Background
Background to the litigation
For the following reasons, the Tribunal affirms the decision under review.BACKGROUNDProcedural background The Applicant is a [Age]-year-old Indonesian female who was born in [Year] in Palu, the largest city of Central Sulawesi Province in Indonesia. [In] December 2018, the Applicant (then [Age] years old) arrived in Australia, by plane, using her Indonesian passport and as the holder of a Visitor FA-600 visa (tourist stream). On 3 February 2019, the Applicant applied for a Protection XA-866 visa and, on 15 February 2019, the Applicant was granted a Bridging visa A (BVA), because of her protection visa application (PVA), and she remains on a BVA currently. On 26 June 2020, the Applicant’s PVA was refused by a delegate of the Minister (Refusal Decision) and the Applicant was notified by the Department of Home Affairs (Department) of the Refusal Decision accordingly. On 4 July 2020, the Applicant applied to the Administrative Appeals Tribunal (AAT) for review of the Refusal Decision. The AAT was abolished on 14 October 2024 and replaced with the Administrative Review Tribunal (ART), established by the Administrative Review Tribunal Act 2024 (ART Act). The Refusal Decision automatically transferred from the AAT to the ART, for review, at the commencement of ART: Part 5 of Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024.Claims in the PVA before the delegate of the Minister A summary of the claims made by the Applicant in her PVA, which was before the delegate of the Minister in making the Refusal Decision, is as follows:· She left Indonesia as she was fleeing recurring natural disasters, travesties and devastation no matter where she went in Indonesia, such as “likuefaksi’s”, earthquakes and tsunamis;· Poor health situations which resulted from these natural disasters caused the spreading of diseases for which there were no resources to contain or treat. The Indonesian government could not do anything;· The harm she experienced in Indonesia was not only limited to traumatic experiences, such as witnessing entire villages being wiped out, but also being subjected to poverty;· She also suffered physical harm from being left in the elements after the natural disasters as there was no shelter;· Due to the number of people requiring help because of the natural disasters, the Indonesian government was unable to supply appropriate aid to support the people affected. The Indonesian government needed help from other countries to provide housing and to rebuild everything;· She moved from her hometown of Palu to Bali, only to encounter another earthquake. It was then she knew that wherever she travelled in Indonesia she would be subject to such travesties;· If she returns to Indonesia, and does manage to survive, she will be subjected to a life of poverty due to insufficient resources. She will not be able to rebuild and maintain life afterwards due to the “life sentence of poverty”. If she is lucky enough to find employment, she will have to endure “poverty pay rates”;· If she returns to Indonesia, although no one person is likely to intentionally subject her to harm, due to the lack of government resources available to survive the elements, she is unlikely to survive the many travesties that will most definitely occur if she returns to Indonesia;· The Indonesian government does not offer sufficient resources for general survival to its people after natural disasters; and· Relocation within Indonesia is an option she pursued multiple times but was always greeted with the “same aftermath of destruction and despair from the rapid path of natural disasters that followed [her] around the country”: PVA at pp 18-20 and Refusal Decision at pp 1-2.Delegate’s Refusal Decision
Evidence
Evidence Before The Court
At the commencement of the hearing, the Tribunal explained, among other things, the following to the Applicant:· why she was invited to attend the hearing and the purpose of the hearing;· that the Tribunal is independent of the Department in making its decision on review; · the criterion in the Migration Act for refugee and complementary protection; · the evidence to be considered by the Tribunal;· how concerns the Tribunal has about any of her evidence will be addressed;· whether she could understand the interpreter and the role (and confidentiality) of the interpreter;· the confidentiality of the hearing; and · that she should ask the Tribunal for a break, as required.Evidence before the Tribunal In the Pre-hearing information form, dated 9 December 2024 (Pre-hearing Information Form), under the heading “Claims for protection” and, in response to the questions “Do you want to give any more information about your claims for protection?” and “are there any other reasons why you are afraid to return to your home country?” the Applicant stated:Back in 2018 there are disaster happened in pau Central Sulawesi called Tsunami Earthquake and Liqufaction (sic.), and we lose everything me and my Family Member we got no House to living we just stay in Refugee camp which is very poor, air, water and food low access[s], than the local government not really help everyone to survives, so i make protest to agains[t] the government I am afraid to return to Indonesia because of my political beliefs, i have been involved in peaceful protests against the government policies particularly regarding to the freedom of reestriction (sic.) about how they manage the freedom of speech and recently changes the laws how to helping people after disaster i need to support my family to live in, the on going treath and trauma i have experiences in indonesia have taken significant toll in my mental Health. i continue to suffer from anxiety and fear for my life which is impossible for me to return to my country with out significan risk of harm both physical and psychology Extracted, in part, below are pre-hearing written submissions, dated 4 July 2020, provided by the Applicant in support of her review application to the ART (Pre-hearing Written Submissions):Family BackgroundMy father was [occupation 1], he had loan in the bank during disaster happen in my home town are tsunami, liquefaction, and earthquake destroyed all the facility in there, also we don’t have house anymore my father doesn’t have money to renew our house, the government relocated us to move in camp but its hard to stay there with a thousand people limited water, sanitary, food and everything was change. A year after earthquakes and tsunami waves pummelled the city of Palu in Indonesia’s Central Sulawesi province, more than 57,000 survivors are still homeless and tens of thousands more are waiting for help to rebuild. Until now the government not building the house yet, life so hard for me when I was hear my father gonna go to in jail if he didn’t payed the loan in the bank and in other place, his income not enough to pay back the loan, bill and rebuilding the house. As we know indonesian have a million of population even we work in [occupation 1] the salary still not enough. Im the olders because I have [youngers] I need to look after my parents. Not only because of disaster was happened I had mental problem until now I have been not merry yet because I thing iam lesbian which is mean I don’t like man, I couldn’t said the truth. My parents will feel shamed because we are muslim we supposed to follow the rule, how can be I make another problem again in the other hand in indonesia we not allow to have same partner That’s the first things why I should move In Australia. I can’t be a good muslim because sometimes I open my hijab, I need a freedom That’s the first things why I should move In Australia.Problems you had in your countrySo many problem I had in my country are politic, etnic, rasis, religion. I was decided to made decision to leave my country because I would like to got my freedom, earn money to help my parents. Where ever I move to another place no one will accept me because of my religion, my etnic, my big family doesn’t allow be like that they will bullying us, people talk bad, and of course my mom gonna kill me. Also the community of jammah islamiah won’t me to have same partner. I can’t ask for help from the authorities or police in my country they will thing im wrong, and my father already has so many loan couldn’t be able to pay for the police, how do you I fell if something happened with my father. He will get punishment from the government such a thing like cut down or quit the job something like that. However I cant ask help from them. is a real risk will I suffer significant harm on me return to Indonesia.When and why I left my countryIn my country so many poor people they sell the daughter for having money just to life because are disaster, loan, jobless, homeless, . I wont be like that especially I had a mental trouble like LGBT, LGBT rights in Indonesia have been deteriorating. Unfortunately, the legal situation for LGBT people in Indonesia is only getting worse, not better. It is sad to have to start with this statement, but despite huge steps being taken in many countries, Indonesia’s anti- LGBT measures become increasingly draconian. I was decided to leave my country because I would like to help my family and also to help my self from the harm and risk. I used the passport to come here, Im did not payyed a bride because easy to come to Australia just for holiday. I didn’t choose to go to another country because I knew it if Australia is a good country to live, no rasis, the people in here was so very kind. Australian government so straight which is good for people can look after her self. I have been stay here for while but I fell freedom. No one will angry if I open my hijab, no one will bullying me if Im looking for same gender, I get visa by my self, I didn’t have difficulty at the border control because I came in the right way.Do you have a right to visit or stay in another country? Would you face any risk of harm in that country?I don’t have valid visa to move another country also because of this pandemic Covid 19. I wont go any place. i don’t have idea where should I go, in Australia I have friend, I can work like normal people with out discrimination. Please help me with my situation now. I cant just leave Australia I had loan, I was rent the house and im still work.My FearsI will describe my fears first thing if I return to Indonesia we don’t have money to renew the house and pay the loan the police gonna bring my father going to jail, my mother will thing better for me to get merried and ask money from son in law, how can I do that if Im not interested with the man, he will unsatisfied directly he hit me. If my family know also im LGBT they will give me whip, and Pasung Is the Indonesian Practice of Shackling and Imprisoning the Mentally Ill. The religious community will harm me like muhammadiah, jamah islamiah, human right government, parlement, and Lawmakers in Indonesia are pushing legislation that would force LGBTQ people into government-sanctioned rehabilitation centers to “cure” them of their sexual orientation or gender identity.Last month, three lawmakers in Indonesia's House of Representatives introduced a draft of what is known as the “Family Resilience Bill.” The legislation would force gay, lesbian, bisexual and transgender people to undergo rehabilitation at a series of religiously-based treatment centers that would hypothetically be opened across the conservative archipelago. If they do not readily submit to rehabilitation, their family members would be compelled to report them. Its really real risk I will suffer the significant harm include the death penalty, being killed, torture , cruel and inhuman treatment or punishment and degrading treatment or punishment. I can stay in Australia without thing about risk and harm because the government of human right was good, people here also friendly. Until now im still single because I really look after my self. Last statement please help me to live in here, I wont go back to Indonesia I need to pay my rent, I need to work as well, I need to pay my loan also in Australia thank you very much.(emphasis added)
Decision
Reasons for decision
A summary of the claims made by the Applicant in her PVA, which was before the delegate of the Minister in making the Refusal Decision, is as follows:· She left Indonesia as she was fleeing recurring natural disasters, travesties and devastation no matter where she went in Indonesia, such as “likuefaksi’s”, earthquakes and tsunamis;· Poor health situations which resulted from these natural disasters caused the spreading of diseases for which there were no resources to contain or treat. The Indonesian government could not do anything;· The harm she experienced in Indonesia was not only limited to traumatic experiences, such as witnessing entire villages being wiped out, but also being subjected to poverty;· She also suffered physical harm from being left in the elements after the natural disasters as there was no shelter;· Due to the number of people requiring help because of the natural disasters, the Indonesian government was unable to supply appropriate aid to support the people affected. The Indonesian government needed help from other countries to provide housing and to rebuild everything;· She moved from her hometown of Palu to Bali, only to encounter another earthquake. It was then she knew that wherever she travelled in Indonesia she would be subject to such travesties;· If she returns to Indonesia, and does manage to survive, she will be subjected to a life of poverty due to insufficient resources. She will not be able to rebuild and maintain life afterwards due to the “life sentence of poverty”. If she is lucky enough to find employment, she will have to endure “poverty pay rates”;· If she returns to Indonesia, although no one person is likely to intentionally subject her to harm, due to the lack of government resources available to survive the elements, she is unlikely to survive the many travesties that will most definitely occur if she returns to Indonesia;· The Indonesian government does not offer sufficient resources for general survival to its people after natural disasters; and· Relocation within Indonesia is an option she pursued multiple times but was always greeted with the “same aftermath of destruction and despair from the rapid path of natural disasters that followed [her] around the country”: PVA at pp 18-20 and Refusal Decision at pp 1-2.Delegate’s Refusal Decision The Department did not invite the Applicant to attend an interview or to provide further information or documentation in support of her claims for protection. Instead, the delegate of the Minister proceeded to make the Refusal Decision based on the information and documentation on the Department’s file and relevant country information on Indonesia. As stated above, on 26 June 2020, the delegate of the Minister made the Refusal Decision. A summary of the delegate’s findings in the Refusal Decision is as follows.Refugee protection criterion - s 36(2)(a) of the Migration Act The delegate of the Minister found that the Applicant’s claims do not relate to any of the refugee protection reasons in s 5J(1)(a) of the Migration Act such that the delegate was not satisfied that there is a “real chance”, that if the Applicant returned to Indonesia, she would suffer “serious harm” for one or more of those reasons.
Ratio Decidendi
Legal Principle Established
Accordingly, the delegate was not satisfied that the Applicant is a “refugee”, as defined in s 5H(1) of the Migration Act and, it follows, was not satisfied that that the Applicant is a person in respect of whom Australia has refugee protection obligations under s 36(2)a) of the Migration Act.Complementary protection criterion - s 36(2)(aa) of the Migration Act The delegate found that the harm claimed by the Applicant if she is returned to Indonesia (i.e. harm from natural disasters and being subjected to poverty) is not “significant harm”, as defined in s 36(2A) of the Migration Act and that there is no “real risk” that the Applicant will suffer “significant harm” if returned to Indonesia. Consequently, the delegate was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Indonesia, there is a real risk the Applicant will suffer significant harm and, it follows, the Applicant is not a person in respect of whom Australia has complementary protection obligations under s 36(2)(aa) of the Migration Act.Hearing before the Tribunal The Applicant appeared before the Tribunal (Perth Registry) on Thursday 6 March 2025 at 9.30am (AWST), unrepresented, and gave evidence under oath. The hearing was conducted with the assistance of an interpreter in the Indonesian and English languages. At the commencement of the hearing, the Tribunal explained, among other things, the following to the Applicant:· why she was invited to attend the hearing and the purpose of the hearing;· that the Tribunal is independent of the Department in making its decision on review; · the criterion in the Migration Act for refugee and complementary protection; · the evidence to be considered by the Tribunal;· how concerns the Tribunal has about any of her evidence will be addressed;· whether she could understand the interpreter and the role (and confidentiality) of the interpreter;· the confidentiality of the hearing; and · that she should ask the Tribunal for a break, as required.Evidence before the Tribunal In the Pre-hearing information form, dated 9 December 2024 (Pre-hearing Information Form), under the heading “Claims for protection” and, in response to the questions “Do you want to give any more information about your claims for protection?” and “are there any other reasons why you are afraid to return to your home country?” the Applicant stated:Back in 2018 there are disaster happened in pau Central Sulawesi called Tsunami Earthquake and Liqufaction (sic.), and we lose everything me and my Family Member we got no House to living we just stay in Refugee camp which is very poor, air, water and food low access[s], than the local government not really help everyone to survives, so i make protest to agains[t] the government I am afraid to return to Indonesia because of my political beliefs, i have been involved in peaceful protests against the government policies particularly regarding to the freedom of reestriction (sic.) about how they manage the freedom of speech and recently changes the laws how to helping people after disaster i need to support my family to live in, the on going treath and trauma i have experiences in indonesia have taken significant toll in my mental Health. i continue to suffer from anxiety and fear for my life which is impossible for me to return to my country with out significan risk of harm both physical and psychology