2100302 (Refugee) - [2025] ARTA 1884

2100302 (REFUGEE) [2025] ARTA 1884 (6 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2100302
Tribunal:Deputy President S Roushan
Date:6 March 2025

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

Statement made on 06 March 2025 at 4:41pm
CATCHWORDS
REFUGEE – protection visa – Indonesia – Aceh province – political opinion – district organiser for party – left because of disillusionment at infighting and corruption – ridiculed, attacked and threatened by unknown individuals and warned and summoned by police – lived in hiding then relocated before departing – previous killing and kidnapping of relatives – inconsistent and unpersuasive claims and evidence – dates of membership – documents accepted as authentic – international travel during time claimed to be living in hiding – no further political activities or expression of opinions – country information – armed conflict, peace accord and responses by party to dissidents – real chance of serious harm cannot be ruled out – relocation reasonable – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), (2B)(a), 65
Migration Regulations 1994 (Cth), 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
BACKGROUND

The applicant is a [Age]-year-old national of Indonesia. He arrived in Australia [in] December 2018 on a Visitor visa (FA-600) granted on 6 November 2018.
On 15 March 2019, the applicant applied for a Protection visa. The application was refused on 21 December 2020 by a delegate for the Minister under s 65 of the Migration Act 1958 (Cth) (the Act).
On 11 January 2021, the applicant applied for a review of the delegate’s decision to the Administrative Appeals Tribunal (AAT).
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
This decision and statement of reasons is a review of the delegate’s decision by the Tribunal.
CLAIMS AND EVIDENCE
Protection visa application
According to his Protection visa application, the applicant was born in [Village], Aceh. He is Muslim and described his occupation as ‘political activist’. He resided at a single address in Aceh from birth till January 2018. In February 2018, he relocated to Jakarta where he remained until his departure for Australia. His parents and [siblings] reside in Aceh.
In October 2014, the applicant obtained a Bachelor of [Subject] from [University]. He travelled to [Country 1] [in] July 2016 and remained in that country for four days to attend a ‘political meeting’. He also travelled to [Country 2] to attend political meetings in August 2017, April 2018 and December 2018. He travelled to [Country 2] on a second occasion in December 2018 in order to accompany a ‘sick person’ for medical treatment.
In response to questions in relation to his reasons for claiming protection in Australia, the applicant made the following claims.
He left Indonesia because he felt his life was in ‘grave danger’. He ‘recently quit from [his] position as the head of Aceh Party[1] election campaign team for the district of [District] …for the period of 2015-2019.’ He decided to quit because he believed the Aceh Party was breaking the promises it had made to bring prosperity to Aceh after signing the peace agreement with Indonesia. Aceh Party was’ losing control of the situation’ and ‘made the same mistake Indonesia had made for years which was out of control corruption at all levels’. Aceh Party ‘began to only to… seek prosperity and power for its members or more precisely its leadership and not for the Acehnese people’. His colleagues ‘ridiculed’ him when he ‘spoke too much about this reality’ and he had ‘hard times and occasional fights with [Aceh Party] hardliners.’
[1] Also referred to by the applicant as PA or PA Party in his written evidence.
He fears being ‘tortured or killed’ if he were to return to Indonesia. There have been many killings committed in the past ‘by unknown individuals who were in fact quite familiar to the people.’ Many of these cases have been ‘swept under the carpet with no trial’ and activists have been ‘executed’ without the authorities bringing the perpetrators to justice. His [relative], [Mr A], who was a spokesperson for GAM, was kidnapped and killed and his body was never found. He is ‘sure this will happen to [him] should [he] remain in Indonesia’. He will be shot and killed if he returns to Indonesia and cannot relocate as he can be executed anywhere.
He was ‘once attacked by a group of unknown people’ who he suspected being associated with Aceh Party and he is ‘sure’ his colleagues ‘masterminded the attack provoked by their inability to accept [his] criticisms.’ He was ‘ambushed in the dark by four men on two motorcycles and was severely bashed’. Since then, he received ‘constant threats and intimidation’, including ‘receiving a number of phone calls from unknown people who threatened to kill [him] if he continued to belittle the peace agreement and spread hatred against [Aceh Party] hardliners.’ Subsequently, he decided to stay away from Aceh Party related political activities and ‘frequently travelled out of town.’ ‘They’ came looking for him at his house ‘a few times’ as they were ‘curious’ about whether he was cooperating with a ‘rival political party PNA.’ They threatened his family and told them to ‘try to silence [him] or all of [them] will suffer the consequences.’
It was ‘impossible’ for him to seek help in Aceh or Indonesia as the Indonesian police and ‘uniformed GAM members’ collaborate to ‘maintain power and access to wealth’. He would have been ‘considered the enemy of both’. He avoided ‘making reports’ to the authorities as this would have exposed him to ‘danger’.
On 26 February 2018, he moved to Jakarta to ‘avoid being attacked further by ‘GAM extremists or police personnel’, but after staying in Jakarta ‘for a while’, his whereabouts ‘was still known to these individuals’ and he ‘often received threatening calls and texts which made [him] decide to leave Indonesia for Australia.’
Supporting evidence
In support of his Protection visa application, the applicant submitted the following documents:
·Copy and translation of an Aceh Party membership card issued in the applicant’s name [in] March 2012 and valid until [March] 2017. The document features the applicant’s photograph and his date of birth.
·Copy and translation of a Family Card issued [in] January 2018. The card lists the applicant’s family members, including his parents and [siblings].
Further evidence
On 17 November 2020, the Department wrote to the applicant requesting further information in relation to his claims.
On 13 December 2020, the applicant responded to the letter and provided the following documents:
·Copy and translation of a photo ID card issued by the ‘Campaign Team’ of the candidates for the Regent and Vice Regent of [Regency] for the period 2016 to 2019. The card features the applicant’s photograph and name and identifies him as ‘Main Coordinator for District of [District]’.
- Copy and translation of a photo ID card issued by the Regional Council, Aceh Party, Regency of [Regency], featuring the applicant’s photograph and name and identifies him as ‘[Organisational position]’ of the Campaign Team of the candidates for the Regent and Vice Regent of [Regency] for the period 2016 to 2019.
·Untranslated documents issued by Aceh Party that appear to include names, locations, dates and information related to the Party.
·Supplementary statement by the applicant.
In his statement, the applicant provided the following information in support of his claims in relation to his role ‘as the head of [Aceh Party] election campaign team for the district of [District], the Regency of [Regency]’:
1. First I joined Aceh Party in [January] 2015 at the District of [District], the regency of [Regency].
2. I was elected head of the PA party election campaign team for the District of [District], the Regency of [Regency] in [January] 2017 and was tasked to lead the team in winning the governor election for that year.
3. After almost 6 months serving as the Head of the election team for the PA Party, I began to see to the true color of the great Aceh Party everyone was talking about. [The] members were in clash with each other, with each trying to rise to the top of the leadership and trying to taint other team members’ image. The experience began to tell me that the whole movement was no longer about ensuring maximum autonomy for Aceh but was more about a race to fulfill individual desires, especially among the top leaders.
4. After so much drama and unpleasant incidents involving many Aceh party members in different regencies and at different political levels, I decided to quit the campaign team [in November] 2017.
5. Since then, I began to criticize the party and its leadership openly. I often discussed the problems suffered by the Party and warned others so they would not fall for it. I began telling people that they should not vote for Aceh party if the leaders were only busy with materialistic gains.
6. From there, it was downhill for me. I began to receive threats from PA gangsters and decided to leave Aceh for Jakarta in February 2018 to avoid further clashes.
(sic)
The interview
The applicant was not invited to attend an interview with the Department.
The delegate’s decision
The delegate was not satisfied that the applicant’s claims were credible and rejected them ‘in their entirety.’ The delegate was not satisfied that the applicant is a refugee as defined by s 5H(1) of the Act. The delegate was also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Indonesia, there is a real risk they would suffer significant harm under s 36(2A) of the Act. The delegate found that the applicant is not a person in respect of whom Australia has protection obligations.
The review application
The hearing
The applicant appeared before the Tribunal on 28 November 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Acehnese and English languages. Where relevant, the applicant’s oral evidence at the hearing is referred to in the Tribunal’s analysis below.
Following the hearing, the applicant provided a statement in which he claimed that he was attacked by four unknown individuals on two motorbikes [in] June 2017. He claimed that his attackers beat him on the head and face, threatening to kill him if he continued to speak negatively about the Aceh Party. He claimed that subsequently, [in] September 2017, he received a letter from the police accusing him of spreading false information about the Party and jeopardising the peace between the Free Aceh Movement (GAM) and Indonesia.
He claimed that he no longer felt safe in Indonesia due to the ongoing threats and acts of violence. He also believed that human rights violations were not investigated or prosecuted, with many cases disappearing from public attention. He also alleged that the current Indonesian President is a former human rights violator and allied with the head of the Aceh Party, enabling corruption and power consolidation at the expense of the people. Concerned that staying would put both him and his family in danger, he sought assistance from friends who supported him financially and helped with his visa application. Due to financial constraints, his departure was delayed, but eventually he was able to travel from Jakarta to Sydney via [Country 2].
