2117304 (Refugee) - [2025] ARTA 1608

2117304 (REFUGEE) [2025] ARTA 1608 (4 JULY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2117304

Tribunal:General Member Burke
Date:4 July 2025

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

General Member R Burke
Statement made on 4 July 2025 at 10am
CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – Jamaat-E-Islami supporter – anti-corruption advocate – opposition to the independence of Bangladesh – harm from ex-husband of ex-girlfriend – fear of disappearance or killing – legal proceedings – delay in applying for protection – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 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 on 22 November 2021 to refuse to grant the Applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (the Act).
The Applicant, who claims to be a national of Indonesia, applied for the visa on 9 April 2019. The delegate refused to grant the visa on the basis that the Applicant’s circumstances did not satisfy the statutory refugee or complementary protection criteria.
The Applicant appeared before the Tribunal on 2 July 2025 to give evidence and present arguments. The Tribunal also received oral evidence from [Father A], the Applicant’s father, and [Mother A], the Applicant’s mother. The hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in section 36 of the Act, and Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). An applicant for the visa must meet one of the alternative criteria in section 36(2)(a), (aa), (b), or (c). That is, the applicant 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 (section 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 (section 5H(1)(b)).
Under section 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 sections 5J(2) to (6) and sections 5K to LA, which are extracted in the attachment to this decision.
If a non-citizen in Australia is found not to meet the refugee criterion in section 36(2)(a), they may nevertheless meet the complementary protection criteria for the grant of a protection visa if, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk they will suffer significant harm (section 36(2)(aa)). 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 sections 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No. 84, made under section 499 of the Act, I have taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Immigration and Multicultural 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
For the following reasons, I have concluded that the decision under review should be affirmed.
I am satisfied that the Applicant’s identity is as stated and that the receiving country for the purpose of this application is Indonesia.
Summary of claims
In his protection visa application dated 9 April 2019, the Applicant’s claims were expressed as follows:
a.He left Indonesia because his best friend cheated him. He urged the Applicant to borrow around $[amount]AU to invest in his business.
b.The Applicant borrowed the money from friends, family and a loan shark and invested it in the friend’s business. At first, the Applicant received payments every month but after 6 months, the friend disappeared, and the Applicant was left with no money to repay the debt.
c.The loan shark came to the Applicant’s house and demanded payment. When he couldn’t pay, the loan shark beat the Applicant and damaged and threw paint at his house.
d.The Applicant tried to move to another place in Indonesia but the loan shark found him and threatened him.
e.If the Applicant returns to Indonesia the loan shark will kill him.
f.The Applicant will have no access to protection because they authorities do not help people in his situation.
g.Relocation will not help because the loan shark has people all over Indonesia.
In written submissions made to the delegate, dated 22 August and 17 September 2020, the Applicant provided a different account of his claims as follows:
a.In September 2014 he started a business to produce and sell [product 1]. The business ran smoothly.
b.In July 2017 the Applicant decided to upgrade the business and borrowed money to do so.
c.Things were going well with the business when, in October 2017, there were news reports that a [product 1] producer in [Province 1] had [sold a] contaminated product to the public. That producer was arrested by the police.
d.The news spread quickly and soon people stopped buying [product 1]. The Applicant’s business went into bankruptcy in March 2018, and he was left with a lot of debt.
e.On 18 September 2018 the Applicant borrowed [amount],000IDR to pay off all his business debts.
f.In November 2018 the Applicant opened a new business with a friend. He rented premises and obtained a business permit but before the business started trading, the friend resigned and left the Applicant with debts for the rent and set up costs. The Applicant discontinued the business and borrowed a further [amount]IDR to pay off the outstanding debts.
g.The total debt owed by the Applicant was around $[amount]AU. This sum was owed to a range of different people. He was able to provide evidence in relation to two of the loans, but the balance of the debt was borrowed from family and there are no records.
h.The Applicant became stressed, depressed, confused and had to be hospitalised for gastric pain in January 2019.
i.On 25 January 2019 the Applicant decided to apply for an Australian visa because “I have no hope if I am in Indonesia. I am desperate and I am in danger if I can’t pay the debt”.
In his pre-hearing information form dated 4 March 2025, the Applicant provided the following written submissions:
a.The reason he came to Australia was because he had received threats as a consequence of the [product 1] business and his debt.
b.The main issue was that the community falsely believed the Applicant had used [a contamination] when producing his line of [product 1] products. This resulted in terror, social sanctions and ostracization by the community and led to the Applicant suffering from stress and depression.
The evidence
In addition to the written submissions referred to above, the Applicant has provided the following supporting documents to the Department and Tribunal:
a.Loan agreement dated 18 September 2018 providing that [Lender A] was to lend [the applicant] the sum of [amount]IDR at 1.7% monthly interest and payment in full by 18 September 2024.
b.Loan agreement dated 10 January 2019 providing that [Lender B] would lend [the applicant] the sum of [amount] until 10 January 2023.
c.Certificate of [specified] Production dated 15 September 2014 for [product 1].
d.Certificate of Company Registration dated [in] November 2018 for [Business 1].
e.[Source deleted.].
All of the above documents were provided in their original Indonesian format, and as certified English translations.
The Applicant also provided, with his written submissions, photographs referred to as being of the packaged [product 1] product, production equipment, and the Applicant in hospital.
In his oral evidence, the Applicant stated the following:
a.A Malaysian person had helped him with the protection visa application and only referred to the debt issues the Applicant had at the time, added incorrect information in relation to the loan shark and failed to refer to the failure of his [product 1] business.
b.He has repaid all outstanding debts and does not fear any harm now as a consequence of them.
c.He fears that if he were to return to Indonesia he would be harassed and threatened by members of the community as a consequence of the story about the [product 1] contamination in [Province 1]. Many people consumed the product he sold and mistakenly believe that they were poisoned by it.
d.He also fears experiencing a recurrence of the psychological and gastric issues he suffered from as a consequence of the [product 1] contamination and the community backlash he experienced.
e.He experienced the following incidents in Indonesia as a consequence of the community backlash in relation to the [product 1] contamination:
i.In July 2018 he was riding his motorcycle when someone came alongside him and stole his mobile phone.
ii.Also in July 2018, he discovered that the [animals 1] that he kept on his home premises had all been killed and their shelters destroyed.
iii.In September 2018 he was driving a car when someone on a motorbike pulled up alongside him and tapped on the driver’s side window with a knife. The Applicant was frightened and pulled away.
iv.Prior to, and after, he left Indonesia people have thrown sand and stones at his house.
v.Three weeks ago, someone stole [equipment] from his house in Indonesia.
vi.Psychological illness and related stomach acid issues for which he was hospitalised twice in 2018.
The Applicant’s father, [Father A], gave the following oral evidence:
a.The Applicant’s business was doing well but when the accusations of [contamination] started it went into bankruptcy.
b.People who had consumed the [product] got upset and terrorised the Applicant.
c.There was an incident when the Applicant was driving and car and someone knocked on his door.
d.[Father A] and his wife live next door to the Applicant’s house in [Village 1] (which is currently empty). There have been incidents in which the Applicant’s animals and [equipment] have been attacked. People also throw fireworks and stones at the house at night.
e.He does not know who the people are who do these things but as they only started happening after the [product 1] incident he guesses they are doing it because of that. People sometimes ask him if his son is back yet. The way they asked is as if they are wanting revenge for the [product 1] incident.
f.He wants the Applicant to remain in Australia for his own safety.
The Applicant’s mother, [Mother A], indicated that she agreed with everything [Father A] had said and that she also wants her son to remain in Australia for his safety.
Assessment and findings of fact
I accept the Applicant’s explanation about the inconsistencies between the claims referred to in the protection visa application and subsequent submissions and evidence and make no adverse findings of credibility on that basis.
I will proceed on the basis that the Applicant’s claims for protection are as follows:
a.He fears harm in the form of harassment, ostracization and damage to his possessions by members of his community because they falsely believe that the product produced and sold by him was contaminated.
b.He also fears harm in the form of the recurrence of mental and physical symptoms previously suffered by him as a consequence of the community actions referred to above.
I find that the Applicant was the owner of a business in [Province 2] which produced and sold [product 1]. In 2017, a producer of a similar product in [Province 1] was arrested for having used contaminated materials in the production of his product. News of the arrest spread, and people stopped buying [product 1] as a result. The Applicant’s business failed leaving him with significant debts.
In his written submissions the Applicant referred to fearing “social sanctions and terror from community” but did not describe any incidents of past harm.
In his oral evidence, the Applicant referred to a number of instances of past harm in the form of theft, harassment and property damage that he attributed to members of the community aggrieved by his imputed contamination of the [product 1]. The Applicant did not provide any supporting evidence that those incidents occurred, or that any of them occurred for the stated reason. The Applicant said that he has attributed those incidents to community outrage in relation to the [product 1] business because they all occurred after his business was forced to close.
According to his oral evidence, the first instances of harm in which his mobile phone was stolen and his [animals 1] killed occurred in July 2018, some nine months after the news report about the contamination in [Province 1], and four months after the Applicant’s business closed. Such a gap in time is not consistent with those incidents being associated with the [product 1] contamination. In the absence of any supporting evidence, I am unable to be satisfied that those incidents, or any of the later incidents, occurred because of the [product 1] contamination.
The evidence provided by the Applicant’s parents in relation to the past incidents of harm is not helpful here. The evidence provided by [Father A] about the past incidents of harm was generic, lacking in detail and not consistent with the Applicant’s oral evidence. He conceded that he is only guessing that those incidents occurred because of the [product 1] business because they all happened after the business failed. I am not satisfied that [Father A’s] evidence in relation to the incidents of past harm, or their connection to the stated cause, was reliable. [Mother A] did not provide any substantive evidence of her own.
As a consequence of the above findings, I am unable to be satisfied that the Applicant has experienced any harm in the form of harassment or property damage in the past for the stated reasons or that, if he returns to Indonesia, he is likely to experience any such harm for the stated reasons in the foreseeable future. I find accordingly.
In relation to the Applicant’s claim of future harm in the form of mental or physical illness as a consequence of the stated reasons, I note that he has provided no evidence supporting his claim that he has suffered any illness for the stated reason in the past.
I also note that it has been six years since the Applicant arrived in Australia. In that time he has been able to work and earn enough money to support himself here (including obtaining a drivers licence and purchasing and running a motor vehicle) and pay his debts in Indonesia. The Applicant said that he has not experienced a recurrence of gastric symptoms since arriving in Australia and provided no evidence of having experienced or being debilitated by any psychiatric symptoms in that time.
I am unable to be satisfied that any past illness suffered by the Applicant was caused for the stated reasons, or that he is likely to experience an occurrence or recurrence of any mental or physical illness for the stated reasons if he should return to Indonesia and find accordingly.
Does the Applicant satisfy the refugee criterion for protection?
In order to make a finding that the Applicant satisfies the statutory criterion for protection as a refugee, I must be satisfied that there is a real chance of the Applicant being harmed for the stated reasons if he were to return to Indonesia.
Real chance requires that the chance of harm for the stated reasons is not remote or far-fetched. On the basis of the findings referred to above, I find that the chance of any harm to the Applicant for the stated reasons is remote or far-fetched and does not constitute a real chance of harm as required under the Act.
I am not satisfied that the Applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a) and find accordingly.
Does the Applicant satisfy the complementary protection criterion for protection?
In order to make a finding that the Applicant satisfies the statutory criterion for complementary protection, I must be satisfied that there is a real risk of the Applicant being harmed for the stated reasons if he were to return to Indonesia. The test for real risk is the same as for real chance and requires that the risk of harm for the stated reasons not be remote or far-fetched.
Having found that that the Applicant does not satisfy the criteria for protection as a refugee on the basis that there is no real chance of any harm to him for the stated reasons, it is open to me to be satisfied that there is no real risk of harm to the Applicant for the stated reasons if he should return to Indonesia.
I am not satisfied that the Applicant is a person in respect of whom Australia has protection obligations under section 36(2)(aa) and find accordingly.
Membership of family unit
There is no suggestion that the Applicant satisfies section 36(2) on the basis of being a member of the same family unit as a person who satisfies section 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the Applicant does not satisfy the criterion in section 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.
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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.
…