SZRCJ v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 707
•16 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
SZRCJ v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 707
File number(s): SYG 289 of 2021 Judgment of: JUDGE SKAROS Date of judgment: 16 May 2025 Catchwords: MIGRATION – Judicial review – Protection visa – Administrative Appeals Tribunal – Indonesia - Where the Tribunal was only required to assess the complementary protection criterion – Whether Tribunal assessed harm at present or in the reasonably foreseeable future – Where Tribunal used the words ‘Indonesia today’ – Unfair reading of Tribunal’s decision – application dismissed Legislation: Migration Act 1958 (Cth) s 36(2)(aa) Cases cited: BOT15 v Minister for Immigration and Border Protection [2018] FCA 654
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
CPE15 v Minister for Immigration & Border Protection [2017] FCA 591
FFQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 496
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SZGHS v Minister for Immigration & Citizenship [2007] FCA 1572
SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235
Division: Division 2 General Federal Law Number of paragraphs: 70 Date of hearing: 29 April 2025 Place: Parramatta Counsel for the Applicants: Ms F McNeil Solicitor for the Applicants: ALP Lawyers Solicitor for the First Respondent: Mr M Vethecan, Clayton Utz Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 289 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SZRCJ
First Applicant
SZRCK
Second Applicant
SZRCL (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SKAROS
DATE OF ORDER:
16 MAY 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to Minister for Immigration and Multicultural Affairs.
2.The name of the Second Respondent is amended to the Administrative Review Tribunal.
3.The application filed 24 February 2021, and amended on 1 April 2025, is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE SKAROS:
By application filed on 24 February 2021 the applicants seek judicial review of a decision of the Administrative Appeals Tribunal[1] (the Tribunal) dated 21 January 2021. The Tribunal affirmed a decision of a delegate (the delegate) of the first respondent (the Minister) in refusing to grant the applicants protection visas (the visas) under s 65 of the Migration Act 1958 (the Act).
[1] The Court notes that the Administrative Appeals Tribunal has been superseded by the Administrative Review Tribunal. Item 10, Part 2 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 provides that for any proceedings that were pending in any court or tribunal immediately before the transition time and to which the Administrative Appeals Tribunal was a party, the Administrative Review Tribunal is, after the transition time, substituted for the Tribunal as a party to the proceedings. Therefore, in these Reasons, reference to the Tribunal is a reference to the Administrative Review Tribunal.
BACKGROUND
The first and second applicants are husband and wife and the third and fourth applicants are their daughter and son. The second, third and fourth applicants did not make their own claims for protection and applied for the visas as members of the first applicant’s family unit. Any reference to ‘the applicant’ in these Reasons is a reference to the first applicant.
The applicants are Indonesian nationals, born in Indonesia, of Chinese ethnicity and identify as Christians.
The applicants first arrived in Australia as holders of tourist visas on 20 April 2010 and on 6 August 2010 they applied for protection visas (the First Protection Application). On 25 November 2010, the protection visas were refused by a delegate of the Minister. The Refugee Review Tribunal (RRT) affirmed that decision on 14 July 2011.
The applicant’s initial claim was that he feared harm as a businessman of Chinese ethnicity on return to Indonesia. The applicant later made claims that he feared harm due to his practice of Christianity in Indonesia.
On 10 August 2011, the applicant sought Ministerial interventions pursuant to s 417 of the Act and on 14 September 2011 the Minister declined to intervene in the case.
On 30 January 2012, the applicants sought judicial review in the then Federal Magistrate’s Court and that court dismissed the applications on 24 July 2012.
In the meantime, on 24 March 2012, the Act was amended to introduce the complementary protection criterion in s 36(2)(aa) which, in effect, ‘added a new type of protection visa to the list already set out in s 36’: SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 (SZGIZ) at [9].
On 17 October 2012, the applicants lodged the visa applications, they were initially notified that the applications were s 48 barred however on 29 August 2013 the Minister conceded that the visa applications were not barred because of what fell from the Full Court of the Federal Court in SZGIZ.
On 22 March 2016, the delegate refused to grant the applicants the visas.
On 24 April 2016, the applicants lodged applications for review with the Tribunal, on 5 November 2020 they attended a hearing before the Tribunal and on 21 January 2021 the Tribunal affirmed the delegate’s decision not to grant the applicants the visas.
THE TRIBUNAL’S DECISION
The Tribunal summarised the applicant’s claims for protection as set out in the initial application and the application before it. The Tribunal identified that the dispositive issue in this review was whether the applicants were persons in respect of whom Australia had protection obligations under s 36(2)(aa) of the Act, being the complementary protection criterion only.
The Tribunal identified that it must have regard to Ministerial Direction No. 84 made under s 499 of the Act, and that it must take into account the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department. The Tribunal stated it had considered assessments prepared by the Department of Foreign Affairs and Trading (DFAT) insofar as they were relevant. The Tribunal specifically stated it had regard to the DFAT Report on Indonesia dated 25 January 2019 (the DFAT Report).
The Tribunal was satisfied that the second, third and fourth applicants were members of the same family unit as the applicant and therefore proceeded to assess the protection claims and evidence of the applicant.
The Tribunal summarised the applicant’s travel history and made findings as to the applicant’s circumstances generally. It accepted that he was an Indonesian national of Chinese ethnicity who was a Christian. It accepted that the applicant was a salesman, marketing professional and an owner of multiple businesses in Indonesia at various points in time.
The Tribunal then extracted the applicant’s claims for protection which were contained in two statements. The first was identical to that provided to the Department at the time of the First Protection Application and the second was provided to the RRT after its hearing on the review of the delegate’s decision to refuse the First Protection Application.
In summary, in the first statement the applicant claimed that he was subject to persecution in China mainly due to his Chinese ethnicity. He claimed that in the riots of May 1998 his parents’ house was raided, that he had to run away and that he was assaulted on the street. He had lost contact with his parents and when he returned to his family home, it had been burnt down, exploded and his parents were burned alive inside. Several businesses that the applicant worked for were also burnt down or looted during the riots. In or about 2000 the applicant was helping to build his church, and the Muslims/ethnic Indonesians forced them to stop the construction which prevented the congregation from meeting at the church for almost a year – eventually they were able to complete the church. In 2001 his house was flooded and his family had to move house and upon return they discovered that their house had been looted. In 2002 – 2004 the applicant joined a ‘venture business’ and a mob said he must pay ‘protection money’ – these people vandalised his business and he had to stop working in that area. The applicant established another business in 2005 and due to racial issues and allegations of stealing, a mob came and vandalised the business’ premises and intimidated him – the authorities did not assist. The applicant claims he was traumatised by these experiences and seeks protection for himself and his family.
In the second statement the applicant largely repeated his claims from the first statement albeit providing more detail. The applicant identified that the 1998 riots were targeted at those of Chinese ethnicity by ethnic Indonesians. He says that when he returned to his parents’ house in 1998, he found his parents’ ‘shapeless burnt bodies’. The applicant added that his business in 2004 was destroyed and that in relation to the incident with his second business in 2005, he was threatened on racial grounds, and the authorities demanded a sum of money as a ‘guarantee of safety’. The applicant claimed his daughter had been subject to racial harassment at school. The applicant also made a claim that he was assaulted by two former employees in 2009, where his body and face were hit and kicked and some of his teeth were broken. The applicant said he did not make this claim originally because he was ashamed of it. The applicant again identified that his persecution was because of his ethnicity.
The Tribunal then identified the material it had before it, including images, a psychologist report and a statutory declaration of the applicant dated 28 October 2020. This declaration stated that both his parents died in 1998, it provided details of three churches he attended in Indonesia, explains contradictions in his evidence due to his mental health issues and makes further claims of church activity in Australia and persecution in Indonesia due to their proselyting of Christianity.
The second applicant also provided a letter to the Tribunal referencing the family’s church activities in Australia. Supporting material was provided attesting to church activity and the applicants’ good character. The applicant also provided an additional statutory declaration responding to matters raised at the hearing.
Country Information
The Tribunal then considered and made findings based on country information. The Tribunal canvassed the country information as it related to persecution against those of Chinese ethnicity and of the situation of Christians in Indonesia. Relevant to the ground of judicial review, which relates to the applicant’s claim of harm because of religion and the increase (or growth of) Islamic extremism and religious persecution in Indonesia, the Tribunal at [32] extracted a large portion of the DFAT Report which concluded as follows:
DFAT assesses that Christians residing in areas where they are a majority do not face either official or societal discrimination. Christians residing in areas where conservative Islam is prevalent face a low risk of societal discrimination in the form of impediments to worship, although this risk is unlikely to include violence. DFAT assesses that Christians face a low risk of terrorism in spite of recent exceptional events.
(emphasis in the original)
At [33] the Tribunal found that:
The DFAT report does indicate an increase in localised instances of religious intolerance over the past decade, including threats from hard-line Islamist organisations.
The Tribunal then referenced the voluminous country information and other material provided by the applicant which related primarily to the situation of Christians in Indonesia and the rise of Islamic extremism and terrorism against Christians. Relevant to the ground of review, the Tribunal referred to this information as of a ‘rising religious intolerance’ (at [35]), of attacks by ISIS groups which were growing in number (at [36] and [38]), of the potential for ‘more violence in Indonesia’ (at [36]), ‘rising Islamic extremism’ (at [37]), the growing role of women in extremist groups in Indonesia (at [38]), that ‘more anti-Chinese violence could occur’ (at 38]), Indonesia’s worsening persecution against Christians (at [38]) and of recent terrorist attacks against Christians.
Credibility Concerns and Findings
The applicants accepted in written submissions to the Court that there were inconsistencies in the applicant’s account of certain events and do not quarrel with the Tribunal’s credibility concerns and subsequent findings.
The Tribunal accepted some parts of the applicant’s claims but had credibility concerns with other claims. The Tribunal accepted the applicant’s claims as to what happened to his family and himself in the anti-Chinese riots of 1998 and accepted that his parents were killed in these riots, that he was attacked, and that the applicant experienced mental trauma associated with these events. The Tribunal also accepted that the applicant had fired two Indonesian staff in 2009 who had been stealing from the business. However, the Tribunal did not accept that he suffered an attack and bashing in 2009, a month after issues arose from those business firings. It also did not accept that the applicant had lost a job in 1998 as a result of the anti-Chinese riots. The Tribunal also found that, based on the independent information, it was unlikely that the events of 1998 would be repeated or that disgruntled friends or employees smashing his business windows would constitute significant harm.
The Tribunal also noted the applicant’s claim that COVID-19 exacerbated the mistreatment of ethnically Chinese Indonesians but did not accept that it would lead to some degree of discrimination and an adverse view towards ethnically Chinese which met the threshold of the defined categories of significant harm.
The Tribunal also noted the independent evidence provided by the applicant regarding the rise of Islamic terrorism and extremism against Christians in Indonesia. The Tribunal accepted that in between 2002 and 2004, there was some intimidation of the applicant’s business by local Muslims and considered it to be part and parcel of doing business in Indonesia, it being an issue potentially faced by all businesses. The Tribunal was not satisfied that that the applicant faced any level of business intimidation that would constitute significant harm.
In terms of the vandalising of the business premises in 2009, the Tribunal did not accept that this constituted significant harm or extreme humiliation. Further, the Tribunal was not satisfied that the individuals involved would, over 10 years after the event, have any desire to inflict significant harm on the applicant as it was a result of specific factors at the time, namely the sacking of employees.
Whilst the Tribunal accepted that there was some degree of discrimination and instances of harm suffered by Chinese Indonesians, potentially exacerbated by COVID-19 and a rise in Islamic extremism, the Tribunal was not satisfied based on the weight of independent evidence that those of Chinese ethnicity in Indonesia as a class faced a real risk of significant harm based on their ethnicity. The Tribunal was not satisfied that the applicant’s attributes or past circumstances demonstrate that he, in particular, faced a real risk of significant harm in Indonesia based on his ethnicity either.
While the Tribunal accepted that the applicant suffered ongoing mental trauma which increased his sensitivities, the Tribunal was not satisfied that this would lead to the applicant facing significant harm on return to Indonesia at the time of the decision or in the reasonably foreseeable future.
The Tribunal then turned its mind to the applicant’s claims as to persecution due to his practice of Christianity. The Tribunal noted that the applicant had previously noted he had no difficulties practising his religion, save for the disruption in building a church in 2000 and 2001. In response, the applicant maintained that there were risks and violence towards Christians. The Tribunal, noting country information, was not inclined to think that Christians as a class faced a real risk of significant harm. The Tribunal received further material from the applicant after the hearing which provided accounts of Christians in Indonesia facing harm.
The Tribunal had concerns (and put it to the applicant) that his claim of fearing harm as a Christian had not been maintained from the commencement of the application and that his initial claims related to his Chinese ethnicity until final submissions at the end of the Tribunal hearing and that this indicated that the applicant may not have a subjective fear of harm in this respect. The Tribunal was satisfied that there was no increased risk of harm to the applicant if he proselytised.
At [87] the Tribunal made findings as to the country information and the applicant as follows:
The weight of independent evidence does not persuade the Tribunal that Christians as a class in Indonesia, including those who proselytise, face a real risk of significant harm in Indonesia. This is notwithstanding that there are some reports of Christians facing harm in Indonesia. The DFAT assessment which the Tribunal gives weight, together with other independent information referred to, does not persuade the Tribunal that an active and practising Christian in Indonesia today would face any defined category of significant harm. The Tribunal does not consider that there is anything in the applicant’s own profile or past in terms of the practising of his religion which would lead him to facing a real risk of significant harm based on the practice of his religion. This includes the risk of harm to the applicant considered cumulatively together with his ethnicity and profile.
Having dispensed with the applicants’ claims of persecution due to this practice of Christianity, the Tribunal turned to consider the applicant’s claimed fear of harm as a businessman of Chinese ethnicity. It accepted that there was some degree of discrimination suffered by those of Chinese ethnicity but that it was not widespread and did not constitute systemic significant harm such that every Chinese person or business owner who employed Indonesians faced a real risk of significant harm. The Tribunal was not satisfied that there was a real risk the applicant would face significant harm as a result of being a Chinese businessman on return to Indonesia.
The Tribunal affirmed the decision of the delegate not to grant the applicants the visas.
APPLICATION TO THIS COURT
The originating application for judicial review was filed on 24 February 2021. The applicant also filed an affidavit annexing the Tribunal’s decision. It was not necessary for the Court to take this affidavit into evidence as the Tribunal’s decision was included in the Court Book filed by the Minister on 10 May 2021 which was tendered at the hearing (as exhibit CB) and is in evidence.
When the application was filed the applicants were self-represented. On 28 April 2021 the applicant filed a Notice of Address for Service indicating that ALP Lawyers acted for them.
The matter was listed for final hearing on 29 April 2025 at the Parramatta Registry of the Court and a notice of listing was sent to the parties on 19 February 2025.
On 1 April 2025 the applicant filed an amended application, written submissions and an affidavit of the applicant’s solicitor annexing a copy of the DFAT Report. The Minister did not oppose the applicant being granted leave to rely on the amended application and the Court so ordered.
At the hearing on 29 April 2025 the applicant was represented by Ms McNeil of Counsel. The Minister was represented by Mr Vethecan of Clayton Utz.
The oral submissions of the parties further developed their written submissions.
GROUND OF REVIEW
The amended application for judicial review advances the following ground (without alteration):
The Tribunal fell into jurisdictional error in its assessment of whether the first applicant faces a real risk of significant harm in Indonesia by failing to address the reasonably foreseeable future in the context of the claims made, based on the first applicant’s practice of Christianity.
The accompanying submissions set out the following particulars to this ground:
Particulars
(a) The Tribunal found at [87] of its reasons that it was not persuaded that “an active and practising Christian in Indonesia today would face any defined category of significant harm” and further that it did not consider that “there is anything in the applicant’s own profile or past in terms of practising his religion which would lead to him facing a real risk of significant harm based on the practice of his religion”.
(b) The Tribunal noted at [33] that the DFAT Country Information Report – Indonesia of 25 January 2019 “does indicate an increase in localised instances of religious intolerance over the past decade, including threats from hardline extremist groups”.
(c) The continued rise of Islamic extremism was also identified by the first applicant in his statement dated 28 October 2020 (CB 458-459 at [8]) and dated 16 November 2020 (CB 508-509 at [7]-[9]).
(d) The Tribunal, in considering whether the applicant faced a real risk of significant harm on return to Indonesia based on the first applicant’s practice of Christianity, undertook that consideration as at a particular point in time being, in the Tribunal’s words in [87] - “Indonesia today”. The Tribunal did not consider the foreseeable future, or factor into its assessment the continued rise of Islamic extremism, or consider the particular characteristics of the applicant’s practice of Christianity.
(e) The Tribunal thereby erred in its application of the real risk test in respect of the reasonably foreseeable future or did not take into account an aspect of the country information referred to by the Tribunal at [33] or the applicant’s evidence as to the rise in Islamic extremism in considering the reasonably foreseeable future in the context of this claim. This is a jurisdictional error.
The applicants submitted that the Tribunal had to, when considering whether the applicant satisfied the complementary protection criterion, consider the situation of the applicant into the ‘reasonably foreseeable future’ in the context of the claims made, relying upon Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) wherein the High Court stated at 278 and 279:
There is nothing here to suggest that the delegates abandoned the process of looking to the future which is the essence of the Chan test.
…
The Tribunal had expressed the following conclusion:
"Looking at the applicant's claims overall, 1 am unable to find that there is a real chance that he would be persecuted for a Convention reason were he to return at this time or within the reasonably foreseeable future."
On its face, this is the correct test.
The applicants contended that the Tribunal, in assessing whether there was a ‘real risk’ for the purposes of the complementary protection criterion (which is the same as the ‘real chance’ test in the refugee criterion), failed to consider the ‘reasonably foreseeable future’ in the context of the claims made by the applicant and instead focused on the situation in ‘Indonesia today’.
The applicants submitted that the error arose in circumstances where the applicant’s claims and the country information before the Tribunal indicated there had been growing Islamic extremism in Indonesia, including harm faced by those who ‘seemed to be promoting Christianity’. It was contended that it was in the context of these claims (and the country information) that the Tribunal failed to consider the ‘reasonably foreseeable future’.
The Minister contends that a fair reading of the reasons indicates that the Tribunal assessed the real risk of significant harm (both at present and in the future), and that it had regard to the country information before it.
The oral of submissions of the parties as they developed at the hearing are discussed further below.
CONSIDERATION
The applicants in this matter had previously been assessed against the Refugee criterion in s 36(2)(a) and found not to be owed protection. Following legislative changes in March 2012, the applicants became eligible to be considered against the complementary protection criterion in s 36(2)(aa).
The Tribunal correctly identified at [8] – [9] that the question before it was whether (at the time of its assessment) there were ‘substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there was a real risk that he or she will suffer significant harm’: s 36(2)(aa).
Section 36(2A) of the Act exhaustively defines the types of harm that will amount to ‘significant harm’. A non-citizen will suffer significant harm if he or she will be arbitrarily deprived of his or her life; or the death penalty will be carried out on them; they will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
It is not in dispute that, when assessing whether the applicant satisfied the complementary protection criterion, the Tribunal was required to consider the risk of the harm faced by the applicant in the ‘reasonably foreseeable future’: FFQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 496 (FFQ18) at [18].
The meaning of ‘reasonably foreseeable future' was discussed in CPE15 v Minister for Immigration & Border Protection [2017] FCA 591 at [60] (and cited in FFQ18 at [22]), wherein Mortimer J, as her Honour then was, said:
The “reasonably foreseeable future” is something of an ambulatory period of time, but the use of reasonable foreseeability as the benchmark concept indicates that the assessment is intended to be one which can be made on the basis of probative material, without extending into guesswork. It is also intended to preclude predictions of the future that are so far removed in point of time from the life of the person concerned at the time the person is returned to her or his country of nationality as to bear insufficient connection to the reality of what that person may experience. The purpose of the “well-founded” aspect of the Art 1A test is, after all, to be an objective but realistic and accurate assessment of what risks a person may face in the practical “on the ground” circumstances she or he will be living in. Using “reasonably foreseeable” also carries with it a rejection of an assessment which becomes too remote from a person’s expected life circumstances. These are not matters which can be expressed sensibly with any more precision.
Further, as stated in FFQ18 at [23]:
The task required by s 36(2)(aa) of the Act is prospective and assessed by reference to the consequences of removal: DQU16 v Minister for Home Affairs (2021) 273 CLR 1; [2021] HCA 10 (DQU16) at [18]–[19] per Kiefel CJ, Keane, Gordon, Edelman and Steward JJ A “real chance” or “real risk” requires consideration of prospects that are neither remote nor far-fetched: DQU16 at [10].
At the heart of the applicant’s complaint is the Tribunal’s use of the words ‘in Indonesia today’ at [87] which, the applicant contends, demonstrates the Tribunal’s failure to assess the real risk of harm (having regard to the claims made by the applicant about the rise of Islamic extremism in Indonesia) in the reasonably foreseeable future because of his Christian religion.
If the Tribunal had assessed the risk of significant harm to the applicant only by reference to the present situation in Indonesia, as contended by the applicant, then this would have been an error on its part. However, I have not been persuaded that this is what has occurred in this case.
A fair reading of the Tribunal’s reasons does not disclose that it was only focused on the situation ‘in Indonesia today’, rather it was considering the most current information before it concerning Christians in Indonesia, including those who wished to proselytise, for the purposes of assessing whether the applicant would face significant harm if he were removed from Australia and returned to Indonesia. As part of the ‘predictive exercise involving speculation as to circumstances in the future’, the Tribunal was entitled to have regard to (and base its findings upon) material in the present and what has happened to the person in the past: Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 at [33] citing Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 391, 432; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 571–573.
The Tribunal’s reasons disclose that it had regard to past claimed events, including those related to the applicant and his family’s practice of the Christian faith in Indonesia and Australia. The Tribunal also had regard to the applicant’s desire to practise his faith by proselytising: see [26], [84] and [86].
I accept the Minister’s submission that the Tribunal’s findings at [87] regarding the risk of harm faced by the applicant as an ‘active and practising Christian in Indonesia today’ should not be taken to be a complete statement of the Tribunal's assessment of whether the applicant was at real risk of significant harm. The words ‘in Indonesia today’ should not be taken to mean that the Tribunal was assessing the risk of harm to the applicant only as at that point in time. Interpreting the words in such a literal way would, in my view, overlook the broader context in which they were used and would be a misinterpretation of the Tribunal’s reasons.
I accept that the findings in [87] should be considered in the context of the Tribunal’s assessment of the applicant’s Christianity claims which commenced at [79] and continued until [87] wherein the Tribunal, after having regard to the country information before it, did not consider that ‘there [was] anything in the applicant's own profile or past in terms of the practising of his religion which would lead him to facing a real risk of significant harm based on the practice of his religion’.
I accept, as submitted by counsel for the applicants, that the mere use of the words ‘faced’ at [80], ‘faces’ at [83] or ‘would lead to him facing’ at [87], does not necessarily indicate a forward-looking approach. I am also mindful that expressly stating the correct test for the purposes of s 36(2)(aa), as the Tribunal did at [8] and [93], does not necessarily imply that the correct test had been applied: see SZGHS v Minister for Immigration & Citizenship [2007] FCA 1572 (SZGHS) at [3] and BOT15 v Minister for Immigration and Border Protection [2018] FCA 654 (BOT15) at [54] – [59] (in which SZGHS is cited).
Whilst the principle in SZGHS and BOT15, as relied upon by the applicants in oral submissions, is relevant, I am not satisfied that the Tribunal in this case had merely reiterated (in a formulaic manner) the correct test to be applied or that it had merely used future tense phrases in its reasons (without analysis of the information before it), without actually assessing whether the applicant would face a real risk of significant harm as a foreseeable consequence of removal to Indonesia.
As submitted by the Minister, it is necessary to have regard to the Tribunal’s reasoning (and detailed analysis) as a whole. It is also necessary to have regard to country information that was before the Tribunal at the time it undertook its analysis. At [32], the Tribunal extracted paragraphs from the DFAT Report relevant to the situation for Christians in Indonesia, which included an assessment by DFAT that:
… Christians residing in areas where they are a majority do not face either official or societal discrimination. Christians residing in areas where conservative Islam is prevalent face a low risk of societal discrimination in the form of impediments to worship, although this risk is unlikely to include violence. DFAT assesses that Christians face a low risk of terrorism in spite of recent exceptional events.
The Tribunal at [33] noted that the DFAT Report had also indicated ‘an increase in localised instances of religious intolerance over the past decade including threats from hard-line Islamist organisations.’ At [34] to [38], the Tribunal also set out in great detail the information provided by the applicant to the Department and the Tribunal regarding the rise of Islamic extremism in Indonesia and incidents of attacks targeting Christians.
It was in the context of the country information available to it (at that time) that the Tribunal undertook its assessment about what was likely to occur in the future. The relevant paragraphs preceding the Tribunal’s findings at [87] which disclose the Tribunal’s analysis and reasoning follow (emphasis added):
[79] In relation to claims based on the practice of Christianity, the applicant indicated in the hearing that he was maintaining a claim of significant harm on this basis. The Tribunal noted to the applicant that he had previously indicated that he had had no difficulties practising his religion, other than the disruption to the building of the church in 2000 and 2001. In response, the applicant maintained that there are risks and violence towards Christians.
[80] The Tribunal noted to the applicant the DFAT assessment in relation to Christianity in Indonesia that Christians are able to practise that faith freely in that country, albeit with some localised discrimination and violence. DFAT assesses that Christians face a low risk of terrorism in spite of exceptional events. The Tribunal put to the applicant that it accepted that there were specific instances of harm suffered by Christians, but it was not inclined to think that Christians as a class faced a real risk of significant harm. The Tribunal also notes that the only harm claimed to have been suffered by the applicant was disruption to the building of a church, which the Tribunal would not be inclined to consider was significant harm.
…
[83] … the applicant indicated that he faces harm because of the events that he faced in 1998 and 2009. The Tribunal noted to the applicant these claims are instances of harm based on the race, not religion. The applicant did not respond despite being given considerable opportunity to do so.
[84] The Tribunal noted to the applicant that he had made a claim that he would be a particular risk of harm in Indonesia based on his religion because he would wish to proselytise. The Tribunal noted that there was no independent information that had been provided to the Tribunal which would indicate that there was an increased risk based on proselytising.
[85] The applicant’s migration agent made the oral submission that the DFAT report does make mention of the fact that there have been increased localised instances of religious tolerance over the past decade, including threats from hard-line Islamist organisations.
[86] As indicated, following the hearing, the applicant did provide some reports of Christians facing harm. The applicant also indicated in his written response that he is not claiming harm simply on the basis that he would be a Christian, but combined with his profile and family members’ activities and proselytising in the context of growing Islamic extremism which indicates that anyone who is promoting Christianity will face serious harm.
(emphasis added)
The Tribunal went on to conclude at [87] that the weight of the independent evidence did not persuade it that Christians in Indonesia, including those who proselytise, ‘face a real risk of significant harm in Indonesia’. The Tribunal acknowledged that there were reports of Christians ‘facing’ harm in Indonesia, but did not consider, having regard to the DFAT Report, to which it gave weight, and other independent information that ‘an active and practising Christian in Indonesia today’ would face significant harm (as defined). I accept the Minister’s contention that this finding relates to the current state of affairs in Indonesia (having regard to the DFAT Report), which when considered with the applicant’s own profile and past experiences and practise of his religion, led the Tribunal to conclude that there would not be a real risk of the applicant facing significant harm based on the practice of his religion. There is no error in the approach of a Tribunal that makes conclusions on the situation in a country at the time of its decision, relying on country information, in circumstances where those conclusions also form part of an assessment of what would happen to the applicants in the reasonably foreseeable future.
When considered in its totality, and in the context of the Tribunal undertaking an assessment of the foreseeable consequences of removal, it is apparent that the reference to ‘in Indonesia today’ was not said in the context of a present-time or immediate future assessment about the risk of harm, but was a reference to the prevailing country information available to the Tribunal at the time of its assessment. It cannot be said that the Tribunal did not consider (or failed to appreciate) the claims made (and material provided) by the applicant about the rise of Islamic extremism and incidents of religious intolerance. The Tribunal clearly had regard to that evidence at [85] – [87], but gave weight to the assessment in the DFAT Report (as it was entitled to do), which formed (in part) the basis of its conclusion about the real risk of significant harm that would be faced by Christians, including those who proselytise, in Indonesia.
While the Tribunal did not expressly use the phrase ‘in the reasonably foreseeable future’ in its conclusions on the applicant’s Christian claims, as it had done at [78] when considering the applicant’s Chinese ethnicity claims, I am satisfied, having regard to the Tribunal’s analysis and reasoning, that the assessment undertaken by the Tribunal was done so in the context of complementary protection criterion which required the Tribunal to assess what was likely to occur in future if the applicant is removed from Australia and returned to Indonesia.
Having considered the applicant’s claims on the basis of his practice of Christianity, as well as his Chinese ethnicity, profile and as a business owner who employed Indonesians, the Tribunal concluded at [92] - [93] that it was not satisfied (for any of the reasons claimed) that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Indonesia, there was a real risk the applicant would suffer significant harm. This logically followed from the Tribunal’s earlier findings and demonstrates that the Tribunal understood that its task was to determine whether the applicant faced a real risk of significant harm by reference to the consequence (in the reasonably foreseeable future) of being removed from Australia to Indonesia.
For these reasons, the single ground of judicial review has not been made out.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros. Associate:
Dated: 16 May 2025
SCHEDULE OF PARTIES
SYG 289 of 2021 Applicants
Fourth Applicant:
SZRCM
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13
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