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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] AATA 4414
Decision Date: 13 September 2024

CaseChat Overview and Summary

This matter concerned an application for a protection visa by an Indonesian national of Chinese ethnicity. The applicant claimed to fear persecution in Indonesia due to his ethnicity, citing past difficulties faced by his family, including financial demands, objections to their religious and cultural practices, and a lack of effective state protection. The Administrative Appeals Tribunal was required to determine whether the applicant had a well-founded fear of persecution on the basis of his Chinese ethnicity, both currently and in the foreseeable future, if returned to Indonesia.

The Tribunal considered the applicant's claims of discrimination, including demands for money, objections to Chinese traditions such as ancestor worship and the consumption of pork, and the failure of local authorities to provide adequate assistance. The applicant also asserted that upon return to his village, he would be targeted due to a belief that he possessed significant wealth, leading to threats of physical harm. The Tribunal also took into account country information and guidelines relevant to protection status determinations.

In its reasoning, the Tribunal affirmed the decision under review. While acknowledging the applicant's ethnicity and his claims of past difficulties, the Tribunal ultimately concluded that the applicant had not established a well-founded fear of persecution. The Tribunal accepted the applicant's identity and nationality, and that he had no right to reside in a third country. The Tribunal's assessment, informed by Ministerial Direction No. 84, led to the conclusion that the criteria for a protection visa were not met.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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. AMaterial 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

Decision

Reasons for decision

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. AMaterial 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

Ratio Decidendi

Legal Principle Established

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.