2207647 (Refugee) - [2024] AATA 4414

2207647 (Refugee) [2024] AATA 4414 (13 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2207647

COUNTRY OF REFERENCE: Indonesia
MEMBER:Robert McLaughlin
DATE:13 September 2024
PLACE OF DECISION: Canberra
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 September 2024 at 11:37am
CATCHWORDS
REFUGEE – protection visa – Indonesia – race – ethnic Chinese – religion – Catholic – Chinese traditions – extortion – physical assault – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14
AZX18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 444
BLS18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 462
CCU18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 428
Chan v MIEA (1989) 169 CLR 378
CRG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1567
CXM18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 654
DQU16 v Minister for Home Affairs [2021] HCA 10
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo & Anor (1997) 191 CLR 559
MILGEA v Che Xiang (12 Aug 1994) unreported FCA
MIMA v Haji Ibrahim (2000)204 CLR 1
Ponnundurai v MIMA [2020] FCA 19
Prasad v MIEA (1985) 6 FCR 155
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347
WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 May 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Indonesia, applied for the visa on 8 April 2019. The delegate refused to grant the visa on the basis that the applicant did not satisfy either the refugee or the complementary protection criteria as per the Act.
The applicant appeared before the Tribunal on 21 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted in English.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has a well-founded fear of persecution on the basis of his Chinese ethnicity, now and into the foreseeable future, if returned to Indonesia. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Preliminary matter: Nationality and identity
The applicant provided a copy of his Republic of Indonesia passport to the Department. The Tribunal accepts that the applicant is who he claims to be and that he is a national of Indonesia. The Tribunal also accepts that the applicant has no right to enter and reside, whether temporarily or permanently, in a third country.
Claims made prior to the hearing
The applicant submitted the following claims to the Department in his application for a protection visa in April 2019:
·     He is of Chinese ethnicity.
·     He comes from a small town where his parents operated a small business.
·     People made life difficult for them due to their ethnicity.
·     Some people made threats against the business or demanded unreasonable fees; others borrowed money but did not pay it back.
·     They were always asked for donations to build mosques and for charity.
·     His father ended up with debts.
·     His family followed Chinese traditions such as prayers to ancestors and burning incense, and local people objected to this.
·     They also cooked pork and local people objected to this.
·     He suffered psychological harm but not physical harm.
·     They sought help from the village head but he told them to see the police, but they did not really help.
·     He moved to Surabaya, but it was difficult as he could not really help his family from there.
·     If people in his village find out he has returned to the village, they will seek him out as they will think he has a lot of money.
·     They will threaten physical harm to him.
·     He could move to a new location in Indonesia ‘as long as the new area without the racism issue, I think it will be ok’; however, relocating his family would be difficult.
A
Material provided to the Tribunal prior to the hearing
The applicant provided the following material to the tribunal prior to the hearing:
·     A statement dated 04 August 2024 from Ms Y, who employs the applicant at her [business 1]. This statement reported that:
o   Ms Y had known the applicant for seven years;
o   the applicant was a very good worker;
o   the applicant had talked about his life in Indonesia; and
o   that Ms Y was aware of minorities facing unfair treatment in many places, including her own home country of [Country 1].
·     A statement dated 05 August 2024 by Mr S, who had been the applicant’s work supervisor for seven years. This statement reported that:
o   the applicant had a great work ethic and hade been a supervisor at the workplace;
o   the applicant is the type of young man Australia needs; and
o   Mr S had witnessed similar racism in [Country 2] during his military service there.
o   Mr S also accompanied the applicant to the hearing as his support person.
·     A statement by the applicant, date 11 August 2024. This statement made the following claims:
o   Racial tensions and discrimination exist in Indonesia;
o   This is the situation in his small home town;
o   People would come to his family’s house claiming to be community organisations and they would misuse their power to harm his family and get money from them;
o   His family played along to stay safe;
o   His father’s business failed and the applicant was thus responsible for addressing the family’s financial issues;
o   He was unable to obtain evidence of a police report from 2016.
The hearing
At the hearing, the Tribunal invited the applicant to clarify and expand upon his claims. The six key matters around which the claims and evidence coalesced were: The applicant’s claim as to debts / financial issues; his claims as to Chinese and Buddhist cultural practices; his claim as to Catholicism; his claims as to ethnicity; his claims as to harms suffered as a consequence; and the harms he feared if returned to Indonesia.
During the hearing, two further matters arose: A claim as to an election; and clarification as to the evidence the applicant stated he could not get. These are also dealt with below.
The claim as to debts and financial issues
There are four elements to the debts and financial claim.
First, the applicant stated that his father’s business had been a [product 1] shop, but that it had shut down in 2003-2004 as it became financially unviable. However, the shop had incurred some debts, and when the [product 1] shop had been operating, his father had also lent money to others in the village. The applicant stated that his mother had told him of this.
Second, village people would regularly come to his parents to collect money, and still do. This happens 4-5 times per month. It is generally couched as a request for donations to charity and mosque building. The applicant stated that his parents pay so as to avoid trouble and so as not to be called ‘stingy Chinese’.
Third, after the [product 1] shop had failed, his father had sought to buy land with [fruit] trees and had paid for this land. The applicant thought that his father had the land for maybe a year or two before an issue as to ownership arose. Ultimately, his father was ‘scammed’ and the land had never been transferred, although the debt remained.
The applicant stated that his family sought help from the police and from the village head, but nothing happened.
The applicant did not know why his father still has the land debt, given that he did not ultimately gain possession of the land
Fourth, the applicant had mentioned ‘unreasonable fees’ in his application. He stated that this began around the time the [product 1] shop business commenced and involved thugs demanding 150-200 AUD as a security fee. This occurred many times but ceased after the business shut down. This matter was not reported to the police.
Overall, the applicant stated that he sends money to his family and this helps pay off the debts. The applicant stated that the total of his family’s debts was about [amount] AUD.
The claim as to Chinese and Buddhist cultural practices
The applicant stated that his family still follows many Chinese and Buddhist traditions and rituals, such as burning incense, prayers to ancestors, and celebrating particular days. However, as the village is majority Muslim Indonesians, people complain about these practices.
The applicant stated that on one occasion when his family had been cooking outside during a Chinese festival, they had been cooking pork. Some locals (10-11 people) came and told them to stop and had tried to disrupt the cooking. The applicant stated that he they hit him as he tried to stop them. The applicant suffered bruises from punches and had his head pushed.
The applicant stated that this incident was reported to the police but that as he could only pay half the required bribe, it did not go any further.
The applicant stated that this occurred before he commenced work at the [business 2], which was in 2012-2013 and is where he worked until he came to Australia. This happened only once; however, there were other times when locals would yell at his family complaining about incense burning.
The applicant specifically stated that the police report he had tried to get had related to this incident. However, the applicant stated several times that the police report he had tried to get was from 2016. This was not consistent with the applicant’s claim that the incident subject to the police report had occurred prior to 2012.
The claim as to Catholicism
The applicant stated that he had attended a Catholic school in Surabaya, and had imbibed elements of Catholicism at that time. He stated that he went to church while at that school, from around [year range]. He lived with his grandfather at that time, and was at the school for three years. However, he had never been baptised.
When asked about his Catholicism, the applicant stated that he went to church in [Australia]. When asked about what the Bible meant to him, or any favourite Bible stories, the applicant state that he was not really a bible person.
The Tribunal noted that DFAT Country Information, which the Tribunal explained that it holds as credible given its detail and official source, said the following about the practice of Christianity in Indonesia: ‘DFAT assesses that Christians residing in areas where they are the majority do not face either official or societal discrimination. Christians residing in areas where conservative Islam is prevalent face a low risk of societal discrimination in the form of impediments to worship. Violence does occur…but this is not the day-to-day experience of most Christians’.[1]
[1] DFAT Country Information: Indonesia, 24 July 2023, para 3.41.
The applicant responded that this was true, but in practice it was harder to be Catholic in small towns and that this factor was not really observed and was therefore under-reported.
The claim as to Chinese ethnicity
The applicant began by stating that it was his ‘feeling’, although he had no evidence, that the locals ‘hate ethnic Chinese’. This feeling was mainly based on storied his mother had told him.
The applicant also stated at the outset that the election of the new President was ‘scary’ for ethnic Chinese in Indonesia as this person had allowed anti-Chinese feeling and riots to occur in 1998.
When asked if there were any specific incidents which were ethnicity based, he responded that the above noted cooking claim was one.
When asked if there were any other ethnicity based incidents he could recall, the applicant stated that there had been incidents with other children in his youth and that while he did not understand it at the time, these had probably been ethnicity based. He also stated that after an incident in 2012 or 2013 when he had scratched a person’s motorbike, that person had taken his driver’s licence, and that this had probably been ethnicity based.
When asked if he ever suffered discrimination in his work place, being the [business 2] in Surabaya, where he worked from 2012 until coming to Australia, the applicant stated no. this was because the workers would fear losing their jobs if they did anything of this nature against the workplace rules.
The Tribunal noted that DFAT Country Information, which the Tribunal explained that it holds as credible given its detail and official source, said the following about ethnic discrimination in Indonesia: That ‘Chinese Indonesians currently face a low risk of societal violence and a moderate risk of low-level societal discrimination’.[2]
[2] DFAT Country Information: Indonesia, 24 July 2023, para 3.12.
The applicant responded that for him, the risk of discrimination was higher as it is a different situation in smaller towns.
The applicant also stated that the locals did not like him specifically but did not provide a reason why this was the case.
The claim as to harms suffered prior to departing Indonesia
The applicant state that the only physical harm he had suffered in Indonesia was from the cooking incident noted above.
Other than this, the harms he had suffered had been psychological rather than physical.
However, the applicant claimed that people in the village had a dislike of him personally, although he was not sure why. He stated that his family had taken his name off their name card due to this.
The claim as to harms feared if returned to Indonesia
As regards harms feared by the applicant if he returned to Indonesia, the applicant stated that the first harm would be the ‘social mindset’ of locals that as an ethnic Chinese who had worked overseas and now returned to Indonesia, locals would ask him for money. If he did not give this money, he feared that these people would inflict physical harm on him or his family.
When asked as to specifics, the applicant repeated that the persecutors would be local people and the reason would be his not giving them money.
The applicant also stated that people still ask his mother where he is and his mother makes them believe he has no links to them anymore. When asked why they do this, the applicant stated that because the locals know he will stand up to them, they want to know if he is there as if he is not, these locals assess that they will get money easily from his family.
The applicant also stated that during his trips back to Indonesia from Australia (2-3 times, including in 2018), he had hidden at home so the locals did not know he was there.
In respect of the possibility of relocation within Indonesia, the Tribunal noted that DFAT Country Information, which the Tribunal explained that it holds as credible given its detail and official source, said the following about relocation: That people of all backgrounds can move and relocate freely in Indonesia.[3]
[3] DFAT Country Information: Indonesia, 24 July 2023, paras 5.18-5.19.
The applicant responded that it would be hard for him to relocate as it would be hard for him to get a job in Indonesia at his age ([age] yrs), despite his education and experience. Also, if he returned to Indonesia he would be unlikely to earn enough to pay off the family’s debts.
The claim as to an election
During the hearing, the applicant briefly mentioned an election issue. When asked for further details, he explained that during election time, parties want to place posters on your fence and so on and ask for votes. However, if you take the posters down, they will create adverse publicity for you and report you to the police.
This assertion did not have any ethnicity or religious or other underpinnings; that is, the applicant stated it was common across Indonesia at election time.
The applicant was unable to clarify how this assertion therefore related to his claim.
The claim as to inability to access a 2016 police report
The applicant clarified that the evidence he had been unable to access, as noted in his statement submitted prior to the hearing, related to a police report of the 2016 cooking incident. He stated that the police officer had since passed on and that he was unable to get access to the police report from the incident.

The applicant did not explain why this claim related to 2016 whereas his claim as to the source incident was for before 2012.
Assessment of credibility and evidence
In assessing the credibility of the applicant’s evidence, the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is ‘well-founded’, or that it is for the reason claimed.
A fear of persecution is not ‘well-founded’ if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the applicant must provide material, in as much detail as is necessary, to enable the Tribunal to establish the relevant facts as claimed. The Tribunal is not required to make the applicant’s case for them: ‘The Tribunal was not required to prove or disprove the applicant’s claims for protection. Pursuant to s 5AAA of the Migration Act, it was the responsibility of the applicant, as a non-citizen claiming to be a person in respect of whom Australia has protection obligations, to specify all particulars of his claim to be owed protection and to provide sufficient evidence to establish the claim.’[4]
[4] AZX18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 444 at [31].
Furthermore, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant[5], or to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established.[6] Where relevant, it is open to the Tribunal to ‘reject the applicant’s evidence based on surrounding circumstances, without having positive evidence that directly disproved the applicant’s claims’.[7]
[5] MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 170; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451].
[6] Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347 at [348].
[7] WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139 at [17].
In determining whether an applicant is entitled to protection in Australia, the Tribunal is therefore required to make findings of fact in respect of the claims advanced by the applicant. This may require an assessment of the applicant’s credibility, as is the situation in this case. In this regard, the Tribunal is aware of the need for, and importance of, being sensitive to the difficulties applicants may face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to applicants who are generally credible, even if unable to substantiate all of their claims.
However, in making such credibility assessments, the Tribunal is entitled to recall that ‘It [is] a matter for the applicant, and not the Tribunal, to advance whatever evidence [they wish] to advance in support of [their] claims for protection’.[8]
Overall assessment as to credibility
[8] s 5AAA of the Migration Act; Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14 at [187]; AZX18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 444 at [35].
The Tribunal does not accept that the applicant’s evidence was generally credible. Although the applicant provided often intricate details as to some elements of his incidents and claims, this was generally accompanied by significant opacity and vagueness as to other key indicia such as when, who, and how much.
As to the claims regarding financial issues
The [product 1] shop debts. The Tribunal does not accept that the applicant is required to service [the product 1] shop debts incurred before 2003 by his father. This is for three reasons.
First, the applicant could not provide any details as to these debts – who were they owed to, why, and (except for an overall claimed quantum of [amount] AUD) in what amounts. Nor could the applicant provide details as to what had been paid back and so on.
Second, the applicant stated that his only knowledge of these debts was that his mother had told him of them.
Third, the applicant provided no corroborative material such as examples of these debts or any basis for the quantum of [amount] AUD as claimed. In this regard, the Tribunal notes that where an applicant had not provided any documentary evidence to support an aspect of a claim, in a situation where it is reasonable to expect that they would be able to provide documentary evidence (in this case, in relation to any component of a large debt amounting to [amount] AUD), then it is ‘open to the Tribunal, acting reasonably, to identify those concerns with the applicant’s evidence and place weight on those concerns in making adverse credibility findings against the applicant’.[9]
[9] CCU18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 428 at [55].
In this case, the Tribunal has assessed that the absence of any documentary material in respect of this integer of claim is a matter that goes to the credibility of the applicant’s evidence in respect of this integer.
Overall, therefore, given the paucity of detail as to this claim, and the fact that the applicant specifically stated that he had no knowledge of these debts beyond that his mother told him that such debts existed, the Tribunal does not accept this integer of claim as credible.
The donations. The Tribunal does not accept that the applicant’s family are in financial dire straits due to persistent ‘charity’ demands that continue to this day. This is for two reasons.
First, apart from the above noted overall claimed quantum, the applicant did not provide detail as to the amounts of these donations.
Second, although the applicant stated that these donation calls occurred at the rate of 4-5 per month, his claim as to why his family was approached was inconsistent. On one account, they approached them for donations because he was not there and so would not stand up to them. On another account, the donation seekers first sought to ascertain if the applicant was home as they wished to gain donations from him.
The Tribunal does not find this claim is credible because it is thin on detail, provides no examples of amounts or specific incidents, and is vague as to circumstances regarding who donations were / are sought from, and for what purposes.
The land claim. The Tribunal does not accept that the applicant is required to assist his parents in servicing an ongoing debt in respect of a failed land acquisition in respect of the land for [fruit] trees claim. This is for two reasons.
First, the applicant did not provide any detail as to this transaction, apart from the statement that his parents held the land for one or two years before the transaction was impugned, and that it was linked to [fruit] trees. There was no details as to the size of the land parcel, the quantum of this transaction and consequent debt, how the land was recovered from his parents leaving them with a debt but no land, and who the other party in the transaction was.
Second, the applicant provided no corroborative material such as documents, deeds, transaction records, or relevant official decision records, in support of this integer of claim.
In this regard, as noted above, the Tribunal recalls that where an applicant had not provided any documentary evidence to support an aspect of a claim, in a situation where it is reasonable to expect that they would be able to provide documentary evidence (in this case, in relation to any component of a failed or scammed land transaction) then it is ‘open to the Tribunal, acting reasonably, to identify those concerns with the applicant’s evidence and place weight on those concerns in making adverse credibility findings against the applicant’.[10]
[10] CCU18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 428 at [55].
In this case, the Tribunal has assessed that the absence of any documentary material in respect of this integer of claim is a matter that goes to the credibility of the applicant’s evidence in respect of this integer.
Overall, therefore, given the paucity of detail as to this claim, the Tribunal does not accept this integer of claim as credible.
The unreasonable fees claim. The Tribunal does not accept that the applicant faces persecution based on prior protection payments or debts made by his parents in respect of the [product 1] shop. This is for two reasons.
First, as with the other integers of the debts and financial issues claim, apart from the statement that these demands were of 150-200 AUD, the applicant advanced no details as to who made these unreasonable fee demands, how often they were made, or how long they continued for.
Second, the applicant stated that this issue ceased to be a factor once the [product 1] shop had shut down in 2003.
The Tribunal notes that it is possible that the applicant was inferring that these unreasonable fees were a consequence of his family’s Chinese ethnicity rather than a factor in his claimed persecution for debts. This matter is dealt with below.
The claim regarding having worked overseas. The Tribunal does not accept that the applicant faces persecution based on the fact that he has worked overseas and will therefore be assumed to have money and will be targeted on this basis.
This is because the Tribunal does not find this claim credible. The reason for this finding is that the applicant provided no detail as to this claim. There was no material before the Tribunal in relation to key sub-integers that would underpin such a claim, such as who would target the applicant money, how often, and so on.
Further, even if the Tribunal were to assume that the mode used to target the applicant for money, if returned to Indonesia, would be the previously mentioned fees and donations, the Tribunal does not accept that either of these integers of claim is credible.
As to the claim regarding Chinese and Buddhist cultural practices
The applicant ultimately made four claims of harms related to his Chinese ethnicity: The single claim of physical altercation and harm related to the pork cooking incident; the claim as to anger expressed to his family due to the burning of incense and conduct of customary Chinese and Buddhist rituals; the more general claim as to underlying ethnic discrimination as evidenced by a variety of threats potentially including targeting by protection money gangs in part on the basis of his family’s Chinese ethnicity; and the implied claim that the new President of Indonesia will make things worse for Chinese Indonesians.
As to the claim regarding the pork cooking incident, the Tribunal does not accept that this occurred. The Tribunal notes that the applicant claimed to have made a police report, and claimed to have tried to access this report, and that this would certainly have been material evidence in respect of this claim.
However, the credibility of this claim was significantly undermined by the fact that the applicant gave two quite divergent timeframes for this incident: 2016, when he claimed he had made the police report; and 2012, which is prior to when he commenced work at the [business 2], which is when he said the incident occurred.
This is a significant inconsistency. The Tribunal does not accept that this incident occurred. Therefore, the Tribunal also does not accept that there was any physical harm as result of this claimed incident.
As to the claims regarding threats made as a consequence of burning incense as a component of Chinese ritual, the Tribunal does not accept that this incident occurred. This is because – as with the pork cooking incident – the claim was vague and indefinite.
Furthermore, even if the Tribunal gave the benefit of the doubt as to this claim, the applicant did not explain that there were in fact threats attached to this claimed incident – he only stated that there was anger expressed.
Consequently, the Tribunal does not accept this integer of claim.
As to the claim of generalised discrimination and targeting for protection rackets on the basis of Chinese ethnicity, the Tribunal notes that the applicant’s assertions in this regard appear to relate to latent threats as opposed to clearly expressed threats of harm.
To this end, the issue of threats without accompanied physical harm requires that additional factors be taken into account. In this regard the Tribunal is guided by five considerations as elaborated by the Federal courts.
First, the High Court of Australia has confirmed that persecution involving the threat of serious harm can include ‘denial of access to employment… or the imposition of restrictions on the freedoms traditionally guaranteed in a democratic society’ if imposed for a Convention reason.[11] This persecution, to amount to serious harm, could (for example) be evident where (amongst other things), it is ‘so oppressive or likely to be repeated or maintained that the person threatened cannot be expected to tolerate it, so that flight from, or refusal to return to, that country is the understandable choice of the individual concerned’.[12]
[11] Chan v MIEA (1989) 169 CLR 378 per McHugh J at 431.
[12] MIMA v Haji Ibrahim (2000)204 CLR 1 per McHugh J at [68].
Second, threats to inflict physical harm, even where there is no evidence that these threats were ever carried out, can nevertheless constitute serious harm in relevant circumstances.[13] Furthermore, ‘the serious harm feared by an applicant for the purposes of a refugee claim under the Act may consist in the threat that the applicant will be subjected to some harmful consequences if the applicant does not modify his or her conduct in a certain way. For example, by not engaging in certain activity or by paying bribes or satisfying other extortionate demands.’[14]
[13] CXM18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 654 at [24].
[14] CRG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1567 at [65].
Third, forms of harm that do not constitute interference with life or liberty can still constitute persecution – including ‘measures “in disregard” of human dignity’, in appropriate cases.[15]
[15] Chan v MIEA per McHugh J at 430.
Fourth, an applicant who belongs to a persecuted group can still hold a well-founded fear of the serious harm even though he or she has not personally experienced that degree or quality of persecution on the basis of a Convention reason.[16] That is, as part of its assessment of harm, the Tribunal is required to consider whether, on the material before it as to treatment of Chinese people in Indonesia in a general sense (as noted above), there is a real chance the applicant might suffer these consequences.
[16] Ponnundurai v MIMA [2020] FCA 19 at [13], [15].
Fifth, the totality of the applicant’s circumstances[17] must be taken into account, in that while the issue of threats may not of itself constitute either serious harm, or may not amount to a real risk, they can nevertheless contribute – where there are other harm and real risk aspects of the claim in play – to an overall decision that there is a real risk of serious harm.
[17] MILGEA v Che Xiang (12 Aug 1994) unreported FCA [40].
However, in this case, because the Tribunal has not been able to discern from the applicant’s claims any detail as to any such threats, the Tribunal does not accept that this conduct, if it occurred, constituted threats of harm.

100. Further, in respect of the protection racket claim specifically, the Tribunal notes the applicant’s own statement that this at any rate ceased after the [product 1] shop shut down in 2003 – more than 20 years ago.
101. Finally, in respect of the claimed general undercurrent of anti-Chinese discrimination and targeting, the Tribunal prefers the Country Information noted above to the effect that ‘Chinese Indonesians currently face a low risk of societal violence and a moderate risk of low-level societal discrimination’.
102. The Tribunal notes the applicant’s contention that this is not accurate with respect to small towns, but also notes the applicant’s assertions that he was not discriminated against at his workplace, and his inability to detail specific incidents of ethnicity based discrimination apart form a statement regarding possible incidents in his youth which he did not appreciate as ethnically based at the time.
103. As to the claim regarding the new President, the Tribunal notes that this is an entirely speculative claim with no evidence beyond an asserted belief that the individual had been involved in anti-Chinese agitation several decades before.
104. Consequently, in the absence of any detail, currency of claim, and the future hypothetical nature of the claim, the Tribunal does not accept that this claim is credible.
105. Therefore, overall, the Tribunal does not accept that the applicant faces a well-founded fear of persecution on the basis of his ethnicity, now and into the foreseeable future, if returned to Indonesia.
As to the claim regarding Catholicism
106. The Tribunal does not accept that the applicant was persecuted on the basis of his religion. This is for two reasons.
107. First, the applicant provided no detail as to this claim. As noted above, the Tribunal is not required to accept a mere assertion as evidence of a truth of a claim.
108. Second, in response to the Tribunal’s recounting of the relevant Country Information on this issue (as above) the respondent claimed that this was not the case in smaller towns. However, even if this was so, the Tribunal notes the applicant’s previous long term employment in a very large city provides evidence of both his past and future ability to live in a place that is not a small town, and where the DFAT Country information assessment would thus hold true even on the applicant’s own assessment.
109. Consequently, the Tribunal does not accept that the applicant was ever persecuted on the basis of his claimed Catholicism, or that he faces the real chance of persecution on this basis if returned to Indonesia.
As to the claim regarding the election
110. The Tribunal does not accept that the applicant was persecuted, or would be persecuted, on the basis of election practices in Indonesia. This is for two reasons.
111. First, the applicant expressly affirmed that this was a generalised situation across all of Indonesia and was not related to any discriminatory factor.
112. Second, the applicant did not provide any details as to any specific effects upon him or his family of this generalised social issue.
113. Consequently, the Tribunal does not accept that the applicant was ever persecuted on the basis of generalised electioneering practices in Indonesia, or that he faces a real chance of persecution on this basis if returned to Indonesia.
As to the inability to retrieve a relevant document – the 2016 police report
114. The Tribunal does not accept that the applicant was unable to access a claimed relevant police report relating to the pork cooking incident. This is for two reasons.
115. First, the Tribunal does not accept that the claimed source incident – the pork cooking incident – occurred. Therefore, the Tribunal does not accept that any police report exists as claimed.
116. Second, as noted above, the claimed date of the police report – 2016 – is significantly inconsistent with the otherwise claimed date of the incident, being 2012.
117. Consequently, the Tribunal does not consider that the claim that a police report exists as to this incident is credible, therefore, the Tribunal does not consider that the claimed existence of this police report supports in any way the claim as to the pork cooking incident.
As to the claimed harms
118. As noted above, and for the reasons noted above, the Tribunal does not accept that the applicant suffered any of the claimed harms. To summarise the relevant findings as made above:

·     The Tribunal does not accept that the applicant suffered physical harm as a result of a pork cooking incident because the Tribunal does not accept that this incident occurred.
·     The Tribunal does not accept that the applicant or his family suffered threats of harm on the basis of [the product 1] shop debts, protection racket demands, charity demands, or the land transaction failure, because the Tribunal does not accept that these incidents occurred.
·     The Tribunal does not accept that the applicant of his family suffered threats or harm due to generalised anti-Chinese discrimination because the Tribunal does not accept that any such specific threats were made or any related harms occurred, beyond the possibility that the applicant and his family were subjected to ‘a low risk of societal violence and a moderate risk of low-level societal discrimination’ as per the relevant Country Information.
·     The Tribunal does not accept that the applicant suffered any harms as a consequence of electioneering practices in Indonesia.
·     The Tribunal does not accept that the applicant suffered any harms as a consequence of his claimed Catholicism.
·     The Tribunal does not accept that the credibility of the applicant’s claim as to harms flowing from the pork cooking incident was adversely affected by his inability to secure the police report, because the Tribunal does not accept that the incident occurred or that any police report was generated.
As to claimed future harms
119. As noted above, and for the reasons noted above, the Tribunal does not accept that the applicant faces the real chance of serious harm for any reason if returned to Indonesia on the basis of a continuation of any of the past claimed harm triggers. This is because the Tribunal does not accept that any of the past harms, upon which the future harm claims are premised, occurred.
120. Furthermore, the Tribunal does not accept that the applicant will face persecution if returned to Indonesia on the basis that the people in his village have a specific dislike of him. This is because there was no material before the Tribunal to support this integer of claim as to anticipated future harm, or to quantify or describe the nature of any anticipated future harm.
121. Additionally, the Tribunal notes that the applicant has lived and worked elsewhere in Indonesia before, and that he could do so again, thus avoiding the claimed local occurrence of dislike of him in his home town.
122. In this regard the Tribunal notes the applicant’s claim that he would not be able to gain employment in Indonesia. The Tribunal does not accept this claim. This is because, as noted above, the applicant has in the past successfully internally relocated in Indonesia for education and for employment. Further, the applicant accepts that he has skills and training useful to employment opportunity. Finally, the applicant did not provide any distinction as to his situation and why it would be worse from the general employment situation in Indonesia.
123. Finally, the Tribunal does not accept that the applicant faces the real chance of serious harm if returned to Indonesia based upon the recent election of the new President. This is because this claim as to anticipated future harm is entirely speculative and hypothetical.
Summary of the Tribunal’s conclusions
124. The Tribunal does not accept that the applicant in the past faced persecution for any s 5J reasons, or for any other reason, in Indonesia.
125. Having considered the applicant’s claim on the basis of all of the material before it, the Tribunal finds that the applicant has not established his claims and that there is no real chance that the applicant will face persecution any 5J reason, or any other reasons, if he is returned to Indonesia, either now or in the reasonably foreseeable future.
126. The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection
127. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm as defined by the Act.
128. The Full Federal Court has held that the ‘real risk’ test applicable in complementary protection criterion assessments imposes the same standard as the ‘real chance’ test applicable in refugee criterion assessments.[18]
129. The Tribunal is ‘entitled to refer and rely upon relevant findings as to the refugee criterion under s. 36(2)(a) in considering the complementary protection criterion under s. 36(2)(aa)’.[19] In this respect, the Tribunal has had regard to the refugee criterion claims as above, but now in the context of complementary protection.
130. Consequently, the Tribunal finds that the ‘no real chance’ findings as to all the integers of claim as set out above in the context of the refugee criterion are transferable to its consideration of the ‘real risk’ assessment as per the complementary protection criterion. The Tribunal therefore does not accept that the applicant faces a real risk of suffering any form of significant harm as specified in s 36(2A).
131. Consequently, the Tribunal is not satisfied that the applicant faces a real risk that he will suffer significant harm if returned to Indonesia, now or into the reasonably foreseeable future, for any reason.
132. The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
[18] MIAC v SZQRB (2013) 210 FCR 505 [256], [297], and [342].
[19] DQU16 v Minister for Home Affairs [2021] HCA 10, [27]; BLS18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 462, [47].
CONCLUSION
133. 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

136. The Tribunal affirms the decision not to grant the applicant a protection visa.
Robert McLaughlin
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…