1834369 (Refugee)

[2024] AATA 1123

1834369 (Refugee) [2024] AATA 1123 (23 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1834369

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Wayne Pennell

DATE:23 February 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 February 2024 at 3:28pm

CATCHWORDS
REFUGEE – protection visa – Indonesia – riots, racism, terrorism and serious crime – no harm and possibility of relocation – ethnicity and religion – Chinese Buddhist – comment by presidential candidate – vague, speculative claims, no supporting evidence and minimal response to tribunal’s communications – country information – low risk of violence and moderate risk of low-level discrimination – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(a), (aa), (2A), 65

Migration Regulations 1994 (Cth), Schedule 2

CASES

Chan Yee Kin v MIEA (1989) 169 CLR 379

MIAC v SZQRB [2013] FCAFC 33

MIEA v Guo Wei Rong (1997) 191 CLR 559

Prasad v MIEA (1985) 6 FCR 155

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant the applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]

   [1]The delegate’s decision of 7 November 2018.

2. The applicant, who is a citizen of Indonesia, applied for a protection visa.[2] The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed to Indonesia, there was a real risk she would suffer significant harm, and her application was refused on the basis that she was not a refugee as defined by the Act[3] and therefore she was not a person in respect of whom Australia has protection obligations.[4]

   [2]The Department of Home Affairs received the applicant’s application on 4 June 2018.

   [3]Migration Act 1958 (Cth), s 5H.

   [4]Migration Act 1958 (Cth), s 36(2)(a), s 36(2)(aa).

3. The applicant filed an application (‘review application’) with the Tribunal to review the delegate’s decision.[5] At a subsequent time,[6] the Tribunal wrote to her advising that it had considered all the material before it relating to the review application but it was unable to make a favourable decision on that information alone, and she was invited (‘hearing invitation’) to give oral evidence and present arguments at a hearing scheduled on 22 February 2024. The Tribunal notes that she was not represented throughout the review process and she did not respond to the hearing invitation. This issue is discussed in greater detail later in these Reasons.

   [5]The Tribunal received the applicant’s review application on 22 November 2018.

   [6]On 24 January 2024.

   CRITERIA FOR A PROTECTION VISA

4. The measures for a protection visa are set out in the Act[7] and Schedule 2 to the Migration Regulations1994 (Cth). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[8] That is, the applicant 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.

   [7]Migration Act 1958 (Cth), s 36.

   [8]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).

5. The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[9]

   [9]Migration Act1958 (Cth), s 36(2)(a).

6. 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.[10] 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.[11]

   [10]Migration Act1958 (Cth), s 5H(1)(a).

   [11]Migration Act1958 (Cth), s 5H(1)(b).

7. The Act also provides that 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.[12] 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 the Act, which are extracted in the attachment to this decision.[13]

   [12]Migration Act 1958 (Cth), s 5J(1).

   [13]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.

8. If a person is found not to meet the refugee criterion in the Act,[14] that person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).[15] 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 expressly provided in the Act, which are extracted in the attachment to this decision.[16]

   [14]Migration Act 1958 (Cth), s 36(2)(a).

   [15]Migration Act 1958 (Cth), s 36(2)(aa).

   [16]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).

9. The Act makes provision for and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[17]

   [17]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).

10. Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[18]

    [18]Migration Act 1958 (Cth), s 36(2B).

    COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY

11. The applicant claims to be a citizen of Indonesia and provided a copy of her passport to the Department to authenticate this claim. The Tribunal accepts her identity and based on the evidence she provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Indonesia is her country of nationality and her receiving country for the purposes of the refugee and complementary protection assessments.[19]

    [19]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).

12. Based on the evidence, the Tribunal is satisfied the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that she is not excluded from Australia’s protection obligations.[20]

    [20]Migration Act 1958 (Cth), s 36(3).

    MANDATORY CONSIDERATIONS

13. In accordance with Ministerial Direction No. 84 made under the Act,[21] the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and the country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    [21]Migration Act 1958 (Cth), s 499.

    MATTERS LEADING UP TO THE REVIEW HEARING

14. On 16 April 2018, the applicant was granted a short term tourist visa (subclass 676). That visa was valid for three months and expired [in] July 2018. Shortly after her visa was granted, the applicant arrived in Australia [in] April 2018 subject to the conditions of that visa.

15. On 4 June 2018, the applicant lodged an application with the Department for a protection visa. In that application, she claimed that she left Indonesia because of riots, racism, terrorism and serious crime. She also claimed that she was not harmed for any of these reasons. Significantly, the applicant claims in her application that she could return to Indonesia and relocate ‘after everything is fine’. The Tribunal notes that this comment directly contrasts to her claims for permanent protection.

16. Following the applicant lodging her application, the Department wrote to her on 22 June 2018 and acknowledged receiving her application and advised her that she should provide additional information relating to her claims. The Tribunal particularly notes that the applicant provided no additional evidence or material to the Department. 

17. On 7 November 2018, the delegate made a decision to refuse the applicant’s application, and she was appropriately advised of that decision. The applicant then lodged her review application with the Tribunal on 22 November 2018, along with a copy of the delegate’s decision record.

18. On 27 November 2018, the Tribunal dispatched a letter to the applicant’s nominated email address acknowledging the receipt of her review application. That letter explained that it was important that she keep the Tribunal informed of any changes to her contact details (such as her residential address, mailing address, telephone number, fax number or email address). If she had a representative or authorised recipient, it was also important that she inform them of any change in her contact details. If she did not do that, then she might not receive an invitation to a hearing or other important information and her case may be decided without further notice. She was also asked to immediately tell the Tribunal if her personal circumstances change because was relevant to the review of the delegate’s decision. She was further informed that if she wishes to provide material or any written arguments for the Tribunal to consider, then she should do so as soon as possible.

19. Apart from lodging her review application with the Tribunal over five years ago, the applicant has never provided the Tribunal with any additional material or evidence to support her claims, and up until a few days prior to the scheduled hearing, nor has she provided any information to suggest that her personal or contact particulars had changed. It is particularly noted until that time, she has never communicated with the Tribunal since lodging her review application.    

20. By way of further explanation, on 5 October 2023 the Tribunal dispatched an email to the applicant advising her that her case was being prepared for allocation to a Tribunal Member. She was provided with a link to a pre-hearing information form and was asked to complete the form, and then return it to the Tribunal within seven days. She did not respond to the Tribunal’s email or the request to complete the pre-hearing information form.

21. On 24 January 2024, the Tribunal dispatched an email to the applicant. Enclosed in that email was an invitation for her to give evidence and present arguments at a review hearing scheduled for 22 February 2024. The invitation stated that if he did not attend the hearing, the Tribunal may make a decision on her case without further notice. She never responded to that invitation.

22. Ordinarily, within the week leading to a pending review hearing, the Tribunal sends two SMS reminders to an applicant’s nominated mobile phone. The first SMS reminder is sent five business days prior to the scheduled hearing and the second SMS reminder is sent one business day prior to the hearing. Because the applicant had never provided a mobile phone number to the Tribunal, those SMS reminders could not be sent to her.

23. On the afternoon of 20 February 2024, the applicant telephoned the Tribunal in regard to the pending review hearing on 22 February 2024. She said that she was calling to confirm whether the Tribunal had received the pre-hearing response form because she had moved interstate. The Tribunal can confirm that by the time she made that call, she had never provided the Tribunal with that form which had been requested from her back in October 2023. Nor had the applicant advised the Tribunal that she had relocated from Queensland to Sydney. It was established during the subsequent review hearing that she moved to Sydney in 2019.

24. When speaking with the Tribunal on 22 February 2024, she provided her mobile phone number for future contact. She also requested that the scheduled hearing be undertaken by video because she lived in Sydney. She was informed by the Tribunal to write to the Tribunal and make that request.

25. On the morning of the scheduled hearing, the Tribunal received from the applicant the pre-hearing response form. In that form she requested that the hearing be postponed. The Tribunal then wrote to her and explained the details as already discussed above in paragraphs 14 to 24 and she was advised that because significant advance notice had been provided to her about the scheduling of the review hearing, her request was denied. However, she was advised that the hearing could proceed by it being undertaken by video. The review hearing proceeded as scheduled.

    APPLICANT’S APPLICATION

26. Within the applicant’s application, the following details were provided in respect to her claims for protection.

Provide reasons why this applicant left that country or those countries:
1) RIOT 2) RACISM 3) TERRORISM ACTIVITIES 4) SERIOUS CRIME
Did this applicant experience harm in that country or those countries?
No
Did this applicant move, or try to move, to another part of that country or those countries to seek safety?
No
Give details for why this   applicant did not try to move     to another part of the country     or those countries.	ALL THE PROVICE IN THE COUNTRY IS THE SAME
Explain what the applicant thinks will happen to them if they return to that country or those countries:
NO ANY AUTHORITIES CAN PROTECT ME I LIVE WITH WORRIED
Does this applicant think they will be harmed or mistreated if they return to that country or countries?
No
Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back?
No
Give details about why          this applicant thinks the authorities could not, or would not, protect them.	HOW THE AUTHORITY WILL PROTECT ME. THEY ARE SEEKING FOR PROTECTION TOO
Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed?
Yes
Give details as to where this applicant could relocate.	APPLICANT WILL RELOCATE AFTER EVERYTHING IS FINE

1. As already identified and discussed in these Reasons, there has never been an occasion when the applicant has provided any evidence by way of a statement of claim, statement or statutory declaration from either herself or anyone else to valid or support the claims that she made.

   Review hearing

2. The applicant participated in the review hearing by video. She was not represented and she was able to communicate in the English language with the Tribunal throughout the hearing.

3. In regard to the applicant’s ethnicity, she told the Tribunal that she identifies as having Chinese heritage and ethnicity. Her grandparents were originally from China, and her parents were born in Indonesia, as was the applicant and her siblings. Her birthplace was Palembang in Indonesia and she was born into a Buddhist family and is the youngest of [children]. Her father passed away when she was [Age], and she was cared for by her mother and older siblings. Her mother still lives in Palembang. She was educated from elementary school through to high school and completed her schooling in [Year] when she was aged 18. After leaving school, she was not employed in Indonesia and in early 2018 she moved to Jakarta where she lived with her aunty for about three months. She then returned to Palembang for about a month before she departed for Australia. She told the Tribunal that her trip to Australia was funded by her family. 

4. When first asked why she needed a protection visa in Australia and why she would be harmed if she returned to Indonesia, the applicant told the Tribunal that at present, there are Presidential elections underway in Indonesia. One of the candidates is a Muslim and he made an announcement that if he wins the presidential elections, then that would be a victory for all Muslim people in Indonesia. She told the Tribunal that if that occurred, then there would be fighting again between the Muslims and the Chinese people.

5. The applicant’s claim and argument on this point was very vague and ambiguous, and she was not able to say how she would be targeted or be subjected to harm because of a comment by a political candidate in an election campaign. At best, her claim was speculative and the only evidence to support her claim was what she told the Tribunal during the hearing. The Tribunal found that her evidence relating to this claim was uncertain and vague, and she was not able to explain why she would be targeted or harmed if she returned to Indonesia because of a supposed comment made by a political candidate during an election campaign.

6. When questioned further about whether she had been subjected to persecution within Indonesia because of her race or ethnicity, she explained to the Tribunal that her only experience in racial discrimination in Indonesia happened when she was bullied by other students when she was at school. She did not suggest that, apart from that event, that it had ever occurred to her after she left school in [Year].

7. When discussing with the Tribunal her claim that she had a well-founded fear of returning to Indonesia because of the serious crime in that country, she said that she had never been a victim of a serious crime in Indonesia. When asked further about this, she told the Tribunal  that some Muslim people were going to kill her. When asked by the Tribunal when those comments were made to her, she said that it happened when she was aged about 15 and she was in junior high school. She went on to explain that it only happened to her once, and the circumstances involved other students from another school (a Muslim school) who made the threats towards her. She did not know those students and she never saw them again. The threat has never been repeated to her. When carefully assessing that evidence, the Tribunal finds that there is not a substantial risk of the applicant experiencing serious harm in Indonesia because of reasons relating to serious crime. 

1. In regard to her claim that she had a well-founded fear of returning to Indonesia because of terrorism, the applicant told the Tribunal that terrorist were setting off bombs in Jakarta. The applicant had earlier told the Tribunal that she had relocated from Palembang to live with her aunty in Jakarta for three months in early 2018, and she was specifically asked by the Tribunal if she had been targeted or harmed by any act of terrorism or those bombings. She told the Tribunal that the bombings happened before she arrived in Jakarta, and during the three months that she lived in Jakarta, there had been no terrorist bombings.

2. Although the Tribunal accepts that the country information relevant to Indonesia  describes that some terrorist activity may have occurred in that country, when carefully assessing the applicant’s testimony at the review hearing, the Tribunal is satisfied (and so finds) that there is not a substantial risk of the applicant experiencing serious harm in Indonesia because of the reasons she claimed in respect to terrorism.   

3. When discussing her claim about rioting, similar to what she told the Tribunal about terrorism, she was not privy to and nor did she experience any rioting or rallies of a political nature in Indonesia. All she knew about rioting and rallies was from what she heard from other people, and it was from those conversations with those other people that she learnt about the riots and rallies taking place. When carefully assessing that evidence, the Tribunal finds that there is not a substantial risk of the applicant experiencing serious harm in Indonesia because of reasons relating to her exercising any political opinion or her having an imputed political opinion.

4. When making her claims in her application, and when discussing those claims during her testimony at the review hearing, her evidence was vague and uncertain as to the specifics of why she would be subjected to serious and or significant harm if she returned to Indonesia. Her claims are speculative, and an example of this was her evidence about the comment of a political candidate who would cause fighting between Muslims and the Chinese inhabitants of Indonesia.   

5. As the High Court has determined in Minister for Immigration and Ethnic Affairs v Guo Rei Wong, mere speculation cannot establish a well-founded fear. A fear of persecution is not well founded if it is merely assumed or of it is mere speculation. The High Court went on to find:

   Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it.  As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.[22]

   [22]     MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS V GUO WEI RONG & ANOR (1997) 191 CLR 559, 572; CITING CHAN YEE KIN & ORS V MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS (1989) 169 CLR 379, 397.

6. In determining that fear can be well-founded without any certainty, or even probability, or that it will be realised, the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs recognised the principle determined by the United States Supreme Court in Immigration and Naturalization Service v Cardoza-Fonseca that a statutory provision reflecting the relevant phrase in the Refugee Convention did not require the probability of persecution, and:[23]

   That the fear must be 'well-founded' does not alter the obvious focus on the individual's subjective beliefs, nor does it transform the standard into a 'more likely than not' one.  One can certainly have a well-founded fear of an event happening when there is less than a 50 per cent chance of the occurrence taking place.[24]  

   [23]Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 397.

   [24]Immigration and Naturalization Service v Cardoza-Fonseca (1987) 94 L Ed 2d 421, 431.

7. When applying those principles to the facts, circumstances and features of the applicant’s claims, the Tribunal does not accept that she is a refugee as defined in section 5H of the Act, and nor has she satisfied the criterion as provided in section 36(2)(a) of the Act that Australia should apply the protection obligations to her.

   COUNTRY INFORMATION

8. Available to the Tribunal was reliable and credible country information contained with the DFAT Country Information Report on Indonesia. That country information specifically addresses issues such as race and nationality within Indonesia, as well as a discussion surrounding the ethnicity of Chinese Indonesians. The country information provides: 

   RACE / NATIONALITY

   3.1 Indonesia is one of the world’s most ethnically diverse countries. The government promotes racial tolerance, and legislation prohibiting racial discrimination and vilification has been in force since 2008. Online racial hate speech is banned by Indonesian law, however issues about race and discrimination are openly discussed in Indonesia. Article 28I(2) of the Constitution, among other articles, states that every person shall have the right to be free from discriminatory treatment based upon any grounds whatsoever and shall have the right to protection from such treatment.

   3.2     According to the CIA World Factbook, as at April 2023 approximately 40 per cent of the population was Javanese, 15 per cent Sundanese, and 3.7 per cent Malay. Various other ethnic identities exist among the many islands. Indonesians of Chinese descent comprise approximately 1.2 per cent of the population.

   3.3     For many decades the government pursued a ‘transmigration’ policy (transmigrasi), with landless people offered land and housing in less heavily populated locations to ease population pressures in densely populated islands such as Java. Because of this policy, and following recent movements of people for economic reasons, it is common to find people of various ethnic groups in areas of the country where they are not the majority. Critics of transmigration argue it failed to integrate arriving populations into host communities, and that subsequent segregation led, in some cases, to communal tensions in rural areas, or that the program has simply relocated, rather than resolved, poverty.

   3.4     People from different ethnicities and different parts of Indonesia are often visibly distinguishable by body and facial features, skin tone, or are recognisable by their name. Low-level ethnic discrimination, like stereotypes and the use of racist slurs, occurs in Indonesia, as in other parts of the world. Non-Javanese are worse affected, but ethnic chauvinism occurs among members of all ethnic groups.

   3.5     DFAT is not aware of a pattern of incidents of official discrimination based on race or ethnicity.

   Ethnically Chinese Indonesians

   3.6     Successive waves of immigration to Indonesia from China have resulted in well-established ethnically Chinese Indonesian communities throughout the country. Many Chinese Indonesians can trace their history in Indonesia back many generations, may no longer identify as Chinese, and may not speak a Chinese language. Most Chinese Indonesians belong to a religious minority, either Buddhism or a Christian denomination.

   3.7     The Suharto-era New Order regime implemented a range of discriminatory measures, prohibiting Chinese language newspapers, schools and cultural expression and requiring Indonesian names. Violence and looting targeting Chinese Indonesians and their homes and businesses peaked during the Asian Financial Crisis (see Recent History). Since the end of the New Order regime in 1998, successive governments have removed official policy measures discriminating against ethnically Chinese Indonesians. Chinese New Year is a national public holiday, Confucianism is an officially recognised religion, Chinese-language newspapers are published, and there are no barriers to Chinese cultural celebrations or education.

   3.8     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.

   3.9     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.

   3.10   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.

   3.11   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.

   3.12   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.

9. When very careful consideration is applied to that country information and that information is weighed against the claims made by the applicant, what is apparent is that there does not appear to be any official discrimination against people who identify as Chinese Indonesians and nor does there appear to be any evidence of a pattern of incidents of official discrimination based on race or ethnicity.

10. The Tribunal is satisfied (and so finds) that greater weight should be placed upon the credible country information contained within the DFAT report than the uncorroborated and unverified evidence provided at the hearing by the applicant.

    CONCLUSION AND REFUGEE FINDINGS

11. The definition of a refugee as provided within section 5H(1) of the Act explains that a refugee is a person who is outside their country of nationality or former habitual residence and is unable or unwilling to avail themselves of the protection of their country of nationality or to return to their country of former habitual residence due to a well-founded fear of persecution. The term ‘well-founded fear of persecution’ is defined in section 5J of the Act, and includes a requirement in section 5J(1)(a) of the Act that the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

12. The issue in this case is whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Indonesia, there exists a real risk that she will suffer significant harm or there is a real chance that she would suffer serious harm; and whether she is a person in respect to whom Australia has protection obligations as defined in the Act.[25]

    [25]Migration Act 1958 (Cth), s 36(2).

13. The mere fact that the applicant claims she has a fear of persecution for a particular reason does not establish either the genuineness of her asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because the applicant claims she faces a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to significant harm. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out.

14. Importantly, the Tribunal is not required to make the applicant’s case for her. It is her responsibility to specify all particulars of her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[26] Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant.[27]

    [26]Migration Act 1958 (Cth), s 5AAA.

    [27]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.

15. The applicant is from Indonesia. Because she has not engaged with the Department or the Tribunal, very little is known about her personal circumstances other than what is contained within her application and what she told the Tribunal at the hearing. At the time of the review hearing, almost six years had passed since she lodged her application with the Department. During that time she was reminded by both the Department and the Tribunal that she should provide all evidence to support her claims. It is noted by the Tribunal that she has not provided any statement or other tangible evidence to support or validate her claims. As already discussed in these Reasons, the Tribunal is satisfied that the claims she relies upon, and her testimony at the review hearing should, at best, be categorised as speculative.   

