1833095 (Refugee)

1833095 (Refugee) [2024] AATA 3591 (15 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Michelle Janine Gunaratne (MARN: 0958672)
CASE NUMBER:  1833095
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Jennifer Ermert
DATE:15 May 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 May 2024 at 5:11pm

CATCHWORDS
REFUGEE – Protection Visa – Indonesia – race – Chinese ethnicity – religion – Christian – thugs visited applicant’s shop and extorted money from her – delay in applying for protection in Australia – applicant does not have a well-founded fear of persecution – advancing age and her health conditions – unique or exceptional circumstances – referral to the Minister – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 417, 499

Migration Regulations 1994, Schedule 2

CASES

Chan Yee Kin v MIEA (1989) 169 CLR 379
WZARV v MIBP (2015) 254 CLR 610
SZTEQ v MIBP (2015) 229 FCR 497

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 dependant.

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 24 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 3 April 2018. The delegate refused to grant the visa on the basis that the applicant does not satisfy s 36(2) of Act because she is not a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 30 April 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.
The applicant was represented in relation to the review.

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 or not the applicant is a person in respect of whom Australia has protection obligations because the applicant is either a refugee or a person who satisfies the complementary protection criterion, or because the applicant is a member of the same family unit as such a person and that person holds a protection visa of the same class as that applied for by the applicant.

Identity and country of nationality

The applicant claims to be a citizen of Indonesia. She has provided a copy of the biodata page of her Indonesian passport to the Department. In the absence of evidence that the identity document is a bogus document within the meaning of s 5(1) of the Act, the Department has accepted the applicant is a national of Indonesia as claimed and has considered and assessed her protection claims against Indonesia in relation to s 36(2)(a) and s 36(2)(aa) of the Act.
The Tribunal has also considered the copy of the biodata page of the applicant’s Indonesian passport on her departmental file. The Tribunal has also had regard to the original of the applicant’s new Indonesian passport which was sighted at the hearing and a copy of which was provided to the Tribunal. In the absence of evidence that the applicant is not the person she claims to be, the Tribunal accepts the identity of the applicant and accepts that she is a citizen of Indonesia.
The Tribunal finds Indonesia is the applicant’s country of nationality for the purposes of s 36(2)(a) and s 36(2)(aa) of the Act.

Personal background and immigration history

The applicant is a [age]-year-old woman from Indonesia. She is an ethnically Chinese Indonesian and a Christian.
The applicant was born in Jakarta, Indonesia. At the hearing, the applicant gave evidence that she has lived in Jakarta her whole life prior to coming to Australia, except for the period between 2015-2016 when she lived for a year in Central Java with her friend [Ms A].
The applicant was the only child in her family. Her parents have both passed away. As her parents’ families did not support her parents’ marriage, she had very limited contact with her relatives from either side of her parents’ family, and the contact diminished even further with the passing of her parents.
Between 1996 and 2000 , the applicant worked as an employee in a [shop]. From 2001 until about 2014/2015, the applicant set up and operated her own [shop] in a joint venture with [Ms A]. However, [Ms A] only went to the shop occasionally, because she lived in Central Java rather than Jakarta and because she was richer than the applicant and her role in the business was primarily as an investor rather than being directly involved in its running on a day-to-day basis.
On [date] February 2016, the applicant arrived in Australia on a Class FA Subclass 600 Tourist visa, and she has not departed Australia since. On 3 April 2018, the applicant made her protection visa application.
The Tribunal accepts each of the above matters to be true.