The applicant submitted a copy and translation of a letter from, Aceh Regional Police, [District] Sector, dated [Day 1] September 2017, inviting him to attend an interview on [Day 2] September 2017 at the Office of Head of Criminal Investigation, for ‘investigative purposes’ and to conduct ‘an investigation into the alleged crime of Treason as referred to in Article 106 of the Criminal Code’ (sic).
He also submitted 25 screenshots of what appear to be online news reports in the Indonesian language. He did not provide corresponding translations.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, reasons and findings
The applicant essentially claims to have been a member of the Aceh Party for a period but eventually left after becoming disillusioned. He was threatened and assaulted for expressing views critical of Aceh Party and he fears being harmed if he were to return to Indonesia.
I had significant concerns in relation to the reliability of aspects of the applicant’s evidence. These concerns arose as a result of numerous incontinences in his evidence and unpersuasive nature of other aspects of his claims.
In support of his Protection visa application, the applicant submitted an Aceh Party membership card issued [in] March 2012. However, in a statement provided in response to the Department’s request for further information, he claimed to have ‘first’ joined the Party [in] January 2015 in his local district of [District] and resigned [in] November 2017. At the hearing, the applicant stated that he joined the Party in 2015 or 2016 and resigned in December 2016.
When at the hearing I put to the applicant that his membership card was issued in March 2012, he responded that the card referred to is a ‘normal membership card’, but the card identifying him as a campaign coordinator was issued in 2016. When I asked him why in his statement of 13 December 2020 he had said he ‘first’ joined’ the Aceh Party in January 2015, he responded that in 2012 he was a ‘part-time’ member of the Party because he was still studying. I also asked the applicant to explain why he had claimed in his statement of 13 December 2020 that he was elected as a campaign coordinator or leader in January 2017, when at the hearing he had claimed to have resigned from the Party in December 2016. He replied that ‘maybe’ there was a mistake in his written statement. I did not find any of the applicants’ responses to satisfactorily address the inconsistencies in his evidence and my associated concerns.
Despite the unreliability of the applicant’s oral evidence, I had no persuasive reason to doubt the authenticity of the documents submitted by him in support of his claims. On the basis of these documents, I am prepared to accept that the applicant had joined the Aceh Party in March 2012 and that, sometime in 2016, he was issued with a card identifying him as an election campaign coordinator in his local district. I am also prepared to accept that a few months after being in this role, he decided to resign from the Party.
The applicant has consistently claimed that he became disillusioned with the Party and criticised it for drifting away from its initial mission and goals. He has also consistently claimed that he received threats and, on one occasion in June 2017, he was assaulted by unknown individuals. The applicant also claimed at the hearing that unknown persons had come looking for him. He had made a similar claim in his Protection visa application, stating that ‘they’ came looking for him at his house ‘a few times’ as they were ‘curious’ about whether he was cooperating with a ‘rival political party PNA.’ When at the hearing he was questioned further about unknown people coming to look for him, he referred to the incident in June 2017. He confirmed that this had happened only on one occasion. I am prepared to accept that the applicant was assaulted on one occasion in June 2017 and had received serious threats of harm. However, I do not accept that unknown persons or anyone associated with the Aceh Party had come looking for the applicant at his house on anywhere else following this incident.
With regard to threats, the applicant claimed in his Protection visa application that he received threats of harm against himself and his family when he was assaulted in 2017. He further claimed that following the incident, he received ‘constant threats and intimidation’, including threatening phone calls from unknown individuals who threatened to harm him if he continued to criticise the Party. He repeated the claim that he was threatened in Aceh in his statement of 13 December 2020, in his oral evidence at the hearing and his post hearing statement. I accept that the applicant had received threats of harm while he was in Aceh. I accept that these threats were designed to intimidate and silence his criticism. These claims are consistent with the country information sources I have consulted, which suggest that the response of the Aceh Party to internal critics has been characterised by a mix of tolerance and a culture of intimidation within the party, where dissenting voices are often marginalised or silenced, and critics face hostile responses, including violence.[2] I further accept that violence in Aceh had preceded and, to an extent, followed the 2005 Helsinki Agreement that concluded decades of armed conflict.[3] Amidst this violence, it is not surprising that, as the applicant claimed at the hearing, one of his [relatives] was shot and killed before 2005 and another [relative], who belonged to the Free Aceh Movement (GAM), was kidnapped by other GAM members 15 years ago for reasons unknown to the applicant. The applicant also stated at the hearing that there has been recent violence in Aceh and an opposition party had been shot at. Following the hearing, he submitted screenshots of extracts of what appear to be online news reports in the Indonesian language but did not provide corresponding translations and did not otherwise explain the purported contents of the screenshots. I am prepared to accept that a shooting incident had occurred in Aceh in around November 2024.
[2] See ‘10 Years since the Aceh Peace Agreement: Internal Strife Continues’, Asia Peacebuilding Initiatives, 4 August 2018, Muhammad Aris Yunandar, The Aceh Party’s Defeat, New Mandala, 7 April 2017, and Political Power Struggles in Aceh, Institute for Policy Analysis of Conflict, Report No. 16, 9 February 2015,
[3] See Blair Palmer, The Aceh Party, Inside Indonesia, 12 July 2009,

However, I do not accept the applicant’s claim at the hearing that he was in hiding in Aceh in the period following the assault in June 2017 and until his relocation to Jakarta in February 2018. Initially at the hearing, I questioned the applicant about his residential addresses in Indonesia. He told me that he had always resided at a single address with his family in Aceh before relocating to Jakarta in February 2018. Later in the course of the hearing and after he claimed for the first time to have been in hiding in the latter half of 2017, I put my concerns to him regarding his belated disclosure. He responded that he thought the Tribunal’s earlier questions were in relation to whether he had resided outside of Aceh. He then stated that when he was in hiding, he returned to his house occasionally. When pressed as to why he had not mentioned being in hiding, he said he could not remember that part. I also put to the applicant that he had made no mention of being in hiding in his Protection visa application or in his statement of 13 December 2020. He responded that he might have made a ‘mistake’ in his statement and there was no space in the Protection visa application as he had only answered the questions asked of him in the form. I did not find these responses persuasive in addressing my concerns. I note that in his Protection visa application, the applicant had specifically stated that he had ‘frequently travelled out of town’ but did not claim to have been in hiding in Aceh.
In addition, as I put to the applicant at the hearing, he travelled to [Country 2] [in] August 2017 to attend a ‘political meeting’ as stated in his Protection visa application, returning to Indonesia four days later. His ability to travel to [Country 2] at that time is incompatible with his claim to have been hiding. It also made little sense that he had come out of hiding to travel to [Country 2] only to return to Aceh and go into hiding again. He responded that he had accompanied his friend to [Country 2]. When pressed, he said he did not know, but his friend was helping him and telling him ‘things’. When he went to [Country 2], he just followed his friend’s instructions. I found the applicant’s explanations highly unpersuasive and I do not accept his claim that he was in hiding between June 2017 and February 2018.
Other than the threats referred to earlier, the applicant and members of his family were not subjected to any other harm in Aceh between mid-2017 and February 2018. Having rejected the applicant’s claim that he was in hiding during that period, I do not accept that the applicant had escaped harm because he was in hiding. Rather, I am of the view that those threatening the applicant did not seriously intend to act on their threats. Nevertheless, I accept that the applicant took the threats seriously and the nature of the threats during that period eventually forced him to leave Aceh for Jakarta.
The applicant also belatedly claimed at the hearing that the police had come looking for him. He further claimed that a letter was sent to him from the police, asking him to report to the police station. He did not comply. He said he did not know why the local police were after him and he assumed it was at the instigation of the Party because he had resigned from and criticised it. Asked if this was reflected in the letter, he said he had not read the letter himself, but his family had.
As noted above, following the hearing, the applicant submitted a copy and translation of a letter from, Aceh Regional Police, [District] Sector, dated [Day 1] September 2017, inviting him to attend an interview on [Day 2] September 2017 for ‘investigative purposes’ and to conduct ‘an investigation into the alleged crime of Treason’. Having examined the document, I have no reason to conclude that the document is false or forged. Therefore, I am prepared to accept that this letter was sent to the applicant. I also accept that the applicant did not comply with request and did not attend the interview.
I have rejected the applicant’s claim that he was in hiding in Aceh between approximately June 2017 and February 2018. He did not face any other harm by the Aceh Party members or unknown persons associated with the Party following the incident in June 2017. Nor did he claim that his family members had been harmed or approached by any one at any point. The applicant also gave evidence that he did not experience any repercussions as a consequence of his non-compliance with the police request to attend an interview. If the police had any serious intention of following up or pursuing the applicant for investigation or otherwise, it would be reasonable to expect them to have taken some action. However, the police had made no effort to, for example, invite him to another interview, to warn him of any repercussions for non-compliance or to actively attempt to locate him. I found his explanation at the hearing that his family had helped control the situation to ensure his safety while he was still in Aceh unpersuasive. In any event, he did not claim that his family had been approached by the police after he relocated to Jakarta to enquire or seek information about him. On the basis of the evidence before me, I find that the local police did not maintain an active interest in the applicant after September 2017.
The applicant stated at the hearing that he has not been involved in any political activities since his resignation from Aceh Party, including in Australia and has not publicly expressed any political views. Consistent with his conduct in Jakarta and in Australia over the past seven years, I find that the applicant would not express any political views, including any criticism of Aceh Party, if he were to return to Indonesia. However, despite the relatively significant passage of time, I cannot confidently rule out that if the applicant were to return to Aceh, he would be identified by members and supporters of the Party he was previously known to as a former Party member who had expressed dissenting views in the past, exposing him to a real chance of serious harm, including threats to his life or liberty, significant physical harassment and significant physical ill treatment, for the reason of his political opinion..
Nevertheless, I am of the view that the real chance of persecution does not relate to all areas of Indonesia. According to his evidence, the applicant resided at a single address in Jakarta for a period of eight months before he came to Australia. During this period, he also worked in a street market, selling [products]. In addition, during the same period, he travelled to [Country 2] on three separate occasions. He stated at the hearing that he travelled to [County 2] to assess the ‘safety situation’ in that country. He did not claim to have encountered any difficulties during his multiple exits and re-entries or to have come to the adverse attention of the authorities or anyone else.
The applicant stated in his Protection visa application that after his relocation to Jakarta his whereabouts ‘was still known’ to individuals associated with the Aceh Party and he ‘often received threatening calls and texts.’ At the hearing, however, he stated that they kept searching for him in Jakarta but could not find him. He confirmed that he could not be found in Jakarta because he lived in a rural area and Jakarta is a very big city. This evidence is not consistent with his claim in his application form that his whereabouts was known and I do not accept this claim. There was no persuasive evidence before me to suggest that the Aceh Party pursued or peruses internal critics and opponents outside of Aceh and I do not accept that anyone was looking for the applicant in Jakarta during the eight months that he resided there.
In response to my questions in relation to his reasons for why he did not wish to return to Indonesia, the applicant also claimed that he would be harmed by the Indonesian government because the current Indonesian President, Prabowo Subianto, is against human rights and allied with the Aceh Party. When asked again why he would be harmed by the Indonesian government, he said there are human rights abuses. When pressed, he said because he had resigned from the Aceh Party. In his post hearing statement, he repeated that the current Indonesian President is a former human rights violator and allied with the head of the Aceh Party. There was no persuasive evidence before me to suggest, and I do not accept, that the Indonesian government peruses or persecutes critics of the Aceh Party in Aceh or elsewhere in Indonesia. I do not accept that the applicant was/is considered an ‘enemy’ of the Indonesian government. I do not accept that President Subianto’s past human rights record would exacerbate the real chance of the applicant facing serious harm in all areas of Indonesia. I find that the real chance of serious harm faced by the applicant in Aceh does not relate to all areas of Indonesia.
For the reasons given above, I am not satisfied that the applicant has a well-founded fear of persecution. He is not 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).
As I have found that there is a real chance that the applicant would face serious harm in Aceh, I find that he would also face a real risk of significant harm. However, for the same reasons outlined in paragraph 45 and 46 above, I find that if the applicant were to internally relocate to Jakarta, there would not be a real risk that he will suffer significant harm.
The applicant stated at the hearing that he resided in Jakarta for a few months only and he would not be safe if he were to live there ‘normally’. He did not offer any other reason as to why it would be unreasonable for him to internally relocate. As noted above, the applicant was able to live and work in Jakarta during his period of stay in 2018. He is highly educated, having obtained tertiary qualifications in [subject] and, according to his evidence at the hearing, he has a good command of the Indonesian language. He was able to find work in Jakarta before his departure and he has been continuously employed in the gig economy in Australia since his arrival, gaining additional skills and experience. I find that it would be reasonable to expect the applicant to relocate to another area in Indonesia, such as Jakarta, where there is not a real risk of significant harm.
I am, therefore, not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Indonesia as the receiving country, there is a real risk that the applicant will suffer significant harm. I am 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.
Date(s) of hearing: 28 November 2024
Representative for the Applicant: N/A
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.
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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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