1835094 (Refugee)

1835094 (Refugee) [2024] AATA 2328 (11 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1835094
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Paul White
DATE:11 June 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 June 2024 at 4:16pm
CATCHWORDS
REFUGEE – Protection Visa – Indonesia – involvement in demonstrations in Indonesia – illegal gambling online – not satisfied the applicant has a well-founded fear of serious harm –– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
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 5 November 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a [age]-year-old citizen of Indonesia. The applicant was born in Jakarta and resided in [Jakarta] from [birth] until March 2018. The Tribunal has been provided with a copy of the applicant’s application for a protection visa dated 28 October 2017 (PV application). The applicant was not invited to attend an interview with the delegate. The delegate refused to grant the visa on the basis that she was unable to be satisfied that there is a real chance the applicant would suffer persecution or arrest for reasons the applicant claims or that he would face significant harm should he return to Indonesia.
The applicant appeared before the Tribunal on 20 May 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 gave evidence about his background, his migration history, and his claims for protection.
Background
The applicant worked in Jakarta [doing specified work] for about 5 years (January 2012 until 2017). He said he felt he was not suited to this work because of the very low pay in Indonesia. He said there was no other reason he could not continue with this work. His preference was to work in hospitality. He applied for jobs in hospitality but was not successful in finding one. He looked for other jobs and found one in a [factory] where he worked for six months. At Tribunal hearing he said he had also worked in his father’s restaurant in Bali. The applicant said in Australia he works as a [occupation] in a [restaurant].
The applicant has three siblings living in Indonesia. Some are part time university students and work in his older sister’s [business]. His parents are living in Jakarta in their family home. His father is retired and receiving a pension from the restaurant in Bali he owned. His mother is not working.
Movement record
The applicant travelled to [other countries] twice on short trips when he was living in Indonesia. The applicant was granted a tourist visa on 10 January 2018 that expired on 15 June 2018. He applied for a protection visa on 12 June 2018. He provided the Department a copy of his passport which was issued on [date] 2016 and expired on [date] 2021. He provided the Tribunal with copy of his new passport which was issued in Sydney on [date] 2020 and expires on [date] 2025.
Claims to the Department
The applicant claimed in his PV application that he left Indonesia to avoid being arrested by Indonesian government because of his involvement in demonstrations in Indonesia. He claims government officials are corrupt, and he must deal with their corruption, or a daily basis as he must bribe them to get things done.
Tribunal hearing
The applicant said he applied to come to Australia because he felt Australia is a better country thank Indonesia. He came as a tourist. He said soon after he arrived, he found a lawyer who advised him to apply for a PV. He said he needed protection because of his political views. I asked him about the protection visa process having noted that he submitted his application only three days before the expiry of his tourist visa. He said he saw the lawyer a week or two after arriving in Australia. He was advised by his lawyer to put the PV application in two days before the expiry of the tourist visa.
I asked him whether he departed Indonesia for any reason. He said he was in a rush because he did not like the way that the government treated people. He said he is mature (aged [age]) and did not feel comfortable earning his living in Indonesia. He could not support his family on his earnings. He is the oldest son in the family and has some family responsibilities as a result. I put to the applicant that he received his visa in January, but he didn't leave until March which indicates he wasn't in such a rush. He said he had to stay and complete some work he was doing in [the] factory because he had committed to doing that for 6 months.
I explained to him that I need to look at whether he might face serious or significant harm in the reasonably foreseeable future should he return to Indonesia. The applicant said he would lose his job in Australia, and he could no longer support his family. He said he now has a wife. They married in January 2024 at [a suburb] in a small outdoor celebration. His wife is now pregnant. He said his wife is on a student visa that expires in 2027. She is [studying] full time and not working.
I again mentioned serious or significant harm was part of the standard for a PV. He said he could not support his family in the same way he does here. I suggested that because Indonesia had a population of 275 million people there would be work opportunities for him in Indonesia. He said he could get work but not with the pay that he wants. He said that he won't be persecuted but his political opinion might get him into difficulty. I suggested he could work in a restaurant or the family business. He said establishing restaurants in Indonesia is not an easy life. He said he supports his family and his wife and that is not that easy in Indonesia. He said his political opinion related to the low wages paid to hospitality workers in Indonesia.
The applicant made no mention of the demonstrations or arrest in his claims detailed in his PV application. I asked whether he'd been arrested in Indonesia. He said “No”. I asked whether he had been threatened by police. He said he was gambling online which is illegal in Indonesia. He was threatened by police because of his online gambling. Police asked for a bribe. He has no knowledge who reported him to police.
The applicant said he had no other problem with police. He said he was never detained by police; he had never been to prison. When I put to him information from his PV application that indicated he was detained for 5 days he said he had been detained for 2 days because of the gambling. And he had to pay a bribe to police. The only reason for his arrest was his illegal gambling online. There was no other reason for his arrest.
I put to him that he seemed to be telling two stories: one to the Tribunal about a gambling and another in his PV application about politics, a demonstration and arrest. He said he attended a demonstration, but it involved only two people, namely himself and his uncle. It was a small demonstration directed at the government as police had asked him for money, so he wanted the government to know. The applicant said his political opinion could cause some difficulty if he returned to Indonesia. He said he has never been in a political party or involved in any way in Indonesia politics in Australia. He said he doesn't come from a wealthy family, so it is difficult for them to survive in a place where the government is very corrupt.
RELEVANT LAW
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.
Section 91R(2) provides that the following are instances of serious harm: (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.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, reasons, and findings
The applicant was born in Jakarta, Indonesia, and is a citizen of Indonesia. He provided to the Department a copy of his passport issued in 2016 and to the Tribunal a copy of his new passport issued in Sydney in 2020 and valid until 2025. The applicant has consistently claimed that he is of Indonesian nationality, he is familiar with the language, geography, and culture of Indonesia. Taking into account the available evidence, and noting there is no issue as to identity and nationality, I am satisfied that the applicant is a citizen of Indonesia and that Indonesia is the receiving country for the purpose of s.36(2)(aa) of the Act.
The issue in this case is whether there is a real chance that the applicant will face persecution in Indonesia or a real risk that he will suffer significant harm if removed from Australia to Indonesia. For the following reasons, I have concluded that the decision under review should be affirmed.
I accept the applicant’s evidence to the Tribunal that he came to Australia because he could earn more money more easily in Australia to support his family in Indonesia. He is now also supporting his wife in Australia. I do not accept that he will suffer harm for any of the reasons in s 5J(1)(a) of the Act. I accept that the applicant may face occasional difficulty with corruption, but I do not accept that he faces a real chance of serious harm as a result his political opinion or for any other reason covered by the Act. I do not accept his claim in the PV application about his demonstrating, arrest, and detention. I make this finding because the applicant did not repeat the claims, made in his PV application, of arrest and detention for 5 days for participating in demonstration. I find the applicant was not arrested for reason of his political opinion or imputed political opinion or for any reason covered by the s 5J(1)(a) of the Act.
The applicant varied his evidence at the Tribunal hearing and claimed that he encountered difficulty with police who found out about his illegal online gambling. I note both land-based and online gambling are banned in Indonesia under Article 303 of the Indonesian Criminal Code and punishable by up to four years in prison. The applicant claims he paid a bribe to ensure his release and discharge. He claims he then participated in a two-person demonstration with his uncle and complained to government about police corruption. If the applicant did engage in illegal gambling this does not bring him with the purview of the refugee law or the complementary protection criterion. The applicant faced legally sanctioned consequences for acts performed while engaging in an illegal activity and paid a bribe to resolve his situation. I accept as the applicant said at hearing that he will not face persecution should he return to Indonesia.
The applicant claims his political opinion might get him into difficulty should he return to Indonesia because he believes hospitality workers in Indonesia are paid low wages. He has not done anything to promote the cause of Indonesia hospitality workers whilst in Australia or while in Indonesia. I find that this political belief alone does not give rise to a real chance of serious harm for the applicant, either now or in the reasonably foreseeable future.
The applicant does not claim to fear persecution in Indonesia for the reason of his race, religion, nationality, or membership of a particular social group. I do not accept his political opinion gives rise to a real chance of serious harm. I do not accept that that there is a real chance that he will be harmed for any of those reasons in the reasonably foreseeable future if returned to Indonesia. The applicant did not claim that any party intends to harm him. Rather, he claimed that the general economic conditions and corruption in Indonesia would result in harm to him. I do not accept that the applicant would face a real chance of serious harm in the terms of the Act on this basis if he returns to Indonesia.
The economic hardship which he claimed that he and his family face does not amount to serious harm on the basis that his “capacity to subsist” is threatened in accordance with s 5J(5)(d)-(f) of the Act. That phrase has been interpreted to refer to a level of economic hardship that challenges the ability of an individual to continue to exist or remain in being in fact, rather than as a mere possibility. The applicant has an older sister and younger siblings who live and work in Jakarta. The applicant’s siblings are students and employed. The applicant claims he is not from a wealthy family, yet I do not accept that his economic circumstances threaten his capacity to subsist. I find that, if he were to live in Jakarta, the applicant would face similar conditions, noting he has a long record of regular employment. He worked consistently in Indonesia for many years before coming to Australia and delayed his travel to Australia to complete a job. The applicant has also been regularly employed during his time in Australia. I do not accept that, if returned to Indonesia the applicant faces more than a very remote possibility of being unemployed. For these reasons, I do not accept that the applicant will lack the ability to earn a livelihood in Indonesia or lack the capacity to subsist if returned to Indonesia.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Paul White
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 2328

11 June 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction