2216519 (Refugee)
[2025] ARTA 1815
•9 July 2025
2216519 (REFUGEE) [2025] ARTA 1815 (9 JULY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2216519
Tribunal:General Member R Hampson
Date:9 July 2025
Place:Brisbane
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.
Statement made on 09 July 2025 at 1:40pm
CATCHWORDS
REFUGEE – protection visa – Indonesia – particular social group – homosexual woman – written claims prepared by husband with applicant unaware of contents and claims abandoned at hearing – new claims as now divorced Chinese Buddhist woman – no relationship with parents and raised by grandmother, now deceased – married grandson of grandmother’s friend – abuse, separation and divorce – fear of harm from ex-husband’s family – limited education and no work opportunities, social connections or financial support – country information – cumulative vulnerability – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (5), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
FCS17 v MHA (2020) 276 FCR 644
MIAC v SZJGV (2009) 238 CLR 642Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs[1] on 10 November 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
[1] This is now the Minister for Immigration and Citizenship.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant who claims to be a national of Indonesia, applied for the visa on 21 February 2020. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
The applicant appeared via MS Teams video before the Tribunal on 30 April 2025 and for a resumed hearing on 21 May 2025 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from Mr TCK (the applicant’s paternal uncle) at the resumed hearing on 21 May 2025. The Tribunal hearing was conducted with the assistance of an interpreter who appeared by MS Teams video in the Indonesian and English languages.
The issue in this matter is whether the applicant is a person in respect of whom Australia has protection obligations.
CONSIDERATION OF CLAIMS AND EVIDENCE
BACKGROUND AND RECEIVING COUNTRY
The applicant claims to be [Age] year old national of Indonesia.
She claims she was born in Jakarta, Indonesia and her ethnicity is Chinese Indonesian and her religion is Buddhist.
The applicant came to Australia first [in] December 2019 on a visitor visa. She applied for a protection visa on 21 February 2020.
The applicant provided a copy of the biodata page of her passport as part of her protection visa application. The delegate accepted that the applicant is a citizen of Indonesia and there is no information before me to the contrary. The applicant also furnished her original passport at hearing which I sighted via the video screen. I find that the applicant is a citizen of Indonesia, and that Indonesia is her receiving country for the purposes of assessing her claims for protection.
Evidence before the Department
Protection visa application
In her protection visa application, the applicant claimed that she left Indonesia because if she is back in Indonesia her life will not be joyful and she would be living in distress and her parents cannot accept her circumstances and behaviour and ‘they will be ashamed of her and her lifestyle should not be publicly available in Indonesia’[2]. Her application states that ‘Federal law for Indonesia is comprehensive in all places and states and Federal law overrides the law of any state and it does not recognise LGBT people and the state government does the same’[3].
[2] Applicants protection visa application, dated 21 February 2020
[3] Ibid
The delegate wrote to the applicant on 12 October 2022 inviting her to provide further information in support of her claims. To which the applicant did not respond.
Interview with the delegate
The applicant was not invited to attend an interview with the delegate.
Supporting documents
The applicant did not provide any further supporting documents to the Department apart from her passport and the completion of her biometric identification documents.
Summary of the delegate’s decision
The delegate made the following findings:
‘Fear of harm due to sexual orientation
[The applicant] has claimed they are unable to return to Indonesia because they will face harm and discrimination on the basis of their sexual orientation.
However, these claims lack substance and detail. The applicant was sent a s56 letter dated 12 October 2022 inviting them to provide further details on these claims and they did not respond. I am therefore proceeding to assess the application based on the information before me.
The applicant did not respond to the invitation under s56 of the Act to provide further information, details and/or evidence to support their claims, or provide any explanation of why they could not provide the information.
Overall, the applicant’s claims (information provided by the applicant in their PV application) were generic and lacked any substantial detail. It is noted that the applicant’s claims did not include specific details (including any dates, locations or names of people) of any key events or circumstances which would indicate the applicant was previously, or in the future will be of adverse interest to anyone or harmed on the basis of their sexual orientation. Furthermore, there is no evidence or information provided, aside from the applicant’s own limited written assertions, to support the applicant’s claim that they are homosexual.
The applicant’s lack of response to the s56 letter to address the issues raised, coupled with the lack of substantiating details in the application, suggests that the applicant’s situation is not as described in their application. This raises concerns that these claims are not credible.
On consideration of the information before me, including the above concerns regarding the applicant’s claims and their lack of a response to the invitation to provide further information letter bringing those concerns to their attention discussed above, I am not satisfied that these claims relating to the applicant’s sexual orientation are credible and reject them in their entirety.I do not accept the claims as credible and they will not be further considered in this application.’[4]
[4] Delegates decision record date 10 November 2022
The delegate found that the applicant is not a refugee as defined by s 5H(1) of the Act and that he is not a person in respect of whom Australia has protection obligations as provided for in s 36(2)(a) of the Act. The delegate also found that they were not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
Evidence before the Tribunal
Pre-hearing submissions
The applicant did not provide any further evidence or submissions prior to the Tribunal hearing.
The hearing
The matter was initially set down for hearing on 19 March 2025 by Ms Teams video however the applicant did not attend and the matter was initially dismissed with a 28 day reinstatement period. The applicant was notified of this decision in writing by email. The applicant applied for reinstatement of the matter on 16 April 2025 stating she had been unwell and she furnished a medical certificate.
The hearing was relisted for 30 April 2025 to which the applicant attended and gave evidence.
Oral evidence at hearing on 30 April 2025
Preparation of the Protection visa application and AAT application
When asked about the preparation of the protection visa application the applicant said she did not prepare the application her ex-husband did so, as she, at the time, spoke little English. She said she was not aware of the content of the application. She asked at hearing if I could read her the content of the application as she said she did not know what was in it. When I did so she became visibly distressed as she was unaware her ex-husband had made claims in her application that she was a member of the LGBTIQ+ community. The applicant has been separated from her husband for 2 years and divorced from him in 2024.
Background in Indonesia
The applicant was raised by her maternal grandmother from birth as her parents separated at this time and she had no further contact with them. She lived with her grandmother in East Kalimantan until her grandmother passed away in 2019. Her mother now resides in [Country] and her father in Jakarta but she has no relationship with either of her parents having been removed from them at birth. She has a paternal uncle who also resides in Jakarta with whom she has had very limited contact apart from, it appears, to be a witness for her in these proceedings.
The applicant married in 2018 as this was arranged by her grandmother (the young man was the son of the grandmother’s best friend) who worried the applicant would have no one to care for her upon her passing. The applicant came to Australia with her then husband. She told the Tribunal her husband had be unfaithful to her and had used her money to support a relationship with another woman. He was physically abusive of her and this couple separated and were finally divorced in 2024
The applicant is from Jakarta, Indonesia and whilst living there she worked in a retail store. She came to Australia on a tourist visa with her husband and obtained work in [City], then moved to Victoria and now works [at a workplace] and is required to travel to other areas such as [Town], New South Wales to [do a job task].
The applicant left school at age [age] years to look after her grandmother who had a stroke and needed full time care. She explained, ‘I had to leave school because we had no financial support for us and I had to focus on my grandmother’.
Reason for leaving Indonesia
The claims made in her initial protection visa application were not further considered as she stated these were not her claims and had been manufactured by her ex-husband. When I asked the applicant why she does not now wish to return to Indonesia she said, ‘I am the only one in Indonesia, I only had my grandmother and now no home and I am a girl living there alone and no one support me. I had no one in my circle to be friends as I come from a broken home. My life is in danger because of this’. The applicant explained that after her grandmother passed away and she had been married for only a few months her then husband wanted to come to Australia for ‘peace from his family as they did not support him in anything he wanted’. The applicant’s circumstances then obviously changed significantly upon arriving in Australia with her husband, who was then unfaithful, took her money and was physically abusive of her. They separated and then divorced.
When asked about her reasons for not wanting to return to Indonesia the applicant said she fears, ‘emotional harm. At school people called me names because of my broken home and guys look at me badly because there are no men in my house just me and my grandma. They would follow me to my house then realise grandma is there. I feel unsafe to live there. I will get sick and will die because there is nobody there to take care of me and I have no money there and no house and no one will look at me like a human, they will look at me like I am nothing. I live with a housemate here.’ I asked if she could live with housemates in Indonesia if she were to return. She said, ‘I tried in a new city I couldn’t survive there in a new place. As a woman with no man supporting me, whereas I feel safe in Australia as women are protected here. I have never been in Indonesia alone before I left, I had my grandmother and my husband’.
When asked if she had anything else to add to her claims she said, ‘my ex-husbands family will hunt me because I came here with their son and I divorced him’. When asked how they would find out she was back in Indonesia, she said, ‘I am not sure, but they will torture or touch me physically, Indonesian people are very different and if they don’t like you, they will punish you’.
I spoke with the applicant about country information which states Jakarta is considered safer for single women[5] and she explained that this maybe so but she is also divorced, of Chinese ethnicity and a Buddhist and the combination of these factors mean for her that she will be ‘considered an outcast and more likely preyed upon by unsavoury men’.
[5] Department of Foreign Affairs and Trade Country Information Report – Indonesia, p22-23, dated 24 July 2023.
I asked the applicant if there were any other family members in Indonesia who could offer her protection and she said, ‘my uncle has his own family to take care and can’t be expected to take care of me. My ex-husband’s family made a police report saying I took him far away from them. They threaten me all the time. They live in East Kalimantan (a province in the far east of Indonesia)’. I asked if she had had any contact with them since she has been in Australia, she said, ‘they contacted me last year before I asked for the divorce. They threatened me. Angry to me because I take their son to live with me here’.
Post hearing submissions
The applicant provided a written statement and photos of her grandmother along with copies of her divorce certificate, household registration certificate and passport. These documents were submitted to the Tribunal early on the morning of the hearing date and had not been processed at the time of the hearing and as such were not viewed by me until after the hearing. The written statement did not contain any new material not covered during the hearing and as such it will not be further addressed here.
Resumed hearing on 21 May 2025
Oral evidence from the witness Mr TCK (the applicants paternal uncle)
I spoke with Mr TCK the applicant’s paternal uncle and he told me that he has a good relationship with his brother the applicants father, who now lives in Jakarta. Mr TCK said he does not really know the applicant and hasn’t had any real contact with her since she was born as her parents divorced and she lived with her maternal grandmother and contact was not maintained. Mr TCK last saw the applicant in 2016 in her hometown when he went there to visit his grandfather’s grave.
Mr TCK knew that the applicant’s grandmother had passed away, she had married, moved to Australia and was now divorced as her husband had cheated on her, lied to her and took her money. The applicant told him this information when she contacted him about her hearing with the Tribunal.
Mr TCK lives and works in Jakarta and has a wife and [children] all of whom live at home with him. He said, to his knowledge, the applicant has never been to Jakarta and has only ever lived in Kalimantan and that is where he has seen her.
I asked him if he thought his niece could return to Indonesia and live in her former hometown. He said that he thought this would be unsafe as she has no one there to look after her there and her ex husband’s family are there and could be a threat to her if they knew she was living there again and their son was still in Australia. I asked him if the applicant could come to stay with, he and his family in Jakarta. He said this would not be possible as he already has the responsibility of supporting his wife and their [children]. He said she would ‘have to live alone and that is not safe’.
Mr TCK said that he also thought it would be very difficult for the applicant as a single, divorced woman to obtain appropriate employment to earn enough money to live safely on her own as this is unusual for women to do so in Indonesia.
Post hearing submissions
The applicant did not make any further submissions after this hearing nor was she requested to do so.
Country Information
Divorced and single women living in Indonesia
I have considered the most recent Department of Foreign Affairs and Trade Report, dated 20 July 2023, pertaining to Indonesia which particularly addresses the situation for single and divorced women. It notes that single and divorced women may face social stigma, be subject to sexual harassment especially because of divorce. As addressed with the applicant the DFAT report notes Jakarta offers more independence for women but it is mitigated by their lack of work connections in Jakarta and their ability to obtain financial support from family. Both points have been raised with the applicant and her witness and I note financial support and work connections are not available to her in Jakarta.
Further to this, Indonesia is still a very much a patriarchal society where women without husbands have less ‘social access’ meaning they are not invited to events and this leads to isolation, loneliness, and fewer economic opportunities[6].
[6] Department of Foreign Affairs and Trade Country Information Report on Indonesia, p23, dated 20 July 2023.
The DFAT Report concerning single and divorced women concludes with the following statement:
‘It is possible, but difficult, to live as a single person (whether through choosing to remain unmarried, or through widowhood or divorce). Because of this difficulty and potential stigma, many women choose not to leave abusive marriages, and choosing to live a single lifestyle is very uncommon. DFAT assesses that single women experience a moderate risk of societal discrimination. DFAT is not aware of official discrimination against single women.’[7]
Chinese Indonesian population in Indonesia
[7] Ibid, p 23.
I have also had regard to the country information regarding Chinese Indonesian people living in Indonesia and particularly Jakarta. Indonesians of Chinese decent comprise approximately 1.6 percent of the total Indonesian population[8]. Although DFAT reports there is a well established Chinese Indonesian community in Indonesia and many people whose families have long since immigrated to Indonesia may not identify as Chinese or speak the language there is still a leftover layer of discrimination from the 1998 conflicts involving the measures implemented by the then President Suharto’s New Order regime which put in place discriminatory measures demanding citizens had Indonesian names, banning Chinese language newspapers and events. This resulted in violence and looting targeting ethnic Chinese Indonesian families and businesses. Since this Suharto era successive governments have worked to remove these layers of discrimination toward Chinese Indonesian peoples and they may once again celebrate Chinese Lunar New Year, Chinese newspapers are available and events occur peacefully.[9]
[8] Ibid, p11.
[9] Ibid, p11.
As businesspeople they were seen to be excelling but in the same token greedy and conniving. This discrimination escalated in the wake of the Covid-19 pandemic when people made negative associations again with China as the source of the virus. Chinese Indonesians who have the benefit of wealth, business and or connections are more protected in general from any discrimination.[10]
[10] Ibid, p11.
DFAT currently assesses threats of harm to Chinese Indonesians as ‘a low risk of societal violence and a moderate risk of low-level societal discrimination. DFAT is not aware of official discrimination against Chinese Indonesians’[11].
Buddhist practitioners living in Indonesia
[11] Ibid, p12.
DFAT notes the following,
‘not every religion is legally recognised. According to the law, religions must have a prophet, a holy book, a deity and international recognition. Indonesia recognises six official faiths that meet that definition: Islam, Catholicism, Protestantism, Buddhism, Hinduism and Confucianism’.[12]
[12] Ibid, p13.
The majority of ethnically Chinese Indonesians are also Buddhists[13].
CONSIDERATION OF CLAIMS AND EVIDENCE
[13] Ibid, p11.
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the matter under review should be set aside and remitted for reconsideration.
I have considered the applicant’s oral evidence, her written statements and her submissions along with the oral evidence of her paternal uncle and the country information regarding Indonesia.
Credibility
In determining whether the applicant engages protection obligations, it is necessary to make findings of fact on relevant matters which may involve an assessment of the credibility of the applicant’s claims. I have had regard to the UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status and accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[14] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant, and nor does the Tribunal require rebutting evidence before it can find that a particular factual assertion by an applicant has not been made out.
[14] Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees | UNHCR Australia, accessed 26 June 2025.
I accept the applicant’s description of how her initial protection visa application came to be at the hands of her ex-husband who has created fictious information about her being a member of the LGBTIQ+ community. She has vehemently denied this and as such I have not engaged with it in its entirety.
Considering the above I accept the following claims as credible:
a.The applicant is a national of Indonesia and Indonesia is her home country for the purposes of her protection visa application.
b.The applicant was married in Indonesia travelled to Australia with her then husband and is now divorced from him.
c.The applicant has limited family in Indonesia to rely on for support of any kind. I accept she has no relationship with her biological parents and that her maternal grandmother who raised her passed away in 2018.
d.The applicant although having worked in Indonesia in a retail store and in Australia now [at a workplace] I accept it would be more difficult for her to obtain valuable employment in Indonesia earning substantial enough a wage to fully support herself to live in a safe environment for a single woman. I also note the applicant left school at age [age] and therefore also has limited education to fall back on to pursuit more formal employment and well paid employment.
e.I also accept the applicant is from Kalimantan in the far east of Indonesia and her only relative an uncle with whom she has had a very limited relationship lives in Jakarta and has stated he is not able to assist or support her if she were to relocate to Jakarta. As such I have considered Jakarta as a possible location for her to reside and accept this is not feasible as she has no support system both socially or economically there and this along with the DFAT country information I have considered leads me to accept she could not reasonably and safely live in Jakarta as a divorced single woman.
f.I accept she may face some scrutiny and or threats of harm from her ex-husband’s family if she were to return to her home area as he still resides in Australia and she is seen as at fault for their divorce.
I do not accept however that the applicant may face discrimination or harm because of her ethnic Chinese Indonesian background or because she is a Buddhist. The country information discussed above in paragraphs 42 and 43 are relevant here.
I have considered the applicants claims individually and cumulatively and as a result consider her a vulnerable person if she were to return to Indonesia in the reasonably foreseeable future. This vulnerability is a result of cumulative issues of her status as a now single young woman, divorced, having no family support or network, no wealth or prospects of economic advancement because of higher education and being a possible target of threats, harassment or harm from her now ex-husband’s family.
Does the applicant satisfy the refugee criterion for protection?
To determine if the applicant satisfied the refugee criterion for protection I must consider if there is a real chance of harm if the applicant were returned to their home area of the receiving country in the reasonably foreseeable future.
I must be satisfied that there is a real chance the applicant would suffer serious harm for reasons of race, religion, nationality, membership of a particular social group or political opinion. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched impossibility. An applicant may have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 percent[15]
[15] Chan Yee Kin v MIEA (1989) 169 CLR 379.
I accept and am satisfied there is a real chance the applicant would suffer serious harm for reason of her membership of a particular social group being a ‘single divorced woman in Indonesia’. I am satisfied this real chance is not remote or insubstantial or a far fetched possibility.
This serious harm as set out in s 5J(5), I am satisfied, constitutes significant physical ill treatment of the applicant, significant economic hardship that threatens her capacity to subsist and she may suffer a denial of capacity to earn a livelihood of any kind which then threatens her capacity to subsist. Sadly, when considering the point ‘capacity to earn a livelihood of any kind’ many women in Indonesia in dire circumstances are forced by matter of desperation to engage in prostitution and may fall into the hands of human traffickers. The United Nations Office of Drugs and Crime acknowledge Indonesia is vulnerable to trafficking of persons particularly women and young girls for forced labour, sexual slavery and prostitution both within the country and across its borders[16]. Indonesia is considered to have one of the highest rates of human trafficking in the world with the rate increasing every year even though the Indonesian government have made inroads into combatting the trade. Traffickers target young, vulnerable women with low education, limited family network, poor economic conditions and job opportunities with the lure of high salaries and a new life[17]
Refugee sur place
[16] Indonesia: Counter transnational organized crime and illicit trafficking, accessed 02 July 2025.
[17] Trafficking of Women and Children in East Java, Indonesia; Sutinah, Sutinah and Kinuthia, Karen Mwende (2019). Trafficking of Women and Children in East Java, Indonesia. Journal of International Women's Studies, 20(9), 94-106. Accessed 02 July 2025.
Whilst the applicant has not been subject to harm in the past whilst living in Indonesia, I must consider the real chance of harm in the reasonably foreseeable future if the applicant were returned to Indonesia. The applicant did not suffer harm whilst living in Indonesia because she had her grandmother as her family network, a home to live in and a job, she was a single woman but to be married and not divorced. Her circumstances since leaving Indonesia have changed in that she has become divorced and is a single woman, the home she previously resided in with her grandmother is no longer available to her. I do not consider these actions of divorce and being a single woman are actions taken deliberately or in ‘bad faith’ as is outlined in s 91R(3) to invoke a fear of persecution in her home country. Section 91R(3) requires evidence of conduct in Australia contrived to strengthen a claim to be a refugee to be disregarded from the assessment of well-founded fear where the evidence is supportive of the claim[18]. The applicant has not undertaken any actions in ‘bad faith’ to contrive to strengthen her claim.
Does the harm feared by the applicant relate to all areas of Indonesia?
[18] MIAC v SZJGV (2009) 238 CLR 642 at [12], [64]. French CJ and Bell J delivered a joint judgment which in practical terms is consistent with the joint judgment delivered by Crennan and Kiefel JJ. Hayne J dissented on the basis that the wording of s 91R(3) required the decision-maker to disregard relevant conduct no matter whether they would work for or against an applicant: at [23] – [24].
Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’.[19]
[19] FCS17 v Minister for Home Affairs (2020) 276 FCR 644 at [80]–[81].
I have also considered if the harm relates to all areas of the receiving country as is required by s 5J(1)(c). As previously discussed, I had considered if the applicant could safely reside in Jakarta, the country’s capital however country information (paragraphs 36-38) indicates that for a single, divorced woman, with no family support or economic support with a low level of education Jakarta is a moderate risk of societal discrimination along with sexual harassment and predatory behaviour on a young single woman with no family ties. Country information indicates this moderate level of risk is indicative of the whole of Indonesia. The essential and significant reason for that harm is the applicant’s membership of a particular social group, ‘single, divorced women in Indonesia’. I therefore am satisfied the harm relates to all areas of the receiving country as required by s 5J(1)(c).
Effective State protection
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
I must then consider if there are effective protection measures available to the applicant in Indonesia. I have considered ss 5J(2) and 5LA. The state is unable to provide effective protection measures as the types of harm the applicant is at real chance of suffering are implicit in Indonesian culture. Of course, the applicant could go to the police if she felt unsafe as a single woman and seek protection however her circumstances are on a social and economic level also to which the state would be unable to provide assistance and or protection to her for. These issues become more subtleties of daily life such as the difficulty getting a well paying job, finding a suitably safe place to rent on a limited single income even if she were able to obtain a job, being included in a social network of friends who do not deem her as a threat as a divorced single woman. The state or any other organisation or authority cannot protect her from these individual and cumulative threats of discrimination which when considered in their totality make life for the applicant in Indonesia increasingly unbearable and threaten her ability to subsist.
Any modification of the applicant’s behaviour to avoid harm in Indonesia would conflict with a characteristic that is fundamental to her identity or conscience, conceal an innate or immutable characteristic or alter her family identity or conceal who she is by her name and family of origin. Therefore, she cannot be required to take steps to modify her behaviour such as returning to Indonesia and living discreetly for instance not telling people she is single and or divorced, and has no family network or economic backing, to avoid feared persecution pursuant to s 5J(3).
I am satisfied therefore, the applicant meets the refugee criterion in s 36(2)(a).
I have therefore not considered the complementary protection criterion in s 36(2)(aa).
Concluding Paragraphs
I am also satisfied that the applicant does not have a right to enter and reside in a third country and meets s 36(3) of the Act.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Hearing Dates: 30 April and 21 May 2025.
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.
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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.
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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.
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5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36 Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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