1830033 (Refugee)
[2024] AATA 3854
•16 August 2024
1830033 (Refugee) [2024] AATA 3854 (16 August 2024)
CORRIGENDUM
DIVISION: Migration & Refugee Division
CASE NUMBER: 1830033 COUNTRY OF REFERENCE: Indonesia
MEMBER: Jennifer Ermert
DATE OF DECISION: 16 August 2024
DATE CORRIGENDUM
SIGNED: 27 August 2024
PLACE OF DECISION: Melbourne
AMENDMENT: The following correction is made to the decision:
The word ‘Malaysia’ at the end of paragraph 63 is to be replaced with ‘Indonesia’.
Jennifer Ermert Member
DECISION RECORD
DIVISION: Migration & Refugee Division
CASE NUMBER: 1830033 COUNTRY OF REFERENCE: Indonesia
MEMBER: Jennifer Ermert
DATE: 16 August 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 16 August 2024 at 4:30pm
CATCHWORDS
REFUGEE – protection visa – Indonesia – particular social group – victim of loan shark – physical assault – fear of killing – eviction from home – delay in applying for protection – state protection – internal relocation – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 46, 65, 423, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
FCS17 v Minister for Home Affairs (2020) 276 FCR 644
Guo v MIEA (1996) 64 FCR 151
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Another (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
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 October 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Indonesia, applied for the visa on 2 January 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations, nor is the applicant a member of the same family unit as such a person who holds a protection visa of the same class as that applied for by the applicant.
The applicant appeared before the Tribunal on 24 June 2024 to give evidence and present arguments. The Tribunal also received oral evidence from her daughter [named] who is also a protection visa applicant and whose application is currently under consideration by the Department.
The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection
obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm:
s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations because the applicant is either a refugee or a person who meets the complementary protection criterion. The applicant has not claimed to be a member of the same family unit as such a person, who holds a protection visa of the same class as that applied for by the applicant.
Identity and country of nationality
The applicant has provided a copy of her Indonesian passport to the Department in connection with her protection visa application. In the absence of evidence that the passport a copy of which was provided is a bogus document as defined in s 5(1) of the Act, and on the basis that checks of relevant departmental systems did not raise any concerns, the delegate has accepted the applicant’s identity and accepted she is a citizen of Indonesia as claimed.
The Tribunal has considered the copy of the aforementioned identity document on the applicant’s departmental file. In the absence of evidence that the applicant is not the person she claims to be, the Tribunal also accept the applicant’s identity and accept that she is a citizen of Indonesia as claimed.
The Tribunal finds the applicant’s country of nationality for the purposes of s 36(2)(a) and s 36(2)(aa) of the Act is Indonesia.
Personal background and immigration history
The applicant is [an age] year old Indonesian woman of the Hindu religion from Denpasar, Bali, Indonesia. Her husband passed away in June 2012 leaving behind their only daughter who is now [age] years old. Other than a [Relative A] in [City 1], she does not have any other family or close relatives, her parents and siblings having all passed away as well, and her late husband was an only child.
After completing junior high school, the applicant worked continuously in a [factory] until she married in 1999 at the age of [age], after which she quit her job and became a full-time housewife and stay-at-home mum following her daughter’s birth. Since coming to Australia, the applicant made a living working on different farms depending on seasonal harvests.
The applicant arrived in Australia [in] August 2013 on a [Tourist] visa. She made an application for the grant of a Class XA Subclass 866 protection visa whilst she still held her Tourist visa, and she was granted an associated Bridging Visa A (BVA) valid until 18 February 2014. However, her protection visa application was found to be invalid on 10 January 2014 for failing to comply with the requirements in s 46(2A) of the Act, and she became an unlawful non-citizen after her BVA ceased.
On 2 January 2018, the applicant again made an application for the grant of a Class XA Subclass 866 protection visa. This time the application was found to be valid. It is the delegate’s decision to refuse this application which is the subject of this review.
The Tribunal accepts each of the above matters to be true in the absence of information and evidence to the contrary.
Protection claims
The applicant’s protection claims as articulated in her protection visa application, in summary, were that she was out one night with some friends who got into a fight with another group of people, and her friends punched one of the people from the other group who was rich and influential. After that altercation, the other group somehow discovered her and her friends’ identities and began sending them threatens including death threats. The applicant claimed one of her friends was kidnapped, tortured, stabbed and left fighting for his life in hospital, and she has herself experienced sexual harassment and assault as well as stalking and physical assault. She could not return to Indonesia because she would be subjected to the same harm, and she could not fight her persecutors because she is just a nobody who the corrupt authorities would not protect.
Contrary to the claims included in the protection visa application, the applicant claimed in her response to the pre-hearing information form which the Tribunal sent to her that she is seeking protection because she cannot repay the debt that her late husband left behind, which has doubled due to the interest. In support of her new claims, the applicant provided a copy of her husband’s death certificate and a copy of the loan agreement her late husband signed which was translated by an accredited translator.
The loan agreement, which was signed by her late husband on 10 June 2008, includes the following relevant information and key terms:
· The loan was for the amount of IDR [amount], which her late husband promised to repay by no later than 10 June 2018.
· Her late husband must pay 10% interest on the loan or the sum of IDR [amount] per month until the debt was fully repaid.
· The lender had the right to immediately demand full payment of the loan even if it was not yet due, in the event that her late husband failed or was unable to meet his obligations as stipulated in the agreement.
· The loan agreement does not cease in the event of death of either one or both parties to the agreement, but would continued to be carried out by the heir of the party who dies.
Applicant’s evidence at hearing
At the hearing, the applicant disavowed the protection claims in the protection visa application. She claimed that she asked someone to help her make her a protection visa application, but she only discovered later that the person did not use the reason she provided to make the protection claims. None of the reasons provided in her refused protection visa application with respect to altercation with another group during a night out etc. was true, and she was not aware of them at the time she made her protection visa application.
Instead, the applicant claimed – consistently with her response to the pre-hearing information form – that the real reason she came to Australia was because of the insurmountable debt that she inherited from her late husband, which has now also impacted her daughter (the Tribunal will discuss this later). The applicant claimed her husband went into a [business 1] with a friend in Denpasar, and that he borrowed money from a loan shark to run the business. However, for reasons she does not know or understand, her late husband borrowed the money in his name only rather than with his friend and business partner. The applicant claimed she did not know who her late husband’s friend and business partner was or anything else about the [business 1], because she was just a housewife.
When asked how she found out about the unpaid loan if – as ‘just a housewife’ – she was not involved in her late husband’s [business 1] and she knew so little about it, the applicant gave evidence that a few days after her late husband passed away, 4 debt collectors visited her house claiming her husband owed them money. The debt collectors demanded payment from the applicant and claimed that the interest on the loan had grown as high as the principal, which the applicant claimed came as a shock because she did not know about the loan until then. Subsequently, she found the debt collectors’ claims were true when she found the loan agreement in the suitcase in which her late husband kept important documents.
The applicant claimed that after several more visits spanning over 3-4 months where she was unable to repay the loan as demanded, the debt collectors sent by the loan shark told her she had to hand over the deed to the house and leave. The applicant claimed she had no choice but to comply because of the threats they made. When the Tribunal asked if she had tried to renegotiate the loan repayment with the loan shark, the applicant responded she did not because she knew it was not a loan that she could afford to repay regardless of any negotiation.
The Tribunal asked the applicant what she did after she was evicted from her house. The applicant claimed she took her daughter, who was only [age] years old at the time, to their home village in [City 1] where she left her daughter in the care of a [Relative A] while she borrowed money to come to Australia. When asked by the Tribunal why she chose to come to Australia instead of relocating to another part of Indonesia, the applicant claimed the debt collectors threatened to kill her over the unpaid loan and that they told her they could find her wherever she went in Indonesia. The applicant claimed she did not go to the police because the debt collectors threatened to kill her if she went to the police.
When the Tribunal pointed out to the applicant that the debt collectors threatened to kill her over the unpaid loan regardless of whether she went to the police or not, and asked why she did not go to the police anyway in the circumstance since the police might be able to help her, the applicant responded she was too scared to do that.
The Tribunal asked the applicant what she did in the 10 months since being evicted from her own house and coming to Australia, and why it took her 10 months to leave Bali if she feared for her life, since the loan shark’s debt collectors could have found her in that period. In response, the applicant claimed she stayed with her [Relative A] during that time and the village (in [City 1]) is far away from Denpasar, and she had to wait for her visa to Australia to be approved which took about 3-4 months. Since arriving in Australia, she has not had any contact from the loan shark, nor has there been any contact from her [Relative A] about contact with the loan shark.
The applicant claimed that the loan shark has found her daughter. When asked how this happened, the applicant claimed that after her daughter grew up she went to Denpasar for work, and somehow the news of her daughter’s existence and that her daughter was related to her got to the loan shark and they found her. The loan shark told her daughter that her father owed money and because the applicant had run away, she was now responsible for repaying the loan. The applicant said her daughter called her and asked for money because she was going to be killed otherwise. The applicant claimed she borrowed AUD [amount] from the [Bank 1] to give to her daughter to pay the loan shark, but the loan shark said it was not enough, so she had to borrow a further AUD [amount]. However, she said altogether she only gave her daughter AUD [amount] to pay the loan shark, because she kept AUD [amount] to get her daughter to Australia. The applicant confirmed her daughter has also lodged a protection visa application which is still under consideration by the Department.
The applicant provided a copy of her [Bank 1] personal loan statement to the Tribunal in support of the aforementioned borrowing.
The Tribunal asked the applicant what she thought would happen if she returned to Bali, to which the applicant responded she is too scared to return because of the threats to kill from the loan shark which she believes they would carry out. In relation to her almost 4 year delay while she remained in Australia as an unlawful non-citizen before lodging her protection visa application, the applicant responded it was because she did not understand anything and she had to rely on assistance from friends to help her check her visa status and to discover that the claims included in the protection visa application were not true and correct.
The Tribunal asked the applicant whether there was any reason why she was unable to return and relocate to another part of Indonesia such as Jakarta (where there are greater employment opportunities) in order to avoid the risk of harm from the loan shark in Bali. The applicant claimed the debt is too big, therefore even if she and her daughter were able to find employment, they still would not be able to fully repay the debt. She had not tried to repay the loan shark after she arrived in Australia and before her daughter contacted her, because the money she had at the time was only enough for her own survival and to pay for her daughter’s education. She did not take out a bank loan then like she did with the [Bank 1] after her daughter contacted her, because she did not have stable income at the time and it was only after she became more settled and was able to produce pay slips that she managed to get the loan from [Bank 1].
As the applicant has expressly disavowed the protection claims included in her protection visa application with respect to being caught up in the physical altercation between her friends and a group of rich and influential people and being harmed as a result of that altercation, the Tribunal will not consider those claims any further for the purpose of this review. Instead, the Tribunal’s review will be based entirely on the loan shark related claims that the applicant has raised before the Tribunal.
Evidence from the witness (applicant’s daughter)
The witness gave evidence that she has never been contacted by the loan shark while she was living in the village in [City 1]. She was not aware that her father had died with an outstanding debt to the loan shark. After finishing high school, she went to Denpasar to continue her study, however when COVID happened she had to complete her degree online, which she did in [year].
The witness claimed she first became aware of the issue with the loan shark in mid- 2021. She was on her way home from work and was already in front of her accommodation and in the process of dismounting from her bicycle and wheeling it through the gate, when 2 strange men approached her and started chatting to her, asking random questions like where she came from. Then one of the men suddenly asked her straight out “You are (applicant’s late husband’s name)’s are you?” and said she owed money. The witness claimed she was very surprised and responded how could they say that when she did not even know the men, and the men stated they had proof. The witness claimed she ignored them and went inside, where she called the applicant immediately. It was when she found out about the unpaid loan and was told by the applicant not to talk to the men if they returned.
The witness claimed about 1 or 2 months after that initial encounter, the same 2 men plus another man approached her as she was walking back to work from a convenience store. She was [working] at the time and, and she was on her way to her next job after a short break. The witness claimed the men asked her when she could repay her father’s debt. The witness claimed she tried to stall the men by saying she had to get back to work and that she’d talk to her family and get back to them. The witness claimed she spoke with her relative (i.e. the applicant’s [Relative A]) in the village and also the applicant after this incident, and she told the applicant she could not live like this.
