1836733 (Refugee)

1836733 (Refugee) [2024] AATA 3683 (7 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1836733
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Rebecca Mikhail
DATE:7 August 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 07 August 2024 at 2:48pm
CATCHWORDS
REFUGEE – protection visa – Indonesia – political opinion – religion – Catholic – race – Chinese ethnicity – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 424AA
Migration Regulations 1994 (Cth), 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

The applicants claim to be a married couple and citizens of Indonesia. The first named applicant is the husband (husband), and the second named applicant is his wife (wife). They last arrived in Australia [in] September 2014 on visitor visas.
On 27 August 2018 the applicants applied for permanent protection visas in a combined application.
On 27 November 2018 a delegate of the Minister for Home Affairs refused the grant of the visas under s 65 of the Migration Act 1958 (Cth) (the Act).
This is an application for review of that decision.
The issue in this case is whether the applicants meet the refugee criterion and, if not, whether they are entitled to complementary protection or are members of the same family unit of someone who meets either. The relevant law and mandatory considerations are set out in the attachments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
APPLICANTS’ CLAIMS FOR PROTECTION AND EVIDENCE
Before the Department
The applicants raised separate claims for protection in their application for protection.
The husband’s claims can be summarised as follows:
·He was born in [year] in Medan where he resided the entire time whilst in Indonesia.
·He is of Chinese ethnicity and Catholic faith.
·He was married [in] August 2012 in Indonesia.
·He left Indonesia to avoid being arrested by the Indonesian government because he attended demonstrations to protest against government corruption and the discrimination against Chinese.
·The Indonesian government is very corrupt and discrimination against Chinese is very common.
·In early May 2013, he attended a demonstration against the government and was arrested by riot police and detained for one week.
·In early May 2014, he attended a demonstration against the government to protest government corruption and the discrimination of Chinese but was arrested and detained for four days.
·He fears he will be arrested if he were to return to Indonesia.
The wife’s claims can be summarised as follows:
·She was born in [year] in Medan where she resided the entire time whilst in Indonesia.
·She is of Chinese ethnicity and Catholic faith.
·She was married [in] August 2012 in Indonesia.
·She left Indonesia to avoid being harmed by Indonesians because of her Chinese ethnicity due to the discrimination against Chinese.
·During the 1998 riots, several Indonesians tried to rape her, but she was lucky to escape from them.
·In December 2013, she was stopped on the street by several Indonesians, and they swore at her and beat her. She reported it to the police, but they did not want to protect her.
·She will be harmed because of her Chinese ethnicity.
The applicants did not provide any further supporting evidence in relation to their claims for protection to the Department of Home Affairs (the Department).
The applicants were not invited to an interview with a delegate of the Minister for Home Affairs in relation to their application for protection.
The delegate refused the grant of the visa on the basis that, based on the country information and evidence before him, he was not satisfied there was a real chance that on return to Indonesia the husband would suffer persecution for reasons relating to his claim that he attended past demonstrations or because of his race. Similarly, he was also not satisfied that the wife faced a real chance of being seriously harmed or persecuted on return to Indonesia because of her race. He also found, for any of the reasons claimed and for all the circumstances relating to the applicants, there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Indonesia, there was a real risk they will suffer significant harm.
Review application
On 14 December 2018 the applicants lodged an application for review of that decision with the Administrative Appeals Tribunal (the Tribunal). They provided the Tribunal with a copy of the delegate’s decision record with their application. They were not represented in relation to this review.
On 27 March 2024 the applicants provided written information to the Tribunal claiming they are Catholic, and they come from a place where the majority are Muslim, they are in the minority, and they are oppressed every day. They also claimed there is no peace for them, and the wife is also pregnant, and they are worried about their baby.
On 12 July 2024 the applicants appeared before the Tribunal. The husband chose to speak without the use of an interpreter as he was proficient in English. The wife had the assistance of an interpreter in the Indonesian and English languages. During the hearing the applicants provided oral evidence in relation to their background and claims for protection.
At the Tribunal hearing the applicants provided their Indonesian passports issued in Sydney [in] 2019, their New South Wales Marriage Certificate dated [in] 2021, their Australian Certificate of Marriage dated [in] 2021, and the NSW Birth Certificate for their daughter born on [date] in Sydney.
FACTUAL FINDINGS
Nationality
The applicants have provided sufficient evidence of their Indonesian nationality. I am satisfied they are nationals of Indonesia, and that Indonesia is the receiving country for the purpose of this assessment.
Application for Protection
At the hearing the husband claimed they had the assistance of a migration agent when preparing their application for protection but that they had heard his licence had been cancelled in approximately 2020. He said he met him on several occasions alone to prepare their application. I accept this.
In her oral evidence, the wife said she did not know what was in the application for protection as her husband prepared it and she thought it was concerned with their religion as they are Catholic. I accept the wife’s evidence that she was not involved in the preparation of their application for protection and may not have been aware of what was exactly written in the application protection.
Marriage
At the hearing the husband said he was not sure why their former agent claimed in the application for protection that they had been married in Indonesia in 2012. He said he and his wife travelled to Australia together as de facto partners and were then married in Australia. I accept this explanation and, based on the above documentary evidence the applicants provided, I accept the applicants were married in Australia [in] 2021.
I also accept the applicants have since had two children born in Australia in [year] and [year] but I note their children are not included in this review application.
Background
During the hearing the husband claimed he had always lived in Medan. He said he completed high school and went to a [school] in Indonesia. He also said that after finishing high school he worked in a job [providing specified service] and then worked in [Occupation 1] for the last ten years prior to leaving Indonesia. He said his parents and two siblings remain living in Indonesia. His parents and brother remain living in Medan whilst his sister lives in Jakarta. I accept these claims.
During the hearing the wife said that she was also born and raised in Medan where she lived with her mother. She said her mother and older sister still reside in Medan and that she is in contact with them. She said she completed high school in 2008 and then worked mostly in [Occupation 2] up and until she left Indonesia in 2014. I accept these claims.
At the hearing the applicants said if they return to Indonesia they will return to Medan. I accept this given that is the only place they have resided whilst they lived in Indonesia and is where the majority of their immediate relatives still reside.
Claims relating to Chinese ethnicity
During the hearing the husband confirmed he is of Chinese ethnicity and the wife said she was half Batak and half Chinese, that is, her mother is Chinese, and her father is Batak. They did not indicate they speak Chinese. I accept their evidence in relation to their ethnicity. In accepting these claims, I have given consideration to country information which indicates that Medan is home to the largest Chinese population in Sumatra and most of the Chinese have lived in Indonesia for generations and many are of mixed heritage and do not speak Chinese.[1]
[1] Z. Alkatriri, A.Waworunti, F. Gani. R. de Achellie, ‘Medan Chinese and their Stigma: Grabbing Power in Multicultural Society’, International Review of Humanities Studies, Vol 4 No 1, Article 14, 31 January 2019, available at G. S. Mohamed & T.R. Leinbach, ‘Chinese and other Indonesian peoples: Indonesia’, Encyclopædia Britannica Inc, last updated 11 July 2024, available at
During the hearing the husband claimed they left Indonesia because it is a Muslim country. He said, when he was young, he watched Muslims assault and throw rocks at Chinese homes and businesses. He said these things happen every generation and it happened during his generation in 1998.
Country information confirms that the 1998 May riots in Indonesia occurred during the Asian financial crisis and within the context of student-led mass demonstrations calling for an end to the military's New Order regime in Indonesia, with public dissatisfaction mounting against President Suharto. Students protests eventually intensified and the military government attempted to deflect popular anger by scapegoating Indonesia's ethnic Chinese community, accusing them of playing a role in the collapse of the economy, which then triggered popular anger. Although there was prior unrest in other cities, such as in Medan, the main riots were triggered in Jakarta by the military shooting of four student demonstrators on 12 May. Over the following two days, more than 1000 people were killed, an estimated 400 ethnic Chinese women and girls raped, and shops and homes belonging predominantly to Chinese Indonesians were looted and destroyed. Within a week, Suharto had stepped down.[2]
[2] E. M. Himawan, A. Pohlman & W. Louis, ‘Revisiting the May 1998 Riots in Indonesia: Civilians and Their Untold Memories’, Journal of Current Southeast Asian Affairs, 41(2), 240-257, 9 March 2022, available at
I noted to the husband that I was aware of what happened in 1998 and asked if he had been impacted by such things since the events of 1998. In response he said it would start with university students who do not agree with the government, and they gather in the streets and burn tyres and protest and throw stones at people and always target the minorities. I asked him, again, how this impacted him personally, and he questioned how one can live in a place like that, and they see violence every day. I then asked if he was saying that this happens every day and he said, ‘No, but a lot’. I asked if this happens in Medan, and he said yes and as long as you are a minority, they will persecute you. I asked him again how he was impacted by this, and he said psychologically, as a result of seeing it every day. I asked if something happened to him, and he said no, and they just need to be cautious whenever they go on the street. I asked about his family’s situation in Indonesia, and he said they were fine. When I asked if anything had happened to them on the basis of their Chinese ethnicity, he said, not at the moment, and it was fine, but he was worried about what might happen in the next couple of years. When I asked him why, he said in social media people are currently questioning if the events of 1998 would happen again. He further said a couple of months ago there was a large corruption case against a Chinese person and Muslims were saying that Chinese people were corrupt, and more than 90% of Indonesians are living in poverty and some are rich, and some are corrupt, and this makes them hate Chinese people.
When I later asked the husband if he experienced any harm on the basis of his Chinese ethnicity, he said no. When I asked him if he was involved in any political activities in Indonesia, he said no. I then outlined to him the claims that were raised in his application for protection in regard to the claim that he attended two demonstrations in 2013 and 2014 and was subsequently arrested. He said he did not do that and said that was his previous migration agent’s idea to make his claims more ‘intense’. He then said it was true that the government was corrupt, but he did not attend those demonstrations because if one did the government would kill them and the Chinese cannot do that as it is useless. He confirmed he was not involved in any political activities in Indonesia nor in Australia. When asked why that was, he said because he did not like politics.
I accept the husband’s claims that the claims in his application for protection that he attended two demonstrations in Indonesia and was subsequently arrested were manufactured by his former migration agent and did not occur. I also accept that he has not been involved in any political activities in Indonesia nor in Australia.
During the hearing the husband later said that they are often bribed by the Indonesian authorities because they are Chinese. He said this happened to him a lot. When I asked him how he knew this because he was Chinese, he said it was a common thing and they think Chinese are all wealthy and rich. When I asked him to give an example, he said when he rode his motorbike it happened so many times. He said one time he was riding and had turned on his indicator whilst driving, but the police stopped him and told him that he had turned on the indicator too early and wanted money. He said he gave the police money and they let him go. I asked if they did that to people of other ethnicities and he said, ‘not much’.
I noted to the applicants that I had concerns about the credibility of the above claims about the husband being bribed by the police given the husband initially said that he had not faced any harm in Indonesia on the basis of his ethnicity. I also noted that, even if I were accept he had to pay bribes to the police in the above circumstances, I may not accept that it was on the basis of his ethnicity as it was not evident from his evidence and country information before me indicates that corruption is a long-standing issue in Indonesia and that police interaction is, at times, susceptible to the payment of bribes.[3] Both applicants indicated they understood my concern and made no comment. On the evidence before me, I am prepared to accept the husband had been stopped on occasion whilst driving and had to pay bribes to the police who stopped him, but I am not satisfied this was due to his Chinese ethnicity.
[3] 'DFAT Country Information Report - Indonesia ', Australian Department of Foreign Affairs and Trade (DFAT), 24 July 2023, 20230724102537
During the hearing, when I asked the wife if she had ever been harmed because of her Chinese ethnicity, she referred to the events in 1998. She said these events occurred near her house which she said traumatised her but that she was over it now. She said that nothing else happened to her personally at that time. She also claimed she had been bullied at school and called names but was not harmed on any other occasion because of her ethnicity.
I then outlined to the wife the claims that were raised in the application for protection about how she had been the victim of an attempted rape in 1998 and that she was beaten by Indonesians in December 2013. In response she said she was not sure about what was in that application but did not confirm these events occurred. Given her response and that she had indicated that she had not been personally harmed otherwise than being bullied as a child in school, I am satisfied that the claims in the application in regard to the wife being a victim of attempted rape and being beaten in December 2013 did not occur and were also likely manufactured by the applicants’ previous agent.
Claims relating to Christian religion
I have had regard to country information before me which indicates that many Indonesians of Chinese descent are Catholic.[4]
[4] 'DFAT Country Information Report - Indonesia ', Department of Foreign Affairs and Trade (DFAT), 24 July 2023, 20230724102537
During the hearing the wife claimed that she was Catholic since birth as her parents are Catholic. She said she was baptised when she was a baby and she attended [a named] Church in Medan every week when she lived in Indonesia and was able to easily describe the location of the church. She said that since she had been Australia she only goes to church once a year at Christmas because of her busy work schedule. In regard to how else she practises her religion in Australia, she said she prays every night and was able to recite the ‘The Lord’s Prayer’. She was not able to describe any other beliefs of the Catholic Church other than that Jesus was crucified for their sins nor did she know who St Paul was. She explained that she does not study the religion, but she just goes to church and prays. She said if she returns to Indonesia, she will go back to attending church every Sunday as she wants to impart religious education to children. She said she does not yet speak to her children about her religion but always prays in front of her eldest daughter so that her daughter knows her mother prays. She said her eldest daughter has not been baptised yet as she plans to have her baptised in Indonesia.
Although the wife displayed some limited knowledge of her religion and has not attended church regularly whilst in Australia, she was able to confidently provide details of the church she attended in Indonesia, she was able to recite the ‘The Lord’s Prayer’ which is considered a sacred prayer in Catholicism.[5] I also found her evidence about how she tried to demonstrate her religion to her daughter by praying in front of her to be convincing. I accept that she is Catholic.
[5] R. W. Millar, ‘Our Father: Pope Francis approves changes to words of Lord's Prayer, reports say’, USA Today, 6 June 2019, available at ‘The Our Father – The Lord’s Prayer’, Catholic Answers, undated, available at
During the hearing the wife said that she left Indonesia in 2014 because of her religion because at the time there were a lot of churches being burned and the majority of the country were Muslim. She indicated however that she had never been personally harmed because of her Catholic religion and said she went to a private Catholic school in Indonesia so did not experience any discrimination at school and did not experience any discrimination as an adult. I accept her evidence in this regard.

During the hearing the husband also claimed he was Catholic, and his wife corroborated his claim and said he was also Catholic.
During the hearing the husband said that his parents were Buddhists, but he went to a Christian school so in school he was Christian. When I asked him when he became a Christian, he said about 20 years ago. When I asked him why he became a Christian he said he was not sure and probably because he was in school. I asked him why he thought he was Christian just because he went to a Christian school, and he said because he believes in Jesus, and they do not have Buddhist schools in Indonesia, just Christian schools, or public schools. I then asked him why he believed in Jesus, and he said probably because his wife convinced him, and he saw her pray every night and since they came to Australia it has not been easy, but they survive because of her prayers every night. I asked him when he met his wife for the first time, and he said in 2009 or 2010. I then said to the husband that he had earlier said that he converted 20 years ago. He then said it was probably ten years ago and he was sorry. He said even though he went to school he was not fully Catholic Christian. I asked if he had been baptised and he said he had not. When I asked why, he said he was not sure, and he was working, and he had to look after his daughter but that his wife was baptised. When I asked him when his wife was baptised, he said he never asked her. When I asked him if he ever went to church in Australia he said ‘never’. When I asked him why, he said he does not have many friends. When I asked why he needs friends to go to church, he said it is because they do not know which church to go to. He then said if you know God you do not need to go to church. He then said he sees his wife pray every night and sometimes he does not pray because he is too tired. I asked him if he went to church in Indonesia and he said yes but not every week and that he went to the Methodist Church. I then asked why he went to the Methodist Church, and he said because he went to that school, so they went to church every week. I then noted that he had said he was Catholic, and he then asked if that (church) was different, to which I said it was.[6] He then said he went to a Christian school, but he is Catholic like his wife.
[6] D. Gallick, ‘How is Methodism Different from Catholicism’, Christian.net, 15 February 2024, available at
I asked the husband what he could tell me about the Catholic religion, and he said they worship Maria. I asked if he could tell me anything else and if he knew why they worship Maria, he said she was Jesus’ mother. I then asked why Jesus was important and he said because he sacrificed his life for human sins. When I asked if there was anything else he could tell me, he said that is all he knew.
During the hearing the husband showed me a video on his mobile phone purportedly of the demolition of a church in Java. I noted to him that, although, he had shown me this video, he had also indicated he did not go to church in the last ten years so how would this type of treatment impact him. He said that, for him, they do not need to go to church to be Christian. I then noted that if he did not go to church and did not think it was important, why was he concerned about churches being demolished in Indonesia. In response he said he was concerned about the kind of violence. I then asked if it was important for Catholics to go to church. He said for him it was not important and they go to church on Christmas, but they did not go last year because their daughter was very young but before that they went every year. I then asked if his eldest daughter was baptised, and he said no. When asked why, he said he was not sure and perhaps she will be baptised when she is older.
I noted to the applicants that I may have concerns with the credibility of the claim that the husband is Catholic as he has now claimed he was raised in a Buddhist family and had not been baptised and could not give a convincing explanation for why he converted to Catholicism. Further his evidence in regard to when and why he became a Catholic was inconsistent and confusing. Further his knowledge of Christianity was very limited, and he has claimed to be Catholic but said he went to a Methodist church in Indonesia and did not realise they were different Christian denominations. In response, the husband said that minorities are discriminated against in Indonesia. When I asked again if he had a response to my concern about the credibility of his claim to be Catholic, he admitted that he was not Catholic and he was agnostic but that his wife was Catholic. The wife had no comment.
Given the concerns with the husband’s evidence and his ultimate admission that he was not Catholic and was agnostic, I am not satisfied he is a Christian of any denomination and I accept he was agnostic. He has not raised any fear of harm on the basis of being agnostic.
REFUGEE ASSESSMENT
During the hearing, the wife said she had no fears in regard to returning to Indonesia and that they were planning to return to Indonesia in approximately four months as her mother was getting older and wanted to see her grandchildren. At the end of the hearing, pursuant to s 424AA of the Act I noted to the husband that, in her oral evidence, his wife said she had no fears of returning to Indonesia and planned to return to Indonesia in October this year. I noted to the husband that this information was relevant to him because it may indicate he does not have a genuine fear of returning to Indonesia for the reasons claimed. I noted this may lead me to find that he does not have a well-founded fear of persecution and will not face a real risk of significant harm if he were to return to his country of nationality and neither does his wife. I noted this may mean they do not meet the criteria for the grant of a protection visa and the Tribunal will affirm the decision. I noted that I had not made up my mind about this information at this stage and invited his comment or response to this information and noted he may comment or respond now or seek additional time to do either. The husband said he had no comment or response.
Fear of harm on the basis of husband’s political opinion
I have accepted that the husband has a political opinion against the Indonesian government which he considers to be corrupt. As noted, he indicated at the hearing that he never attended any political activities in Indonesia and Australia because he does not like politics.
At the hearing I noted to the applicants that I may find that the husband will not engage in public political activities voicing this opinion if he were to return to Indonesia and I may find this will be due to a lack of genuine interest as he has not been involved in any political activities in Indonesia or Australia as he does not like politics. On this basis I said I may find the husband will not face a real chance of harm in Indonesia on the basis of his political opinion. In response the applicants understood my concern and had no comment.
On the basis of the concerns noted above, I am not satisfied the husband will engage in public political activities if he were to return to Indonesia and I am not satisfied this will be due a fear of persecution but rather a lack of interest. I am not satisfied the husband will face a real chance of harm on the basis of his political opinion from any group or person if he were to return to Indonesia.
I note the wife did not raise any fear of harm in Indonesia on the basis of her husband’s political opinion and I am not satisfied such a claim arises on the material.
Fear of harm on the basis of Catholic Christian religion
As noted above, I am not satisfied the husband is Catholic. I am not satisfied he has a well-founded fear of persecution in relation to this claim in Indonesia.
I have accepted that the wife is Catholic.
During the hearing the wife said she no longer has any fears in Indonesia on the basis of her Catholic religion if she were to return. She said the current government of Indonesia is better and she has more courage.
I noted to the applicants that the wife had indicated that she was not personally harmed in Indonesia on the basis of her religion. They provided no response.
I then noted to the applicants that recent country information before me indicates that Indonesia is officially a religiously pluralist state. The constitution guarantees freedom of religion. Major religions generally have good relationships with each other. Indonesia recognises Catholicism. Christianity is Indonesia’s second-largest religion after Islam. Although localised discrimination from local governments is possible, Christians are generally able to practise their faith freely. In 2022, government institutions conducted numerous actions, including organising forums and collaborative international events that publicly advocated religious tolerance and interfaith dialogue.[7] The wife had no comment in response to this information and the husband said that these things are only on paper but in reality, there is still discrimination against all minorities. I have considered the husband’s response, but I note that he was merely restating his claim and I have given more weight to the country information before me from reliable sources.
[7] 'International Religious Freedom Report for 2023 - Indonesia', United States Department of State, 26 June 2024, 20240627123906
I then noted to the applicants that country information indicated that, over the last decade, Indonesia has witnessed a decline in acts of collective religious violence, or violence perpetrated by one group against another.[8] Further, in its most recent report on Indonesia published in 2023, the Australian Department of Foreign Affairs (DFAT) stated that religious intolerance against Christians occurs occasionally with a small possibility of violence. Police sometimes provide armed protection to churches, especially during religious festivals and that most churchgoers feel safe going to church on Sundays.[9] The husband questioned where I obtained this information from, and I advised that it was from the United States Department of State and DFAT. He then said the information was not true.
[8] 'Legal Impediments to Religious Freedom in Indonesia', United States Commission on International Religious Freedom (USCIRF), 01 January 2024, 20240405163745
[9] 'DFAT Country Information Report - Indonesia ', Department of Foreign Affairs and Trade (DFAT), 24 July 2023, 20230724102537
I then noted to the applicants that country information also indicated that some recent churches were closed because they did not have a building permit and some local authorities sometimes defended the congregation’s right to construct a house of worship when faced with local opposition.[10] I also noted that the video the husband showed me of the demolition of a church in Java did not occur in Medan. The applicants had no comment in response to this information.
[10] 'International Religious Freedom Report for 2023 - Indonesia', United States Department of State, 26 June 2024, 20240627123906
I then noted to the applicants that country information also notes that, there is a substantial Christian demographic in Medan including Catholics and DFAT has stated that Christians residing in areas where conservative Islam is prevalent face a low risk of societal discrimination in the form of impediments to worship.[11] They had no comment.
[11] 'DFAT Country Information Report - Indonesia ', Department of Foreign Affairs and Trade (DFAT), 24 July 2023, 20230724102537
I also noted to the applicants that country information indicated that, although there have been incidents in the past of terrorist attacks against Christians, including in 2020 and 2021,[12] they were isolated and did not occur in Medan and I was not aware of any sectarian terrorist attacks in Medan since 2000. They had no comment in response.
[12] Ibid.
I also noted to the applicants that country information also indicates that the Indonesian authorities are effective in investigating and disrupting terrorist groups in the whole country.[13]
[13] ‘Indonesia: Full Country Dossier’, Open Doors, January 2024, available at >
I noted to the applicants that the evidence before me does not suggest they will face a real chance of harm or discrimination that arises to the level of serious or significant harm on the basis of being Catholic from any group or person in Indonesia. They indicated they understood my concern and had no comment in response.
Having considered the applicants’ evidence and the country information before me I am not satisfied the wife will face a real chance of harm or discrimination that arises to the level of serious harm on the basis of her Catholic religion from any group or person in Indonesia in the reasonably foreseeable future.
I have not accepted the husband is Catholic, but I have also considered the possibility that he may attend church on occasion with his wife in Indonesia. Even if did, on the evidence before me, I am also not satisfied he will face a real chance of harm or discrimination that arises to the level of serious harm on this basis from any group or person in Indonesia in the reasonably foreseeable future.
Fear of harm on the basis of Chinese ethnicity
The husband has claimed that Muslim Indonesians are targeting Chinese. When I asked the husband if there many Chinese in Medan, he said ‘not much maybe 2% but I am not sure’. He also said the Indonesian authorities are corrupt and bribe them because they are Chinese. I note that I have not accepted the husband has been stopped whilst driving by the police and forced to pay them a bribe because of his Chinese ethnicity.
I noted to the applicants that they were both able to complete their high school education and were mostly consistently employed since leaving high school. I also noted that country information before me also indicates the current Indonesian government promotes racial tolerance, and legislation prohibiting racial discrimination and vilification has been in force since 2008. Country information also noted that, since the end of the New Order regime in 1998, successive governments have removed official policy measures discriminating against ethnically Chinese Indonesians. Further that in 2023 DFAT stated that it was not aware of official discrimination against Chinese Indonesians[14] In response, the husband said he did not agree, and that discrimination still occurred. I have considered his response but note he merely reiterated his claim. The wife made no comment.
[14] 'DFAT Country Information Report - Indonesia ', Department of Foreign Affairs and Trade, 24 July 2023, 20230724102537
I then noted to the applicants that country information indicates that Chinese Indonesians do experience societal discrimination in the form of negative stereotypes. Further, that violence has occurred in the past but is not an everyday experience for Chinese Indonesians. In 2023 DFAT assessed that Chinese Indonesians currently face a low risk of societal violence and a moderate risk of low-level societal discrimination.[15] The applicants indicated they understood this concern and had no comment.
[15] 'DFAT Country Information Report - Indonesia ', Department of Foreign Affairs and Trade, 24 July 2023, 20230724102537
I then noted to the applicants that country information indicated that Medan is home to the largest Chinese population in Sumatra and that the Chinese dominates the city’s economic resources.[16]
[16] Z. Alkatriri, A.Waworunti, F. Gani. R. de Achellie, op.cit.
I then noted to the applicants that based on the above information I may find they will not face a real chance of harm or discrimination that arises to the level of serious or significant harm on the basis of their Chinese ethnicity from any group or person if they were to return to Indonesia.
The applicants indicated they understood this concern and had no comment.
On the basis of the applicants’ evidence, their circumstances, and the country information above, I am satisfied there is a real chance they may be subject to negative stereotypes, but I am not satisfied this amounts to serious harm, even if it were to impact the husband psychologically. I am not satisfied there is a real chance they will be subject to a level of discrimination, or any other harm, individually or cumulatively, on the basis of their Chinese ethnicity, so serious as to amount to serious harm from any group or person in Indonesia in the reasonably foreseeable future.
I noted to the applicants that based on the wife’s cumulative profile as Catholic and ethnically Chinese, I may find that she will not face a real chance of harm or discrimination that arises to the level of serious or significant harm from any group or person if she were to return to Indonesia in the reasonably foreseeable future. The applicants had no comment in response to this concern. On the evidence before me and considering the above country information, I am not satisfied the wife will face a real chance of harm or discrimination that arises to the level of serious harm from any group or person in Indonesia on the basis of her profile as both Catholic and Chinese.
I asked the wife about the written communication to the Tribunal which stated that she had been pregnant at the time and was worried about her baby and asked her what that meant and how it was relevant to her claims. In response she said, when she provided this information to the Tribunal, she was heavily pregnant and was concerned that if their visa was refused by the Tribunal, she would have to leave Australia before the baby was born. I note the applicants’ second child was born before the Tribunal hearing and they did not raise any claims of being harmed in Indonesia in relation to this at the hearing.
The applicants did not raise any other protection claims and none arise on the material before me.
The applicants do not meet the requirements of the definition of refugee in s 5H(1).
I am not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a).
COMPLEMENTARY PROTECTION ASSESSMENT
For reasons also noted, I do not accept the husband is Catholic. I am not satisfied he will face a real risk of significant harm in Indonesia on the basis of this claim.
Having considered the above country information, I am also not satisfied the wife will face a real risk of significant harm in Indonesia from any group or person on the basis of her Catholic religion, nor I am satisfied the husband will face a real risk if he were to attend church with her, as I am not satisfied they will face a real risk of being arbitrarily deprived their life, the death penalty carried out on them, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment as defined in the Act.
I am satisfied there is a real chance the applicants may face societal discrimination in the form of negative stereotypes on the basis of their Chinese ethnicity, but I am not satisfied this amounts to significant harm as defined in the Act, including if the husband were to be psychologically impacted by this. Given the country information cited above and the circumstances of the applicants, I am not satisfied that applicants will face a real risk of discrimination or any other harm amounting to significant harm from any group or person on the basis of their Chinese ethnicity if they were to return to Indonesia. I am not satisfied they will face a real risk of being arbitrarily deprived their life, or the death penalty carried out on them, torture, or the intentional infliction of cruel or inhuman treatment or punishment, or degrading treatment or punishment.
Considering the wife’s cumulative profile as a Chinese Catholic Christian, I am also not satisfied she will face a real risk of significant harm in Indonesia from any group or person.

I have found the husband will not face a real chance of any harm in relation to his political opinion. Consequently, he will also not face a real risk of any harm in Indonesia in relation to this claim.[17] I am not satisfied the husband will face a real risk of significant harm in Indonesia.
[17] MIAC v SZQRB (2013) 210 FCR 505.
There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicants will suffer significant harm. I am not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Rebecca Mikhail
Member

ATTACHMENT A - CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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 Attachment B.
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 Attachment B.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
ATTACHMENT B- 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 3683

7 August 2024

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