2015651 (Refugee)

2015651 (Refugee) [2024] AATA 1020 (16 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2015651
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Rosa Gagliardi
DATE:16 January 2024
PLACE OF DECISION:  Australian Capital Territory
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 January 2024 at 12:40pm
CATCHWORDS
REFUGEE – protection visa – Indonesia – child born out of wedlock – particular social group – Indonesian unwed mothers from a noble, Muslim family – honour killing – single women – economic independence – single mothers – societal discrimination – unique and exceptional circumstances – best interest of biological child – Ministerial Intervention requested – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 417
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
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 21 October 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Indonesia, applied for the visa on 8 April 2019. The delegate refused to grant the visa on the basis that the decision-maker in the first instance was not satisfied that the applicant was a refugee as defined by s.5H of the Act and was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in s.36(2) of that Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Indonesia there is a real risk she will suffer significant harm as defined in s.36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 8 January 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has a well-founded fear of persecution for reasons set out in s.5J(1) of the Act, and there is a real chance that if the applicant returned to Indonesia now or in the reasonably foreseeable future, she would be persecuted for one of those reasons and/or whether she would suffer serious harm. Alternatively, the Tribunal must assess whether the applicant meets the complementary criteria.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Claims at the time of application
The applicant born in Sulawesi, Indonesia, was asked to provide details as to why she had left her home country. She wrote:
I came in Australia in 2016 as a student, and I don’t know if I was pregnant and no one knew about it. And I never married. 6 months later I gave birth a baby girl (without marriage). But in the beginning I didn’t worry about my self I just worry about the baby’s future, how she grow up without father. So I gave it to FACS (family and community services) for adoption. And I think no one know it in my country. As time goes by, I heard my family know about my baby and they are angry. Some of them said they will kill me if I back home to Indonesia. Because that’s very bad, Very embarrassing even more my family come from nobility and Muslim family.
The applicant was asked whether she had experienced harm in Indonesia and she responded “yes”.
The applicant was asked to give details of such harm, the type of harm experienced, the person responsible for the harm, and why the applicant was harmed. The applicant responded:
When I was a child I have a neighbor was killed because have a scandal. Someone see them have sex and report it to residents. And then the resident kill them straight away. So I was just thinking about my case. It worse than my neighbor case. They are think it will be make a bad luck in that place and very embarrassing. So better they kill people like that. And maybe for me, before residents kill my family will kill me first.
Asked whether the applicant had sought assistance in her country, the applicant responded “No”. She answered, “I do not know who can help me, and no one want to help. Because it dangerous for them. People will blame who ever help me and ostracise them”.
The applicant was also required to indicate whether she had or had tried to move to another part of her home country and she responded, “no”. She stated she was here in Australia so she can’t try to live in other parts of Indonesia. She is worried that if she goes back to Indonesia “they will find me”.
The application form also asked the applicant to explain what she thought would happen to her if she returned to her home country and she responded:
The worst possibility is they will kill me. And another possibility is they don’t allow me back home and even I live in another part of Indonesia I will not live in peace because in Indonesia have a baby without marriage is a very big sin. So they will ostracize, have no friend and hard to (o) anything.
The applicant stated that she thought she would be harmed or mistreated if she returned to Indonesia. She was requested to discuss the type of harm or mistreatment she was likely to experience, the person or persons who would be responsible for the harm or mistreatment, and why these person/s would harm or mistreat her. The applicant answered:
As my experience when I was a child, they will kill people like me because my case is very embarrassing and very big sin, especially for my family because my family come from noble family and Muslim family.
The applicant wrote that she did not think the authorities of her country could or would protect her if she returned to Indonesia because, “Law in Indonesia is very bad, so they will not care about the law, especially my family come from noble family, they can manage it”. She also wrote that she could not relocate because her family was a very large one and they are living in many places in Indonesia so it would be easy for them to find her.
The applicant confirmed that she did not think she could relocate within her country.
Evidence at the time of review
The applicant has submitted evidence of an Order of Adoption in respect of the applicant’s child made [in] October 2018 in favour of her carers.
At hearing the applicant stated that both her parents were deceased and that she was particularly afraid of her brothers who were living in Indonesia. The Tribunal inquired how it was that her brothers came to know of her pregnancy, and she stated that it was most likely her niece, who she had been living with, who advised them.
The applicant stated that she had been living and working in Jakarta with one of the brothers who was also angry with her due to the pregnancy. Asked whether she had had contact with any of her brothers, she responded that she had spoken to a brother last year when her mother had passed away. Otherwise, her brothers had not attempted recently to contact her in Australia, and they had not made any efforts to come and see her in Australia to express their anger or to make threats towards her for falling pregnant out of wedlock.
The applicant expressed concern that due to the shame, her brothers would kill her if she returned to Indonesia.
The applicant in advising the Tribunal of her work history stated that she had worked [in Industry 1] in Sydney and that in Canberra she was also working in [Industry 1]. She was a qualified [Occupation 1], having obtained her qualifications in Indonesia. She had worked in Jakarta for a business company.
The applicant was particularly distressed when recounting that when she had the child she was confused and was concerned that without working she could not support herself and the child and considered her daughter’s welfare to be the most important consideration in adopting her out. Alternatively, she could not have returned to Indonesia with the child as she would have been ostracised and deprived of an ability to make a living. The applicant stated that she had permission to see her child in Australia from time to time and wanted to continue being able to do so as she wanted to have a relationship with her biological daughter.
The Tribunal noted that she had lived in a large city such as Jakarta previously, and while at that time she may have lived with her brother, she had also had experience in Australia working in an international environment at a well-known [Industry 1 business] in Sydney. The Tribunal noted that the applicant had acquired specific skills and together with her [Occupation 1] qualifications and work experience in Jakarta, it was not far-fetched that she would be able to rebuild her life in her own country, working to sustain herself in Jakarta independent of her brothers or other relatives. Furthermore, Jakarta being a large city had exposure to Western cultures and her circumstances as a single woman would not be such an anomaly there. The applicant stated that she had relatives in Jakarta, and she would be found wherever she went in Indonesia. Furthermore, she would be ostracised from her family, and she would have to suffer societal opprobrium on return to either Sulawesi or Jakarta.
FINDINGS AND REASONS
The applicant claims she is a member of a particular social group (Indonesian unwed mothers from a noble, Muslim family).
The country information does demonstrate that an honour killing has occurred in Indonesia, although they have been rare. The first and only reported such killing occurred in Sulawesi, in 2020 in the applicant’s birthplace. The case garnered widespread attention:
Two Indonesian brothers will go on trial next month for the murder of their teenage sister in a so-called honour killing, police said on Tuesday, a rare case in the country that has prompted calls for action to protect women and girls.
The men are accused of killing the 16-year-old girl by attacking her with a machete and a wooden stick because they believed she had had sex outside marriage with a cousin, according to the police in the Bantaeng Recency of Sulawesi island.
If convicted of premeditated murder, the brothers – aged 20 and 30 – could face the death penalty. “The trial is expected to start in early July,” local police chief Wawan Sumantri told the Thomson Reuters Foundation by phone.
“The investigation showed the motive…was due to the family feeling ashamed” he said earlier, adding that the case has forced the remaining family to leave their home in the area due to the rejection of the local community.
So-called honour killings, which are more common in some parts of the Middle East and South Asia, are extremely rare in Indonesia, a Southeast Asian archipelago of 260 million people.
The United Nations estimates about 5,000 women are killed each year by family members over perceived damage to “honour” that can involve having a boyfriend, seeking a divorce or behaving in a way that is seemed inappropriate.
Socially conservative Indonesia has the world’s eighth-highest number of child marriages, according to the U.N data, and the Bantaeng Regency case has sparked calls for public education campaigns to help end traditional practices that harm women and girls.
“The victim must be given justice”, said Behka Ulung Hapsara, at Indonesia’s National Commission on Human Rights, a government-backed body.
“Local government and law enforcement officials must provide public education about existing traditions and eliminate them”, he added. [1]
[1] ‘Indonesian brothers may face death for ‘honour’ killing of schoolgirl sister’, Randy Mulyanto, 2 June 2020, Reuters, Indonesian brothers may face death for 'honour' killing of schoolgirl sister | Reuters.
Another article corroborates the event in 2020, stating that the honour killing of the sixteen-year-old girl was the first recording of such an event.
A 16-year-old schoolgirl became the first reported victim of an honor killing in Indonesia after admitting to her brothers she was dating, confirming fears that a harsher brand of Islam is on the rise in the world’s largest Muslim country.
The two brothers beat and hacked Rosmini bine Darwis to death with a wooden log and a machete, a tragic murder, as her family watched on.
This type of killing is normally associated with Pakistan, Afghanistan, and countries of the Middle East, prompting a warning from psychologist Alissa Wahid, director of Gusdurian Network Indonesia, that there was a tendency toward ultraconservatism based on “primordial values”.
“This is what’s worrying. It may not be in the form of killing, but nonetheless it is dangerous to well-being, especially for daughters”, she said.
Excuse me?
The problem for Indonesians and Alissa – whose father is the later former president Abdurrahman Wahid – is that Islam is not primordial in Indonesia. Islam was introduced gradually to sea trading posts along the archipelago, an area where history can be traced to beyond the last ice age, and most of the country was still animist 400 years after Mohammad had passed.
Jakarta desperately needs to nip this in the bud before copycats and zealots decide this type of slaughter is the new normal. Associating such killings with ultraconservatism or primordial values is wrong, too, as it lends a veneer of religious acceptability to the crime and downplays the horrific torture which Rosmini endured. She had been sick, was living in a COVID-19 lockdown when her cousin – who she was secretly dating – visited.
The family accused the cousin, Usman, of using black magic and casting a spell on her and this explained why she was ill, vomiting and fainting. They had even sent her to a shaman instead of a doctor.
Usman said they were dating and fled with the brothers, both farmers, in pursuit.
…..
Unable to catch Usman, brothers Rahman and Surianto cornered a neighbour and attempted to force him into marrying Rosmini, a girl who police described “a good daughter who gave family no trouble”, and was generally well-treated.
The neighbour refused, and unwittingly sealed her fate.
Rahman and Surianto took the neighbor and the rest of the family into a room where Rosmini was brutally killed. Photos of her blood soaked corpse were taken and loaded onto the Internet.
….
Human Rights Watch believes this is the first recorded case of an “honor killing” in Indonesia and the United Nations says there are about 5,000 of them around the world each year and nearly all go unreported.
Rosmini’s case will be closely watched as it works through a court system that is far from perfect and the judiciary must be seen to be doing its job fairly.[2]
[2] ‘Indonesia Records Its First Honor Killing, A schoolgirl was reportedly hacked to death after admitting to dating”, Luke Hunt, 3 June 2020, the Diplomat, Indonesia Records Its First Honor Killing – The Diplomat.
The Tribunal would argue that while the interlocutor above does not accept that ultra-conservatism plays a part in attitudes towards women, the need to control women can to some extent be dictated by religious beliefs. The Human Rights Watch Submission to the Committee on the Elimination of Discrimination against Women, Review of Indonesia – 78^th Pre-Sessional Working Group June 2020, refers:
In June 2014, Education Minister Mohammad Nuh issued a regulation that, while ambiguously worded, implied that all female Muslim students, from grades 1 to 12, must wear a hijab as part of their school uniform. Many government officials and schools have interpreted the regulation that way. Currently, most of Indonesia’s almost 300,000 public schools, particularly in the 24 predominantly Muslim provinces of a total 34 provinces, require Muslim girls to wear the hijab beginning in primary school.
Some provinces and regencies have introduced local rules that force even non-Muslim girls to wear hijabs, such as West Sumatra and Aceh on Sumatra, and Yogyakarta and Banyuwangi on Java.
Human Rights Watch opposes both forced veiling and blanket bans on the wearing of religious dress as disproportionate and discriminatory interference with basic rights.
Aceh is the only one of Indonesia’s 34 provinces that can legally adopt provincial bylaws derived from Sharia (Islamic law). Since those bylaws went into effect in 2001, Human Rights Watch has documented human rights abuses linked to enforcement of Sharia-inspired bylaws prohibiting adultery and imposing public dress requirements on Muslims.
….
Aceh’s so-called Sharia police have interpreted the broadly worded Sharia-inspired adultery law to prohibit merely sitting and talking in a “quiet” space with a person of a different sex to whom one is not married or related – even without any evidence of intimacy. Human Rights Watch has documented such abuses as aggressive interrogation, conditioning the release of suspects upon their agreement to marry, and, in one case, the Sharia police’s rape of a woman during her detention.
Aceh’s 2014 bylaws, called the Principles of the Islamic Bylaw and the Islamic criminal code (qanun jinayah), also created discriminatory offenses that do not exist in Indonesia’s national laws. The bylaws extend Sharia to non-Muslims and criminalize consensual same-sex sexual acts as well as all zina (sexual relations outside of marriage). The criminal code permits as punishment up to 100 lashes and up to 100 months in prison for same-sex sex acts, while zina violations carry a penalty of 100 lashes.
Another challenge is the proposed new criminal code now being deliberated in the Indonesian parliament. It contains articles that would violate the rights of women, religious minorities, and lesbian, gay, bisexual, and transgender (LGBT) people, as well as freedom of speech and association.[3]
[3] ‘The Human Rights Watch Submission to the Committee on the Elimination of Discrimination against Women, Review of Indonesia – 78^th Pre-Sessional Working Group June 2020, INT_CEDAW_ICO_IDN_42462_E.docx.

Given the country information above, the Tribunal accepts, that whilst recorded honour killings are rare, there has been a reported case in Sulawesi in the applicant’s birthplace and that the applicant has a subjective fear of returning to that area because she fears her brothers or other family members, or indeed the state (through Sharia law), might cause her serious harm due to her bearing a child out of wedlock.
While the Tribunal has considered whether the applicant would return to Sulawesi her birthplace where she would be living in a more rural and conservative environment, the Tribunal is required to consider the place or places the applicant is likely to return to in her home country.[4] This is so because it is not uncommon for people to have lived in more than one place for various reasons such as work and for persons who may have no identifiable home area. [5] The Tribunal can only engage in the assessment of the question of reasonableness of relocation and the concept of relocation (as expressed in the complementary provisions) where an applicant would be returning to a place that is new or unfamiliar location for the applicant. [6]
[4] CRI028 v The Republic of Nauru [2018] HCA 24.
[5] Ibid.
[6] Ibid.
The Tribunal has considered the applicant returning to a city like environment such as Jakarta, where she has previously lived and worked in business, and whether she has a well-founded fear of persecution due to her membership of a particular social group (Indonesian unwed mothers from a noble, Muslim family) were she to return there now or in the reasonably foreseeable future. The Tribunal accepts that living in rural areas limits women’s work opportunities and indeed it is probable this would have been the reason she moved to Jakarta initially, albeit she claims she was living there with her patriarchal brother.
Even accepting that the applicant might have some male siblings in Jakarta, the Tribunal is not persuaded that the applicant could not live there as a single professional woman. As the Tribunal put to the applicant at hearing, given the size of Jakarta (Jakarta’s 2024 population is now estimated at 11,436,004 [7] and is the world’s second largest agglomeration [8]) and the fact that her brothers have made no significant attempts to contact her in Australian even if they could do so via her niece, would indicate that there is not a real chance that the applicant would face serious harm on account of her membership of a particular social group (Indonesian unwed mothers from a noble, Muslim family) were she to return to Sulawesi or Jakarta where the applicant has lived and worked and where attitudes to living outside marriage have changed. The study below examines the life of six young, single women in Jakarta:
[7] ‘Jakarta Population 2024’, Jakarta Population 2024 (worldpopulationreview.com).
[8] ‘Jakarta: A city of cities’, Rafael Martinez and Irna Nurlina Masron, November 2020, Jakarta: A city of cities - PMC (nih.gov).
Modernity, lifestyle, and technology
Indonesia has undergone meaningful transformation, especially in Jakarta. Rosel (2012) mentioned the vast growth of economic activity stimulates urbanisation, bureaucratisation, democratisation, gender equality, higher education, and job opportunity.
Moreover, the modernisation in society also leads to social transformation (Rosel 2012). These changes generate a transformation at the psychological level, including increased personal efficacy, greater financial independence, self-independence, quality of gender, distancing from traditional beliefs and acceptance of global culture (Hamamura, 2011). In addition to this, Chang (2020) suggested changes in economic and political systems as well as social and cultural norms could also be happening in an extremely condensed manner…

Lifestyles
The findings suggest that these single women feel content with their life. They have positive self-concepts such as being aware of their potential, having confidence, achieving personal goals, and continuing to self-improve. They have professional careers, allowing financial independence and stability. Some are even able to support their parents and siblings. The old saying of ‘men should go to work, and women should stay home’ is not applied to these women….
All of them love travelling within Indonesia and overseas (not only in Asia but also Australia and Europe) at least two or three times a year…
…
This study shows that personal preferences on the option of delaying marriage, or to not marry at all, is part of the freedom these women have embraced.
….
Their acceptance towards premarital sex and cohabitation is increasing and their view of procreation is changing to less children, not having one, or put adoption as an option…

Indonesian Singles as a Target of Stigma – “perawan tua” (Old lady with cats/spinster and their Coping Mechanisms
Social and familial pressure to get married remains strong in Indonesian culture. Singlism was born out of the idea that traditionally Indonesian women had the expectation to focus on the domestic sphere and bearing children. The stigma of being single is not as strong as in the past, though it is still happening. Despite this, all respondents are open about heir unmarried status and do not feel ashamed of it…
Although the respondents themselves feel comfortable with their decisions regarding marriage, singleism produces the negative effect of invasive and awkward questioning regarding the status of having a spouse or children. These moments challenge the respondents’ lifestyle choices differing from the unspoken status quo and may even lead to interpersonal conflicts. These conflicts often include friends, coworkers, and family…[9]
[9] ‘Modernisation and singlehood in urban Indonesia: A study of six single millennial women in Jakarta’, Rizqi Amalia, Department of Sociology Faculty of Social and Political Sciences, Universitas Indonesia, 2021, pnggw_14_31.pdf (kyoto-u.ac.jp).
The Tribunal is cautious in adopting the findings of the above study which involved a particularly small sample of women. Nonetheless, the principles that economic freedom and globalisation in an urban context in Indonesia, have created changes to attitudes regarding women living as divorcees or single women, are relevant even though marriage is considered among many Indonesian people to be “the most desirable state adults can attain”.[10] In relation to single mothers the Tribunal notes that while the country information referred to by the Tribunal is somewhat dated, single mothers in Indonesia have reported being rejected by friends and colleagues and having experienced “cruel social judgement” after falling pregnant out of wedlock.[11]
[10] ‘Do unmarried women (single mothers) face discrimination in Indonesian society – for example, in relation to employment, support, accommodation or social services?’, Country Advice, Australian Government, Refugee Review Tribunal, Indonesia – IDN37051-Women-Single mothers- Children-Female-headed household-Employment’ 21 July 2010, 4f4b82cc2.pdf (refworld.org).
[11] ibid.
The Tribunal accepts that the applicant may experience some challenges and alienation because of returning as an unmarried woman even in in an urban centre such as Jakarta, however, the Tribunal is not satisfied that such challenges equate to persecution or serious harm. The applicant was permitted to gain a qualification in Indonesia indicating that she was given an opportunity to achieve economic independence and to self-actualise. Moreover, the applicant was able to come to Australia to study where it would have been evident to her family supporting her from Indonesia, that the applicant would encounter radically different cultural and diverse religious values, and that she would be exposed to a Western approach to relations between men and women. The Tribunal therefore is not satisfied that beyond the applicant’s own subjective fear she faces a real chance of persecution in Indonesia by her brothers or the state were she to return to cosmopolitan Jakarta as a single woman. Based on the country information, the Tribunal finds that the applicant does not have an objective fear of serious harm.
The Tribunal accepts that single mothers (as opposed to single women) may be viewed as a disgrace to their families and single mothers have experienced difficulties in finding employment, with some employers simply stating that “they don’t accept single mothers”.[12] The applicant will not be returning to Indonesia to either Sulawesi or Jakarta as a single mother as her child will be in Australia in the care of her adopted parents. Were the applicant to host her biological child in Jakarta for a holiday, for example, the Tribunal is not satisfied that the country information would point to her being seriously harmed by her family members or the state as she could remain relatively anonymous there and for a while the child would be accompanied by her adoptive parents.
[12] Ibid.
In its decision the Department expressed doubt that the applicant’s family in Indonesia had heard that the applicant had become pregnant without being married. The Tribunal does not consider this a remote proposition, however, particularly as the applicant has/had a niece in Australia to convey information to the applicant’s brothers in Indonesia. It is entirely plausible that the applicant’s family came to know of the pregnancy in Indonesia, particularly as the applicant at hearing claimed that her niece was supporting her during the birth of her child. The Tribunal also accepts that the applicant’s brothers feel ashamed of her and may ostracise her from the family and continue to hold some animosity towards her.
The Tribunal does not accept, however, that with the distance of time the applicant’s family will continue to have any interest in where the applicant might be living or working if they are seldom in contact with her (only her brother letting her know that her mother had passed away) to inflict serious harm or even kill her. The Tribunal rejects this proposition. The applicant adopted out her child in 2018, some five years ago now and the Tribunal rejects that the applicant is now, or will be in the reasonably foreseeable future, of adverse interest to her family on whom it appears she is not relying on financially or for any other purpose.
The Tribunal rejects that the applicant on returning to Indonesia would face a threat to her life or liberty, would face significant physical harassment; significant physical ill-treatment; significant economic hardship that threatens the applicant’s capacity to subsist; denial of access to basic services, where that denial would threaten the applicant’s capacity to subsist; and/or that she would be denied the capacity to earn a livelihood of any kind, where the denial threatens her capacity to subsist on account of being a single unwed mother.
The Tribunal finds that the applicant would be able to return to Jakarta where she would be able to live her life as a single woman without fear of her brothers or the state, even though the Tribunal acknowledges that the applicant might face some societal discrimination for not being married and for living as a single woman. On the other hand, the applicant has proven to be resilient in Australia as she has been able to find work in this country; work which entails transferrable skills, particularly in a large metropolis such as Jakarta where [Industry 1] workers would be in demand.
In addition, the applicant has also had to face the situation where she felt she had no other choice but to adopt out her child and it appears she faced this significant loss with very little support in Australia, indicating the applicant is able to face life’s general trials in finding work as a single female, for example, particularly as the Tribunal has not found evidence of the state targeting single females and preventing them from working.
The Tribunal therefore finds that the applicant will not suffer serious harm for membership of any particular social group (Indonesian unwed mothers from a noble, Muslim family) or for being a single woman, or for any other reason under s.5J(1)(a).
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).
Complementary protection
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 has considered whether 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 she will suffer significant harm. In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the definition.
Having found that the Tribunal is not satisfied that the applicant is of interest to her family or the state on account of her membership of a particular social group ((Indonesian unwed mothers from a noble, Muslim family), or for being a single woman, and that there is no real chance that the applicant will face persecution for any reason, it follows that the Tribunal is not satisfied that there are substantial grounds for believing that, a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia, there is a real risk that the applicant will suffer significant harm. Based on the evidence, the Tribunal does not accept that the applicant will be arbitrarily deprived of her life; or the death penalty will be carried out on her, or that she will be subjected to torture; or will be subjected to cruel or inhuman treatment or punishment; or she will be subjected to degrading treatment or punishment.
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 the criterion in s 36(2).
Ministerial Intervention for consideration
The Tribunal has identified that the applicant’s circumstances may fall within the Minister’s intervention guidelines as provided for in s.417 of the Act.
Unique and exceptional circumstances
The Minister’s guidelines state that the types of cases that should be brought to the Minister’s attention are those that raise unique and exceptional circumstances.
As requested by the Tribunal, the applicant has submitted a copy of the Court orders and conditions upon which the adoption of her daughter occurred. These conditions include:
·That information about the child be sent to the applicant by the adoptive parents.
·In relation to the information exchange, she would like to write and send gifts and photographs to her child and the adoptive parents, and that open, flexible, regular exchanges occur via email and text.
·Ongoing meetings and/or skype 12 times each year (12 being the minimum) and other times to be negotiated, such as Ramadan (end of) while the applicant is living in Australia.
·Phone calls as often as possible.
·Adoptive parents travel to visit the applicant in Indonesia if she is living there and if they are not able to, adoptive parents consider allowing the applicant to take the child on holiday when she is older.
The agreement also provides for the applicant to change her requests by contacting the adoptive service.
Should the applicant be required to go offshore as a result of this decision, it is clear that in-person contact which the applicant is currently permitted with her biological child will be reduced significantly and the child’s ability to develop a meaningful relationship other than by communications media will be reduced significantly. It could be argued that it would be in the best interests of the child to be able to continue to meet with her daughter as requested in person given the mental anguish the applicant has experienced in having to adopt her out. Furthermore, the applicant is now approaching her late [age range] and it is not clear she will have the opportunity to have any further children.
The Tribunal is moved to present this case to the Minister in the event it is appropriate to intervene.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rosa Gagliardi
Member

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.
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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.
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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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[2024] AATA 1020

16 January 2024

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