2018130 (REFUGEE) - [2024] ARTA 512

2018130 (REFUGEE) [2024] ARTA 512 (23 OCTOBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 2018130
Tribunal:Alicia Bills
Date:23 October 2024

Place:Adelaide
Decision:The Tribunal affirms the decision under review.

Statement made on 23 October 2024 at 8:14am
CATCHWORDS
REFUGEE – Protection Visa – Indonesia – claims lacked detail and substance – wages are low – a high level of unemployment in Indonesia – applicant feared economic harm in Indonesia – does not accept that any economic harm to which the applicant may be subjected would meet the definition of ‘significant harm’– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 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 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 December 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 national of Indonesia, applied for the visa on 29 January 2020. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 22 October 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.
BACKGROUND
The applicant was born in [Island 1], Indonesia. He is currently [age] years of age.
The applicant travelled to Australia on [date] January 2020. The applicant has remained in Australia since his arrival.
Evidence before the Department
Protection visa application
On 29 January 2020 the applicant lodged an application for a protection visa. In support of his protection visa application the applicant provided a copy of his Indonesian passport.
In his application, the applicant stated the following as his reasons for leaving Indonesia and claiming protection in Australia:
Provide reasons why this applicant left that country:
In my daily family life, I have a major problem that called a poverty. My family and I face this problem with a hard time. Everyday, my family and I have been through a difficult life, that means we have money problem in our life. Because of that, my country have an economic problems, with a high government taxes that we can not through over it. However, I have searching any vacancy that they can hired me to work, but unfortunately all my applications being rejected. The reason that all my applications are rejected, because I am not smart student. Plus, I have a bad results in middle school which causes all of my applications for vacancy are being rejected. So, I decided to stay in this country (Australia) want to find any opportunities and beautiful life here.
Did this applicant experience harm in that country?
No
Did this applicant move, or try to move, to another part of that country to seek
safety?
No. I can not support for my entire family or I to move out to any part in my country because we do not have an enough money to move out.

Explain what the applicant thinks will happen to them if they return to that country:
If I back to my country, all my hope for a good opportunities in this country (Australia) such a waste. Because, it still same my family and I can not move out from poverty.
Does this applicant think they will be harmed or mistreated if they return to that country?
No
Does this applicant think the authorities of that country can and will protect this applicant if they go back?
No. Government in my country thinks my family and I problems are minor to them. Because I am the lowest status in my country.
Does this applicant think they would be able to relocate within that country to an area where they would not be harmed?
No. There is do not have anyone or any associations want help or support to me and my family.
Chter
The delegate’s decision
The delegate considered that the applicant’s claims lacked detail and substance. The delegate was not satisfied that the applicant’s claims were credible. On 1 December 2020, the delegate refused the applicant’s application for a protection visa as the delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations.
Evidence before the Tribunal
In September 2024, in anticipation of the Tribunal hearing, the applicant provided the Tribunal with two articles regarding Indonesia.
The first article is not named and is undated but refers to Jakarta and to events in 2023 so the Tribunal accepts this article is recent. Part of the article refers to Indonesia having a high number of young people who are not currently studying, working or undergoing training.
The second article is titled ‘At a glance: termination of employment in Indonesia’ and is dated 19 September 2024. The article discusses employment laws in Indonesia.
Tribunal hearing
The applicant gave the following evidence at the Tribunal hearing on 22 October 2024:
a.The applicant was born in [Island 1], Indonesia. The applicant is a citizen of Indonesia only.
b.The applicant’s family is comprised of his parents and [siblings]. The applicant’s family live in [Island 1] and he is in regular contact with them.
c.The applicant completed primary and secondary school, but did not complete any tertiary study.
d.The applicant completed secondary school at the age of [age]. The applicant travelled to Australia at the age of [age]. Between the ages of [age] and [age] the applicant remained living with his family in Indonesia. The applicant worked for a few months during this time at a [workplace].
e.The applicant came to Australia because he likes the government system here, because they prioritise work. The applicant often watched films about Australia when he was a kid and he fell in love with Australia. Life is really good in Australia.
f.The applicant is really frightened to return to Indonesia because he did not go to university and that makes it hard to get a job. In Australia he has been able to work, even though he did not go to university.
g.The applicant does not like the government in Indonesia because they just care about themselves. This impacts the applicant because when he tried to get a job after finishing school he found it really difficult.
h.The applicant has seen in the news that a lot of people are losing their jobs and his friends don’t have work. The salaries in Indonesia are really low and it is difficult to live in Indonesia.
i.Since the applicant has been in Australia he has worked and been able to send money home to support his family. The applicant’s parents are old and already not working. The applicant wants to be able to look after them. Every time the applicant gets paid, he sends money to his family. The applicant has worked for almost three years for Mr [A] and has had a good work performance in Australia. The applicant’s current job is [deleted].
The Tribunal discussed with the applicant his concerns about the government in Indonesia. The applicant was clear that his dislike of the government is because they manage the economy and they make the decisions that impact the levels of employment / unemployment and the rate of wages. The applicant considers that the government are not managing these decisions well because the wages are low and there is a high level of unemployment in Indonesia.
The Tribunal read to the applicant the reasons stated in his protection visa application for claiming protection in Australia. The applicant agreed that the reasons stated were accurate. The applicant acknowledged that part of his difficulty in finding jobs was because of his school results and not doing further university study.
The Tribunal observed that the applicant feared economic harm in Indonesia, such that if he returned to Indonesia he feared he would face difficulty in finding employment and difficulty surviving on low wages.
The Tribunal discussed with the applicant the requirement in s5J of the Act that the harm feared be directed at the applicant for reasons of race, religion, nationality, membership of a particular social group or political opinion. The Tribunal observed that the economic harm feared by the applicant appeared to be economic harm arising as a result of the Indonesian economic conditions. The economic harm feared by the applicant did not appear to be harm directed at the applicant for reasons of race, religion, nationality, membership of a particular social group or political opinion. The applicant did not make any comment in response.
The Tribunal discussed with the applicant the definition of significant harm in s36(2A) of the Act. The Tribunal observed that the economic harm feared by the applicant did not appear to amount to degrading treatment or punishment, cruel or inhuman treatment or punishment or torture. The Tribunal observed that there was no evidence to suggest the applicant would be arbitrarily deprived of his life or that the death penalty would be carried out on the applicant. The applicant did not make any comment in response.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the applicant is 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.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
I found the evidence of the applicant to be credible. The applicant gave a clear convincing narrative of his reasons for travelling to Australia and his reasons for not wanting to return to Indonesia.
I am satisfied that the applicant is a national of Indonesia and have assessed his claims against Indonesia as his country of nationality and the receiving country.
I accept that the applicant completed primary and secondary school in Indonesia and that after completing secondary school, at age [age], he looked for employment but found it difficult. I accept that from the age of [age] until [age] the applicant worked for a few months at a [workplace], but did not do any other work.
I accept that since he has been in Australia, the applicant has been able to work in steady employment and earn sufficient income to support himself in Australia and send money home to assist his family in Indonesia.
I accept that the applicant fears returning to Indonesia as he fears he will be subject to economic harm in Indonesia in that he may find it difficult to obtain employment and wages are lower than in Australia. At the hearing I put to the applicant that such economic harm would not appear to be directed at him for reasons of his race, religion, nationality, membership of a particular social group or political opinion for the purposes of the refugee assessment and the applicant agreed. I find the economic harm feared by the applicant is not for the reason of his race, religion, nationality, membership of a particular social group or political opinion. Therefore, he does not meet the criteria set out in s.5J(1) of the Act.
In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa) for economic harm reasons, I have 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 he will suffer significant harm.
‘Significant harm’ is exclusively defined in s.36(2A) as follows: (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.
The applicant did not suggest and I am not satisfied that any economic harm he might suffer in Indonesia would arise from an intentional or deliberate act that could constitute arbitrary deprivation of life, cruel or inhuman treatment or punishment, degrading treatment or punishment or torture. Nor did the applicant suggest and I am not satisfied that the death penalty will be carried out upon him.
For these reasons the Tribunal does not accept that any economic harm to which the applicant may be subjected if returned to Indonesia would meet the definition of ‘significant harm’, as that term is exclusively defined in s.36(2A).
Conclusion
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).
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 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).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
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.
…