30 days old. His wife’s uncles objected to the applicant marrying their niece because they are of Madurese Arab ethnicity and Sunni Muslim, whereas the applicant is a Madurese Shia Muslim.

15.      The applicant claims his wife’s family practise carok as part of their Madurese culture. They feel they have lost face due to the marriage of applicant and his wife in Bondowoso in [Year]. They obtained a marriage certificate from the Department of Religious Affairs in Bondowoso at the time of their marriage. The applicant claims he and his wife moved to Kediri, to escape violence from his wife’s family. The applicant claims his wife’s family found the applicant in Kediri in 2007, attacking and almost killing him. The applicant and his wife then ran away to Malang and returned to Kediri very briefly to organise their visa documents and started to organise the applicant’s visa for Australia, leading to his escape in 2009, because he feared his life was truly in danger. The applicant’s wife joined him in Australia in 2011. The applicant claims the Madurese have a good network and the applicant fears he will be found and killed.

Claims to the Tribunal

16.      All three applicants attended the Tribunal hearing on 11 June 2024. The younger child was also present.  The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages. The applicants’ representative attended the Tribunal hearing. The applicant and [the second applicant] gave evidence about their background, migration history, and claims for protection.

17.      The applicant provided submissions including photos of his father and brother, who he claims were in hospital and injured following incidents on motorbikes which occurred in 2015. One incident went unreported. The victim, his brother has no memory of the other incident. The applicant provided hospital letters issued on the same day from the Director General of the hospital indicating each was hospitalised for the same amount of time (one week) some months apart “due to illness and he underwent surgery”. Various letters or emails and country information relating to carok culture were also provided.

18.      One article submitted provides a chronology of a carok event on 12 January 2024 and another provides more detail of the same incident. Neither appear linked to the applicant’s personal circumstances. In this case the fighting appears to have taken place almost immediately after an incident and indicates that the accused are in police custody. The applicant claims the marriage which triggers his fear occurred some 18 years ago. A research article provided by the applicant from Rjoas (February 2018) indicates carok is an action or assassination attempt using a sharp weapon and carok is at the crossroads of tradition and violent crime, not endorsed by the state and considered by some as vigilante behaviour. The article explains one way to reduce carok is for parents to provide education, involve religious leaders and to educate. Carok occurs due to a lack of education and knowledge of Islamic religion. Another article from IOP Conference Series (2021) talks of the change in carok over the years and the shift has meant more carok is now carried out by stealing. This article seeks to explain in its conclusion the values of carok. Another article submitted by the applicant on Criminal Policy in Tackling Carok (2019) mentions amongst other things a central role for the indigenous informal court in the resolution of disputes leading to carok, various opinions about using carok as a final solution and encouraging active role of parents.

19.      At Tribunal hearing the applicant said he arrived on a student visa in 2009 that was valid until August 2012. He said he did not pass any subjects that he studied. He said he planned to study but didn't ever pass anything in the time he was a student in Australia so has no qualification from his several years on a student visa in Australia.

20.      The applicant's father and mother live in Kediri Indonesia together with his brother who is about [Age] years old. The applicant’s father was [an occupation] until [Year]. The family moved to Kediri where he now [does a work task]. He obtains his work through word of mouth.

21.      The applicant told the Tribunal that [the second applicant]’s mother has recently passed away. The applicant did not know details of her family. The applicant is in touch with his parents once or twice a week. The applicant supports the family if someone is ill, but he doesn't send money regularly as the family own their home and are middle class and not poor people.

22.      The applicant said he is not part of the Madurese community in Australia. He is not aware of any Madurese in Australia and is not in touch with any Madurese here. The applicant said they had some Madurese friends who were students who went back to Indonesia, but he doesn't know anyone who is Madurese in Australia. The applicant said has not seen any Madurese since his student friends went back to Indonesia. The applicant has not sought out Madurese because he is busy with his own family. None of his daughters’ friends are Madurese. The applicant did not know anyone else who has encountered difficulty following an elopement in Indonesia.

23.      The applicant obtained his student visa in December 2009 and left for Australia about three weeks later “to make himself safe”. Soon after his arrival in Australia in December 2009 the applicant started work in a [workplace] and later as [an occupation].

24.      The applicant has had no trouble in Australia and has received no threats. I asked the applicant why he went back to Indonesia in June 2011 for two months. He said he had to organise documents for his wife, who was staying in Kederi in his parent’s house. He said his wife, his father and mother, brother and sisters were all safe in Indonesia. The applicant initially said the wife’s family were looking for him and not looking for his wife. Later he said they were looking for both and their problem was with his wife’s uncle. He said no one was looking for his father or his brother until 2015.

25.      The applicant claims that his wife’s aunt tried to bring her brothers together to discuss their situation in 2015. He claims because of that his father was attacked on his motorbike as was his sibling some months later. He claims his wife's aunt told them not to return to Indonesia.

26.      The applicant claimed that when he went back to Indonesia in 2011, he stayed in Kederi with his father even though the applicant was known there, as was his father. This was notwithstanding the applicant’s claim that he cannot go anywhere in Indonesia without his wife’s uncle finding out he returned to Indonesia because of the connection to [Company]. He stated that his wife’s uncle did not find out he was there even though he stayed with his father and family. He claims that this was because whenever he left the house, he wore a mask. In his two months in Indonesia, he encountered no difficulty or danger. He claims he did not go out of the home often. His wife did not have any problem while living with the applicant’s father in Kederi for some four years prior to the applicant’s arrival in 2011. She has not received a text message, phone call, email, or any contact in relation to her marriage in the last 15 years.

27.      The applicant indicated that neither he nor his father had taken any action to reconcile with his wife’s family because his wife’s family does not want to reconcile. The applicant claims no leader can intervene. He then stated that he does not know what his father has done even though he is a religious leader and perhaps he has talked to people in the past or made phone calls, but it is difficult to do anything. The applicant indicated that even though his wife’s aunt had tried to reconcile the families, she has never had difficulty because of her support for the couple. I asked what steps he would take to reconcile. He said people are very stubborn and emotional and report themselves to police after fighting.

28.      I asked if he could travel to Borneo or Sumatra. He said he has an aunt in Borneo. I suggested he could move there. He said the Madurese would follow him everywhere. I suggested that as he told the Tribunal he had no contact with Madurese in Australia he could do the same in Borneo. He said he can't live with his wife as his relatives are part of [Company]. The applicant says the family may come looking for him to take his wife back. He said he does not know what exactly they want to do to his wife and from [Year] until now nothing has happened his wife.

29.      The applicant claims his father's motor bike accident was caused by his wife’s family. His said his aunt had been trying to bring peace at the time. His father’s motorbike accident happened at the time his aunt had spoken to her brother about reconciliation. His father did not see exactly what happened to him. He fell off the bike and claims he was hit from behind. Someone in a car then helped him. I put to him there was no evidence to show it had anything to do with the applicant or his wife. He speculated that this incident and a similar incident with his brother were related to his marriage. I put to him that he had provided no evidence to indicate any either accident was related to him or his wife. There had been no contact between any of the parties, and no threats made to his father or brother or his family or himself. The applicant said the uncle gets angry. I put to him in 18 years they have been married neither of them have had any communication with the uncle and it would appear he has never sought to communicate with either of them.

30.      [The second applicant] gave evidence. She is in touch with her aunt every two or three days but not with her uncles. She has not tried to contact her family. She stayed with her husband’s family not her own family. Before she married, she was not in touch with her siblings, as she was raised by her grandmother. She does not remember the last time she was in touch with siblings, perhaps 20 years ago but she has heard news of them. She does not know what work any of them are engaged in. She does not know if her aunt is in contact with any of them.

31.      I asked what difficulty she might have in Indonesia. She would encounter pressure from her family. Although she has not been in touch with her family and had no problems physically, she has mental stress. I suggested the lack of contact over nearly 20 years indicated she could go back to Indonesia – Borneo, Sumatra, Bali - without problems. She said she does not want to go back to the problems now. She has children and carok goes from generation to generation and that her husband will have difficulty.

32.      I put to [the second applicant] she had no problem in Indonesia over a very long period. She said in [Year] they married; and in 2007 they were traced and escaped so moved to Malang. They tried to kill her husband although she did not see what happened. She saw photos after her in-laws’ road accidents in 2015. She said there was no safety in Indonesia. She said she knows no Madurese people in Sydney; those they knew all went home when they finished their study. She said they moved to Australia and are now happy with children. She said she worked in a factory before the children were born. She said life was more stressful in Indonesia and the crime rate is higher there.

33.      [The second applicant] said her husband is the target and if they don’t find him, they will target others. Later she said they were both targets. She said because her husband is a target, she is automatically a target. I asked what might happen to her in Indonesia. She said they would hit her.

34.      I raised some difficulties with the evidence. For example, the [the second applicant]’s family knew that she lived with her husband’s family and  knew where her husband’s family lived but did not bother to contact her. Further, if the Madurese are so well-organised and it’s not possible to move her husband would not go back for two months. She said she was always frightened. I put to her that her family have ignored her for many years and did not make threats or send messages while she was with her father-in-law. I said there was no evidence to indicate the motorcycle incidents were related to her as there was no phone or email contact and no message. [The second applicant] said she had done nothing personally to try to resolve the situation. She said there won’t be any resolution because they don’t agree with us. Her aunt now lives in Bondowoso, Indonesia.

35.      The applicants’ adviser made submissions at the end of the hearing including highlighting aspects of the articles submitted. He submitted that carok is real and not theoretical or remote.

424A letter information

36. The Tribunal provided information to the applicants seeking comment in accordance with s 424A of the Migration Act. The information is from a study which concluded that the Sunni-Shia integration in Indonesia at least comprises peaceful coexistence, accommodation, and cooperation which occur at local and national levels as a result of inclusive theology, the role of moderate actors, the collective ritual practise, Alid piety, friendship and kinship, and social activity.

37.      Other information indicated the Arab Community in Bondowoso has a unique phenomenon that makes Sunni and Shia coexist, even holding marriages between them to become a strong familial relationship. Cross sectarian marriage between Sunnis and Shi’a in Bondowoso Arab communities was 60% and households have not had disputes and tensions between adherents of the Sunni and other Shi'a sects. In the community of Bondowoso Shi'ah and Sunni Bondowoso Arab communities although they have differences in terms of faith and harmony Islam, but the attitude of tolerance (Tasamuh), does not interfere with each other, and helping each other is done to maintain harmonious relations in the kebe various streams in society, precisely to affirm this they use the bonds of marriage.

Response to 424A\

1. The Tribunal received a response to the s 424A letter from the applicants’ representative on [date]. The response states:

   The applicants assert that the information provided in the articles referenced by the Tribunal does not accurately reflect their personal experiences and the situation involving their family in their community. While some articles suggest peaceful coexistence between Sunni and Shia communities, the applicants believe that these assertions are not entirely accurate, particularly with respect to their circumstances. They emphasise that while there may be isolated instances of coexistence, the deep-seated historical tensions and conflicts between these groups persist, especially within older generations.

   In the Applicants' family, these tensions have manifested in violence. A specific incident involving [the first applicant’s] brother, [Mr A], who was severely injured by members of his wife's family due to their disapproval of the Sunni-Shia marriage further shows the tension between the two communities. This incident resulted in permanent damage to [Mr A’s] vision. The Applicants strongly believe that this incident is a direct consequence of the longstanding and unresolved conflict between the Sunni and Shia communities, particularly within their familial and societal context. The Applicant's wife's family will continue to locate him and attempt to kill him. It is legal for marriages between Sunni and Shia, but the applicants' families and community is strongly against the intermarriage. They would apply 'carok' to the Applicant for dishonouring their families.

   Furthermore, the Applicants note that the articles referenced by the Tribunal also acknowledge the existence of conflicts between Sunni and Shia communities. This supports the Applicants' claim that peaceful coexistence is not always the norm and can result in severe and sometimes violent outcomes, as seen in [Mr A’s] case.

   With regards to the legitimacy of their marriage, the Applicants wish to confirm that their marriage certificate is authentic and was lawfully issued by the Office of Religious Affairs of Indonesia. This further supports the legitimacy of their marriage and their compliance with the relevant legal and religious framework. Attached and marked as Annexure C is a copy of the Applicant's family card issued by the Administration of Kediri Regency. This indicates that the Applicants' marriage is recognized nationally; otherwise, [the second applicant’s] name would not have been allowed to be added to [the first applicant’s] family card.

   In conclusion, we respectfully request that the Tribunal consider the specific circumstances of their case, particularly the ongoing risks they face due to their Sunni-Shia marriage, the violent repercussions experienced by their family, and the cultural pressures from older generations who continue to oppose such unions.

   Relevant law

   39.      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.

   40.      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.

   41.      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).

   42.      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.

   43.      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

   44.      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.

   Analysis, reasons, and findings

   Country of nationality

   45.      The applicant and [the second applicant] travelled to Australia on apparently genuine Indonesian passports issued in Blitar and Madiun in Indonesia in 2009 and 2011, copies of which were provided to the Tribunal by the applicants. The passports indicate both the applicants were born in Bondowoso. They provided a copy of their marriage certificate issued in Bondowoso dated [Date]. They have at all times maintained that they are citizens of Indonesia. The Tribunal finds the applicant and his wife are Indonesian citizens and has assessed their claims against Indonesia as their country of nationality and the receiving country.

   Issues

2. The issue in this case is whether there is a real chance that the applicants will face persecution in Indonesia or a real risk that one or both will suffer significant harm if removed from Australia to Indonesia. For the following reasons, I have concluded that the decision under review should be affirmed.

3. I note that it is legitimate to take into account an applicant's delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant's claimed fear of persecution (per Heerey J, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347). I have concerns about the credibility of the applicants’ claims with respect to harm on return to Indonesia due to a fear of the applicant’s wife’s family in Indonesia.

4. I note the applicant claims he came to Australia in December 2009 “to be safe” yet he did not make a PV application until September 2016, more than six years after his first arrival in Australia and for more than four years after his second arrival. I do not accept that he was not aware of the existence of a PV application as he claims his purpose in coming to Australia was to be safe. I do not accept it would take him 6 years to make enquiries about how to obtain protection while living in the community in Australia. Notwithstanding his claims that he was feared returning to Indonesia he chose to remain unlawfully in Australia and significantly delayed applying for a protection visa.

5. I have considered the applicants explanation for the delay, but I conclude that the significant delay in applying for a protection visa is inconsistent with a claim that either applicant left Indonesia because they feared living there. I do not accept the applicant came to Australia to make himself safe. This creates serious concerns about the credibility of subsequent claims made by the applicant. I find his behaviour in making a PV application so late is inconsistent with that of a person who faces a real chance of serious harm in Indonesia.

6. Further, the applicant returned to Indonesia for two months in 2011 at a time he claims he was in fear of his life from his wife’s family. He claims he returned to live in his family home in Indonesia simply to organise his wife’s papers for Australia. I note she obtained her passport some months before he arrived. I do not accept that the applicant would return to the family home in Indonesia if he feared serious harm from his wife’s family who he claims can find him anywhere in that country. I do not accept the applicant needed to return to Indonesia to assist his wife with paperwork for two months after she obtained her own passport without his apparent assistance.  

7. I note that during the time the applicant returned to his family home and resided with his wife, parents and brother neither he nor his wife received any threats. The applicant stated that he rarely left home and that he wore a mask every time he did so However, he provided no evidence to suggest anyone was looking for him at this time. I find the applicant’s claim that he fled Indonesia because he was in fear of his life from his wife’s relatives inconsistent with his return to Indonesia to stay for two months with his wife at the family home. When considered with the delay in making an application for protection I am led to conclude that his claim to fear serious harm is not genuine.

8. Other factors also lead me to conclude the applicants’ claims lack credibility. The applicant remained living in the family home until he departed Indonesia in 2009, as  did his wife. [The second applicant] lived in the applicant’s home with his family for over two years without incident before her departure from Indonesia. I find the applicant’s claim that he fled Indonesia because he feared death and his wife feared harm difficult to reconcile with his evidence that he remained living with his family in a city where he feared harm for some months after his marriage, left his wife there for two years, and then returned to live there for two months.

9. The applicant framed his claims around carok culture, yet he claims he has done little, if anything, to try to reconcile with his wife’s family. [The second applicant] has made no effort to reconcile with her own family. He has not encouraged his father as a parent, grandparent, religious leader, and educator to initiate action notwithstanding his father’s apparent good standing. The materials the applicant provided to the Tribunal indicate that to reduce carok requires involvement of religious leaders and education as carok occurs due to a lack of education and knowledge of Islamic religion. Yet the applicants have not sought to reduce pressures within their family by initiating action. I note the indigenous informal court plays a central role in the resolution of disputes leading to carok. Yet the applicant has not attempted to pursue this or any other potential options. I note also carok usually involved a sharp weapon, threats to the alleged perpetrator of an offence yet the applicant has not spoken with those he claims intend to harm him in nearly 18 years since his marriage. He has produced no credible evidence to indicate he faced such a threat.

10. The applicant claims his wife’s family found the applicant in Kediri in 2007, attacking and almost killing him. I do not accept he would return to Kedri and leave his wife there if this was the case.  I do not accept this incident occurred for the reason the applicant gives. 

11. I note one report submitted by the applicant indicates carok is at the crossroads of tradition and violent crime, is not endorsed by the state and considered by some as vigilante behaviour. I accept that carok culture exists in parts of Indonesia. However, I do not accept the applicant is at risk from this culture for reason of his marriage.

12. The applicant claims his father and brother were injured in motorcycle incidents caused by his wife’s family. The applicant has not produced credible evidence to support this claim. Medical reports in relation to the applicant’s father and brother indicate they were in hospital “due to illness and he underwent surgery”. On the applicant’s own evidence, neither his father nor his brother knows what happened. Nor did they receive any threats from his wife’s family either before or after the incident, which occurred almost 10 years after his marriage.  In addition, neither his father nor his brother reported the incident to police, I do not accept the weight of the evidence supports a claim that the applicant’s father and brother were harmed as a result of carok as a result of his wife’s relatives being unhappy with his marriage. I do not accept the applicant’s claim that his father and brother were harmed because of a related a vendetta against him.

13. Further I do not accept the applicant and [the second applicant] face a real chance of serious harm as I note in Bondowoso where they were born and married, marriage between Sunni and Shia couples is a common phenomenon especially among the Arab descendant community. Research indicates the families have never had disputes and tensions despite the sectarian differences.[1] The applicants married in Bondowoso in [Year]. A study concluded that the Sunni-Shia integration in Indonesia at least comprises peaceful coexistence, accommodation, and cooperation which occur at local and national levels as a result of inclusive theology, the role of moderate actors, the collective ritual practise, Alid piety, friendship and kinship, and social activity.

    [1] See e.g. Musdhalifah 2022: 144. The dynamics of Sunni-Shia integration in Indonesia: a structural-functional perspective Zulkifli 5.+Copyedit+Zulkifli+Vol+2+No+2+Des+2023+(pp+136-157)+Publish.pdf

14. Other information indicated the Arab Community in Bondowoso has a unique phenomenon that makes Sunni and Shia coexist, even holding marriages between them to become a strong familial relationship. Cross sectary marriage between Sunnis and Shi’a in Bondowoso Arab communities was 60%. And households have never had disputes and tensions between adherents of the Sunni and other Shi'a sects. In the community of Bondowoso Shi'ah and Sunni Bondowoso Arab communities although they have differences in terms of faith and harmony Islam, but the attitude of tolerance (Tasamuh), does not interfere with each other, and helping each other is done to maintain harmonious relations in the kebe various streams in society, precisely to affirm this they use the bonds of marriage.

15. I accept this research as accurate and where a conflict occurs between the applicant’s evidence and the research I prefer the research as it is independent. I find that the marriage between a Madurese Shia and a Madurese Sunni is not uncommon. I do not accept that the marriage of applicants resulted in the practise of carok by the wife’s family. I do not accept the claim that that the safety of the applicant would be jeopardised because of his marriage to a Sunni Muslim. I find that their Marriage Certificate was obtained legitimately and not through subterfuge. I do not accept the applicants have a well-founded fear of persecution or that there is a real risk that they will suffer significant harm if returned to Indonesia.

1. For the reasons given above the Tribunal is not satisfied that either the applicant or [the second applicant] are persons in respect of whom Australia has protection obligations. Therefore, the applicant and [the second applicant] do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.

2. The Tribunal is satisfied on the evidence before it that [the third applicant] is now an Australian citizen. It follows that [the third applicant] does not satisfy the requirements of s 36(2) and cannot be granted a protection visa.

   DECISION

   The Tribunal affirms the decision not to grant the applicants protection visas.

   MINISTERIAL REFERRAL

   62.      The applicant’s solicitor requested the Tribunal to consider referring the applicant’s case to the Minister for special consideration. Having considered the ministerial guidelines relating to the Minister’s discretionary power as set out in PAM3, ‘Minister’s guidelines on ministerial powers (s 351, s 417 and s 501J)’, I consider this case should be referred to the Department to be brought to the Minister’s attention as it involves unique and exceptional circumstances as described under s 4 of the guidelines.

   63.      I accept that any separation of the applicant and his wife from their Australian citizen child will cause irreparable damage or harm to the well-being of the child and may bring Australia’s obligations as a party to the Convention on the Rights of the Child (CRC) into consideration. I consider it is likely that the best interests of the child would be met by the applicant and [the second applicant] remaining in Australia.

   64.      Serious, ongoing, and irreversible harm and continuing hardship to an Australian citizen may result from family separation. In this case, I consider that the information provided supports a conclusion that, were the applicant and [the second applicant] to be removed from Australia, there is the real chance that this would result in irreparable harm and continuing hardship to their [Age]-year-old daughter, who is an Australian citizen.

   65.      I consider it appropriate therefore to refer the matter to the Department for consideration that the matter be referred to the Minister.

   66.      I refer her case to the Department for consideration by the Minister pursuant to s 417 of the Act, which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicants, if the Minister thinks that it is in the public interest to do so.

   Paul White
   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.

   …