Protection claims

The protection claims included in the applicant’s protection visa application are as follows:
·She ran a [shop] which she was forced to close due to disturbances caused by local hoodlum.
·There was no problem when she first opened the shop, but things changed when Joko Widodo, and later Basuki Tjahaja Purnama (‘Ahok’), became the governor of Jakarta.
·Radical anti-Chinese Muslim groups started disturbing her, and the situation became worse after Ahok was thrown into jail. Thugs visited her shop demanding payment of jizya (‘non-Muslim tax’), and if she refused, the thugs abused and sometimes even slapped her in front of her customers. They also caused damage to the shop.
·She reported the matter but was advised to just give the money to the thugs.
·Over time her finances crumbled as the thugs’ demands increased whilst sales decreased because customers were scared to buy from her shop, forcing her into bankruptcy. Her friend advised her to come to Australia which is known for being a humanitarian country.
·She survived the massive anti-Chinese riots in 1998 in which thousands of Chinese-Christians were robbed, raped or murdered. She feared similar things would happen again.
·She has not sought help because her experience told her that it was futile, given Chinese were always victimised. She did not try to relocate because she did not have the money and she does not have family in other parts of Indonesia who could support her.
·She has been through racial abuse and discrimination her whole life, and the situation is only getting worse because the whole country is affected by radicalism.
The delegate refused her protection visa application because the delegate was not satisfied on country information that the applicant would be targeted by anti-Chinese groups or radical Muslim groups in Indonesia.
At the hearing, the applicant gave evidence that she received assistance in completing her protection visa application from a friend who she knew from church in Indonesia. The applicant claimed the friend, who has since returned to Indonesia, knew her story and used his knowledge of her story to complete the protection visa application for her.
The applicant gave evidence that since she opened her own [shop] in 2001, 3 thugs visited her shop about once every 3 months and demanded money. She believed the thugs also targeted other shops in the area owned by Chinese.
When asked if she always paid the thugs, the applicant responded in the affirmative, claiming she did so due to fears they would seriously harm her. Even though the IDR 250,000 the thugs demanded is not a huge amount, it was still a large sum as far as she was concerned. The applicant claimed the amount of money the thugs demanded increased over the years until it reached IDR 600,000, which she struggled to pay because of her ever-diminishing customer base and sales. Eventually she went bankrupt and had no choice but to close her shop.
The applicant claimed she was traumatised by this experience. As she did not have any family member that she could turn to, she went and stayed with her friend and business partner [Ms A], who suggested that she could come to Australia where she would not need to live in fear. The applicant gave evidence that [Ms A] told her that it would be hard for her to get a visa to come to Australia without any travel history, so at [Ms A]’s invitation she accompanied [Ms A] on short trips to [other countries].
The Tribunal asked the applicant what the basis was for her belief that the thugs who extorted her also targeted other Chinese shops. The applicant claimed she found that gangsters in Jakarta did not like Chinese. When asked if the thugs also targeted Indonesian shops, the applicant said she was not sure. She felt it would be the same for everyone, but assumed the thugs targeted primarily Chinese shops because the shops around hers were also Chinese. She claimed she had spoken to people from the other shops who confirmed they have also been extorted.
The Tribunal asked the applicant whether anything else bad had happened to her besides the visits and extortions from the thugs. The applicant claimed there were also frequent Muslim demonstrations which scared her, although she was fine as long as she stayed inside the house and did not go out.
The Tribunal asked the applicant what she believed would happen to her if she returned to Indonesia. The applicant claimed she is quite happy in Australia. Because of her past experiences in Indonesia, she would be traumatised in Indonesia by the sight of large groups of people carrying stones and sticks at demonstrations, whereas in Australia she feels safe because there is ‘humanity’, e.g. she was quickly helped and taken to hospital by her co-workers when she recently collapsed at work, and she can go out and return home even late at night without fear.
The Tribunal asked the applicant for an explanation of the 2 year delay in making an application for a protection visa, given her claimed fear of harm in Indonesia. The applicant responded that she did not know about protection visas and her friend told her to ‘just get a bridging’ (visa).
In response to the Tribunal’s query about her claim in the protection visa application that things worsened for her after Ahok was thrown in jail, which the Tribunal did not find credible given country information indicates Ahok was only jailed for blasphemy after she came to Australia, the applicant claimed she did not know the story of Ahok’s imprisonment and that the claim was inserted by her friend.
The Tribunal also invited the applicant to comment on country information which counters her protection claims on the basis of ethnicity, that since the end of the New Order regime in 1998, successive Indonesian governments have removed official policy measures that discriminated against Chinese Indonesians and there are no longer barriers to use of the Chinese language or observance of Chinese cultural or religious practices. Whilst anti-minority sentiment is heightened during election campaigns, it is not an everyday experience for Chinese Indonesians and racist propaganda or hate speech against Chinese Indonesians has not translated to acts of violence.
In reply, the applicant claimed that lots of churches in Indonesia were forced to close, and people were afraid because they were told by neighbourhood chiefs to disperse. She can safely go to church in Australia but it was difficult in Indonesia. The Tribunal put it to the applicant that available country information indicates that Christians in general are able to practise freely in Indonesia despite some low-level discrimination. The applicant replied that in Australia she is happy to go to church and it calms her, but she would be afraid to go to church in Indonesia and someone might put a bomb inside the church at Christmas time. She is getting old and approaching death and she needs to be able to be near God.
The applicant, supported by her representative, also made general representations relating to her health. In summary, the applicant claimed that while she is all alone without family support regardless of whether she is in Indonesia or Australia, she has a better chance of receiving adequate care in Australia having regard to her current health conditions and her advancing age.

REASONS FOR THE DECISION

For the reasons that follow, the Tribunal has concluded that the decision on review should be affirmed because the Tribunal is not satisfied the applicant meets the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa).

Credibility of claims

Given available country information regarding Indonesia’s recent history of instability and events of looting and violence directed primarily at Chinese Indonesians during the peak of the 1997 Asian Financial Crisis and in the lead-up to the end of the New Order regime in 1998, the Tribunal accepts that the applicant, having experienced and survived that period of significant unrest, has a deep fear of discrimination and harm because of her Chinese ethnicity in Indonesia.
It is not entirely clear from the applicant’s evidence whether the thugs targeted her shop and other Chinese-owned shops in the immediate vicinity because of her and her neighbouring shopkeepers’ Chinese ethnicity, or whether Indonesian and other non-Chinese shops may have also been similarly targeted. Nonetheless, in the absence of contrary evidence, the Tribunal accepts that thugs visited her shop and extorted money from her as claimed, which led to a decline in the viability of the shop over time and caused its eventual closure.
The Tribunal has noted the lack of credibility with respect to the claim in the protection visa application that her problems in Indonesia got worse after the imprisonment of the Chinese Indonesian governor of Jakarta, Ahok. The Tribunal accepts the applicant’s explanation it was not true and that it was included by her friend who assisted her with the application. The Tribunal therefore does not give weight to this claim.
The Tribunal has also had regard to the applicant’s explanation with respect to the lengthy delay in making her protection visa application despite her claimed fear of harm. The Tribunal accepts that the delay was caused by her ignorance of the process for seeking protection and that she was relying on advice from friends she knew who incorrectly told her to ‘just get a bridging’ (visa). The Tribunal therefore finds the applicant’s delay does not impugn the credibility of her protection claims.
Having considered the claims made in the protection visa application and at the hearing, the Tribunal considers that except for the aforementioned issues which the Tribunal has discounted for reasons discussed, the applicant’s claims are plausible overall and the Tribunal finds the applicant has generally provided evidence honestly and without embellishment. The Tribunal therefore proceeds to assess whether the applicant engages Australia’s protection obligations on the basis of the claims she presented and the evidence she provided.

Assessment of refugee status

To be eligible for the grant of a protection visa on the basis of satisfying the refugee criterion in s 36(2)(a), the applicant must show she has 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 an assessment of whether there is a real chance that the applicant would be persecuted because of her race, religion, nationality, membership of a particular social group or political opinion.
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.
In addition to real chance of persecution, the persecution feared must involve serious harm to the applicant (s 5J(4)(b)) of such severity and magnitude that that it represents a denial of or significant interference to the applicant’s fundamental rights and freedoms: MIBP v WZAPN; WZARV v MIBP (2015) 254 CLR 610 at [71]; SZTEQ v MIBP (2015) 229 FCR 497 at [66]-[70].[1]

Claims based on Chinese ethnicity

[1] These cases considered the statutory wording of s 91R(2) as it then was and which is the equivalent of present-day s 5J(5). See also DJO16 v MIBP [2017] FCCA 944 at [24]-[25].

Regardless of the race or ethnicity-based discrimination and harm that the applicant experienced in the past, whether it be during or before the 1997-1998 riots or whether in connection with the threats and extortion from the thugs, as the Tribunal mentioned (briefly) to the applicant at the hearing, DFAT has reported in its most recent Country Information Report for Indonesia (dated 24 July 2023) that:
“The Suharto-era New Order regime implemented a range of discriminatory measures, prohibiting Chinese language newspapers, schools and cultural expression and requiring Indonesian names. Violence and looting targeting Chinese Indonesians and their homes and businesses peaked during the Asian Financial Crisis. Since the end of the New Order regime in 1998, successive governments have removed official policy measures discriminating against ethnically Chinese Indonesians. Chinese New Year is a national public holiday, Confucianism is an officially recognised religion, Chinese-language newspapers are published, and there are no barriers to Chinese cultural celebrations or education.
Hundreds of thousands of protesters demonstrated in Jakarta on several occasions in 2016 to demand the detention of the Christian and Chinese-Indonesian Governor of Jakarta, Basuki Tjahaja Purnama (often referred to as ‘Ahok’), after he was arrested for allegedly insulting Islam. Violence between protesters and police was reported, but not violence against ordinary citizens, as occurred in 1998.
Chinese Indonesians experience societal discrimination in the form of negative stereotypes that portray them as greedy, as criminals or as being associated with China and its policies. Discrimination of this type increased around the outbreak of the COVID-19 pandemic due to the extensive media coverage of China and various claims about the origins of the virus at the time.
Risk of societal discrimination against Chinese Indonesians depends on individual circumstances. Individuals with wealth are less affected; they can use their wealth and connections with powerful people to protect themselves. Many Chinese Indonesians work in family businesses or within their own ethnic community, which reduces the chances of discrimination at work. Those without such networks or wealth would be more at risk of discrimination, but that applies to all Indonesians, not just Chinese Indonesians.
Memories of the 1998 violence and 2016 protests are still fresh in the memories of many ethnically Chinese Indonesians. Some jealousy of perceived wealth can lead to threats and some Chinese Indonesians keep a low profile as a result. Anti-minority sentiment is also heightened during election campaigns. Violence has occurred in the past but is not an everyday experience for Chinese Indonesians.
DFAT assesses that Chinese Indonesians currently face a low risk of societal violence and a moderate risk of low-level societal discrimination. DFAT is not aware of official discrimination against Chinese Indonesians.”[2]
[2] Department of Foreign Affairs and Trade Country Information Report – Indonesia, 24 July 2023, pg.11-12, [3.7] – [3.12].
On the basis of this country information, and noting in particular DFAT’s assessment that Chinese Indonesians currently face ‘a low risk of societal violence’ (i.e. DFAT is aware of incidents but has insufficient evidence to conclude they form a pattern), the Tribunal is not satisfied there is a real chance that the applicant would be harmed because of her Chinese ethnicity if she returned to Indonesia, now or in the reasonably foreseeable future.
To the extent that there is a ‘moderate risk’ (i.e. DAFT is aware of sufficient incidents to suggest a pattern of behaviour) – and therefore a real chance – that the applicant would suffer societal discrimination because of her Chinese ethnicity, the Tribunal finds that the discrimination, which DFAT has described as ‘low-level’, is not of such severity that it amounts to serious harm.

Claims based on religion

The applicant has not expressly claimed personal fear of harm in Indonesia based on her religion as a Christian, other than a passing reference to robbery, rape and murder of Chinese Christians during the anti-Chinese riots in 1998, and in the context of responding to the Tribunal’s invitation to comment on country information in relation to absence of persecution of Chinese Indonesians in present day Indonesia where she claimed that it was difficult in Indonesia because lots of churches were forced to close and people were afraid due to being told by neighbourhood chiefs to disperse. She also claimed to fear bomb attacks in churches.
In respect of the situation for Christians in Indonesia, the DFAT Country Information Reports states:
“Indonesia is officially a religiously pluralist state. The constitution guarantees freedom of religion subject to restrictions in the interests of morality, religious values, security and public order. Major religions generally have good relationships with each other and with government authorities at an institutional level, but this differs for smaller religions and between individual religious communities.
Not every religion is legally recognised. According to the law, religions must have a prophet, a holy book, a deity and international recognition. Indonesia recognises six official faiths that meet that definition: Islam, Catholicism, Protestantism, Buddhism, Hinduism and Confucianism.
Christianity is Indonesia’s second-largest religion after Islam. Many Christians live in the Papua provinces, parts of North Sumatra, East Nusa Tenggara, North Sulawesi, and Maluku islands, but also in Jakarta and other parts of the country. There are Christians in every province of Indonesia. Many Indonesians of Chinese descent are Catholic. Along with the Catholic church, many Protestant churches operate in Indonesia, including mainline Protestant churches (especially Lutheran denominations), and evangelical and Pentecostal churches, as well as non-denominational independent churches. Christians are generally able to practise their faith freely throughout Indonesia. In general, Christians have good relations between denominations and with other religions, including regular dialogue and a generally peaceful coexistence.
In country sources told DFAT that they do not generally experience discrimination, for example, because of the faith listed on their identity cards, when publishing literature, or for having Christian websites.
Localised discrimination from local governments is possible. For example, the Indonesian Christian Church (GKI) won a 2010 Supreme Court challenge against the revocation of its building permit in Bogor, near Jakarta. The Church remains sealed by the local government at the time of writing despite the court ruling.
Religious intolerance against Christians occurs occasionally with a small possibility of violence. Police sometimes provide armed protection to churches, especially during religious festivals. In-country sources told DFAT that most churchgoers feel safe going to church on Sundays.
Attacks against Christians can be highly organised, and police investigate and sometimes disrupt these threats. For example, a bomb attack in Makassar in March 2021 on Sacred Heart Cathedral injured about 20 people. Police arrested 53 people for the attack, who were charged with terrorism offences. In May 2021, police disrupted plans to kill a Catholic bishop in the Papua provinces and attack several other churches. In November 2020, ISIS-linked terrorist group East Indonesia Mujahidin (MIT) carried out an attack on several homes and a Salvation Army church in Central Sulawesi, killing four.
DFAT assesses that Christians residing in areas where they are a majority do not face either official or societal discrimination. Christians residing in areas where conservative Islam is prevalent face a low risk of societal discrimination in the form of impediments to worship. Violence does occur and there are recent high-profile examples, but this is not the day-to-day experience of most Christians.”[3]
[3] Department of Foreign Affairs and Trade Country Information Report – Indonesia, 24 July 2023, pg. 13 and 15-16, [3.19]-[3.20] and [3.37]-[3.41].
The Tribunal accepts based on this country information that violent attacks against Christians have occurred in the past in Indonesia. However, they appeared to be largely random rather than frequent or systematic. Given DFAT’s assessment that Christians are generally able to practise their religion with minimal discrimination and that violence is not the day-to-day experience of most Christians, and given the applicant appears to have been able to worship as a Christian in Indonesia without any problem (based on her evidence that the friend who assisted her with the protection visa application was a friend from church, which suggests that the applicant was able to attend church on a sufficiently regular basis to develop friendship with other churchgoers), the Tribunal is not satisfied there is a real chance that the applicant would be harmed on return to Indonesia because of her Christian faith, now or in the reasonably foreseeable future.

Other claims

Finally, the Tribunal has considered the applicant’s generalised claims in relation to fears of radicalism in Indonesia, large Muslim demonstrations, and her poor health conditions.
Available country information supports the applicant’s concerns that despite being a religiously pluralist state, Islamic radicalism is a significant issue in Indonesia which the government is fighting to contain.[4] This is demonstrated, for example, by the banning of the Islamic Defenders Front (FPI) in late 2020,[5] as well as various other efforts to counter the actions of Islamist-affiliated terrorist groups.[6]
[4] Paul Marshall, ‘Saudi influence and Islamic radicalism in Indonesia’, Lausanne Movement, August 2017.
[5] Prashanth Parameswaran, ‘What the FPI ban does and doesn’t tell us about political Islam in Indonesia’, The Diplomat, 7 January 2021.
[6] Country Report on Terrorism 2022 – Indonesia, Bureau of Counter-terrorism, US Department of State.
Nevertheless, the Tribunal does not accept that the existence of Islamic radicalism in Indonesia establishes that the applicant meets the definition of refugee. As discussed earlier, to meet the definition of refugee the applicant must show that she has a well-founded fear of being persecuted, in the sense that there is a real chance that she would be seriously harmed, for reasons of her race, religion, nationality, membership of a particular social group or political opinion.
Whilst the threats posed by Islamic radicalism in Indonesia might involve risk of serious harm, the Tribunal does not accept that such threats are directed at the applicant personally because of one or more of the enumerated reasons; rather the Tribunal finds the threats of Islamic radicalism are general and affect all members of the Indonesian society.
Similarly, to the extent that the applicant fears large Muslim demonstrations, there is no evidence before the Tribunal that the applicant faces a real chance of being seriously harmed during such demonstrations because of her race etc. Any potential risks arising from large Muslim demonstrations are likely to also affect other members of the society including those who are not Chinese Indonesians and those who are not Christians.
As for the applicant’s belief that Australia has more ‘humanity’ and that she would be better able to access adequate health care in Australia, DFAT reports that:
“Article 28H of the Constitution guarantees citizens the right to obtain medical care, while Article 34 obliges the state to provide medical and public service facilities. Responsibility for health service delivery in Indonesia has been devolved to the district level since the early 2000s, and health services vary in quality and availability between districts.
In January 2014, Indonesia began the implementation of a National Health Insurance Scheme (JKN), Indonesia’s universal healthcare system. DFAT understands that most of the population is now covered by the JKN, with citizens and those living in the country for more than six months required to register for the scheme. Those enrolled must pay premiums, which may be subsidised for the poor. While JKN is available to most, there are still several million Indonesians, including those with disabilities and complex heath needs, who do not have access to the scheme.
There is a gap in service provision and quality between urban and rural areas, and a mix of private and public health facilities. While most Indonesians have access to healthcare of sorts, this may not be access to a doctor or a hospital, but rather to a health worker of some type (e.g., a nurse or a health educator). Access could be in a hospital or possibly in a healthcare centre without many facilities. DFAT assesses that it is difficult to give an overall assessment of healthcare availability and quality, which differs significantly from place to place and circumstance to circumstance. Rich people in urban areas generally have access to better quality healthcare services than do the poor in rural areas, however most Indonesians can access basic healthcare.”[7]
[7] Department of Foreign Affairs and Trade Country Information Report – Indonesia, 24 July 2023, pg.8, [2.16] – [2.18].
Whilst healthcare availability and quality in Indonesia may differ significantly from place to place and from circumstance to circumstance, and in that regard may be perceived to be inferior compared to Australia, the applicant has not raised any claim or presented any evidence that she would be denied access to basic healthcare services in Indonesia because of her Chinese ethnicity or Christian religion (or because of one of the other enumerated reasons). Therefore, the Tribunal does not accept there is a real chance that the applicant would experience harm in the form of denial of access to basic healthcare in the reasonably foreseeable future, should she return to Indonesia.
For all the reasons discussed, the Tribunal is not satisfied the applicant meets the definition of ‘refugee’. It follows that she does not satisfy s 36(2)(a) of the Act.

Complementary protection assessment

Having determined that the applicant does not satisfy the refugee criterion in s 36(2)(a) of the Act, the Tribunal must proceed to assess whether the applicant’s circumstances are such as to give the Tribunal substantial grounds for believing that if the applicant was removed from Australia to Indonesia, there is a real risk that she would suffer significant harm as a necessary and foreseeable consequence of that removal, pursuant to s 36(2)(aa).
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 findings that there is not a real chance that the applicant would be harmed in Indonesia in the reasonably foreseeable future because of her Chinese ethnicity or Christian religion, including being denied access to basic healthcare services, it follows that there are no substantial 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 her removal to Indonesia.
With respect to the applicant’s claimed fear of Islamic radicalism and (depending on the circumstances – potentially related) claimed fear of large Muslim demonstrations, s 36(2B)(c) of the Act provides that there is taken not to be a real risk that a person will suffer significant harm in a country if the real risk is one faced by the population of the country generally and is not faced by the person personally. As discussed earlier, the Tribunal finds that any threats or risks of harm posed by Islamic radicalism and Muslim demonstrations (whether related to or instigated by Islamic radicalism or not) would not be specifically directed at the applicant and would equally affect other members of the society. Therefore, pursuant to s 36(2B)(c), the Tribunal finds there is not a real risk that the applicant would suffer significant harm arising from Islamic radicalism and Muslim demonstrations in Indonesia.
In conclusion, and for the reasons given, the Tribunal finds the applicant does not satisfy the complementary protection criterion in s 36(2)(aa) of the Act.

Other criteria – member of family unit

Finally, there is no evidence before the Tribunal to suggest that the applicant is a member of the same family unit as another person who satisfies s 36(2)(a) or (aa) and who holds a protection visa of the same class as that applied for by the applicant. Therefore, the Tribunal finds that the applicant does not satisfy s 36(2)(b) or (c) of the Act.

Ministerial intervention

Section 417 of the Act authorises the Minister to substitute a decision of the Tribunal with another decision that is more favourable to the applicant if the Minister thinks that it is in the public interest to do so, whether or not the Tribunal had the power to make that other decision. The Minister has issued guidelines that describe the types of cases in which the Minister may wish to consider exercising his or her public interest powers under s 417. The guidelines indicate that the Minister will generally only consider exercising his or her public interest powers in cases which exhibit one or more unique or exceptional circumstances.
One of the unique or exceptional circumstances articulated in the guidelines is “compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person.”
Although the Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations, noting the applicant’s advancing age and her health conditions, the Tribunal anticipates that she could experience considerable barrier re-establishing herself in Indonesia including finding employment with which to sustain herself. In circumstances where the applicant also has no family members that she could lean on for support, returning her to Indonesia could result in serious and ongoing hardship. Accordingly, the Tribunal considers that the applicant’s case raises ‘unique or exceptional circumstances’ that justify possible intervention by the Minister, the circumstances being:
“Compassionate circumstances arising from the applicant’s advancing age and poor health, combined with lack of family or other support in Indonesia, that returning her to Indonesia could result in difficulties that threaten her ability to subsist.”

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.
…

[2024] AATA 3591

15 May 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction