2015913 (Refugee)

2015913 (Refugee) [2024] AATA 4401 (1 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2015913
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Patricia Tyson
DATE:1 October 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 01 October 2024 at 10:44am
CATCHWORDS
REFUGEE – Protection Visa – Indonesia – failed to settle a big outstanding debt owed to a money lender – fear of harm from money lenders – confusing evidence about when they began planning to leave Indonesia – delay between being issued a visa and departing Indonesia – not satisfied the applicant will face a real risk of significant harm – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 56, 65, 499
Migration Regulations 1994, Schedule 2
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
BACKGROUND TO THE REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 October 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants are a husband and wife who claim to be citizens of Indonesia. They applied for the visas on 22 October 2019. The delegate refused to grant the visas on the basis that the applicants are not persons in respect of whom Australia owes protection obligations.
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.
CLAIMS AND EVIDENCE
In the application form, the applicant husband set out the following claims for protection:
·The applicant claims he left Indonesia because he failed to settle a big outstanding debt owed to a money lender.
·He was late paying monthly repayments. The gangster of the money lender harmed his siblings and close family, ruining his life and he lost his good relationship with them.
·Other family members could not afford to help his financial problem, they come from poor families.
·If he returns the gangster of the money lender will continue to use violence as they did to him and his family members.
·Authorities will not be able to protect him because it involves personal matters.
·The applicant is unable to relocate. He does not want his current location known because the accomplice of the money lender will continue to harass, beat and extort him and his family members.
The applicants were not invited to an interview with a delegate of the Minister for Home Affairs. However, on 24 September 2020 they were sent a request inviting them to provide further information regarding their claims about what happened in Indonesia, including dates and locations of events, and details or documentary evidence relating to those matters. The letter requested that if they were unable to provide more information about their claims or copies of documents, they provide a detailed explanation of why they cannot provide them. The applicants provided a response to this request. The applicants apologised for not being able to provide the required documents and said it was because they did not bring documents related to their case because they were afraid of being arrested while trying to run away. They have severed ties with their family for safety and cannot contact their family. They did not lodge a police report before fleeing for fear of being known by the thugs and them harassing their family.
The applicants appeared before the Tribunal on 7 August and 27 August 2024 to give evidence and present arguments. Both hearings were conducted with the assistance of an interpreter in the Indonesian and English languages. The first hearing took place in person, and each of the applicants gave evidence individually, without the other applicant in the room. The second hearing took place by video (via Microsoft Teams) and with the applicants’ consent they gave evidence together.
Prior to entering the first hearing I was advised by staff that there was a potential issue with the applicant husband’s ability to give evidence through the interpreter. Although the applicants had identified that they required an Indonesian interpreter, it seemed that the applicant wife was repeating information to the applicant husband in a different language. The applicants identified that the applicant husband has some hearing difficulty. However, he indicated that he did not ordinarily use any sort of sign language to hear or communicate. The applicants both confirmed that they could proceed with an Indonesian interpreter. At both hearings the interpreter made adjustments such as speaking loudly and (for the in person hearing) facing the applicant, and the questions were asked in a simple structure. While there were times that questions needed to be repeated or clarified, overall the applicant husband gave answers which were responsive to the questions and largely consistent with his wife’s evidence and I am satisfied he was able to adequately understand and respond to my questions through the interpreter. The interpreter confirmed that she could understand the applicant husband.
At the first hearing, the applicants presented their Indonesian passports, and also their boarding passes and airline itineraries for their travel to Australia.
At the hearings, the applicants made claims similar to those in the written application, relating to a debt to money lenders. Both applicants claimed they would be harmed for these reasons. Their evidence at the hearings is discussed in further detail below, as relevant.
FINDINGS AND REASONS
The issue in this case is whether the applicants’ claims are credible and whether there is a real chance of them suffering serious harm in Indonesia in the reasonably foreseeable future, or a real risk of them suffering significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality and background
The applicants provided copies of their Indonesian passports. They gave evidence in the Indonesian language and spoke naturally of Indonesian geography when giving their evidence. I am satisfied that they are nationals of Indonesia as claimed.
They gave evidence that they are from Jakarta and married around ten years ago. In Indonesia they had operated a [business] together. The applicant husband is one of [number] children, but is no longer in contact with his siblings. He left school before the end of junior high school. The applicant wife went to senior high school but did not graduate. She has [siblings] and is only occasionally in contact with them.
The applicants departed Indonesia for Australia on [date] August 2019. They applied for a protection visa with the help of a friend, organised by the applicant wife. They experienced some difficulties after arriving in Australia, including being deceived by agents, but have now been consistently employed in regional NSW for a number of years.
Claims about business debts
Both applicants gave broadly consistent evidence that for around ten years they lived in a rented house in Jakarta. They also [details deleted]. They had other workers, some of whom also lived and worked on the premises and some who [worked] from their homes. They sold the [products] from a shop in a different location. The applicant wife worked in the shop and the applicant husband was in charge of production.
The applicants gave consistent evidence that the business initially was busy and they twice borrowed from a money lender and repaid it. The applicant wife described the money lender as a Muslim community organisation. She said she did know its name, that they had just said they were an Islamic organisation helping the country by lending money. They had come into the shop, spoken politely and offered a loan with only ten percent interest and no guarantee required. She was given a form and had to sign it but did not really read it, she trusted them. It was something along the lines that if something happened they were able to take her belongings.
The applicants said that after a few years the business began to struggle and they were in debt to other shops. The applicant wife explained that she expected to be busy at Eid, as they had been in other years, and so a year or two before they left Indonesia, she borrowed more money from the organisation to pay off the debts owed to other shops and to bring in more [materials]. However, the business did not experience the increased demand at Eid that she had expected. She described that she had not realised that people in the regions were not able to repay debts. Other shops around them were also closing down. The money lenders kept adding more and more interest and the applicants began to struggle to repay it.
The applicant wife claimed that although she had heard the money lender was dangerous, she did not believe it because it was not exposed publicly, and because the first two times she had borrowed money she had not experienced problems even if she repaid the debt a little late. She said that she had thought maybe others had problems because they did not pay. She later heard lots of stories about traders in other areas having problems with these people.
The applicant husband’s evidence about the business and loans was broadly consistent with that of his wife. He was unaware of some of the details, and said that his wife had handled these matters and he had believed they were making the required repayments. This was corroborated by the applicant wife, who said she had tried not to get her husband involved and that he had not been aware of the full amount they owed.
The applicants gave evidence that they had closed their shop after Chinese New Year of 2019. The applicant wife said that people had come and had sat in her shop for two weeks leading up to Chinese New Year, and would take the money straight from anyone who came in to purchase anything or pay debts. The applicant husband similarly referred to people waiting in the shop to be repaid. The applicant wife said the shop was already getting quiet at that time, and so they decided to close it. She said she was still paying the debt after this, but just a little bit.
The applicants were still carrying out a small amount of production after the shop closed. The applicants each said that people started coming to the house, asking for money, although they were not violent at that time. The applicants said that if they were late making repayments someone would come at night and throw things such as chicken or rat carcasses onto their balcony. The applicant wife said that on one occasion she was sexually harassed by the men.
Both applicants gave a vivid, emotional and consistent account of an incident that they said took place shortly before their departure from Indonesia. Men came to their home, were violent and threatening towards them, asked why they were not repaying the debt, and made racial slurs about their Chinese ethnicity. The applicant wife’s head was injured and she continues to experience pain from this. The applicants were locked in a room while these men vandalised their property. Shortly afterwards, the applicants moved to a rented house in a different area while they prepared to leave Indonesia.
The applicant wife said this incident occurred before they applied for their visas. However, she gave evidence that she had already started speaking to someone about going to Australia prior to the incident. The applicant husband, in contrast, said the violent incident occurred after they had applied but while they were waiting for the visas to be issued. I draw no adverse inference from this inconsistency given that on the applicant husband’s own evidence his wife had organised everything and he was not entirely sure what had already been done at that time.
The applicant wife said the men came back on one occasion after the violent incident but she paid them on that occasion. They also wanted to take her car and motorbike. The visas were issued not long after the violent incident. The applicant wife could not recall how long between the incident and when they left Indonesia. She asked someone to organise tickets for them and left the house. She referred to having to wait for cheap tickets.
Both applicants said that in addition to their debts to the money lenders, they also owed money to [specified] shops for materials. However, these debts did not incur interest. The applicant wife said she had been repaying these from Australia. The applicants did not claim to fear any harm in relation to these debts. The applicants said they have not heard from the money lenders since they left Indonesia.
I accept that much of the applicants’ evidence was describing events that they had, at some point, genuinely experienced. However, for the reasons below I have doubts that these events occurred in the period immediately prior to their departure and that the applicants left Indonesia because of a fear of harm from money lenders.
The applicants presented their passports to the Tribunal at the hearing. Both passports have various visas and stamps. These include, for the applicant wife, stamps and visas which appear to show travel to [countries] in January and February 2018. The applicant husband has a visa waiver registration for [Country 1] allowing a 15 day stay, valid for 3 years, registered 7 January 2019 (although no stamps that indicate travel at that time). Both applicants have a Schengen visa allowing a 30 day stay and multiple entries, valid from 22 January 2019 until 22 April 2019. Neither applicant declared any previous travel history in their visa applications.
My first concern is with inconsistent and changing evidence about the applicant wife’s previous travel. When asked about the visas in his passport at the first hearing, the applicant husband gave evidence that these were real visas, an agent had helped him apply for them, but he ultimately had not travelled. I asked him why, if they had a Schengen visa, they had not gone to Europe. The applicant husband said that he had said to his wife that it was better they just stay at home. He said he had not gone to [Country 1] but his wife had.
When I asked the wife about previous travel at the first hearing she said she forgot where she had been, but referred to [countries]. I asked when the travel was and she said she was not sure, and gave a vague answer that it was many years ago, several years, not long ago. I asked if it was before or after the problems with the loan and she said before. She said she had already borrowed the money but it was not a big problem. I noted to the applicant that there was a Schengen visa in her passport and asked what it was for. She said when she went to Europe. In response to my questions she said she had been there once, but had forgotten when it was. When I put to her the visa was issued in January 2019, she said that it was not expensive to go to Europe at that time and that she was under a lot of stress. I directly asked her if she had gone to Europe at that time, and she said yes. She forgot how long, but it was a week or ten days. I put to her that the visa was issued on 22 January 2019, which would have been just before Chinese New Year. She said yes, and I reminded her that she had earlier talked about events that had taken place in her shop for the two weeks before Chinese New Year. She responded that there was no point her being there and she had thought if she was not there it might be different. She said the people were there for around a week while she was still in Europe. She had told someone else to look after the shop. When I put to her that this seemed different to her earlier evidence where she had spoken of what had happened in the shop for those two weeks and had not mentioned she was actually in Europe at the time, she said that I had not asked, and she did not think that was important.
At the second hearing I put a range of information to the applicants in accordance with s 424AA. This included: the applicants’ differing evidence about whether or not the applicant wife had travelled to Europe in 2019; that I had asked a number of questions about this travel to Europe and the applicant wife had given specific information about it, which undermined the evidence that she did not actually go to Europe in 2019 as claimed; and the applicant wife’s differing evidence about what had occurred in the two weeks leading up to Chinese New Year, which had been on 5 February 2019[1], whether or not she had been in Europe or at the shop at that time and her evidence that she had already been thinking of leaving Indonesia at that time.
[1] type="1">
Responding to the information about whether or not she had gone to Europe, the applicant wife claimed that she was confused at the last hearing and did not really understand. She said she had never been to Europe. She claimed an agent had got them the visa because it would be easier to get to Australia if there was a Schengen visa in their passports. Responding to the information about her having given specific detail about the claimed travel to Europe, the applicant wife apologised and referred to being confused and referred to maybe having gone to [Country 2]. Responding to the information about the changing evidence as to what was happening in the two weeks prior to Chinese New Year, whether she was in Europe or in the shop, and that she had said she was already thinking of leaving Indonesia at that time, the applicant wife gave a confusing response, initially saying that she had not remembered when she had been to Europe, that she gave reasons because she could not remember, but that she had been to [Country 2] when experiencing stress the year before. She reiterated that they had Schengen visas on the advice of an agent but that at the time there was no chance they were going to go. She then said that the shop was already having problems, people were coming and taking money and she was not at the shop. She referred to having forgotten and trying to forget the events, and to the risk they faced from these gangsters. The applicant husband declined to add anything to his wife’s responses.
So far as the stamps in the applicant wife’s passport are legible, there do not appear to be any that indicate that she exited or returned to Indonesia in early 2019. This would suggest that her evidence at the second hearing that she did not travel to Europe at that time is correct. I consider it very concerning that she would have fabricated evidence about travel to Europe at the first hearing, and only identified that it was wrong when credibility concerns were raised. I do not accept that she was confused or misunderstood my questions at the first hearing or that she had forgotten or her memory was impacted by trauma. She clearly indicated she had travelled to Europe and provided specific responses about things such as how she paid for the travel and the length of her visit. When confronted with the inconsistency between her evidence about people being in the shop and her actually being in Europe at that time at the first hearing, she did not identify any confusion and state that she had not actually gone to Europe, but instead gave a narrative which included the travel within the claimed events. On the applicants’ evidence, the Schengen visa is genuine and so I do not think it was the case that she was, for example, claiming to have travelled to Europe to avoid any accusation of fraud. Rather, I am of the view that her changing accounts of the events leading up to Chinese New Year and her travel indicates that she has not been forthcoming and reliable in her evidence to the Tribunal.
Further concerns arise from the applicants’ confusing evidence about when they began planning to leave Indonesia, and their failure to leave Indonesia earlier in 2019 despite having valid visas to do so. The applicants claim that the Schengen visas were obtained in order to assist in being granted an Australian visa. However, the Schengen visas were issued in January 2019, before the applicants closed their shop and before their claimed problems with the money lenders began. When I raised this with the applicants, the applicant wife stated that at that time they already had problems but not big problems.
On their evidence, the difficulties began in earnest after they closed their shop at Chinese New Year, which was on 5 February 2019. The applicant wife said she had started thinking of leaving Indonesia around this time. The applicants both had valid Schengen visas valid for entry until April 2019, and the applicant husband had a visa waiver for [Country 1] valid for three years from January 2019 which remained valid at the time of the violent incident which they say took place later in 2019. When questioned as to why they had not left Indonesia earlier if they were already worried at that time, the applicant wife responded that at the time it was not that serious and they had only got the visas because the agent told them it would be easier to go to Australia or the US if they already had Schengen visas. She said if they were not accepted in Australia or the US they could go to the Schengen zone or [Country 1]. She reiterated that they had not obtained the visas to actually travel, just so they could have them in the passport if they wanted to go one day. The applicant husband added that they were asking for protection. None of these responses provide any sort of persuasive explanation as to why, if the applicants were already having problems and were already planning to leave Indonesia by early 2019, they did not simply go to Europe using those visas.
The evidence about when the applicants began planning their travel to Australia and why has been confusing and contradictory, and suggests that the applicants had been planning to leave Indonesia even before the time that, on their claims, their problems became more serious. At the second hearing, the applicant husband denied that they were already planning to travel at the time they obtained the Schengen visas. The applicant wife stated that at that time they did not have a plan to go anywhere but that the agent had said that if they wanted to go later, for a holiday, it would be easier if they already had visas in their passports. When I asked why she had been talking to an agent about going somewhere if they had no such plan, she said that was normal for Indonesian people. What seems clear from the Schengen visas is that the applicants had already been not only consulting an agent but taking concrete steps towards planned travel to Australia or another destination by January 2019, even prior to the money lenders sitting in the shop and the escalation of their problems. This suggests to me that their travel to Australia was part of a long term, organised plan, rather than being prompted because of the problems they experienced at the hands of the money lenders.
Adding to these concerns is the timing of the applicants obtaining their visas and travelling to Australia after the violent incident. I have before me records that indicate that the applicants’ Australian visas were issued on 2 July 2019. The airline itineraries they submitted at the hearing indicate that they booked their tickets on 16 July 2019. They departed Indonesia on [date] August 2019.
At the first hearing both applicants' evidence was that they left Indonesia as soon as they could after the violent incident at their home. They both said they did not yet have a visa at the time of that incident. At the second hearing, I put the information about their visas being issued on 2 July 2019 to the applicants in accordance with s 424AA. As I explained to the applicants, the documentary evidence undermines their claims that they left Indonesia as soon as they could because it indicates that even after being issued their visa they waited two weeks to book their tickets, and that there was actually over six weeks between their visas being issued and their departure. This suggests that they were not actually in a hurry to leave Indonesia because they feared harm, as they claim.
In response, the applicant wife referred to possibly having made a mistake with something she said, but reiterated her hurt and that she had to leave behind everything she owned. She reiterated her fears of harm, her age (she is in [age range]) and said she had no other reason to leave. She also said that they had not left the house when they were waiting to leave. As this response did not directly engage with the adverse information, I asked the applicant to explain why she had waited six weeks to leave Indonesia. She said she did not really remember, maybe it was because she was waiting to get money people owed her from different regions because she did not have much money left. She also referred to being grateful to people who gave her work in Australia and not initially being aware there was a protection visa. The applicant wife also later referred to having to do a lot in that time including organising cheap tickets. She had similarly referred at the first hearing to waiting for cheap tickets. The applicant husband indicated he did not have anything to add. The applicant wife’s response was vague and did not adequately explain the delay between being issued a visa and departing Indonesia. I do not accept any of the reasons she gave accounts for the two week delay in making a ticket booking, and further delay of four weeks in departing, in circumstances where the applicants claimed to have left Indonesia as soon as they could because they feared for their lives.
Based on the applicants’ detailed and consistent evidence, I am willing to accept that the applicants had a [store] and also that at some point they borrowed from money lenders, experienced difficulty in making repayments and were harassed as a result. I am also willing to accept that at some point the applicants have experienced an event in which people came into their home, were physically rough with them, directed verbal insults at them and damaged their property. However, taking the above issues as a whole, I am of the view that the applicants have not been forthcoming about the timing of these matters or their circumstances at the time they left Indonesia.
My concerns stem largely from the evidence of the applicant wife and the information contained in the applicants’ passports and records about the timing of their visa grant. I have considered the potential for misunderstanding or communication difficulties impacting the applicant husband, but do not accept any such difficulties, if they existed, have contributed to these concerns. The evidence suggests that the applicants had been planning to leave Indonesia from at least early 2019, prior to the claimed incident at the shop before Chinese New Year, and that even after being issued a visa they did not leave for a period of around six weeks. This seriously undermines their claims that they feared harm from the money lenders at that time and that this was their reason for leaving Indonesia. I do not accept that the violent incident in their home occurred in 2019 or in the circumstances they claim. I do not accept any problems the applicants may have experienced in the past with money lenders were ongoing in 2019. I do not accept that the applicants were being threatened or feared harm from money lenders at the time they left Indonesia. I find there is no real chance or risk of the applicants being harmed in the future due to these claimed past events.
Chinese ethnicity
In the course of giving evidence, the applicants made a number of references to mistreatment of persons of Chinese ethnicity, including being subject to racial slurs and not being given protection. At the second hearing, I discussed country information about the treatment of persons of Chinese ethnicity in Indonesia and asked the applicants about their own experiences.
The applicant wife referred to her family’s experiences during riots in 1998 which targeted Indonesians of Chinese ethnicity. She said they had businesses on the main road and their property was damaged. She personally did not experience anything at that time because she lived down a small lane. I accept her claims about this. The Department of Foreign Affairs and Trade (DFAT) reports that during the 1997 Asian Financial Crisis, Indonesia experienced high inflation, unemployment and bank and company collapses. At this time, riots and looting occurred, particularly targeting the Chinese-Indonesian community. DFAT states that memories of the 1998 violence are still fresh in the memories of many ethnically Chinese Indonesians.[2]
[2] DFAT, ‘Country Information Report Indonesia’, 24 July 2023.
The applicant wife said that that persons of Chinese ethnicity cannot act how they like, even if non-Chinese people are working for them. They cannot protest if, for example, mosque noises are loud. If they do, people will come and destroy their homes. She also referred to people acting brutally and destroying homes when Chinese ethnicity Indonesians cook pork. I asked the applicant husband if he had personally experienced any problems because of his ethnicity and he said no, but he had seen Chinese people being beaten a lot. This occurred on the street, if people did something by accident they were beaten.
DFAT states that low-level ethnic discrimination, like stereotypes and the use of racist slurs, occurs in Indonesia and that non-Javanese are worse affected, but ethnic chauvinism occurs among members of all ethnic groups. DFAT states that Chinese Indonesians experience societal discrimination in the form of negative stereotypes that portray them as greedy, as criminals or as being associated with China and its policies. In DFAT’s assessment, risk of societal discrimination against Chinese Indonesians depends on individual circumstances. Those with wealth are less affected and better able to protect themselves. Many Chinese Indonesians work in family businesses or within their own ethnic community, which reduces the chances of discrimination at work. Those without such networks or wealth would be more at risk of discrimination. Some jealousy of perceived wealth can lead to threats and some Chinese Indonesians keep a low profile as a result. DFAT states that violence has occurred in the past but is not an everyday experience for Chinese Indonesians. Overall, DFAT assesses that Chinese Indonesians currently face a low risk of societal violence and a moderate risk of low-level societal discrimination. DFAT states it is not aware of official discrimination against Chinese Indonesians.[3]
[3] DFAT, ‘Country Information Report Indonesia’, 24 July 2023.
I put to the applicants that the country information suggested that while they may experience some discrimination on account of their ethnicity, it was at a low level and may not amount to serious or significant harm. In response, the applicant wife referred to much of what happens in Indonesia only being known by those who live there, with violence and brutality not being exposed to outsiders and things not being reported in the media. She reiterated claims about the police not acting to protect Chinese Indonesians and making things more difficult for them.
While the applicants referred to things not being reported, and of being aware of or having witnessed incidents of violence or destruction of property, they did not personally claim to have experienced such harm on account of their ethnicity. While I accept on the country information that historically there may have been state discrimination against Chinese Indonesians, including a lack of protection, the more recent information does not suggest that remains the case. I accept that the applicants may again experience in the future societal discrimination including racial slurs and negative stereotypes as they have in the past. However, considering their own past experiences and the country information, I am not satisfied that there is a real chance of them experiencing such treatment at a level that would amount to serious harm within the meaning of s 5J, or a real risk of them experiencing treatment that would fall within the definitions of significant harm.
Conclusion
Considering the applicants’ claims both individually and cumulatively, I find there is not a real chance of the applicants suffering serious harm in the reasonably foreseeable future in Indonesia. The applicants do not have a well-founded fear of persecution within the meaning of s 5J and are not refugees within the meaning of s 5H(1).
For the reasons given above, the Tribunal is not satisfied that either applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa). For the reasons given above I am not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of either applicant being removed from Australia to Indonesia, there is a real risk that either applicant will suffer significant harm. The Tribunal is not satisfied that either applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
For the reasons given above the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. I have found that they do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Patricia Tyson
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
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.
…
36     Protection visas – criteria provided for by this Act
…
(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.
…

[2024] AATA 4401

1 October 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction