2010910 (Refugee) - [2025] ARTA 856

2010910 (Refugee) [2025] ARTA 856 (20 March 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number: 2010910
Tribunal:General Member G Sammon
Date:20 March 2025

Place:Sydney
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the Applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.

I, General Member G Sammon, certify that this is the Tribunal’s statement of decision and statement of reasons.
Statement made on 20 March 2025 at 9:06AM.
CATCHWORDS
REFUGEE – protection visa – Indonesia – economic conditions – new claims of disability and sexual orientation made in pre-hearing information form – homosexual man – application form completed by another person, with applicant uncomfortable with disclosing orientation – reasonable explanation and no adverse inference drawn – orientation hidden and no activities or relationships in home country, and some social activities and short-term relationships in Australia – no disclosure to family – country information – no national laws, but provincial and religious laws punishable by caning – moderate risk of societal and employment discrimination in all areas of country – cumulative effect of several kinds of discrimination – modification of behaviour not required – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), (2), (3)(a), (c)(vi), (4), (5), 5L, 5LA, 36(2)(a), 65, 367A(2)
Migration Regulation 1994 (Cth), Schedule 2
CASES
AKA24 v MIMA [2024] FedCFamC2G 1434
Scat v MIMIA [2003] FCAFC 80
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs[1] (the Delegate) on 30 June 2020 to refuse to grant the Applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (‘the Migration Act’ or ‘the Act’).
[1] As was the then Minister’s then title.
The Applicant who claims to be a national of Indonesia, applied for the visa on 5 April 2018. The Delegate refused to grant the visa on the basis that the Applicant was not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) as a ‘refugee’ as that term is defined in the Act[2] or eligible for ‘complementary protection' under s 36(2)(aa) of the Act.
[2] Section 5H.
In summary, the basis for the Applicant’s application for a protection visa, as stated in his application made in April 2018, was that the:
Currency in Indonesia is not in stable condition. It's make me feel hard to survive my life as I have to do more than one job to survive.
In a pre-hearing information form signed by the Applicant on 7 December 2024, he raised new grounds for a protection visa not provided to the Department which administers the Act (the Department) up to that point in time, which was that he had a disability and was of gay sexual orientation.
The Applicant appeared before the Tribunal on 26 February 2025 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A], a friend of the Applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.
The Applicant made his application to the then Administrative Appeals Tribunal (AAT) on 30 June 2020, under the provisions of the Migration Act and the Administrative Appeals Tribunal Act 1975 (Cth). The application may continue to be heard by the new Administrative Review Tribunal under transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth).
BACKGROUND
The Delegate accepted that the Applicant is a citizen of Indonesia, after providing his passport to the Department of Home Affairs (the Department) which administers the Act. I agree with this aspect of the Delegate’s decision. The Delegate accepted that the Applicant was born in Indonesia in [Year].
The Applicant expanded slightly on his grounds for seeking a protection visa in the relevant application form, by answering in the negative a question asking him if he experienced harm in Indonesia. He also answered in the negative a question asking him if he tried to move to another part of Indonesia, saying it would be the same if he moved everywhere in Indonesia.
In answer to a question on the form about what the Applicant thought would happen to him if he returned to Indonesia he said:
I will tension to survive because I do not have my rest enough because I need to do more job in a day.
More than four years later, and after the Delegate had made a decision refusing to grant the Applicant a protection visa, in the Applicant’s response to a pre-hearing information form for the Tribunal signed 7 December 2024, the Applicant raised new grounds for protection, that he was a 'disability person with gay sexual orientation.’ The Applicant did not describe the disability he referred to. He said he needed protection from Australia so as not to experience discrimination such as to gain the same employment opportunities to improve his life.
He said he was afraid to return to Indonesia as he was from Aceh province, which he said is one of the provinces in Indonesia where homosexuality is illegal under Islamic Sharia law and it is punishable by whipping or imprisonment. He also said that there were 'very thin' employment opportunities as a person with a disability.
The Delegate’s decision
The Delegate made the decision dated 30 June 2020 based on the claims for protection in the Applicant’s application for protection visa, but not, of course, contained in the Applicant’s response to the Tribunal’s pre-hearing information form, signed more than four years later.
The Delegate first considered the Applicant's claims for a protection visa against the statutory definition of a 'refugee' contained in s 5J(1)(a) of the Act, that a person has a well- founded fear of persecution for the reasons in that provision as attached to this decision. The Delegate’s decision was that the Applicant's claims for a protection visa did not relate to any of those reasons and there was no other information before the Delegate to suggest that the Applicant would be subject to harm on return to Indonesia for one or more of those reasons. The Delegate was therefore not satisfied that the Applicant was a refugee and a person in respect of whom Australia had protection obligations as outlined in s 36(2)(a) of the Act.
The Delegate also considered application of the criteria for complementary protection under s 36(2)(aa) of the Act against the Applicant’s claim to fear economic hardship in Indonesia. The Delegate found that the claimed harm was not 'significant harm' within s 36(2A) of the Act and was not satisfied that there was a real risk the Applicant would suffer significant harm on return to Indonesia. The Delegate was therefore not satisfied that the Applicant was a person in respect of whom Australia had protection obligations as provided for in s 36(2)(aa) for complementary protection. The Delegate therefore refused to grant the Applicant a protection visa.
The Applicant filed his application for review of the Delegate’s decision with the then AAT on the same day the decision was made, namely 30 June 2020.
Evidence before the Tribunal
Grounds for a protection visa
At the hearing, the Applicant reiterated the grounds for a protection visa he raised for the first time in his response to the pre-hearing information form signed 7 December 2024, that he was a gay person, and also had a disability, which [description of disability]. He said that because of that, people question his ability to work. For that reason, he maintained his claim for economic hardship if he returned to Indonesia.
The Applicant said that he came from Aceh province in Indonesia where homosexuality is illegal. He said that he can get lashes or be subject to imprisonment for an offence of that kind. He said that once people realise he is gay, and due to his disability, he would not be able to get work in Indonesia.
The Applicant said that he was born with the disability of [description of disability]. I observe for the sake of the record, that the [presence of the Applicant’s disability] was obvious at the hearing at which he appeared before me in person, including manifesting itself in [a specific result of that disability].
Preparation of application for protection visa
Given the discrepancy between the claims made for a protection visa in the Applicant’s application dated April 2018, and the grounds he relied upon at the hearing, I asked him who prepared his application for a protection visa. He said a co-worker at the [workplace] he worked at in [Town 1], Victoria helped him complete the form. The Applicant said his English was not good then. The Applicant could not remember the name of the person who helped him complete the form, and the Applicant did not pay the co-worker to assist the Applicant.
The Applicant said that he did not tell the person who prepared the application form for the protection visa about his sexuality, because he did not feel comfortable in doing so. The Applicant said that he did not tell the person who completed the application form about his disability, but there was no reason why not.
In contrast, the Applicant said that he prepared the response to the pre-hearing information form dated 7 December 2024 by himself. The Applicant explained that in Australia, he had made a friend who was not Indonesian, so he was forced to speak English. He said his English had improved since the date of the application for the protection visa (2018) and so was able to complete the 2024 form by himself and that he did not need assistance in doing so.
Threshold issue - application of s 367A of the Migration Act
The claims made by the applicant for a protection visa, of him being gay and having a disability were first raised on 7 December 2024, several years after the Delegate made the decision to refuse the Applicant’s application for a protection visa on 30 June 2020. On the face of it, that raises the application of s 367A of the Migration Act, of the new claims, and evidence for them not being presented to the Department's delegate. The operative effect of s 367A, contained in s 367A(2) is that the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence unless the Applicant has a reasonable explanation why the claim was not presented before the Delegate made the decision to refuse the protection visa.
At the hearing, I put the effect of s 367A to the Applicant for response, as to whether he had a reasonable explanation for not raising the new grounds or evidence for same, before the Delegate made the decision to refuse his application for a protection visa.
The Applicant said that if someone finds out that he was gay, he would not get fair employment [in Indonesia]. He said he would face the 'hardship economy’. He said that he felt emotionally unsafe at the time he had assistance from a co-worker to prepare the application for a protection visa. He said that at that time, and even now, he has not come out as gay to his family in Indonesia. He said he had not come out to people that he worked with in [Town 1]. He said that he had been in Australia for less than three months when he made his application for a protection visa. He said that he came to Australia by himself and had no friends in [Town 1] at that time. He found out about the job there in [Social media].
Given the importance of the Applicant’s claim to be gay, I consider it relevant, for the purposes of application of s 367A, to take into account the Applicant’s evidence about his history of identification as a gay man.
The applicant gave evidence that he first realised he was gay at the age of 12, but was confused at the time. He said that he is a Muslim, and prayed that he would have a 'normal life’. He said that he had come from a broken home and wanted a family of his own, to be loved and to love.
He said he had not formed any same-sex relations with another man in Indonesia before coming to Australia. He said he really tried to hide his sexual orientation. The Applicant stated that at some point in time after he came to Australia, he got depressed. He said that he came to Australia because it had legalised same sex marriage, that Australia is protective of human rights and it is a stable country and a home for everybody.
I accept the Applicant’s evidence that:
(a)he has a disability with which he was born, of [description of disability];
(b)for reasons which I explain below, the Applicant’s sexual orientation is as a gay man;
(c)he realised this whilst growing up in Indonesia but hid it from his family;
(d)he is a Muslim and has, in the past, felt internal conflict about his gay sexual orientation;
(e)he has still not told his family that he is gay;
(f)on arrival in Australia, he did not disclose his sexual orientation to co-workers and was uncomfortable with disclosing his sexual orientation;
(g)in 2018, he did not have sufficient command of English to be able to complete the application for a protection visa himself, but even if he did, he was not comfortable, at that time, in disclosing his sexual orientation to the Department; and
(h)he did complete the response to the pre-hearing information form by himself, disclosing for the first time in his application for a protection visa, that he was of gay sexual orientation.
In applying these findings to s 367A of the Migration Act, I find that the Applicant had a reasonable explanation for why he had not made the claim that he was gay before the Delegate made the decision to refuse the application for a protection visa.
The Applicant’s application for a protection visa does not state that he had a disability. The Applicant may have intended to make this more explicit in the application, but I have accepted his evidence that when the application for a protection visa was completed in 2018, he did not have sufficient command of English to be able to express that fact. With the benefit of hindsight with the Applicant’s obvious disability, that may have been intended to be covered in a response by the Applicant to a question on the application form about why the Applicant thought the authorities could not or would not protect him, that 'There is no anyone will look after my condition.' I find that the Applicant has a reasonable explanation for why he did not disclose his disability to the Department before the Delegate made the decision in this matter.
My finding that the Applicant has a reasonable explanation for not disclosing the grounds of his sexual orientation or disability, or the evidence he had for those factors does not mean that I must necessarily accept any or all of his evidence: it simply means that the adverse inference to the credibility of those claims or evidence, otherwise required by s 367A does not apply to those grounds or the evidence about them.
Applicant’s status as a gay man in Australia
The Applicant expanded on his experience as a gay man in Australia, in the course of his evidence. He said that he was looking to live his life as a gay man in Australia. He said that it had taken him a while to form a same-sex relationship in Australia. He said he wanted to get married to a man and have a child. He said he had formed same sex relationships in Australia, but this had been by way of casual sex. He said that he has formed no long-lasting same-sex relationships since being in Australia nor even any short-term same-sex relationships. He said that he is not currently in a same-sex relationship. The Applicant gave evidence that he had met just one other gay Indonesian man, but did not form a same-sex relationship with him.
He said that he had tried to make some connections with the gay community in Australia, and in particular, with the New South Wales (NSW) [region] gay community. He said that the community there holds events such as '[Event name]’. He said he had met a lot of other gay men in Australia.
I asked the Applicant whether he claimed to have suffered harm in Indonesia in the past because of his sexual orientation as a gay man? He answered no, because he had stayed hidden as a gay man. He said that people in Indonesia think gay sexual orientation is like a disease. There is no anti-discrimination law in Indonesia.
The Applicant said that he had not told his family in Indonesia about his sexual orientation. He said he was emotionally not ready yet. He said he will tell them at some point. He said that his mother is still alive but his father has passed away. He has four sisters and three brothers in Indonesia.
I asked the Applicant if he was Muslim, and he said he still was, but he said that he thought that people have applied the wrong values in Islam.
The Applicant said that he was born in the town of [Town] in Aceh province, the western province of Indonesia. The Applicant’s application for a protection visa records the state or province where he was born to be Bali. He said that part of the application form was incorrect.
I asked the Applicant if he was to return to Indonesia, he could return to live in another province, other than Aceh. He said that he supposed that he could, but that there is no safe place in Indonesia. He said that he did not know anyone in Bali. He had only visited Denpasar airport in Bali, to pass through. He said that he had only lived in Aceh and had never been to Jakarta.
In the Applicant’s response to the hearing notice for this matter, the Applicant informed the Tribunal that he intended to call as a witness, [Mr A] whom he described, in terms of his relationship to the Applicant, as a friend. In responding to a question about the evidence that [Mr A] would give, the Applicant said that 'this person knows about my sexuality’. At the hearing, the Applicant described [Mr A] as a friend, but not a partner. The Applicant said that he trusted him and [Mr A] listens to him when the Applicant talked about same-sex relationships. He said that they came to know each other when they lived in the same house in the [region] of NSW.
Evidence of [Mr A]
[Mr A] gave evidence at the hearing. He said that he had shared a house with the Applicant for between two and three years and they had become good friends. He said that some time after he moved into the share house, the Applicant confided in him that he was gay. That was after the two had formed a friendship. [Mr A] said he was not gay himself, and was not in a sexual relationship with the Applicant. He said he was aware that the Applicant’s grounds for a protection visa were the Applicant’s homosexuality and the fact that he has a disability.
He said he knew that the Applicant likes men, he said he has seen the Applicant with other men and that he knew the Applicant to be gay. [Mr A] stated that the Applicant dresses flamboyantly. He said that the Applicant would have male friends to come around to the house they shared and he had seen the Applicant dancing with other men.
[Mr A] gave evidence that he was aware that the Applicant had formed short-term same sex relationships with other men, and he had also made long-term non-sexual relationships with gay men in [Town 2].
[Mr A] said he thought that the Applicant was affected by living in Aceh, by restraining him. He said that since being in the share house, he had seen the Applicant grow as a person and he could be what he is. He said that the Applicant had told him that the Applicant’s family in Indonesia did not know that he was gay. [Mr A]’s evidence was that he had asked the Applicant about whether he had come out to his family and he said that he could not because of the culture in Aceh province and because of his religion.
The effect of the Applicant’s disability

The Applicant gave evidence that the effect of his disability in Indonesia was that if he, with a disability, and a person without a disability were to apply for the same job, the other person would get the job. He also said that once people in Indonesia realised he is gay, and due to his disability, he would not be able to get work.
He said that even in Australia, in Darwin, he had been discriminated against from getting a job because of his disability.
He said he did not:
(a)receive any medical treatment for his disability in Indonesia;
(b)need to receive on-going medical treatment for his disability; and
(c)receive any benefits in Australia under the National Disability Insurance Scheme.
As to obtaining work in Indonesia before he came to Australia, the Applicant said that he received work ‘just randomly’. He gave an example of working in a [workplace 2] shop. He said he had commenced studies in Indonesia, in [subject], but had to abandon those studies because he could not afford it.
In Australia, the Applicant said that he had first worked in [work sector 1, in job tasks]. His evidence was that his disability had not prevented him in carrying out [job task 1] In [Town 1] (Victoria). He said that in the last two years, he had been employed in '[Work sector 2]', a part of [Employer]. His position there involves [job task 2] and is a permanent job.
The Applicant told me that he is half-way through a certificate IV in [subject 2]. For the future, he said he would like to learn to [do job task 3], or undertaking studies in [subject 3].
The Applicant said that he feared being persecuted if he returned to Indonesia because of his disability and because of his sexual identity. He said that what he feared was being mistreated by the Indonesian authorities, that they will find out that he is gay and they will cane him in Aceh province. He said ‘I can't survive’.
Country information – the position of homosexual men in Indonesia
The Delegate did not consider any country information in Indonesia in the decision to refuse the Applicant’s application for a protection visa, because the application at that time only raised as grounds for protection visa, that the currency in Indonesia was not stable and it was hard to live his life there as he had to do more than one job to survive. However, given the claims the Applicant made at the hearing, it is necessary for me to consider country information about the position of a gay man in Indonesia.
The Australian Department of Foreign Affairs and Trade (DFAT) considered the position of LGBTI people in its Country Information Report Indonesia dated 24 July 2023 (DFAT 2023 Report). The Report states that although there is no national law against same-sex sexual relations, it is illegal in Aceh, where ‘offenders’ are caned as a judicial punishment for same- sex acts.[3] Indonesia is the world's largest majority Muslim country by population.[4] Islamic law (Sharia) is applied in the province of Aceh. Sharia regulations in Aceh prohibit, amongst other things, same-sex sexual relations. Shariah is intended to apply to Muslims in Aceh and not to non-Muslims or non-permanent residents. However, non-Muslims are expected to obey criminal laws based on Islamic law in cases where the national criminal code does not otherwise cover an offence.[5]
[3] Paragraph 3.97.
[4] DFAT 2023 Report, paragraph 3.18.
[5] DFAT 2023 Report, paragraph 3.27.
Apart from the legal position of Muslims in Aceh, the Report continues that LGBTI people are heavily stigmatised in Indonesia. In-country sources told DFAT it is very difficult to be openly LGBTI in Indonesia.[6] According to the DFAT 2023 Report, the experience of LGBTI Indonesians depends a lot on their families. Family networks are crucial. Those whose families reject them are at a high risk of poverty, may be forced into sham marriages, or simply be required, on a day-to-day basis, to hide their sexual orientation.[7]
[6] DFAT 2023 Report, paragraph 3.97.
[7] DFAT 2023 Report, paragraph 3.99.
The DFAT 2023 Report, makes particular reference to the position of LGBTI people in Bali. Multiple sources told DFAT that the situation for LGBTI people in heavily-touristed Bali is somewhat better than in most other parts of Indonesia because international visitors may be more tolerant or be LGBTI themselves.[8]
[8] DFAT 2023 Report, paragraph 3.105.
In summary, the DFAT 2023 Report, assesses that LGBTI people face a moderate risk of societal discrimination: traditional views about sexuality can restrict participation in the workforce and the broader community. People perceived to be LGBTI may face a risk of violence, particularly if living in religiously conservative areas and communities including Muslim and Christian communities. LGBTI individuals faced a moderate risk of official discrimination due to national laws that discriminate against them based on sexuality, and due to official attitudes. DFAT assesses that LGBTI people living in Aceh face a higher risk of official and societal discrimination and violence.[9]
CONSIDERATION OF CLAIMS AND EVIDENCE
[9] DFAT 2023 Report, paragraph 3.111.
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.
REASONS AND FINDINGS
The issues in this case are whether the Applicant:
1. is gay; and
2. would suffer harm, and the extent of the harm, if the Applicant was to return to Indonesia now or in the reasonably foreseeable future.
For the following reasons, I have concluded that the decision under review should be set aside and remitted for reconsideration.
Whether the applicant is gay
I find that the Applicant is gay. I accept the Applicant’s evidence on his personal history of realisation that he is gay. I accept his evidence that he kept his sexual identity hidden in Indonesia for fear of harm, since he lived in Aceh province where the effect of Sharia law is that he could be judicially punished for a same-sex act. Also, he is Muslim, from a Muslim family, which could reasonably be expected to embrace Sharia law. I accept his evidence that he underwent a period of internal tension between his faith and his sexual identity, but he has come to reconcile the two.
I find that a significant reason why the Applicant decided to come to Australia was because the law in Australia is accepting of gay sexual orientation, and that marriage equality law allows for same-sex marriage, which became law in Australia in December 2017, when the Applicant came to Australia in February 2018. I accept that the Applicant’s reluctance to disclose his sexuality continued when he arrived in Australia, something which he really only overcame when moving to the [region] of NSW.
The Applicant’s evidence on his sexuality is confirmed by the evidence of [Mr A]. I accept [Mr A]’s evidence and that he observed objective proof of the Applicant’s sexuality through the Applicant meeting men whom [Mr A] knew to be gay, and from seeing the Applicant dance with other men. The Applicant’s reticence to disclose his sexuality is confirmed by [Mr A]’s evidence that it was only through a friendship based on trust that the Applicant confided in [Mr A] about his sexual orientation. The Applicant’s growing confidence in his sexual identity as being a gay man was also confirmed by [Mr A]’s evidence that in the time that he has known him, he has seen the Applicant grow as a person, able to feel free to be what he is.
Whether the Applicant will suffer harm if he returns to Indonesia
The Applicant did not give evidence that he came to any harm when he previously lived in Indonesia, because of his sexual orientation, for the reason that he disguised and hid his sexual orientation as a gay man. His claims for a protection visa should not be assessed on the basis that he would or could hide or disguise his sexual orientation to avoid harm if he was to return to Indonesia.[10] Since living in Australia, he has been prepared to come out as a gay man, although not to his family in Indonesia.
[10] AKA24 v The Minister for Immigration and Multicultural Affairs [2024] FedCFFamC2G 1434.
The Applicant has a subjective fear of persecution as a gay man should he return to Indonesia now, or in the reasonably foreseeable future, for the statutory criteria for a ‘refugee’ in s 5J of the Act. In this case, the question is whether the objective element of a real fear of persecution exists.
I find that the Applicant will not be accepted by his family or supported by them if and when they become aware of his sexual orientation. I have found that the Applicant is Muslim, from a Muslim family, living in Aceh province where his family could reasonably be expected to embrace Sharia law. I find that fear of rejection by his family was one reason why he hid his sexual orientation in Indonesia. I find that the Applicant is still fearful of rejection by his family if he was to disclose his sexual orientation to them. To date, some seven years after coming to Australia, he has still not told his family of his sexual orientation.
The Applicant is aware of the possibility of him being punished including through caning, if he was to return to his home province of Aceh, given that the effect of Sharia law in that province includes a judicial penalty of caning. I find that he would avoid returning to Aceh province for that reason. However, to do so means that he would be deprived of any family support which the DFAT 2023 Report indicates is crucial to an LGBTI person in Indonesia. Further, I find that there is a real chance that his Muslim family would reject him and decline to provide him any support once they identify he is of gay sexual orientation.
Once the Applicant determines the risk of return to Aceh province, I find that for him, one other province in Indonesia would be relevantly very much like another. Although there is evidence in the DFAT 2023 Report that the province of Bali is more accepting of LGBTI people, the Report does not say that the position there can be equated to acceptance of LGBTI people in the same way as Australia and there is still a moderate risk of societal discrimination across the entire country. Moreover, the Applicant said that he does not know anyone in Bali, or for that matter, Jakarta.
The relevant point is that the Applicant will be without family support in any other province in Indonesia, other than Aceh. The precariousness of his position is compounded by his disability. His disability is not a reason why he would the persecuted of itself, but I do accept the Applicant’s evidence that he will be discriminated against because of that disability when it comes to seeking employment. In simple terms, I accept his evidence that if he and another person who was not disabled were applying for the same position in Indonesia, then the person without the disability is likely to get the job. Put another way, that disability makes his position as a gay man at heightened risk, in terms of economic vulnerability.
The country information in the DFAT 2023 report states that those families who reject LGBTI Indonesians at a high risk of poverty, may be forced into sham marriages, or simply be required, on a day-to-day basis to hide their sexual orientation. I find that the Applicant has lived as a gay man for long enough in Australia, in the absence of his family, to gain independence from them so that he would not allow himself to be forced into a sham marriage. Assessment of his status as an applicant for a protection visa should not be assessed on the basis of hiding his sexual orientation, because of the decision in AKA24 referred to above.
That leaves the Applicant at high risk of poverty given his sexual orientation and that I find that his family will not support him once they are aware of his sexual orientation. He is at heightened risk of poverty because of his disability and that as he puts it, if he and another person without that disability were applying for the same job, then the person without the disability is likely to get the job.
The Applicant has not, as yet, gained qualifications or experience which, in my view, are sufficient to insulate him in Indonesia from his status as a gay man with a disability. He has a permanent job with [Employer] in [doing job task 2], but I find that that work experience is not enough to insulate him from being discriminated against both on the basis of his sexual orientation, and his disability. He is halfway through a certificate IV in [subject 2], but only half way through, and even if he had achieved that certificate, he would still be, in my view, susceptible to the double discrimination I have referred to.
Does the Applicant satisfy the refugee criterion for protection?
Applying the statutory criteria for a refugee and in particular, and the Applicant having a well-founded fear of persecution under s 5J of the Migration Act, I find that there is a real chance of the Applicant being exposed to 'serious harm' as described in s 5J(4) and (5). Although the categories of harm listed in s 5J(5) are instances of ‘serious harm’, and not exhaustive of that term, I find that given the Applicant’s individual status as a gay man with a physical disability, and in applying the DFAT 2023 Report, there is a real chance that he could be exposed to 'significant physical harassment',[11] ‘physical ill- treatment’,[12] and 'significant economic hardship that threatens his capacity to subsist’.[13] The last of these is recognised by the DFAT 2023 Report in the sense that an LGBTI person who does not have family support is at a high risk of poverty. In the Applicant's case, he is at heightened risk of exposure to poverty given his disability.
[11] Paragraph (b) of s 5J(5).
[12] Paragraph (c) of s 5J(5).
[13] Paragraph (d) of s 5J(5).
The Full Court of the Federal Court has recognised that the cumulative effects of discrimination of several kinds should be taken into account in assessing claims of harm for the purposes of an application for a protection visa.[14] The Applicant's case is a case of that kind.
[14] Scat v The Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80.
For the Applicant to satisfy the statutory criteria of a well-founded fear of persecution, it is necessary that he meets the criteria contained in s 5J(1), as attached to this decision, but in summary mean that:
(a)the Applicant fears being persecuted, relevantly for membership of 'a particular social group'; and
(b)there is a real chance that if the Applicant returned to Indonesia, he would be persecuted for that reason; and
(c)the real chance of persecution relates to all areas of Indonesia.
I find that the Applicant is a member of a 'particular social group' should he return to Indonesia now or in the reasonably foreseeable future, as being a man of gay sexual orientation. That characteristic falls within the meaning of a 'particular social group' as described in s 5L of the Migration Act, as attached to these reasons.
I find that the real chance of the Applicant being persecuted, would be for the reason that he is a member of a 'particular social group’ namely, being a gay man.
On paragraph (c) above, I find that the real chance of persecution does relate to all areas of Indonesia. Although there is some evidence in the DFAT 2023 Report that LGBTI status is more readily tolerated in the province of Bali, nonetheless, societal discrimination against the status of the Applicant as a gay man does apply to all parts of Indonesia. I find that the risks of harm to the Applicant I have described above with the cumulative effect of the Applicant being a gay man with a disability would apply to all parts of Indonesia, without effective anti- discrimination laws and enforcement of same which would apply to both of the Applicant’s characteristics.
On application of the requirements of s 5J(4), I find that:
(a)the reason why the Applicant fears persecution is that the persecution is because of his membership of a particular social group, namely being a gay man, and is the essential and significant reason for the persecution that he would face if he returned to Indonesia; and
(b)the persecution that the Applicant would face involves 'serious harm to him’ as I have found above; and
(c)the persecution of him for those reasons does involve systematic and discriminatory conduct.
On paragraph (c) I find that the persecution of the Applicant if he returned to Indonesia now or in the reasonably foreseeable future, would involve, in the main, non-state actors. I find that the persecution of him would be systematic, in the sense that persecution of a gay man is, according to the DFAT 2023 Report, widespread throughout Indonesia because of the societal bias against LGBTI people. I find that it is also discriminatory because of the focus on the sexual orientation of LGBTI people.
In the Applicant’s case, that is compounded by his disability. The discrimination against him will largely be by non-state actors by, in the risk of the Applicant being exposed to poverty by non-government employers terminating his employment, once they realise he is gay, or refusing to employ him because he is gay, coupled with his disability. However, that risk would also extend to government employers, in the absence of a comprehensive anti-discrimination law which would protect people from discrimination, in the Applicant’s case, on the basis of his sexual status as a gay man and as having a disability.

I have given consideration to whether the Applicant would not have a well-founded fear of persecution, because effective protection measures are available to him if he returns to Indonesia now or in the reasonably foreseeable future, under s 5J(2) with the 'effective protection measures' described in further detail in s 5LA. I find that effective protection measures of that kind would not be available to the Applicant. In doing so, I apply the contents of the DFAT 2023 Report that LGBTI individuals face a moderate risk of official discrimination due to national laws that discriminate against them based on their sexuality and due to official attitudes. That applies across Indonesia, although more pronounced in Aceh province.
I find that the most common form of discrimination the Applicant would face, which would amount to a real chance of serious harm would be a non-government employer dismissing the Applicant once the employer finds out that the Applicant is gay, as well as having his disability, or that a prospective employer would not employ the Applicant once the employer finds out that the Applicant is gay, and has a disability.
That kind of discriminatory treatment would not amount to any offence that a Indonesian government authority would take any action about, in the absence of a comprehensive anti- discrimination law that would protect the Applicant against discrimination, with his characteristics of being gay and having a disability.
Finally, on the statutory criteria in s 5J(3), that 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, I find that this exception to a finding that the Applicant is a refugee will not apply. That is because the real chance of persecution relates to his sexual orientation as a gay man, and s 5J(3)(a) does not require the Applicant to modify his behaviour that would conflict with a characteristic that is fundamental to his identity as a gay man. Also, under s 5J(3)(c)(vi), the Applicant is not required to modify his behaviour to alter his sexual orientation or conceal his sexual orientation.
For all these reasons, I find that the Applicant meets the statutory criteria to be a refugee within the meaning of s 5H, and because the Applicant has a well-founded fear of persecution within the meaning of s 5J of the Act.
Under s 36(3) of the Migration Act, Australia is taken not to have protection obligations in respect of the Applicant as a non-citizen who has not taken all possible steps to avail himself of a right to enter and reside in any country apart from Australia. I find that the Applicant does not have a right to enter and reside in any country apart from Australia.
In the application for a protection visa completed by the Applicant, in response to a question about whether the Applicant held or has ever held citizenship or nationality of another country, he answered no. Further, he answered in the negative in response to a question about whether he had a right to enter or reside in any other country. The Applicant gave evidence that another person helped him in completing the application form given his then limited knowledge of the English language. At the hearing, he pointed out some errors in that application form, but not about the questions described in this paragraph. There is no other evidence that he has a right to enter or reside in another country or has any other citizenship or nationality of another country other than Indonesia. He gave evidence that apart from coming to Australia, he had lived nowhere else other than Aceh in Indonesia.
Does the Applicant satisfy the complementary protection criterion for protection?
Having concluded that the Applicant meets the refugee criterion in s 36(2)(a), it is not necessary for me to consider the alternative criterion for complementary protection in s 36(2)(aa).
CONCLUSION
For the reasons given above, I am satisfied that the Applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the Applicant satisfies s 36(2)(a) of the Migration Act.
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.
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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.
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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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