2015106 (Refugee)

This matter concerned an appeal by an Indonesian national against a decision of the delegate of the Minister for Home Affairs to refuse her application for a Protection visa. The applicant arrived in Australia in May 2011 and subsequently claimed protection, alleging she left Indonesia due to her disagreement with the government's policy on refugees and fearing harm if returned. Her claims evolved to include an alleged deliberate vehicle accident in 2011, orchestrated by a former classmate who had been rejected by her, and fears of sexual harassment and lack of protection under Indonesian law, particularly during the COVID-19 pandemic.

The primary legal issues before the court were whether the applicant met the criteria for a Protection visa under section 36(2)(a) of the Migration Act 1958 (Cth) (the Act) by establishing a well-founded fear of persecution, or alternatively, whether she met the complementary protection criterion under section 36(2)(aa) of the Act, meaning there was a real risk of significant harm as a necessary and foreseeable consequence of removal to Indonesia. The court was required to consider the applicant's claims regarding the deliberate vehicle accident, the alleged perpetrator's hostility, and her fears concerning sexual harassment and the Indonesian authorities' capacity to protect her.

The court affirmed the delegate's decision, finding that the applicant had not established a well-founded fear of persecution. The delegate had noted that the applicant had lived in Indonesia for several years after the alleged incident without apparent issue and had returned to Indonesia in 2017 and 2018 without apparent problems, undermining the claim that a former classmate was hostile and caused the accident. Furthermore, the delegate found no evidence that the applicant would come to the attention of Indonesian authorities or be at risk for her views on refugee policy, especially as she had not provided further details when requested. Regarding complementary protection, the delegate assessed that the applicant lacked a significant profile that would attract attention from state or non-state actors, and therefore, she would not face a real risk of significant harm upon return.

The court concluded that Australia did not have protection obligations towards the applicant under either section 36(2)(a) or section 36(2)(aa) of the Act. Consequently, the delegate's decision to refuse the Protection visa was affirmed.