The witness claimed there were 4 men who came the third time she was approached. As the applicant had already given her some money by then, she gave the men IDR [amount]. 3 months passed without incident so she thought she was finally safe. However, the men returned at the end of 2021 saying the money she paid last time was not enough. As this visit happened at her accommodation, the witness claimed she went inside and locked the door because she was fearful of the men. The witness claimed the men banged on the door and the windows but left when the building’s caretaker came. The witness claimed that the men returned at the beginning of 2022, and this time she gave them IDR [amount] with the additional money that the applicant gave her.
The Tribunal asked the witness whether she could think of any reason why the loan shark was able to discover her relationship with her late father and how they were able to find her. The witness said she could not and said she did not understand how the loan shark linked her to her father either, because the accommodation where she lived was 2 districts away from where their former house stood.
In response to the Tribunal’s question about what she believed might have happened if she did not come to Australia, the witness claimed she would not have been safe if she stayed in Denpasar, but if she went back to the village (in [City 1]), she would not have been able to live because of the low job vacancy there. As for the Tribunal’s suggestion of other places in Indonesia such as Jakarta for possible relocation, the witness claimed she did not think about Jakarta because it is far away and she did not know anyone; all she thought about was coming to Australia to find her mother (the applicant).
REASONS FOR THE DECISION
For the reasons discussed below, the Tribunal has concluded that the decision under review should be affirmed because the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations.
Credibility
Section 423A of the Act provides that in reviewing a ‘Part 7-reviewable decision’ (i.e. a decision on a protection visa application), the Tribunal is to draw an inference unfavourable to the credibility of any claims not raised or evidence not presented by the applicant before the primary decision was made, if the Tribunal is satisfied the applicant does not have a reasonable explanation for not raising the claims or presenting the evidence before the primary decision was made.
In the present case, the applicant has disavowed the claims included in her protection visa application and raised new claims not raised before the primary decision. The applicant’s explanation for this was that the person who she asked to help her make her protection visa application made up the claims instead of using the reasons she provided; that she was not aware of the false claims at the time the protection visa application was made; and that she only discovered the false claims later with the assistance of other friends.
The Tribunal does not find this explanation wholly satisfactory on its own in circumstance where it is the applicant’s responsibility to ensure her protection claims are properly raised and accurately represented. Despite this, having regard to the complexity of the protection visa application process, and the fact that the applicant has very limited English with only junior high school level education, the Tribunal accepts that she was entirely reliant on, and trusted – perhaps unwisely – the person who assisted her to complete the protection visa application form to describe her protection claims accurately and faithfully.
In considering the applicant’s explanation for the delay in raising her true protection claims, the Tribunal is also informed by the applicant’s immigration history. She made a protection visa application soon after arriving in Australia in 2013, but failed to comply with the requirements of s 46(2A) of the Act which rendered her application invalid and which caused her to become an unlawful non-citizen. It was not until 2018 that she rectified this by re-lodging a (valid) protection visa application. Having regard to the applicant’s testimony at hearing when questioned about the lateness of her valid protection visa application that she did not understand anything and that she had to ask for help to check her visa status and to discover the false claims in her protection visa application etc., the Tribunal finds these cumulatively paint a picture of the applicant’s ignorance and vulnerability. The Tribunal considers this ignorance and vulnerability (and the consequent reliance on others who unfortunately have not served her well) offers a reasonable explanation for why she has only raised her true protection claims at the review stage.
Accordingly, the Tribunal finds that s 423A of the Act does not apply to require the Tribunal to draw an unfavourable inference to the credibility of the applicant’s newly raised true claims and evidence. Instead, the Tribunal will assess the credibility of the applicant’s new claims and evidence on their own merit.
The Tribunal is aware of the importance of adopting a reasonable approach in making credibility findings. In Guo v MIEA (1996) 64 FCR 151, the Full Court of the Federal
Court made comments on determining credibility. The Tribunal notes in particular the cautionary comments made by Foster J at [94]:
“…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.”
When assessing credibility of claims it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The United Nations Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 2019) states at paragraph [196] that “…if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.”
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out: Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA & Another (1994) 34 ALD 347 at [348] per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
Country information
A 2022 research essay into challenges of financial inclusion and illegal lending in Indonesia states:1
“In Indonesia, which has an adult population of 181 million, only 23% are well-served in financial service needs, while 26% are underbanked. This leaves around 51% or 92 million Indonesian adults unbanked or without access even to basic financial services.
……..
Several issues make financial inclusion challenging in Indonesia. The pandemic has adversely affected people’s income, often leaving them unable to cover their basic daily needs. Since many are in need of quick access to cash, there has been an uptick in instant financing solutions . Whilst these can provide the necessary funds with relative ease and flexibility via immediate loans offer, the repayment terms are often very steep. Another issue is that many do not stop to consider the legality of the lenders. This means that they are often unaware that they are engaging with unlicensed moneylenders or other such entities, who charge very high interest rates, and insist on dubious procedural terms. As a result, borrowers are often trapped into taking on an ever-increasing financial burden, which can lead to family problems, and even to divorce.”
DFAT’s latest Country Information Report for Indonesia, dated 24 July 2023, states the following in relation to victims of loan sharks:2
“Usury occurs in Indonesia, but it is mostly a hidden crime. Online lenders have grown in popularity and money can be lent from outfits based overseas. DFAT is aware of media reports of those who have borrowed money being harassed by debt collectors, which in some cases has led to suicide. Harassment can take the form of threats of violence or blackmail.
1 Irni Rahmayani Johan, ‘Tackling the Challenges of Financial Inclusion and Illegal Lending in Indonesia’, 26 January 2022, available at indonesia/
2 DFAT Country Information Report (Indonesia), Department of Foreign Affairs and Trade, 24 July 2023, [3.116]- [3.119].
People borrow money for different reasons, however in-country sources noted that borrowing money can be related to a migration attempt and the creditor may in fact be a people smuggler.
Police occasionally target usurious lenders, including online lenders, however police protection should not be assumed. Police corruption and lack of resources may act as barriers to seeking police assistance (see Police).
Loan sharking, especially using technology, is not uncommon, however little information about the practice is publicly available, and many Indonesians avoid talking about it due to shame or fear. There is a potential for violence from debt collectors contracted by loan sharks, even if the money originated overseas, however it is difficult to assess generally whether harm would come to borrowers, and outcomes differ from case to case.”
The Tribunal considers the applicant’s new claims to be plausible overall, having regard to country information about the high interest rates charged by loan sharks and the possibility of harassment involving threats of violence for victims. The Tribunal also considers the applicant’s new claims to be credibly supported by the documentary material she has provided (translated copy of the loan agreement, copy of her late husband’s death certificate, and copy of personal loan statement from [Bank 1]), and by the witness evidence provided by her daughter. Accordingly, the question is whether the new claims provide a basis for finding that the applicant is a person in respect of whom Australia has protection obligations on either the refugee ground or the complementary protection ground.
Assessment of refugee status
To be eligible for the grant of a protection visa on the basis of meeting the refugee criterion in s 36(2)(a) of the Act, the applicant must have a well-founded fear of persecution in Indonesia, and owing to that fear, is unable or unwilling to avail herself of the protection of Indonesia. This requires the Tribunal to be satisfied that there is a real chance the applicant would suffer serious harm in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group or political opinion, if she returned to Indonesia.
A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
On the basis of the witness evidence from the applicant’s daughter which indicates that the loan shark continued to pursue full repayment of the loan as recently as early 2022 despite the passage of more than 9 years since the loan shark last sent debt collectors to harass the applicant in late 2012, the Tribunal finds there is a real chance that the applicant would experience harassment from the loan shark in the reasonably foreseeable future, including possible significant physical harassment amounting to serious harm, if she returned to Bali, Indonesia.
However, the Tribunal is not satisfied that the real chance of serious harm faced by the applicant extends to all areas of Indonesia as required by s 5J(1)(c) of the Act. When the Tribunal pressed the applicant on why it took her 10 months to leave after she was evicted from her house by the loan shark and after allegedly being threatened with death, the applicant said she went to stay with her [Relative A] in the village in [City 1] which is ‘far away from Denpasar’, and because she had to wait for her visa to Australia to be approved. The applicant has not claimed to have been contacted by the loan shark while she was in [City 1].
Furthermore, the Tribunal notes that after the applicant left to come to Australia, her daughter had been able to remain unharmed (and unaware of the issue with the loan shark) in [City 1] for a few years, until she finished high school and went to Denpasar for further studies and work. This suggests that it had been possible for the applicant and her daughter to avoid the loan shark by relocation away from Denpasar, and that they did not even have to go as far as leaving Bali, as [City 1] is only [distance from] Denpasar by car according to Google Map.
When the issue of relocation (e.g. to Jakarta) was broached during the hearing, the applicant’s response was that the outstanding debt to the loan shark is too big and therefore she and her daughter would still be unable to fully repay the loan, even if they were able to find employment on return to Indonesia. Be as it may, it does not change the Tribunal’s conclusion that the applicant could reduce the real chance of harm she faces from the loan shark by relocation, based on her and her daughter’s past experiences of successful temporary relocation to [City 1].
Should the applicant relocate to somewhere like Jakarta (or another large Indonesian city such as Surabaya), the Tribunal considers that it would further reduce the real chance of harm that the applicant faces. Not only is Jakarta and Surabaya in Java rather than in Bali, but they are also considerably more urbanised and more densely populated than Denpasar, at >8.5 million and >2.3 million respectively compared to Denpasar’s >834,000.3 Therefore, even if the loan shark were motivated to look for the applicant outside Denpasar as they allegedly said to the applicant they would (which the Tribunal does not accept given they have not found the applicant or her daughter in [City 1]), it would be significantly more difficult, and therefore much less likely, that the loan shark would be able to find the applicant in somewhere like Jakarta or Surabaya.
The Tribunal also considers that relocation from Denpasar to somewhere like Jakarta or Surabaya are reasonable as they are safe for human inhabitation and to which safe access is lawfully possible.4 Further, whilst the applicant would not have the benefit of the support she received from her [Relative A] in [City 1] by relocating to Jakarta or Surabaya, these large cities have the alternative benefits of offering more opportunities for employment, housing and access to services which could also potentially improve the applicant’s capacity to subsist.
Accordingly, the Tribunal is not satisfied there is a real chance that the applicant would suffer serious harm from the loan shark (or debt collectors acting on their behalf) in the reasonably foreseeable if she returned to Indonesia, given the real chance of harm relates to Denpasar rather than all areas of Indonesia. As a result of this finding, it must necessarily follow that the applicant does not have a well-founded fear of persecution in Indonesia and does not meet the definition of ‘refugee’.
The Tribunal finds the applicant does not meet the refugee criterion in s 36(2)(a) of the Act.
Complementary protection assessment
Having found the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal must proceed to consider whether the applicant meets the complementary protection criterion in s 36(2)(aa) in the alternative because there are substantial
3 Population of Cities in Indonesia 2024, World Population Review, available at FCS17 v Minister for Home Affairs (2020) 276 FCR 644.
grounds for the Tribunal to believe that there is a real risk that the applicant would suffer significant harm as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia.
In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test as it applies to complementary protection imposes the same standard as the ‘real chance’ test applicable to the assessment of the refugee criterion in s 36(2)(a).
Given the Tribunal’s finding that the applicant does not face a real chance of serious harm in Indonesia from the loan shark, it must necessarily follow that the applicant does not face a real risk of significant harm in Indonesia as a necessary and foreseeable consequence of her removal from Australia to Indonesia. Therefore, the Tribunal also finds that the applicant does not satisfy the complementary protection criterion in s 36(2)(aa) of the Act.
Other criteria – member of family unit
Finally, as the applicant has not claimed to be a member of the same family unit as another person who engages Australia’s protection obligations and who holds a protection visa of the same class as that applied for by the applicant, and as there is no evidence before the Tribunal to suggest the contrary, the Tribunal finds that the applicant does not satisfy s 36(2)(b) or s 36(2)(c) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Jennifer Ermert 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
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
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.
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.
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.
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.
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.
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
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.
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.
…
Protection visas – criteria provided for by this Act
…
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.
…
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Procedural Fairness
0
4
0