16. The applicant claims that she left Indonesia because of riots, racism, terrorism and serious crime. She told the Tribunal that she had not been harmed in Indonesia for any of these reasons, and the Tribunal is satisfied that when very careful consideration is given to her evidence, there is no apparent reason or motivation for her having a well-founded fear of returning to Indonesia. It is particularly noted by the Tribunal that she made a significant concession in her application where she claimed that she could return to Indonesia and relocate ‘after everything is fine’. Notwithstanding that comment, she then claimed at the review hearing that the pending presidential elections are a source of well-founded fear for her because of a comment made by a political candidate. It is very clear from her testimony at the review hearing that the politician’s comment was not something that contained any specific threat towards anyone in Indonesia, let alone towards her or members of her ethnicity.

17. Upon careful consideration of the applicant’s testimony at the review hearing, along with the claims she expressed in her application, the Tribunal is satisfied (and so finds) that she has not experienced harm in Indonesia because of any of the claims she raised in her application, and nor has she been privy to any concerning acts which potentially targeted her for harm. Furthermore, there is no evidence that if she returned to Indonesia she would be targeted for any of the reasons described within section 5J(1)(a) of the Act.

18. When carefully assessing the applicant’s claims, the Tribunal is not satisfied that there is a real chance of her being persecuted for one or more of the reasons mentioned in section 5J(1)(a) of the Act should she return to Indonesia. Therefore, the Tribunal is satisfied (and so finds) that the applicant is not a refugee as defined in section 5H of the Act. The Tribunal is also satisfied that she is not a person in respect of whom Australia has protection obligations under section 36(2)(a) of the Act.

    COMPLEMENTARY PROTECTION CONSIDERATIONS

19. Having already concluded that the applicant does not meet the refugee criterion as provided by the Act,[28] the Tribunal has considered the alternative criterion.[29] In considering the alternative criterion, an assessment was undertaken as to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Indonesia, there is a real risk that she will suffer significant harm as it is defined in the Act.[30]

    [28]Migration Act 1958 (Cth), s 36(2)(a).

    [29]Migration Act 1958 (Cth), s 36(2)(aa).

    [30]Migration Act 1958 (Cth), s 36(2A).

20. Because of the findings already outlined, the Tribunal is not satisfied that in the reasonably foreseeable future there is a real risk that the applicant would suffer significant harm for any of the reasons she claims if she returned to Indonesia. Helpfully, the courts have discussed the test for ‘real risk’ and determined that the real risk test imposes the same standard as the real chance test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[31]

    [31]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.

21. Having considered all of the applicant’s claims, individually and cumulatively, along with the evidence, the Tribunal does not accept that if she returns to Indonesia now or in the reasonably foreseeable future she will be arbitrarily deprived of life, the death penalty will be carried out on her, she will be subjected to torture or to cruel or inhuman treatment or punishment, nor will she be subjected to degrading treatment or punishment.

    CONCLUSION: REFUGEE CRITERION

22. Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds that there is not a real chance she will be persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group. The Tribunal finds that her fear of persecution is not well-founded as required by section 5J of the Act and, therefore, she is not a refugee within the meaning of section 5H of the Act.

    CONCLUSION: COMPLEMENTARY PROTECTION CRITERION

23. Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to Indonesia, she will be exposed to a real risk of suffering significant harm.

    OVERALL CONCLUSION

24. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a) of the Act.

25. Having concluded that the applicant does not meet the refugee criterion in section 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in section 36(2)(aa). The Tribunal is not satisfied that she is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.

26. There is no suggestion that the applicant satisfies section 36(2) based on being a member of the same family unit as a person who satisfies section 36(2)(a) or section 36(2)(aa) of the Act and who holds a protection visa. Accordingly, she does not satisfy the criteria in section 36(2) of the Act.

    DECISION

27. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Wayne Pennell
    Senior Member

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …