2000229 (Refugee) - [2020] AATA 6108

2000229 (Refugee) [2020] AATA 6108 (22 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2000229
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Gabrielle Cullen
DATE:22 April 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 April 2020 at 12:17pm
CATCHWORDS
REFUGEE – protection visa – Indonesia – race – perceived as of Chinese ethnicity – religion – Christian – particular social group – convicted criminal – employment and ability to subsist – family network and support – level of education – separation from family – former drug addict with a mental health condition – bipolar disorder – access to mental health services – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Ram v MIEA (1995) 57 FCR 565
SZRSN v MIAC [2013] FCA 751
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 January 2020 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who is a citizen of Indonesia, claims to fear return as he is a rehabilitated drug addict, has bipolar disorder, is of Chinese ethnicity and a Christian, and as the Indonesian authorities will know that he was deported from Australia due to his criminal record.
The applicant arrived in Australia [in] November 2003 on a Subclass 101 Child visa valid to 30 November 2018. He returned to Indonesia from [September 2005] to [November 2005], [June 2006] to [July 2006] and [March 2008] to [June 2008]. He has not departed since that time. On 16 December 2019 the applicant applied for a protection visa to which this decision relates.
As outlined in the Department of Home Affairs (the Department) decision[1], the applicant provided to the Department information as to his Australian criminal history showing he has been convicted of the following offences between 2013 and 2018:
[1] Attached to the Application for Review.
·3 April 2013 convicted of dishonestly obtaining financial advantage by deception with a 12-month bond.
·10 October 2016 convicted of possessing a prohibited drug which resulted in a fine of $100.
·9 December 2016 convicted with two charges of shoplifting which resulted in 18 months of supervised probation and drug rehabilitation.
·9 December 2016 convicted of travelling or attempting to travel without valid adult ticket which resulted in a $100 fine.
·9 December 2016 convicted of the offence of goods in personal custody suspected of being stolen which resulted in a 12 months supervised probation with drug rehabilitation.
·16 April 2018 convicted of driving a vehicle under the influence of drugs which resulted in 18 months supervised probation with drug rehabilitation.
·16 April 2018 convicted of the offence of never licensed person driving a vehicle on a road which resulted in a $800 fine and disqualification from driving for 12 months.
·13 June 2018 convicted of the offence of armed robbery with an offensive weapon which resulted in 2 years and 6 months imprisonment with a non-parole period of 1 year and 6 months.
The applicant was not interviewed by the Department. The delegate refused to grant the visa on 6 January 2020 on the basis that the harm feared does not amount to a real chance of serious harm or real risk of significant harm.
The applicant appeared before the Tribunal on 1 April 2020 by video to give evidence and present arguments. His representative attended the hearing and his mother, [Ms A], appeared as a witness. Both attended the hearing by telephone. [Ms A] was assisted with an interpreter in the Indonesian and English languages, although spoke in English at the hearing.
The issues to be considered in this case are as follows.
·Is the applicant credible as to his claims?
·Does the applicant have a well-founded fear of persecution in relation to Indonesia and meet the refugee protection provisions of the Act?
·Does the applicant meet the protection obligations under the complementary protection provisions of the Act?
CRITERIA FOR A PROTECTION VISA
The relevant criteria for a protection visa are outlined in the Appendix.
CONSIDERATION OF CLAIMS AND EVIDENCE
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. This includes, but is not limited to, the following.
·The applicant’s protection visa application dated 16 December 2019, including claims outlined within and identity documents.
·Oral evidence of the applicant and his mother, [Ms A], provided at the Tribunal hearing held on 1 April 2020.
·Submission of the applicant’s representative received after the hearing on 1 April 2020, including a statement from the applicant, unsigned and a statement from the applicant’s mother.
·Department of Foreign Affairs and Trade (DFAT), Country Report Indonesia 25 January 2019.
·‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs.
For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s claims
In his protection visa application, the applicant indicates he was born on [date] in Indonesia, he can speak, read and write in Indonesian and English and is of Chinese ethnicity. He indicates he is a Christian and that his mother, brother and sister currently reside in Australia. He provided a copy of his Indonesian passport issued [in] 2001. In his application he notes that from June 1983 to 2003 he resided at the same address in Bali, Indonesia. He claims to have attended primary and secondary school at [School 1] in Probolinggo, Indonesia. In 2007 the applicant completed a Certificate III in [subject] at [education provider] in [Suburb 1], Australia. In 2006 the applicant states he went on a holiday to Indonesia. He claims to have travelled to Australia as a dependent child, sponsored by his mother and siblings.
The applicant claims in his protection visa application that he is seeking protection in Australia as he has no family left in Indonesia, he is a rehabilitated drug addict and has bi-polar. He claims he has no work skills and with no family network in Indonesia, he will be homeless. He claims he will not be able to subsist. He claims the Indonesian authorities will know from the manner of his return that he was deported from Australia because of his criminal record. He claims wherever he goes he will be hounded and harassed by Indonesian authorities and that he will vulnerable to criminal elements within the Indonesian community. He claims he is afraid of being treated in an inhuman, cruel and degrading manner and that he will die on the streets and no one will care. He answered in the negative to the question as to whether he has experienced harm in Indonesia.
He claims without any family to help him in Indonesia, he will lose all hope and most probably start using drugs again and be vulnerable to criminal gangs and brutality from Indonesian police, especially as he is Chinese. He claims he is afraid of police brutality because he is ethnically Chinese, a forced returnee from Australia with a criminal record and a former drug addict with a mental health condition. He claims he will be homeless and an easy target for inhuman, cruel and degrading treatment. He claims he is unable to relocate as the same thing can happen to him wherever he goes.
At the Tribunal hearing held on 1 April 2020, as to his living arrangements in Indonesia, the applicant and his mother advised the applicant lived in Probolinggo, situated on the North Coast of East Java, from 1984 with his father and two siblings until he passed away in 1999. His mother lived with them until she came to Australia in 1996. The applicant then moved to live with his Aunt in Surabaya until she moved to [Country 1] in approximately 2000. He then lived in Denpasar/Bali with a Church community until he travelled to Australia in 2003.
Both the applicant and his mother disputed the education level which he claimed to achieve in his application and stated he only attended school until Year 5. The Tribunal questioned this as his application indicated he achieved 11 years of education, completing primary and secondary school and the evidence from the applicant was that both his siblings completed high school and his brother went on to be university educated. He said he finished primary school in 1994. He said he was bullied at school and hyperactive so left.
He said his father was a priest and he lived with him on Church grounds.
He said his father was of Chinese ethnicity born in Java and his mother is of Indonesian ethnicity born in Borneo.
As to his return to Bali, he said in 2005 and 2006 he returned to live with and visit friends and in 2008 he attended a drug rehabilitation centre. He said he only finally stopped taking drugs such as methamphetamines when he was released from jail and went to [an immigration detention centre]. He said he realizes the drugs are his biggest enemy and that he went to jail because of the drugs. He said he realizes his biggest enemy was himself and he has done much soul searching.
As to medication he is currently taking, he said he takes [Medication 1][2] which is a mood stabilizer and he said it helps a lot with his bipolar disorder. He said he has been taking this drug for about 4 years since he was diagnosed by his GP in [Suburb 2] with bipolar. He said he has been seeing Doctors while in detention and the [Medication 1] helps with the mood swings as a result of the bipolar.
[2] Information indicates it is used in the treatment of bipolar disorder
He said he has no family in Indonesia and while he has friends, they are married.
He said he never worked in Indonesia; just helped his aunty after his father died. The Tribunal questioned what he did after he finished school in 1994; he again said he did not work.
He said he fears return as a Chinese Christian. He said what is reported in the newspaper is only the surface and there is much physical bullying of Chinese in Indonesia.
The Tribunal raised with him independent information from DFAT, as outlined below that may lead it to find he would not face a real chance of serious harm as a person of Chinese ethnicity or in part or as he is Christian. In response he said being Christian is one thing but being a Chinese Christian is another. He said being of Indonesian ethnicity and a Christian is fine. However, he said if you are Chinese you are thought of as a foreigner and abused. He said he had experienced that. He said he also experienced it when he went on holiday to Indonesia. He said it is double trouble if a person is Chinese and Christian.
He also said he fears going home as he has no family and no support. He said he fears he will be homeless if he returns. He said as he has little or no education and he will be unable to work. He said he cannot support himself as he will have no education, no family and be unable to find work.
He added that he fears return on account of his mental problem, being bipolar. He said people with mental health issues are treated very badly in Indonesia, put in a room.
When the Tribunal raised information questioning whether he would face a real chance of serious harm or significant harm as to his claim in his application as a criminal deportee and the resulting police brutality, he responded it is because he is of Chinese ethnicity.
When questioned as to his claim that he would become a drug user again as outlined in his application but not at hearing he said it is easier to access drugs in Indonesia.
The Tribunal raised a number of concerns as to the credibility of his claims, including inconsistent information as to his level of education and where he lived in Indonesia. Where relevant these have been outlined below. It raised with him via s.424AA of the Act the dates he travelled to Indonesia and outlined the relevance of this information as outlined below. The Tribunal also raised information as to the access to and treatment for mental health in Indonesia and Bali and questioned whether his claim in this regard meets the refugee and complementary protection provisions in the manner outlined below. It also raised with him information as to the treatment of criminal deportees, rehabilitated drug users and questioned whether he would face a real chance of serious harm or real risk of significant harm on return on account of these factors. It also questioned his claim as to whether he would be unable to live and subsist due to a lack of employment, education and as he has no family in Indonesia in the manner outlined below. It also referred to his claim he would again become a drug user and questioned this as speculative and that it may not meet the refugee and complementary protection criteria. It also raised with him that separation from family may not meet the refugee and complementary protection provisions.
When asked if he had anything to add, he answered in the negative. He then said he cannot return to Indonesia as it is not like it was before.
The applicant’s mother, appearing by telephone, gave the following evidence.
·She outlined and clarified the applicant’s living and education history as outlined above.
·She said she is very sad at what her son has done, that he has no one in Indonesia and is grateful to Australia as it has allowed her and her children to settle here. She again apologised for her son’s criminal behaviour.
·She said he cannot return to Indonesia as he is Chinese and Christian. She said at school the teacher would smack him and he came home with a swollen arm.
·She said her son is a good person who became addicted to drugs and it was very sad.
·She said she does not agree with what he is done and became emotional about this. She said he is no longer on drugs and hopes Australia will give him a second chance.
·She referred to the difficulties he will face as a Chinese Christian in Indonesia and the Tribunal questioned this, especially as to the situation in Bali.
·She said he was bullied when he was young and was a hit a lot, left school.
·She said they have no property or family in Indonesia, and he is not connected there.
·She referred to his mental illness and the medical help he has received in Australia
The applicant’s representative said the mistake in the application form as to the applicant’s education is due to her, as she thought when he said 11, he meant 11 years of education instead of stopping his education at aged 11. She indicated that due to all the factors raised cumulatively, the applicant will be unable to subsist. She added that if the applicant is deported, as he will be escorted and handed over, the authorities will know he is a criminal deportee. As to the applicant’s return, as raised by the Tribunal via s.424AA, she notes he went on a holiday and did so as a permanent resident. She said rehabilitation treatment in Indonesia is far cheaper and that is why he returned there in 2008.
The applicant’s mother said the applicant did not apply for revocation of the s.501 cancellation as he had lost the form while in prison and was still on drugs. She said this is the first time he had to think that he may have to return to Indonesia and prior to this he was on a permanent visa and had no reason to do so.
In an email received after the hearing on 1 April 2020 the applicant’s representative submitted that should the applicant return to Indonesia; he will not be able to subsist for following the cumulative reasons:
·he is mixed race but he looks Chinese;
·his religion;
·his limited education until Year 5 at school making him virtually unemployable;
·he has no family or property in Indonesia and nowhere to stay;
·his mental health condition will deteriorate as he will not be able to afford the necessary treatment and medication and this in turn may make him vulnerable to relapse into drug addiction;
·his manner of return will alert authorities that he is a criminal deportee; and
·he will require ongoing financial assistance from his mother in Australia to survive.
The applicant submitted via his representative the following unsigned statement:
In 2003 I was sponsored to Australia by my mother and I came to live a better life.
During my life in Australia I have a fall and a rise. In 2006 I began to take drugs, mainly ice as comfort for my insecurity. My parents had divorced, and I stayed with my father and brother in Indonesia while my mother and sister went to Australia. Later on I witnessed my father dying. His death left my brother and I alone in Indonesia to fend for ourselves until my mother sponsored us to Australia.
It took a big toll in my life until now. I'm still quite struggling with it and I took comfort by using drugs heavily. I do somehow realise that my biggest enemy is myself. But it is because the heavy use of the drugs that I took every day. I couldn't see my reality. My reality is clouded by the illusion of the drugs that I took.
In 2012 I was diagnosed with bipolar.
Then I ended up in jail. I did a lot of soul searching in my life and jail really make me a better person than I was before. It changed my goal in life. It made me realise I had to be better than my previous self.
I can't go back to Indonesia because I don't have any other relatives in Indonesia anymore. I also have bipolar syndrome; my Christian religion and my half race is a big problem in Indonesia. It doesn't seem really big problem from outside, but for myself since I was born, I experienced racism about religion and race in Indonesia. It is best that I live with my mother in Australia. I need her support to keep me in line and doing the right thing.
My father was a Christian Priest and I was born a Christian and I read my Bible often and consider how to tum my mistakes in life to make myself and other people to have a better choice in life. I found peace for myself, the mistakes that I did in my past. It is a very big lesson for me to make my future brighter and I don't think I could do that in Indonesia. There are no money options and I don't have any other family. I really regret that decisions that I have made. If I get a second chance to live in Australia I promise to not go back to life as before. I will keep that promise as I am not that type of person anymore and I keep to my word.
The applicant’s mother provided the following signed statement:
I came to Australia in April 1996 to study [Discipline 1]. At that time, I was divorced and my three children, including [the applicant] remained with their father in Indonesia.
[In] October 1998 I got married to [Mr A] in Australia and applied for a partner visa. My daughter [Child B] was included in the partner application.
In 1999 my ex-husband passed away and my two sons remained in Indonesia on their own.
I got permanent residence in 2001 and in 2003, I sponsored my two sons to Australia.
In 2006 I separated from my husband and my three children lived with me.
We had a normal family life but in 2007, [the applicant] when I found marijuana in his room.
In 2013 [the applicant] moved out of home and I had very little contact with him for one or two years. Then [the applicant] got a housing commission house in [Suburb 2] and he seemed to have a more stable life and we stayed in contact. About this time, he was diagnosed with bipolar.
In 2016 I was injured at work and have been on workers' compensation since.
Around 2017 [the applicant] told me he was in trouble and he was going to end in jail. I found a lawyer for him. She told me words to the affect that "Your son will go to jail this time".
My daughter and I went to court with him and got him bail later that day, but he offended again during his bail. He was a drug addict and he told me words to the affect that "I can't stop Mum; I have to keep taking drugs. I can't stop".
I used to visit him in jail and I continue to visit him in immigration detention fortnightly. During one visit he told me words to the affect that "I received a letter from the Department of Immigration". I asked him to show it to me but he said words to the affect that "I can't remember where I put it". So he did nothing. I went to see migration agents who told me there was nothing that could be done if he did not apply for the revocation of the s501 cancellation.
Now I have a good relationship with my son as he does not take any drugs anymore and he is being treated for his bipolar condition in immigration detention.
Concerning our immediate family of my eldest son [Child C], my daughter [Child B] and myself, we are all resident in Australia. Their father passed away in 1999 in Indonesia. My parents and my children's paternal grandparents have also passed away. All of my siblings have passed away. My ex-husband has no living siblings in Indonesia either. Should [the applicant] be returned to Indonesia he has no family to support him and nowhere to go. I fear in this situation he will be homeless and vulnerable to drugs and a life on the street.
I became an Australian citizen in 2004 and in doing so lost my Indonesian citizenship under Indonesian law. [Child B] was included in my Australian citizenship application, so she has also lost her Indonesian citizenship. [Child C] plans to apply for Australian citizenship soon. We have all established our lives in Australia and cannot return to Indonesia permanently and we could not support [the applicant] to live in Indonesia on a permanent basis. I would like to have [the applicant] with me in Australia so I can look after him.
Does the applicant meet the refugee protection and/or complementary protection provisions of the Act?

Having sighted a copy of the applicant’s identity documents and based on his consistent evidence as to his identity, the Tribunal accepts that the applicant is a national of Indonesia for the purposes of s.36(2)(a) of the Act. For the purposes of s.36(2)(aa) of the Act the Tribunal accepts that Indonesia is the receiving country.
As to the applicant’s claims, the Tribunal accepts the following:
·he is of Indonesian/Chinese or mixed ethnicity but is perceived as of Chinese ethnicity;
·he is a Christian;
·he has no family or property in Indonesia;
·he only completed education in Indonesia until 11 years of age or until year 5. In this regard the Tribunal accepts the mistake as to his education in the application form was made by his representative.
·both his siblings completed high school in Indonesia and his brother is university educated;
·he lived in Denpasar, Bali from 2000 to 2003, from 1999 to 2000 in Surabaya with his aunt and from 1984 to 1999 with his father in Probolinggo. The Tribunal accepts based on the consistent information between the applicant and his mother at hearing that the information in the application form stating he lived in Denpasar, Bali from his birth until departure in 2003 is incorrect.
·his mother and sister are citizens of Australia and his brother a permanent resident. His mother and sister departed Indonesia in 1996 and once his mother became a citizen, she sponsored the applicant and his brother who came to Australia on child visas in 2003 after their father died in 1999.
·he has bipolar disorder and has been prescribed [Medication 1] which is a mood stabiliser;
·he was a drug addict, mainly addicted to methamphetamines, but stopped taking drugs after being moved to [an immigration] detention centre; and
·his criminal record is as he claims, and he will return to Indonesia having been convicted of the crimes in Australia and served time in prison as outlined above.
Chinese and/or Indonesian Chinese
The applicant claims that he will face a real chance of serious harm or real risk of significant harm on return to Indonesia as he is ethnically Chinese. Although he is of mixed race as his mother is ethnically Indonesian, the Tribunal accepts his claims that he is viewed as of Chinese ethnicity and/or Indonesian Chinese ethnicity. He repeatedly claimed at hearing that the difficulties he will face on return are exacerbated due to his Chinese ethnicity or that he is of mixed or part Chinese ethnicity.
In his application for a protection visa, when asked if he experienced harm in Indonesia, he answered in the negative. Other than being bullied by the teacher, which is dealt with separately below, the applicant did not provide any other detailed evidence in his application or at hearing as to difficulties or harm he had faced in the past as a person of Chinese ethnicity other than being bullied at school and stating in general terms that he experienced abuse, and was treated as an outcast when he returned in 2005, 2006 and 2008. He said in his application that he will face police brutality on account of his ethnicity. He said in his post hearing statement that he had experienced racism about religion and race since he was born but did not provide any details. The applicant’s lack of detailed evidence, other than his treatment at school, as to difficulties he faced due to his ethnicity in Indonesia, coupled with his indication in his application that he did not experience harm in Indonesia undermines his claim to have faced difficulties in the past amounting to serious or significant harm and that there is a real chance or real risk he will do so in the future.
Further, as raised with the applicant via s.424AA, his behaviour in returning to Indonesia [from] September 2005 [to] November 2005 for a holiday, [from] June 2006 [to] July 2006 for a holiday [and] March 2008 [to] June 2008 for drug rehabilitation questions whether he faced any difficulties in the past amounting to serious or significant harm as a person of Chinese ethnicity or mixed ethnicity and as a Christian. He said he didn’t go back to stay; he only went on holiday and he likes the food. He said that when he returned on holiday, they looked at him in a different way and abused him but provided no details. He also said it is because he is Chinese not because he is Christian. He said as his mother was Indonesian and father Chinese he was treated as an outcast. The Tribunal is of the view that his repeated return to Indonesia for holidays for a month at a time, even holding an Australian permanent visa at the time and his return for 3 months in 2008 undermines his claim to fear return on account of his Chinese ethnicity and Christian religion and that he faced any of the difficulties he claims, including being abused, treated as an outcast and facing police brutality, which has lead him to fear return on account of his ethnicity and religion.
For these reasons, on the evidence before it the Tribunal is not satisfied that the applicant faced any of these difficulties amounting to serious harm or significant harm on account of his Chinses ethnicity or mixed race or as he is perceived as of Chinese ethnicity prior to his departure from Indonesia and when he subsequently returned in 2005, 2006 and 2008.
Notwithstanding the above, at hearing the applicant referred to being bullied by his teacher and others as a child because he is of Chinese ethnicity and/or mixed ethnicity. His mother also gave evidence that the teacher would smack the applicant and he came home with a swollen arm. While the Tribunal accepts this as true, as it occurred a long time ago, when the applicant was at school which he attended only up to the age of 11, and will not go back to school if he returns, and as he has since returned to Indonesia on 3 occasions as outlined above, the Tribunal does not accept this difficulty he faced in the distant past while at school caused him to fear return to Indonesia in 2005, 2006 or 2008 and will do so in the reasonably foreseeable future for the reasons he claims or that this past harm translates into a real chance of serious harm or real risk of significant harm were he to return to Indonesia in the future.
Further, information from the 25 January 2019 DFAT Country Report on Indonesia as raised with the applicant at hearing indicates the following:
Ethnically Chinese Indonesians
Successive waves of immigration to Indonesia from China over more than five centuries have resulted in an established ethnically Chinese Indonesian community throughout the country. The 2010 census recorded 2.8 million ethnic Chinese living in Indonesia, comprising 1.2 per cent of the population. This figure may understate the actual number, as some Indonesians of Chinese descent are reportedly reluctant to self-identify due to past tensions. Many Chinese Indonesians who trace their history in Indonesia for many generations may no longer identify as Chinese and many do not speak Chinese. About half of the ethnically Chinese population are Buddhist and about 42 per cent are Christian. Fewer than five per cent are Muslim, compared with over 87 per cent of Indonesians generally.
The Suharto-era New Order regime implemented a range of measures that discriminated against Chinese Indonesians. The law prohibited Chinese language newspapers, schools and cultural expressions, and many Chinese Indonesians were pressured to take Indonesian names. Some ethnic Chinese had difficulty obtaining citizenship and Chinese Indonesians were required to carry a document proving their Indonesian citizenship. As noted in in May 1998 during the Asian financial crisis, rioters targeted the ethnic Chinese community due to their perceived wealth. As many as 1,000 Chinese Indonesians died in incidents related to the riots, women were raped, and businesses were burned or looted.
Since the end of the New Order regime in 1998, successive governments have removed most official policy measures discriminating against ethnically Chinese Indonesians. Chinese New Year is celebrated as a national public holiday, Confucianism is an officially recognised religion, Chinese cultural performances and languages are accepted, and the Constitution no longer distinguishes between ethnic Chinese and ‘indigenous’ Indonesians, with barriers to citizenship removed. In 2014, then-President Yudhoyono issued a regulation changing the Indonesian word used to designate ‘of Chinese descent’ from one which was often associated with racial slurs. A number of Chinese Indonesians have held high office and work in a range of sectors, including the police, clergy and the business community.
Some anti-Chinese sentiment remains at a societal level. Although many Chinese Indonesians are not wealthy, most of the country’s richest and most prominent businesspeople are ethnically Chinese Indonesian, which is a source of resentment for some non-Chinese Indonesians.
In 2012, President Widodo faced strong criticism from conservative Islamist groups in his campaign for the Governorship of Jakarta for having a Chinese Indonesian and Christian running mate, Basuki Tjahaja Purnama, popularly known as ‘Ahok’, who later succeeded him. After succeeding Widodo as governor, some of Ahok’s policies were controversial and politically divisive, such as slum-clearing, which was perceived as anti-poor. Later, after he was accused of blasphemy in late 2016, a range of groups with complex agendas united to use Ahok’s ethnic and religious background as a means to mobilise large crowds of demonstrators (see Blasphemy and Defamation of Religion). Ahok was later convicted of blasphemy and imprisoned.
Anti-Chinese sentiment in Indonesia intersects with religious and economic issues. Islamic organisations blamed China for a supposed upsurge in communist sentiment, a politically sensitive subject (see also Recent History), in mid-2016. Increased Chinese investment in Indonesia has also caused local critics to express concerns about imported Chinese labour and Chinese control over national assets.
Small-scale local riots took place in a town in North Sumatra in 2016, following an allegation of blasphemy against a Chinese Indonesian woman (see Blasphemy and Defamation of Religion). While the riots were ostensibly anti-Buddhist, most Indonesian Buddhists are ethnically Chinese and local media described the riots as anti-Chinese and stated that some Chinese families had fled the region. A number of youths were arrested, prosecuted and imprisoned in the wake of the riots.
DFAT is aware of reports of Chinese Indonesians facing discrimination in relation to buying land in Yogyakarta. Yogyakarta is a special administrative region run as a sultanate, in which the sultan is also the governor. In March 2018, a regional court upheld a 1975 law that only allows ‘native Indonesians’, which has been construed to exclude ethnic Chinese, to own land in Yogyakarta.
With the notable exception of the 2016 riots, which may have been partly motivated by racial tensions, anti-Chinese violence has been low since events in 1998. Although memories of the crisis have caused continued anxiety amongst many members of the Chinese Indonesian community, exacerbated by events such as the Ahok blasphemy trial and the 2016 riots, DFAT assesses that Chinese Indonesians currently face a low risk of violence. Persistent anti-Chinese sentiment may lead to low levels of societal discrimination.
In response, when the information was raised with the applicant, he said if a person is Chinese, they are thought of as a foreigner and abused. He said he had experienced that. He said he also experienced it when he went on holiday to Indonesia. He said it is double trouble if a person is Chinese and a Christian. He said what is reported in the newspaper is only the surface and there is much physical bullying of Chinese.
While the Tribunal accepts there is some low-level discrimination, on the basis of the evidence before it, including the DFAT Indonesia Report, and on the basis of its finding that the applicant did not face any difficulties amounting to serious harm or significant harm in the past, other than being bullied and smacked at school which it has considered above, the Tribunal does not accept that the applicant faces a real chance of persecution involving serious harm, were he to return to Indonesia in the reasonably foreseeable future as he is of Chinese ethnicity or an Indonesian of part Chinese ethnicity or as he is perceived as of Chinese ethnicity or is of mixed race. Similarly, based on the findings above and on the information before it, the Tribunal is not satisfied on the basis of the evidence before it that there is a real risk that he will suffer significant harm as he is of Chinese ethnicity or an Indonesian of part Chinese ethnicity or as he is perceived as of Chinese ethnicity or is of mixed race.
In making the above findings, the Tribunal has considered his claim of economic harm or an inability to subsist on account of his ethnicity but does not accept there is evidence from what it accepts of his claims as to the difficulties faced in the applicant’s past and the independent information that he will face discrimination or a lack of access to the workforce or any difficulties obtaining employment that will lead to him being unable to subsist on account of his Chinses ethnicity, mixed race or as he is perceived as being Chinese. It has also considered that the applicant is not from the Yogyakarta and that he lived in Bali from 2000 to 2003, a tourism hotspot with many foreigners, and when he returned to Indonesia in 2005 and 2006 on holiday he returned to Bali to see and live with friends.
Christian
The applicant has also claimed to fear return on account of his religion, being a Christian.
As raised with the applicant at hearing, DFAT in its 2019 Country Report on Indonesia indicates the following as to the treatment of Christians in Indonesia:
Article 28E (1) and (2) of the Constitution guarantees citizens the freedom to choose and practise the religion of their choice and the freedom to believe their faith; while Article 28I (1) includes freedom of DFAT Country Information Report Indonesia 18 religion as a human right that cannot be limited under any circumstances. Article 29 (1) and (2) stipulates that, while the state shall be based upon belief in One God, all persons are guaranteed the freedom of worship according to their own religion or belief. However, Article 28J (2) qualifies these protections by stipulating that, in exercising their rights and freedoms, every person has the duty to accept restrictions established by law. These restrictions are for the sole purposes of guaranteeing the recognition and respect of the rights and freedoms of others and of satisfying just demands based upon considerations of morality, religious values, security and public order in a democratic society.
Christianity is Indonesia’s second-largest religion after Islam. Approximately 24 million Indonesians listed their religion as Christian in the 2010 census. Protestants make up approximately 7 per cent of the total population and Catholics approximately 3 per cent of the total population. Christian communities exist DFAT Country Information Report Indonesia 21 in every province and Christianity is the majority religion some of the eastern provinces including the Papua provinces and North Sulawesi. East Nusa Tenggara, especially the island of Flores, is majority Catholic. About a million Christians lived in Jakarta at the time of the last census. A large number of Protestant churches operate in Indonesia including mainstream Protestants (especially those related to 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. High-level inter-denominational and inter-faith dialogues, especially between Muslims and Christians and between Catholics and Protestants, occur regularly. Christians residing in some areas, particularly where hard-line Islamist groups are more influential (such as Aceh, and parts of East and West Java) have occasionally been prevented from worshipping, including through forced church closures and the disruption of church services, however this violence and discrimination appears to be localised.
A small number of recent terrorist attacks have targeted Christians, although most recent terrorism events have targeted state institutions, especially police. The May 2018 Surabaya suicide bombings affected Catholic, mainstream Protestant and Pentecostal communities. Several churchgoers and a priest were injured in a sword attack on a Catholic church in Yogyakarta in February 2018, in which the perpetrator hacked at statues of Jesus and Mary before being shot by police.
Christian communities have remained resilient in spite of recent violence and church attendance has not fallen as a result. Security at churches increased briefly after the May attacks and police provide extra protection at major festivals such as Christmas and Easter. Some Muslim groups also volunteer to assist or provide security at events and festivals.
Conversion to and from Christianity is common. Some bureaucratic difficulties can be encountered in registering a change in religion with the government, but this is not a significant barrier to conversion, which commonly occurs without difficulty. Some Pentecostal Christians are involved in door-to-door evangelical activities, which have been known to upset religious sensitivities. Preaching by foreign missionaries is unlawful, but the US State Department reports that many foreign missionaries preach without official sanction.
Christians do not generally experience discrimination in gaining access to health care, education or employment. 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, although this risk is unlikely to include violence. DFAT assesses that Christians face a low risk of terrorism in spite of recent exceptional events.
When the information was raised with the applicant at hearing, he said being Christian is one thing but being a Chinese Christian is another. He said being of Indonesian ethnicity and a Christian is fine. However, he said if you are Chinese you are thought of as a foreigner and abused. He said he had experienced that. He said he also experienced it when he went on holiday to Indonesia. He said it is double trouble if a person is Chinese and Christian.
Similar to the above, on the basis that there is no detailed evidence that he faced serious or significant harm in the past in Indonesia as a Christian, and in his application he said he did not face harm in the past in Indonesia, there is no evidence that he has been unable to practise his religion including attending religious services in Indonesia, on the basis of his return to Indonesia in 2005, 2006 and 2008 which undermines his claim to fear harm on this basis; the Tribunal does not accept that the applicant faced any difficulties in Indonesia amounting to serious harm or significant harm in the past on account of his religion or his ability to practise his religion. Considering the information above as to the treatment of Christians in Indonesia and their ability to practise their religion, the Tribunal does not accept that the applicant faces a real chance of persecution involving serious harm, were he to return to Indonesia in the reasonably foreseeable future as he is a Christian or a Chinese Christian or as he would be unable to practise his religion. Similarly based on the findings above and on the information before it the Tribunal is not satisfied that there is a real risk that he will suffer significant harm as he is a Christian or a Chinese Christian or as he would be unable to practise his religion.

In making the above findings, the Tribunal has considered his claim of economic harm or an inability to subsist in part because of his religion, but does not accept there is evidence as to the difficulties faced in the applicant’s past, or from the independent information that he will face discrimination or a lack of access to the workforce or any difficulties obtaining employment as he is a Christian or Chinese Christian, that amounts to serious or significant harm.
Convicted Criminal
The Tribunal accepts that the applicant will return to Indonesia with a criminal record, having been convicted of the crimes in Australia and served time in prison as outlined above. He claims in his application that wherever he goes he will be hounded and harassed by the authorities and he will be vulnerable to criminal elements because of this. He claims he will be treated inhumanely and die on the streets, will start taking drugs again and will become vulnerable to criminal elements. He claims in his application that the authorities will know from the manner of his return that he was returned as he was convicted of a crime. The Tribunal notes that the applicant did not raise this as a claim at hearing when asked why he fears return to Indonesia on several occasions. When it was rasied with him that information as to his criminal record is private and it is unlikely the authorities would be aware he had been convicted and served his sentence in Australia, he did not provide a substantial response. However, his representative submitted that his manner of return will alert the authorities that he is a criminal deportee.
Information indicates that:
·Indonesian law provides protection against double jeopardy. No country information was located about authorities charging people again for offences committed while abroad.[3] DFAT is not aware of examples of breaches of double jeopardy.[4]
·Article 18(5) of Indonesia’s Human Rights Law (Law No 39 of 1999) states that ‘[n]o one shall be charged more than once for an action or omission concerning which a tribunal has previously made a legally binding decision’.1 Article 76(1) and (2) of the Penal Code has a similar effect, and states that ‘no person shall be prosecuted again by reason of an act which the verdict of an Indonesian judge with respect to him has become final’.[5]
·No reports were found of people encountering societal harm on return for offences committed overseas.[6]
[3] Department of Home Affairs, Indonesia: CI180511140155344 – Double jeopardy 18 May 2018
[4] Department of Foreign Affairs and Trade (DFAT), Country Report Indonesia, 25 January 2019.
[5] Penal Code of Indonesia, National Legislative Bodies, 27 February 1982, CIS18954, article 76(1) and (2)
[6] Sources consulted include CISNET, UNHCR Refworld, The European Country of Origin Information Network (ECOI), DFAT papers, US Department of State, NGO and human rights organisations, local news sources and major international newspapers
The information indicates that the applicant will be required to leave Australia as he is no longer the holder of a bridging, temporary or permanent visa and will have no right to remain in Australia. While he has been convicted of offences, the latter leading to a prison term, he has served his time in prison. On release he was transferred to [an immigration] detention centre. He no longer holds his child visa due to it being cancelled under s.501 of the Act. He did not apply for revocation of the cancellation for the reasons outlined in the submitted statements. If the applicant is deported, which would only occur if he refused to depart voluntarily, as he does not have a right to remain in Australia the Tribunal is of the view the authorities would not know of his past criminal record unless the applicant told them. Notwithstanding, even if they suspect based on his manner of return that he was convicted of a crime in Australia, based on the information above the Tribunal does not accept there is a real chance of persecution involving serious harm, were he to return to Indonesia in the reasonably foreseeable future, at the hands of the police, gangs, authorities or anyone in society as he has been deported and was convicted of a crimes in Australia or as a criminal deportee. Similarly based on the findings above and on the information before it the Tribunal is not satisfied that there is a real risk that he will suffer significant harm at the hands of the police, gangs, authorities or anyone in society as he has been deported, was convicted of a crime in Australia or as a criminal deportee.
No family, support, accommodation and a lack of education
The applicant claims he has no work skills and with no family network in Indonesia, he will be homeless and will be unable to support himself. He claims he will not be able to subsist. His representative said due to his limited education to year 5 he will be virtually unemployable. The Tribunal appreciates and accepts that the applicant has not lived in Indonesia for 17 years, has no family there and owns no property. The Tribunal accepts that if he were to return to Indonesia, he will face hard challenges in adjusting to life in Indonesia, including finding means of supporting himself. The applicant’s limited education in Indonesia, only completing school until year 5 will no doubt contribute to making the process of adjustment harder. The Tribunal also appreciates that he will find separation from his immediate family and lack of close relationships in Indonesia difficult. Nevertheless, the evidence indicates that he lived in Indonesia for the first 20 years of his life and therefore understands the culture and he has friends in Bali who he returned to visit and stay with in 2005 and 2006, although they are now married. The information also indicates he speaks both Indonesian and English fluently. Despite his low level of education in Indonesia, his application indicates he completed a Certificate III in [subject] in 2007 in Australia. He has also worked in several low skilled jobs in Australia, including as a storeman and a delivery man for a [business]. While the Tribunal is sympathetic to the applicant's situation that he will return to Indonesia without any family in Indonesia, no property and having only finished primary school in Indonesia, it is not satisfied that the applicant will face a real chance of serious harm, including 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 for one or more of the reasons mentioned in s.5J(1)(a) of the Act (race, religion, nationality, membership of a particular social group or political opinion). This is particularly so as the reason or reasons must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s.5J(4)(a).
With regard to the applicant returning without any family in Indonesia, no property and having only finished primary school in Indonesia, and the claim he will be unemployable the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia, there is a real risk that he will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)-(e) of the definition of torture in s.5(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the infliction of severe pain or suffering, either physical or mental, such as to meet the definition of cruel or inhuman treatment or punishment in s.5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that he will suffer such harm as to meet the definition of degrading treatment or punishment in s.5(1) which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of his life or the death penalty due to these circumstances. The Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act, on the basis of his claims considered individually or cumulatively for these reasons.
Separation from Family
The Tribunal appreciates that the applicant has resided in Australia for the last 17 years and he has missed the opportunity to remain in Australia on a permanent basis by applying for citizenship. It accepts that during this period, the applicant’s mother and sister have become Australian citizens. The Tribunal appreciates that his return could result in the prospect of family separation and this weighs heavily on the applicant and his mother.
While the Tribunal accepts being removed from his mother and siblings will be extremely difficult for the applicant, the Tribunal does not accept that he will face these difficulties for the essential and significant reason or reasons of race, religion, nationality, membership of a particular social group or political opinion as required by s.5J(1)(a) and s.5J(4)(a). With regard to the difficulties he will face being removed from Australia to Indonesia away from his mother and siblings the Tribunal finds that the applicant does not have a well-founded fear of persecution as required by s.5J of the Act.
With regard to these claims and complementary protection, in SZRSN v MIAC the Federal Court confirmed that harm arising from the act of removal itself will not meet the definition of ‘significant harm’ in s.36(2A).[7] As such, it appears that although the risk of significant harm envisaged by s.36(2)(aa) must arise as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, s.36(2)(aa) will not be engaged by harm inflicted by the act of removal itself. Therefore on the basis of his claims of harm outlined above as a consequence of being removed from Australia to Indonesia and leaving his mother and siblings in Australia, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act for these reasons.
Drug addict
[7]SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [48]-[49], upholding the reasoning at first instance SZRSN v MIAC [2013] FMCA 78 (Driver FM, 1 March 2013) at [61]-[65]. Similarly, in WZARI v MIMAC [2013] FCA 788 (Siopis J, 9 August 2013) at [31]-[32] the Court upheld the Tribunal finding that the applicant would not face ‘degrading treatment’ for the stress and pain of being separated from his family if he were returned to Fiji.
The Tribunal accepts that the applicant will return to Indonesia as a former drug addict. He claims in his application for a protection visa that as a former drug addict, due to the pressures he will face, including that he will be homeless and without a job, it is likely he will again become a drug addict. His mother submits she is concerned due to the pressures he will face relocating he will again become vulnerable to drugs. His representative submits that as a former drug addict his mental health condition will deteriorate as he will not be able to afford the necessary treatment and medication and that this in turn will make him vulnerable to relapse into drug addiction. His ability to afford the medication for his bipolar disorder is also considered in the section below.
Under s.5J(5), the requirement that the persecution involve systematic and discriminatory conduct means that s.36(2)(a) is concerned with persecution of an applicant by other persons for nexus reasons.[8] Therefore the mere impact of circumstances which an applicant may face in the future does not constitute persecution for the purposes of ss.5J(4) unless those future circumstances include some systematic and discriminatory conduct by another person or persons.[9] Further, s.36(2)(a) does not encompass the harm an applicant may suffer as a result of an illness arising on return to their receiving country.[10]
[8] CSV15 v MIBP [2018] (Collier J, 21 May 2018) FCA 699 at [30]-[31].
[9] See for example WAKZ v MIMIA [2005] FCA 1065 (French J, 2 August 2005) at [49]. His Honour’s discussion does not refer specifically to s.91R(1)(c), however, the distinction that is drawn between ‘persecutory action on the part of the government or any other agencies’ and the impact of ‘non-persecutory questioning’ on an applicant’s fragile mental state appears consistent with the consideration of the requirements of s.91R(1)(c). Contrast SZJLM v MIAC [2007] FMCA 287 (Scarlett FM, 2 April 2007), in which the Tribunal was found to have erred in failing to consider the cumulative impact of the applicant’s mother’s claims of Convention-related persecution, where the applicant son was the only refugee claimant before the Tribunal. The Court’s reasoning appears to assume that if the mother faced persecution for a Convention reason, then the impact of that harm on the applicant would suffice to amount to persecution and did not consider the requirements of s.91R(1)(c) or s.91R(1)(a).
[10] CSV15 v MIBP [2018] (Collier J, 21 May 2018) FCA 699 at [31] and [34].
Courts have consistently held that the discriminatory element of persecution involves an element of motivation on the part of the persecutor. In the well-known passage in Ram v MIEA, cited with approval by the High Court and Federal Court on a number of occasions, Burchett J said:
Persecution involves the infliction of harm, but it implies something more: an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.[11]
[11](1995) 57 FCR 565 at 568.
Thus, the element of motivation is implicit in the idea of ‘persecution’ itself and is expressed in the phrase ‘for reasons of’ that appears in the codified definitions of a refugee. Where the harm feared is not directed at the applicant, or a group to which the applicant belongs, for reasons of race, religion, nationality, membership of a particular social group or political opinion, no ‘persecution’ is apparent for the purposes of the Act.[12]
[12] The expression ‘for reasons of’ is explored further in Chapter 5 of this Guide. Note, in particular, that under ss.5J(4)(a) and 91R(1)(a) of the Act the reason or reasons must be the ‘essential and significant’ reason or reasons for the persecution. For specific circumstances in which motivation is particularly relevant, refer to Chapter 11.
On the evidence before it the Tribunal does not accept that the difficulties he claims will face which will result in him becoming a drug addict again includes some systematic and discriminatory conduct by another person or persons and therefore does not meet the definition of persecution and therefore refugee as outlined in the Act.
The Federal Court has confirmed that the definition in s.36(2A) is framed in terms of harm suffered because of the acts of other persons. The Tribunal therefore finds that it does not encompass self-harm, or harm that a person would suffer as a result of any other illnesses on return to a receiving country.[13] The Tribunal therefore does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act as a former drug addict who will again take drugs for the reasons claimed.
Bipolar disorder
[13] CHB16 v MIBP [2019] FCA 1089 (Reeves J, 12 July 2019) at [65]-[68] (special leave to appeal from this judgment was refused: CHB16 v MIBP [2019] HCASL 377 (Bell and Nettle JJ, 13 November 2019); and CSV15 v MIBP [2018] FCA 699 (Collier J, 21 May 2018) at [34]. See also SZDCD v MIBP [2019] FCA 326 (Gleeson J, 13 March 2019) where the Court held that deprivation of an appellant’s access to medical treatment in Australia as a consequence of his removal to Bangladesh would not amount to him being arbitrarily deprived of his life under s.36(2A)(a): at [48]; and EZC18 v MHA [2019] FCA 2143 (Besanko J, 19 December 2019) where the Court upheld the Tribunal’s finding that suicide could not constitute the ‘arbitrary deprivation of life’ in s.36(2A)(a): at [47].
The applicant claims to fear return as he suffers from bipolar disorder. While no independent evidence has been submitted by the applicant as to his mental health, such as a report by a mental health professional as to the applicant suffering such a condition and its severity, the Tribunal is prepared to accept his claim he suffers from bipolar disorder based on his knowledge of the drug he is taking, being [Medication 1][14]. This is a mood stabilizer and he said it helps a lot with his bipolar disorder. He said at hearing that he fears return as a person with bipolar as people with mental health issues in Indonesia are kept in a room. His representative submitted that if returned to Indonesia his mental health condition will deteriorate as he will not be able to afford the necessary treatment and medication. She submitted that this in turn will make him vulnerable to relapse into drug addiction.
[14] Information indicates it is used in the treatment of bipolar disorder
As to being able to access general health services, DFAT indicates the following:
2.21 Article 28H of the Constitution guarantees citizens the right to obtain medical care, while Article 34 obliges the state to provide medical and public service facilities. Responsibility for health service delivery in Indonesia has been devolved to the district level since the early 2000s and health services vary in quality and availability between districts.
2.22 In January 2014, Indonesia began the implementation of a National Health Insurance Scheme (JKN), aimed at providing universal health coverage by 2019. The scheme experienced considerable cost over-runs in its early stages. In spite of implementation problems, health care coverage for the poor expanded rapidly and analysts expect it to reach universality, on target, in 2019.
2.23 People living in the poorer eastern provinces and urban slums are covered by the universal health system, but health facilities in these areas have lower capacity to treat people with chronic diseases, who may have to travel to larger cities to gain access to health services. Patients must contribute a small co-payment for health services. [15]
[15] Department of Foreign Affairs and Trade (DFAT), Country Report Indonesia, 25 January 2019.
As to specifically being able to access mental health services, DFAT adds the following:
3.125 Mental health services are available in Indonesia but are limited. General health facilities including local hospitals may provide basic mental health services. Specialised mental health facilities are also used to treat general health and their capacity is often stretched. People with mental health problems may face stigma in seeking access to services.
3.126 DFAT assesses that people with mental health issues, particularly the poor and those in rural areas, face a moderate risk of societal discrimination and violence. Wealthy people, especially in large cities, face a low risk of societal or official violence or discrimination.[16]
[16] Department of Foreign Affairs and Trade (DFAT), Country Report Indonesia, 25 January 2019.

Information from the 2013 Indonesian national health research (RISKESDAS)[17] indicates that there are around 400,000 people suffering from a severe mental health condition in Indonesia, such as schizophrenia. In 2014, WHO reported that Indonesia has a low psychiatrist to population ratio with 0.01 psychiatrists per 100,000 people.[18] Data from the Indonesian Ministry of Health further emphasised that there are only 600-800 psychiatrists in the whole of Indonesia.[19]
[17] BADAN PENELITIAN DAN PENGEMBANGAN KESEHATAN KEMENTERIAN KESEHATAN RI. (2013). RISET KESEHATAN DASAR 2013.Jakarta: KEMENTERIAN KESEHATAN RI. From World Health Organization. (2014, 08). Mental Health: a state of well-being . Retrieved from World Health Organization: >
The 2016 ASEAN paper on mental health services in Indonesia outlines the mental health services available including medications, such as anti-psychotic drugs.[20]
[20] ASEAN Mental Health Systems, Association of Southeast Asian Nation (ASEAN), 26 December 2015, pp 37 to 55. >
A detailed review of the Indonesia health system indicates the following about mental health services in Indonesia:[21]
Basic mental health services have been integrated into general health services in puskesmas and their networks, pratama clinics, general practitioners with the competence to provide mental health services, home care, and service facilities outside the health sector as well as CBR facilities. Until 1990, mental health services were undertaken through the introduction of psychiatry specialists into Puskesmas in several provinces. After 1990, mental health services have been implemented through general practitioners and nurses in puskesmas who have been trained on how to perform anamnesis and examination of patients with mental health problems. Mental health referral services are provided at mental hospitals, and mental health services are integrated into the general health services of general hospitals, primary clinics and the practice of mental health specialists.
Various types of psychotropic medications have been already listed in the National List of Essential Medicines and are available at various levels of health-care facilities. Preparation of the National List of Essential Medicines has been done with several classes of the new generation of psychotropic drugs that are more effective and have fewer side-effects, for puskesmas and public hospitals. However, some psychotropic drugs are not covered by the JKN programme so that patients who require these medications need to pay OOP. Prior to decentralization, the costs of care for people with mental health conditions were budgeted at the MoH through the mental hospitals. In the era of local autonomy, the ability of mental health professionals to advocate with local government decision-makers is decisive in obtaining funding for mental health services from the local government budget.
Mental health policies have undergone four major changes. First, the change from hospital-based to community-based services. Second, the provision of mental health services at all existing health-care facilities. Third, the services rely on ambulatory care rather than hospitalization. Fourth, mental health patients should be empowered. It is mandatory for 166 local government to have at least one mental health facility as well as community-based mental health services. The presence of psychiatric care that can be easily accessed by the public is expected to eliminate the use of traditional healers as an alternative for the treatment of mental health disorders.
Mental health is a multisectoral programme. The Mental Health Directorate of the MoH has responsibility to coordinate the implementation of mental health programmes at the central level. At the local level, the provincial and district/city health offices are responsible for coordination and guidance on the implementation of mental health programmes at the province and district/city levels. Community-based mental health organizations, such as Indonesian Schizophrenia Community Care, Bipolar Care Indonesia, Karitakas, Indonesian Anxiety Forum and the Indonesian Mental Health Association, also play a significant role in reducing stigma and discrimination against people with mental health disorders. One of the most important roles of these organizations is to reduce the numbers of deprived people. Although most of the organizations have been established by people whose family members have psychiatric disorders, they have the support of mental health professionals.
The House of Representatives recently approved a mental health law, in early July 2014. The new law mandates every province to have at least one mental health hospital. According to the MoH in 2013, there are eight provinces in Indonesia that do not yet have a mental hospital. Among the eight provinces, a total of five provinces do not even have a mental health professional or psychiatrist. Most of them are new provinces. The central government encourages local governments to build mental health hospitals in the provinces that do not have them yet. Indonesia still has a shortage of mental health specialists, with, currently, only about 700 psychiatrists. It is expected of every 10 000 people, there is one psychiatrist; it is estimated that for around 24 000 psychiatrists are required to serve the population of Indonesia.
[21] Asia Pacific Observatory on Health Systems and Policies, The Republic of Indonesia Health System Review 1 January 2017 at pp165 >
Information from the above review indicates that the majority of hospitals and doctors are located where the applicant has lived in Indonesia, being in Java and Bali, albeit this is where the majority of the Indonesian population resides.[22]
[22] Asia Pacific Observatory on Health Systems and Policies, The Republic of Indonesia Health System Review 1 January 2017 >
As raised at hearing, information indicates that Indonesia has universal health which includes mental health care, mental health professionals and medication. This country information indicates that although limited the applicant would be able to access medical services and therefore medication provided by the Government of Indonesia. As medication is provided by the Government of Indonesia the Tribunal finds he will be able to afford it. As the applicant is not from a rural community, and has always lived in the larger cities of Indonesia in Java and then Bali, where he would return to on holiday, the Tribunal does not accept the applicant will be prevented from accessing mental health services or being unable to afford it in Indonesia due to his mental health condition, his race, religion or any of the reasons claimed.
It does not accept that as these services are provided by the Government of Indonesia that he will be prevented from accessing the services and therefore medication due to his religion or ethnicity or any of the reasons claimed. On the evidence before it, the Tribunal is not satisfied that the applicant would be denied access to medical treatment or to medication or be prevented from accessing such treatment in Indonesia for any of the reasons set out in s.5J(1)(a) of the Act if he returns to Indonesia now or in the reasonably foreseeable future. With regard to complementary protection and the applicant’s access to mental health services, on the evidence before it the Tribunal finds that there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on him, such as to meet the definition of torture; or to meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of life or the death penalty.
The Tribunal is not satisfied that the general scarcity of psychological services, psychological professionals and support, and poorer quality of services in Indonesia or the stigma associated with accessing such services involves serious harm amounting to persecution. While the information indicates there are fewer mental health professionals in Indonesia than in Australia and the applicant would not receive the same level of treatment as in Australia, the Tribunal is not satisfied that the applicant would face a real chance of serious harm for a reason outlined in s.5J(a) as a person who requires mental health treatment, is accessing and being treated for a mental health problem or as he will be unable to afford it. On the available evidence, the Tribunal finds that there is no real risk that the applicant will be subjected to any form of harm on account of accessing mental health services or being treated for a mental health problem which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on him, such as to meet the definition of torture; or to meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of his life or the death penalty. Additionally, the Tribunal is of the view that the difficulties accessing mental health services in Indonesia due to scarcity of mental health professionals, stigma associated with accessing such services and lack of quality is harm under s.36(2B)(c) of the Act, as the real risk is one faced by the population of Indonesia generally and is not faced by the applicant personally.
As to his claim he will face serious harm due to his mental health condition, including being kept in a room, the evidence from DFAT indicates the following:
3.124 A lack of understanding about mental and intellectual disabilities including autism or schizophrenia can lead to pasung or ‘shackling’, where people with disabilities are restrained in chains, cages or other restraints. While the practice has been illegal since 1977, it continues to occur where families hide their disabled relatives in, for example, a shed. Shackling of people with mental disabilities persists, though gains have been made to reduce the practice. Human Rights Watch reports decline in the number of people locked in confined spaces from 18,800 in 2016 to 12,800 in July 2018 based on government data. The government rolled out a programme in January 2017 to visit families to collect data about the problem and to raise awareness and educate families. However, it noted documenting shackling is difficult as it often occurs in remote areas and families may be reluctant to admit the practice. While some argue that shackling is a form of traditional treatment, families also use it to hide family members with mental health conditions who may bring social shame. This view is more common among poorer people and rural communities.[23]
[23] Department of Foreign Affairs and Trade (DFAT), Country Report Indonesia, 25 January 2019.
In this regard the US Department of State, Country Report on Human Rights practices 2019 notes:
Despite a government ban, families, traditional healers, and staff in institutions continued to shackle individuals with psychosocial disabilities, in some cases for years. Due to prevalent stigma and inadequate support services, including mental health care, more than 57,000 persons with psychosocial disabilities have been chained or locked in a confined space at least once in their lives. According to the Directorate of Mental Health, approximately 12,800 people with mental health conditions were shackled as of July 2018.
During the year the government took steps to uphold the rights of persons with psychosocial disabilities. Several agencies, including Komnas HAM, the National Commission for Violence Against Women, National Commission for Child Protection, the National Ombudsman Commission, and the Witness and Victims Protection Agency, signed an agreement to monitor places where individuals with psychosocial disabilities were shackled or detained.[24]
[24] >
While there is evidence of shackling and/or being kept in a room, practised by families, traditional healers and some mental health institutions, such practice is banned by the Government, declining and occurs to a small proportion of those suffering mental health issues in Indonesia. Further evidence indicates that it most often occurs in rural and poorer areas and to those with severe mental health conditions such as autism or schizophrenia. The Tribunal notes there is no independent evidence from a mental health professional as to his condition or its severity and notes from the evidence from the applicant that with drug treatment his mood is better stabilised, and it assists his condition ‘a lot’.
The Tribunal therefore finds that the applicant does not face a real chance of persecution involving serious harm if he returns to Indonesia in the reasonably foreseeable future on account of his mental health condition, being bipolar. The Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia, there is a real risk that he will suffer significant harm as defined in s.36(2A) on account of his mental health condition, being bipolar.
Conclusions regarding the Refugees Convention
The Tribunal has considered whether the combination of each of the individual claims raised by the applicant would together create a real chance of him being subjected to serious harm in Indonesia in the reasonably foreseeable future. On the basis of the above the Tribunal does not accept that there is a real chance the applicant would face serious harm for these reasons, if he returns in the reasonably foreseeable future. For the reasons given above, the Tribunal therefore is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary Protection
The Tribunal has also considered whether the applicant is eligible for complementary protection. The Tribunal has considered whether the combination of each of the individual claims raised by the applicant would together create a real risk of the applicant being subjected to significant harm in Indonesia in the reasonably foreseeable future. The Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia, there is a real risk that he will suffer significant harm as defined in s.36(2A), on the basis of his claims considered individually or cumulatively.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Gabrielle Cullen
Member

APPENDIX
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 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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36    Protection visas – criteria provided for by this Act
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(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.
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