2401739 (Refugee)
[2025] ARTA 1691
•26 June 2025
2401739 (Refugee) [2025] ARTA 1691 (26 June 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs
Tribunal Number: 2401739
Tribunal:General Member M. Ascione
Date:26 June 2025
Place:Canberra
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration in accordance with the order made that the applicant meets the following criteria: s 36(2)(a) of the Migration Act 1958 (Cth).
CATCHWORDS
REFUGEE – protection visa – Indonesia – particular social group – journalists and protestors against politicians – published articles about corruption and fraud – wasn’t re-elected – threats of violence – wife imprisoned – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 65, 369, 499
Migration Regulations 1994 (Cth), Schedule 2Any 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 Immigration and Multicultural Affairs (department) on 19 January 2024 to refuse to grant the applicant for a protection visa under section 65 of the Migration Act 1958(Cth) (Act).
The applicant who claims to be a national of Indonesia arrived in Australia [in] July 2023 and lodged an application for a protection visa on 25 August 2023.
The Tribunal invited the applicant to attend at the hearing on 5 May 2025 and 3 June 2025, where further written submissions and oral evidence were presented, and arguments raised.
The hearing was conducted with an Indonesian interpreter.
For reasons below, the Tribunal determined that this matter should be remitted back to the department for reconsideration.
THE APPLICANT’S CLAIMS AND THE DELEGATE’S DECISION
The applicant’s claims for a protection visa application as follows:
·The applicant claims himself as a journalist.
- The applicant claims that he reported about a highly influential politician involved in 2021 [election] fraud in Indonesia.
- The applicant claims because of the news article he published the politician lost the election.
- The applicant claims the politician asked him to compensate for his loss in election and threatened to kill him.
·The applicant claims he did not try to relocate within his country because the politician is very powerful and has influence throughout Indonesia.
·The applicant thinks he will be killed if he returns to Indonesia.
·The applicant thinks the authorities will not protect him because of the politician’s influence in that country.
The delegate found that the applicant lacked substantiating details in the application and raises concerns that he is not credible and was not satisfied that the applicant is a refugee as defined in section 5H(1) of the Act. The delegate found that the applicant is not a person in respect of whom Australia has protection obligations as provided for in section 36(2)(a) of the Act.
The delegate was also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequences of being removed to Indonesia, there is a real risk that the applicant will suffer significant harm as defined in section 36(2A).
The delegate found that the applicant is not a person in respect of whom Australia has protection obligations as provided for in sections 36(2)(a) or 36(aa) of the Act.
CONSIDERATION OF CLAIMS
Criteria for protection visa
The criteria for a protection visa are set out in section 36 of the Act and Schedule 2 to the Migration Regulations1994 (Cth). An applicant for the visa must meet one of the alternative criteria in sub-sections 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 ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: section 5H(1)(a) of the Act. In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: section 5H(1)(b).
Under section 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in sub-sections 5J(2)-(6) inclusive and sections 5K, 5L, and 5LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in section 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: section 36(2)(aa) (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 sub-sections 36(2A) and (2B), which are extracted in the same attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under section 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 Department of Foreign Affairs (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Evidence and findings of fact before the Tribunal
The applicant attended at the hearing on 5 May 2025 and with the assistance of an Indonesian interpreter.
The applicant was born on [date] in [Sumatera Selatan] in Indonesia.
The applicant studied at the university, obtaining [Degree 1], and was initially employed as [an Occupation 1] for one year. He was later employed as a journalist at [Company 1] based in Jakarta.
The applicant was publishing articles for [Newspaper 1] for 12 years. For the next 5 years, he was promoted as Chief Editor of the company.
The applicant’s responsibilities were to manage the media organization. He explained that in his position he was well known to prominent individuals and politicians, constantly aware of the risks and pressures on him. He would nevertheless allow and encouraged stories and talkbacks in newspaper and radio stations about corruption and scandals of many politicians and senior public officers.
He further explained that he had known [Politician A] for many years, and the two of them actively involved in the management of [Activity 1]. For most of the time, both [Politician A] and the applicant were cordial and pleasant to each other.
However, in early 2021, the relationship between the two became tense as [Politician A] had decided to [breach legally adopted rules].
[There was chaos and disruption at a] meeting and many months of public anger and dismay occurred.
Articles were published in the newspaper, accusing [Politician A] of being fraudulent and corrupt for his manipulation of [Activity 1] organizations.
The Tribunal advised that the applicant’s several articles in [Newspaper 1] and other documents previously filed in the Tribunal have not been translated from Indonesia to English languages. In order that the Tribunal can view these relevant documents the hearing was adjourned to enable the applicant sufficient time to obtain translations of those documents.
On 19 May 2025, the applicant sent an email to the Tribunal attaching the translated versions of relevant documents as follows:
·Indonesian identification cards and photo of [Friend A].
·Published article, ‘[Article title]’, @Editorial of [August] 2021 by [the applicant] ([Activity 1 Activist)).
·Published article, ‘[Article title]’ by the editor (the applicant).
·Published article, ‘[Article title]’ by the applicant [in] August 2021.
·Text message of [Friend A] to the applicant of 10 October 2023.
The Tribunal has read and considered the above documents, consistent with the applicant’s oral evidence at the earlier hearing. From detailed information in those articles, the applicant was the major player in the on-going battle against the corrupt [Politician A] and Mr [B], and how [Friend A] and he were preparing a lawsuit to force the cancellation of Mr [B’s position]. The Tribunal noted that the message of [Friend A] to the applicant of 10 October 2023 stated, ‘Don’t go back to Indonesia just yet, boss. The situation is still not safe. They are looking for you.’
On 3 June 2025, the resumption of the hearing took place with both the applicant and his interpreter present.
As the translated articles noted, and further evidence adduced at the hearing, the applicant then said [Politician A] and his powerful connections were involved in rigging [Activity 1] with the tacit approval of Mr [B]. The police were requested by [Friend A] and the applicant to commence investigation of the [Politician A’s] illegal activities following the lodgement of their lawsuit, but the police refused to assist.
Because of the public attention, [Politician A] was later unsuccessful being [re-elected], and he was angry and demanding that the applicant pay compensation for the loss of money he spent for the election.
The applicant was a scuffle with [Politician A] in a public area, and [Politician A] was very angry and threatening him with serious harm and financial ruin. [Politician A] and associates later tried to bankrupt him, attempting to charge him with a criminal offence, but later was successful in charging his wife with false offences and sentenced her to [number] years imprisonment.
He said there is nowhere to hide in Indonesia because of [Politician A] and his political connections with the national [Activity 1] groups that he fears persecution if he returns to Indonesia. He further added that his former worker and friend, [Friend A], texted him (see para 25 above) to stay away in Australia in late 2023, because of the situation in Indonesia is still not safe.
In assessing and considering the written and oral evidence of the applicant, the Tribunal makes observations and findings of fact as follows:
·The Tribunal noted that the applicant’s account of events in relation to his claims is consistent between information contained in his protection visa application and the oral evidence at the hearing.
·The Tribunal accepts the applicant’s claims that the various documents including detailed articles published by the applicant exposing corruption and fraudulent activities against [Politician A] and other associates is ample and compelling.
·The Tribunal accepts that the entirety of the written information and oral evidence presented by the applicant is genuine and credible.
·The Tribunal finds that the combination of the applicant’s evidence in the hearing is true.
Country information
The country information[1] refers to corruption generally is a longstanding issue in Indonesia, from petty day-to-day issues to examples of large-scale corruption. Indonesia ranked 110th out of 180 countries in the 2022 Corruption Perceptions Index published by Transparency International. Judicial and bureaucratic decision-making and police interaction are, at times, susceptible to the payment of bribes. Notwithstanding strong laws against corruption, international commentators have observed weak enforcement of anti-corruption legislation, ineffective regulatory mechanisms and conflict legislation, a culture of nepotism and favouritism, and bribery in the public service, judiciary, police, and politics.[2]
[1] DFAT Country Information Report Indonesia 24 July 2023
[2] Ibid at [2.12]
The main anti-corruption authority is the Corruption Eradication Commission (KPK), however various other agencies may also tackle corruption. The KPK enjoys popular support among Indonesians, and it has been involved in several high-profile prosecutions. These efforts tend to be focused on grand corruption; the petty corruption that most Indonesians experience in their day-to-day lives is unlikely to be affected by high-profile anti-corruption efforts.[3]
[3] Ibid at [2.13]
Indonesians enjoy freedom of expression in general, however, in practice, various laws limit the exercise of this right. A range of non-violent offences attract lengthy prison terms, including defamation, libel, hate speech, insult, and the spread of communist teachings in public. These laws are sometimes used against journalists or social media users. Sources told DFAT that such laws are sometimes used by police to solicit bribes.[4]
[4] Ibid at [3.60] and [3.61]
Protests about corruption and political issues are common and usually peaceful. Violence (between protesters or between protesters and security forces) is possible and protests can grow very quickly from just a few people to many thousands. They can also quickly escalate into violence.[5]
[5] Ibid at [3.62]
The Tribunal accepts and considers the country information above.
REASONS AND FINDINGS
Applicant’s identity and country of reference
Copy of the applicant's passport is available on the department’s file, and the Tribunal finds that Indonesia is his country of nationality and his receiving country. The issue in this case is whether the applicant is owed protection in Australia as a refugee or under the complimentary protection provisions.
Refugee Criterion
Under section 5J(1) of the Act, the applicant must hold a well-founded fear of being persecuted, and that fear must be well-founded for reasons of race, religion, nationality, membership of a particular social group or political opinion; and that reason or reasons must and bribery be the essential and significant reason: section 5J(4)(a).
The country information does refer to journalists and protestors against politician generally, and it does occur in Indonesia. On occasions, violence does happen and often the police lack effectiveness in dealing with protesters. In similar situations, the applicant was prominent in publishing his articles in the newspaper criticizing [Politician A] and later lodging a lawsuit with [Friend A]. But the lawsuit was ignored by the police despite public anger and continual threatening the applicant by [Politician A]. The Tribunal accepts and finds he holds a well-founded fear of persecution by [Politician A] who had arranged a [breach] of the legal rules outlined under the [Activity 1] association; and the public spotlight by the applicant in exposing the corruption by [Politician A] who threatened him with significant harm: section 36(2A).
The Tribunal finds that there is a real chance that the applicant will suffer serious harm for reason of his political stance as shown in his articles to the newspaper and his part in the lawsuit lodged against [Politician A]. And even his wife was falsely convicted and imprisoned by [Politician A] and the police. The applicant has said that the police have not provided any protection in all areas of Indonesia by reason of his [work as a] journalist and former Chief Editor in [Company 1] in Indonesia.
The Tribunal accepts and finds that the applicant has no protection by the police pursuant to section 5J(2).
The Tribunal is not satisfied, and no evidence raised at the hearing, that any country apart from Australia is willing to offer the applicant effective protection: section 36(3).
The Tribunal is satisfied the applicant meets the criterion under section 36(2)(a) and is therefore a refugee, and the applicant is a person in respect of whom Australia has protection obligations.
In considering the Tribunal’s findings of fact in the written and oral evidence of the applicant, and the country information before it, it is satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia, there is a real chance that he will suffer significant harm.
CONCLUSION
The applicant meets the refugee criterion and for the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a) of the Act.
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order made that the applicant meets the following criterion pursuant to section 36(2)(a) of the Act.
Date of hearing: 5 May 2025 and 3 June 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 intentionly 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 ohr 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.
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