1836491 (Refugee)

[2024] AATA 4321

1836491 (Refugee) [2024] AATA 4321 (14 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1836491

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Kylie Allen

DATE:14 August 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection (Class XA) visa.

Statement made on 14 August 2024 at 8:51am

CATCHWORDS
REFUGEE – protection visa – Indonesia – race – Chinese ethnicity – religion – Christian – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91R, 91S
Migration Regulations 1994 (Cth), Schedule 2, cl 866.221

CASES
Appellant S395/2002 v MIMA (2003) 216 CLR 473
Applicant A v MIEA (1997) 190 CLR 225
Applicant S v MIMA (2004) 217 CLR 387
Chan Yee Kin v MIEA (1989) 169 CLR 379
Chen Shi Hai v MIMA (2000) 201 CLR 293
MIEA v Guo (1997) 191 CLR 559
MIMA v Haji Ibrahim (2000) 204 CLR 1
MIMA v Khawar (2002) 210 CLR 1
MIMA v Respondents S152/2003 (2004) 222 CLR 1
SZATV v MIAC (2007) 233 CLR 18

SZFDV v MIAC (2007) 233 CLR 51

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of Indonesia, applied for the visa on 18 July 1997.

3. The delegate refused to grant the visa on 15 October 1997. The applicant was not properly notified of the delegate’s decision until 21 November 2018 and the applicant applied to the Tribunal for review of that decision on 12 December 2018.

   RELEVANT LAW

4. Under s 65(1) a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied. The criteria for a protection visa are set out in s 36 of the Act and Part 866 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). As a result of amendments to the Act, some of the criteria in s 36 do not apply to visa applications made before 1 October 2001. However, the criteria in cl 866.221 of the Regulations, as applicable to this application, broadly reflect the criteria for a protection visa in s 36(2) of the Act. An applicant for the visa must meet one of the alternative criteria in cl 866.221(2), (3), (4) or (5): cl 866.221(1). That is, the applicant is either a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention), or on other ‘complementary protection’ grounds, or is a member of the same family unit as a person to whom Australia has protection obligations under either the Refugees Convention or the complementary protection grounds and that person holds a protection visa.

   Refugee criterion

5. Clause 866.221(2) is satisfied if the Minister is satisfied that the applicant for the visa is a person to whom Australia has protection obligations under the Refugees Convention.

6. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

7. The High Court has considered this definition in a number of cases, notably Chan Yee Kin v MIEA (1989) 169 CLR 379, Applicant A v MIEA (1997) 190 CLR 225, MIEA v Guo (1997) 191 CLR 559, Chen Shi Hai v MIMA (2000) 201 CLR 293, MIMA v Haji Ibrahim (2000) 204 CLR 1, MIMA v Khawar (2002) 210 CLR 1, MIMA v Respondents S152/2003 (2004) 222 CLR 1, Applicant S v MIMA (2004) 217 CLR 387, Appellant S395/2002 v MIMA (2003) 216 CLR 473, SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51.

8. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the regulations to a particular person. These provisions were inserted on 1 October 2001 and apply to all protection visa applications not finalised before that date.

9. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

10. Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). The expression ‘serious harm’ includes, for example, a threat to life or liberty, significant physical harassment or ill-treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

11. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.

13. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. 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.

14. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

15. Whether an applicant is a person to whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

16. If a person is found not to meet the refugee criterion in cl 866.221(2) he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a person to 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 applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: cl 866.221(4) (‘the complementary protection criterion’).

17. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.

    Mandatory considerations

18. 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.

    CLAIMS AND EVIDENCE

19. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.

20. The applicant appeared before the Tribunal on 5 August 2024 to give evidence and present arguments in relation to his claims. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

    Protection visa application

21. The applicant’s protection visa application of 18 July 1997 included the following information and claims:

    ·He was born in Surabaya, Indonesia in [year] and is of Chinese ethnicity and Catholic religion. His father, mother and brother still live in Indonesia along with his extended family.

    ·As an ethnic Chinese Indonesian, he is discriminated against in terms of employment, education and religion. Ethnic Chinese are not allowed to use Chinese names. The Chinese language is banned at school and in government organizations. He could not use his Chinese name on his birth certificate, at school or for employment reasons.

    ·Ethnic Chinese are deprived of the right of freedom of speech and freedom of political opinion and religion. He is extremely cautious about what he says and does. Anything unfavourable to the government can be interpreted as anti-government speech, which, if convicted, would lead to a death sentence.

    ·Ethnic Chinese are denied public service jobs, government housing and social welfare. Their every movement is closely watched.

    ·As a Catholic in Indonesia, he had to endure all sorts of harassment and insults by Muslim extremists.

    ·At school, if you practise Christianity, you would be bullied by teachers and students. As a Catholic, he was denied higher education.

    ·He was denied jobs because of his religion. He applied for a public servant position, but was denied because of his religion. Public services do not use Catholics, and do not trust Catholics. As a Catholic, he was not able to enjoy basic rights.

    ·His church was frequently set on fire by Muslim extremists and his local church priest was beaten up on numerous occasions. They were harassed by police and government officials.

    Department decision and application to Tribunal

22. The delegate refused to grant the applicant’s protection visa on 15 October 1997. The applicant was not properly notified of the delegate’s decision until 21 November 2018 and the applicant applied to the Tribunal for review of that decision on 12 December 2018.

    Pre-hearing information

23. On 29 February 2024, the applicant advised the Tribunal that he left his country in 1997 because he genuinely feared for his life. In 1998 there were major riots and many people of Chinese descent were persecuted and killed. There is still discrimination.

24. On 12 May 2024 and 9 June 2024 the applicant confirmed that he would attend a hearing to provide evidence to the Tribunal

    Hearing

25. On 5 August 2024, the applicant attended a hearing at the Tribunal. At the hearing, the applicant provided more information about his life in Indonesia as his claims to fear harm on the basis of his race, religion and political opinion. To the extent that the applicant’s evidence at hearing is relevant to my decision it is included in my findings below.

26. The applicant also submitted a number of news clippings and search results about conditions in Indonesia. They broadly fell into three groups of reports about the 1998 riots, the impact of the Jakarta hotel bombing and Bali Bombings in 2002 and 2003 and violence against Christians and church closures in Sulawesi and Bandung in 2004 and 2005. The articles including the following:
    
    

    ·A blank Federal Court appeal application and an untranslated article, neither of which appear to be related to the applicant’s submissions.

    ·FICA-Net, “Data of Riots from Nov 1998”. This is a table of riots said to have occurred during 1998.

    ·Google groups thread, “Woman raped by Muslims with ‘Allah Hu Akbar’ war cries”, 1998. Personal accounts of events said to have occurred during the 1998 riots.

    ·H. Gow, “Stop ethnic cleansing in Indonesia”, 20 July 1998. An letter posted on the internet from a Chinese girl about the 1998 riots.

    ·World Council of Churches submission to the UNHCR in March/April 2000, relating to human rights violations by Indonesians in East Timor which references the 1998 riots in Jakarta.

    ·Google Groups thread, “Please help stop ethnic cleansing in Jakarta” 1998. Personal accounts of the 1998 riots.

    ·Thinkquest, “Ethnic Chinese: Indonesia’s Scapegoats”, undated but appears to be personal accounts of 1998 riots.

    ·Undated, unattributed list, “Offences of Human Rights in Indonesia During the New Order Period” 1965-1999.

    ·Statement by Sidney Jones before the Senate Foreign Relations Committee Asia Pacific Subcommittee on Crisis in Indonesia, 18 May 1998. Relates to the 1998 riots.

    ·Inside Indonesia, “Solidarity in suffering: Victims of the May 1998 riots seek justice and healing” April/June 2004. Report on victims of the 1998 riots seeking recompense.

    ·Inside Indonesia, “The Chinese rapes, economic depression, and Indonesian communalism”, 31 August 1998

    ·Unattributed article, “INDONESIA ALERT Economic Crisis Leads to Scapegoating of Ethnic Chinese”, February 1998

    ·ColorQWorld, “Indonesia's Shame: Cruel insults for slain rape counsellor”, 11 October 1998

    ·Indonesian Christian Communication Forum, “The Church and Human Rights in Indonesia”, 30 November 1998. A review of the closing and damage to churches in the lead up to the 1998 riots.

    ·The Jakarta Post, “Bomb Attacks Could be Done Anywhere Anytime”, 2 August 2005. This is an opinion piece which reviews past events in Indonesia including the hotel bombing in Jakarta and the Bali Bombing.

    ·Scoop Independent News, review of SBS documentary “Inside Indonesia’s War on Terror”, 18 October 2005

    ·Christian Today, “Bali Bombings Generate Fear & Concern for Indonesian Christians”, 8 October 2005.

    ·Asia News, “Bombs found in graveyards and churches in Sulawesi and Maluku”, 27 October 2004. The article notes that Sulawesi is a hot spot for clashes between Muslims and Christians and these old bombs may be evidence of a planned attack.

    ·Christian Freedom, “Muslim Extremists Close Churches in Indonesia”, 31 August 2005.

    ·The Australian, “Jakarta acts swiftly after three Christian schoolgirls beheaded”, 31 October 2005. Reports on the attack by Muslim extremists in Sulawesi.

    ·Canoe News, “Troops brace for violence after girls beheaded”, 31 October 2005

    ·Asia News, “Indonesia: 3 Christian girls beheaded”, 29 October 2005

    ·Egyptian Greens, “Churches Destroyed in Indonesian Violence”, 7 June 2006. Press statement by Egyptian Greens condemning EU for not doing more in response to the 2005 attacks.

    ·Assyrian International News Agency, “Indonesia Acts Quickly on Bali Bomber but Ignores Attacks on Christians”, 7 October 2005. A call to sign a Christian petition.

    ·Human Rights Watch, “Essential Background Overview of Human Rights Issues in Indonesia”, World Report 2005. Addresses terror threats such as hotel attack and Bali bombing, violence in Aceh and Papua and impunity for security forces.

    ·Worthy News, “Major Islamic Crackdown on Churches in Indonesia Reported; Churches Closed, Pastors Threatened”, 5 October 2005. A report about violence in the province of West Java where at least 35 churches in Bandung and neighbouring regions have been closed by Islamic mobs. In total about 200 churches were closed down since 1996, by Islamic militants allegedly linked to the Aliansi Gerakan Ant Pemurtadan (AGAP) or 'Anti-Apostasy Alliance Movement'.

    ·Worthy news, “Indonesia Islamic Militants Close New Churches”, 20 October 2005.

    ·CBN News Watch, “Muslims Force Indonesian Christian Churches to Close”, 2005 Christian news article about the closure of the East Star church in Indonesia due to fears in the wake of the Bali bombings.

    ·Metropolitan News Enterprise, “Violence Against Chinese Christian Women in Indonesia Warrants Asylum, Ninth Circuit Panel Rules”, 21 March 2005. Report on a US asylum case.

    ·The Allineed, “Indonesian market bombing sparks fears of new sectarian clashes”, 2004. Internet news article about bombing in Tentana.

    ·Jihad Watch,”36 Dead in Jihad Violence in Indonesia”, 29 April 2004. Reporting on an attack on Dhimmi Christians in Ambon.

    ·The Voices of the Martyrs Canada prayer sheet calling for prayers related to church closures in Indonesia in 2005.

    ·Australian Christian Channel, “Pentecostal Christian assassinated in Indonesia, new violence feared” 8 October 2005. This reports on the assassination of an evangelist in Sulawesi.

    FINDINGS AND REASONS

27. The issue in this case is whether the applicant is owed protection as a refugee or a person entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed

28. The applicant claims to be an Indonesian national. He confirmed at hearing that he lived in Surabaya when he was young, he then moved to Madura when he was in senior high school as his parents were moving their business there. He later moved back to Surabaya and lived with his grandmother. He stated that his parents, who had a business in Madura, are now retired and have moved back to Surabaya. They live there with their nephews and one of his brothers. Another of his brothers now lives in Madura and runs the family business. His third brother came to Sydney as a tourist and now lives there, married to an Australian citizen. He said that his family live in the Chinese community in Surabaya and that if he was returned to Indonesia he would return to live there with his parents. The applicant provided an open and direct account of his life in Indonesia and I accept that he is an Indonesian national from Surabaya.

1. The applicant claims that he is ethnically Chinese and he fears harm on that basis. DFAT reports[1] that successive waves of immigration to Indonesia from China have resulted in well-established ethnically Chinese Indonesian communities throughout the country, including in Surabaya. Based on his account of his life, I accept that the applicant’s ethnicity is Chinese as claimed.

   [1] DFAT, “DFAT Country Information Report Indonesia”, 24 July 2023

2. The applicant claims that he was discriminated against on the basis of his race. The applicant last lived in Indonesia in 1997. At hearing he advised that he completed 3 years senior high school in Madura and then worked with his parents for 2 years in their shop. When he returned to Surabaya he worked in a [factory]. The applicant was asked about any discrimination he faced on the basis of his ethnicity in Indonesia. He responded that most of the bullying and discrimination he faced was from other students when he was in high school as it was in a small town in Madura in a mostly Muslim community and there were not many Chinese students. They said things to him like “you are Chinese and you should not be here, you should go back to your own country.” He said it seemed like they hated him and if they did not like him then sometimes they hit him. He also said that they came to his parent’s shop and said that they should not be there and they should close their shop. They threw stones at the house and graffitied the shop.

3. The applicant said that after 2 years of work with his parents he moved back to Surabaya and found work in [a] factory. He said he did seek out any higher education and he not look for work in a government organisation. He did not want to work with Muslims. He said did not personally experience any discrimination when applying for education or employment. The applicant did not claim to have personally experienced discrimination on the basis of race in terms of housing or social welfare. Based on his compelling account at hearing, I accept that the applicant faced bullying and harassment from Muslim Indonesian students at school on the basis of his race. I also accept that he uses an Indonesian name rather than a Chinese name. I do not accept that he was denied access to education, housing, employment or services on the basis of his race or that he was subject to other harm such as monitoring by the government. I consider that these were generic claims made in the protection visa application about the experiences of some Chinese background Indonesians.

4. The applicant also claimed that as a Chinese Indonesian he was deprived of the right of freedom of speech and freedom of political opinion. He claimed he was extremely cautious about what he said and did. He also claimed that anything unfavourable to the government can be interpreted as anti-government speech, which, if convicted, would lead to a death sentence. He was asked about his political activity at hearing. He said he was not a member of any political party in Indonesia but that, when he was in his final year at school, he was involved in a protest asking the kids to stop discrimination against Chinese people, give them freedom of speech and stop bullying people of Chinese descent. He said that about 20 people of Chinese descent from his school and another school met at a park in Madura and took banners and someone shouted into a loud speaker.

5. The applicant was asked about any harm he faced as a result of this. He said that a lot of the Muslims did not like it and they told them to break up the demonstration. Some of them stayed there and they took the law into their own hands. He claimed they brought wooden canes with them. He was beaten and was hurt on the cheek and little on his eye but it was not serious and he did not need to go to hospital. He said that the police brought peace to the situation and told them to break it up. It was raised with the applicant that he did not appear to face harm from the authorities for protesting. He responded that the police were slow to act and did not seem to care that they were being hit.

6. The applicant did not have any evidence to corroborate his claims about the protest and it is noted that if this did occur it was over 34 years ago. The applicant remained living in Indonesia for approximately 5 years after the protest. The applicant’s evidence about the protest are at odds with his claim in his protection visa application that he was extremely cautious about what he said and did because anything unfavourable to the government can be interpreted as anti-government speech, which, if convicted, would lead to a death sentence. However, given the applicant’s young age at the time and his school experiences, I am willing to accept that this occurred but find that the applicant does not have a political profile in Indonesia, he was not harmed by the authorities for his political activity and the activity was only broken up by the police when it became violent. The applicant has not indicated any desire to be politically active in the future.

7. The applicant claims that he was discriminated against on the basis of his religion which is Catholic. In his protection visa application he stated that, as a Catholic in Indonesia, he had to endure all sorts of harassment and insults by Muslim extremists. At school, if you practise Christianity, you would be bullied by teachers and students. As a Catholic, he was denied higher education. He was denied jobs because of his religion. He applied for a public servant position, but was denied because of his religion. Public services do not use Catholics, and do not trust Catholics. As a Catholic, he was not able to enjoy basic rights. His church was frequently set on fire by Muslim extremists and his local church priest was beaten up on numerous occasions. They were harassed by police and government officials.

8. The applicant was asked about his religion at hearing. He said he is still a Christian but he is a protestant. He attends [Church 1] in [Suburb 1]. Previously he attended [Church 2] in Surabaya. He said that if he returned to Indonesia he would attend [Church 1] in Surabaya. I accept that the applicant is a Christian and that he would seek to attend [Church 1] on his return to Indonesia. The applicant was asked if his family are still practising Christians to which he replied that they are and that they have not been harmed or prevented from practising.

9. The applicant was asked about his protection claims and whether he was personally harmed on the basis of his Christian religion. He said that it happened once in the past. He claimed he was threatened with a knife and defended himself. The applicant was asked for more details about that. He said that it happened when he was attending a Catholic prayer group at home in Surabaya. He said that their Muslim neighbours did not like it so they came en masse to his grandmother’s house and told them to break it up. He said that he opposed them and one young person had brought a knife and he received a tiny cut from the knife. He said that this occurred about a year after moving back to Surabaya. I consider this would have been in approximately 1995.

10. It was raised with the applicant that he had not raised this incident earlier at any time prior to the hearing. He had previously raised that the church had been set on fire but that he did not raise that at hearing. He responded that their church was burnt when it had Molotov cocktails thrown at it around 1990 and once his priest was threatened with being hit. The applicant did not provide any evidence to corroborate these claims. I have concerns about the veracity of the claims given the inconsistencies with the protection visa application and the late raising of the claim made. I do accept that in the past there have been attacks on Christian churches in Indonesia including in the 1990s but I do not accept that the applicant was ever harmed for practising his religion in Indonesia. Additionally, based on his evidence about his life at hearing, I do not accept that he faced harm in terms of accessing higher education, being denied jobs including public servant positions and not being able to enjoy basic rights. As noted above in relation to race, I consider that these were generic claims made in the protection visa application about the experiences of some Chinese background Indonesians of Christian faith.

11. Overall I am satisfied that the applicant would be returning to Surabaya Indonesia as a person of Chinese Indonesian race and Christian religion. I do not consider that he has any political or other profile in Indonesia and I note that he had no problem departing Indonesia in 1997. I also note that his family continue to live in Indonesia unharmed.

12. The applicant has not lived in Indonesia for approximately 27 years and over that time conditions have changed considerably. I have had regard to the applicant’s statement that in 1998 (the year after his departure) there were major riots and many people of Chinese descent were persecuted and killed. The applicant provided a number of reports about these riots and personal accounts of Chinese Indonesians who were harmed and killed. I appreciate the distress and fear those events have caused the Chinese community in Indonesia. DFAT reports that the 1997 Asian Financial Crisis led to high inflation, unemployment and bank and company collapses. Riots and looting occurred, particularly targeting the Chinese-Indonesian community. Suharto resigned as President in May 1998, ending the New Order era. Several serious incidents of communal violence (both ethnic and religious-based) also occurred across the archipelago. DFAT also reports that since 1998 successive governments have removed official policy discriminating against ethnic Chinese Indonesians. The government promotes racial tolerance, and legislation prohibiting racial discrimination and vilification has been in force since 2008. 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. The applicant confirmed at hearing that this is true and that Chinese people are now allowed to use their Chinese names.

13. DFAT states that low-level ethnic discrimination, like stereotypes and the use of racist slurs, occurs in Indonesia and that non-Javanese are worse affected, but ethnic chauvinism occurs among members of all ethnic groups. DFAT states that Chinese Indonesians experience societal discrimination in the form of negative stereotypes that portray them as greedy and additionally as criminals or as being associated with China and its policies. In DFAT’s assessment, risk of societal discrimination against Chinese Indonesians depends on individual circumstances. Those with wealth are less affected and better able 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. 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. DFAT states that violence has occurred in the past but is not an everyday experience for Chinese Indonesians. Overall, 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.

14. DFAT also reports that Christianity is Indonesia’s second-largest religion after Islam. 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.

15. 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. 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.

16. 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.

17. The applicant was invited to comment on DFAT’s most recent assessment of conditions for Chinese Christian Indonesians living in Indonesia. The applicant agreed that things in Indonesia are not as bad as they used to be in 1998. However, he believes that there are still things that can happen and there are still radical groups that still really hate people on the basis of their religion and race. When something happens that makes them unhappy they always target Christians and Chinese. The applicant did not point to any threats made to him personally that would affect him on his return nor to any threats or harm experienced by his family over the past 30 years or so.

18. In addition to the country information provided about the 1998 riots the applicant provided country information from a number of sources about events in the early 2000s in the wake of the Bali bombings. These referenced a number of attacks against Christians by Muslim extremists particularly in parts of Sulawesi and Bandung. The country information does support the applicant’s assertion that there are still things that can happen and that radical groups do still carry out attacks. While the Tribunal takes into account the information provided by the applicant at hearing, it considers that this violence, while at times horrific, has been relatively isolated and addressed by Indonesian security forces. I place weight on DFAT’s assessment that Indonesia is generally safe, and that Chinese Indonesians face societal discrimination but only a low chance of societal violence and do not face official discrimination. Having regard to the applicant’s past experiences, low profile, the fact that he and his family have not been impacted by recent attacks or violence and the information from DFAT, the Tribunal accepts that the applicant may in the future experience some low level discrimination. However, I consider that in a population of over 275 million people with significant Chinese and Christian populations, and without any other profile, the chance of the applicant being targeted or harmed on the basis of his race or religion is no more than remote and does not rise to the level of a real chance of serious harm.

19. Further to my findings above, I do not consider that the applicant has any kind of political profile and I am not satisfied that he faces a real chance of any harm on any of the other refugee grounds including political opinion, nationality or membership of a particular social group even when considered alongside his religion and ethnicity. I am not satisfied that the applicant meets the refugee criterion and I am not satisfied that the applicant faces a real chance of persecution.

20. I have turned my mind to whether the applicant would face a real risk of significant harm on his return to Indonesia as set out in the complementary protection criterion. As noted above, the Tribunal does accept that the applicant may face some low level societal discrimination on the basis of his ethnicity and religion. I appreciate the concerns that the applicant has as a result that in the context of how he was treated during his schooling and the events of 1998. I am not satisfied however, that such treatment would amount to significant harm as defined. I am not satisfied that he will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or he will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. I am not satisfied that the applicant meets the complementary protection criterion.

    CONCLUSIONS

21. The Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in cl 866.221(2).

22. Having concluded that the applicant does not meet the refugee criterion in cl 866.221(2), the Tribunal has considered the alternative criterion in cl 866.221(4). The Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under cl 866.221(4).

23. There is no suggestion that the applicant satisfies cl 866.221 on the basis of being a member of the same family unit as a person who satisfies cl 866.221(2) or (4) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in cl 866.221 for a protection visa.

    DECISION

24. The Tribunal affirms the decision not to grant the applicant a Protection (Class XA) visa.

    Kylie Allen
    Member