CWY19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 903

1. By an application filed in this Court on 25 July 2019 (Application) and amended 6 May 2025 (Amended Application),[1] the Applicant seeks judicial review of the decision of the then Administrative Appeals Tribunal (Tribunal), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
2. On 30 June 2019 the Tribunal affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicant a Protection (Class XA) (Subclass 866) visa (Visa) (Tribunal's Decision).

1. The Applicant is an Indonesian citizen of Chinese ethnicity and Christian faith who arrived in Australia on 30 November 2014.
2. The Applicant applied for the Visa on 15 June 2015 (Visa Application). The Tribunal summarised the Applicant's written protection claims for his Visa Application as follows[2]:
   • he left Indonesia because his life was in danger from the Indonesian authorities;
   • he was an Indonesian Chinese and he grew up in an environment of racism;
   • while he was working in PT Margabumi, he reported corruption by a local taxation officer. That officer knew about the applicant's report and wanted revenge. The applicant lost his job, and the officer came to him and threatened him. He said that he wanted to kill all of the Chinese in Indonesia;
   • the officer hired some gangs to hurt the applicant. These gangs said racist words to the applicant, and told him that they had been hired to hurt him, but because he was Indonesian Chinese, they wanted to kill him. The applicant was badly beaten on his way home. They wanted to kill him but he escaped. He left Indonesia because he knew that they would kill him;
   • if he returned to Indonesia, the taxation officer would give him a lot of trouble. The gangs he hired would look for the applicant and try to hurt him;
   • the corruption in the government was common, and government officials protected each other. This was why the applicant did not try to seek help after he was threatened and hurt;
   • he did not move to another part of the country to avoid the harm he feared because, without a job, he could not afford to move;
   • he feared being harmed or mistreated if he returned to Indonesia because he left due to the fact that his life was in danger from the Indonesian authorities. He reiterated that he was Indonesian Chinese and had grown up in a racist environment, and that he had been threatened after he reported local corruption by the taxation officer; and
   • he did not think that he would be able to relocate elsewhere in Indonesia to avoid harm as 'they' would find him in their government network.
3. To be granted the Visa the Applicant was required to satisfy criteria at the time of the Tribunal's Decision.[3]
4. Pursuant to s 36(1A) of the Migration Act an Applicant for a protection visa must satisfy:

[...]

(b) at least one of the criteria in subsection (2).

1. Section 36(2) provided the following:

(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; [...]

1. Section 36(2A) provided that 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.

1. Section 5H defined the term 'refugee'. The definition included a person who has a nationality, is outside the country of their nationality and owing to a 'well founded fear of persecution' is unable or unwilling to avail themselves of the protection of that country.
2. Under s 5J(1) of the Migration Act, a person had 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. In sections 5J(2)-(6) and 5K-LA 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.

1. The Delegate considered a range of country information on corruption, legal processes, anti-corruption mechanisms and the situation for Chinese Indonesians.
2. The Delegate expressed concerns about the lack of evidence submitted by the Applicant to support his case and noted that he was invited on 8 July 2015 to arrange an interview with the Delegate but had not done so. The Delegate was satisfied that the Applicant would receive effective protection from the police and the judiciary in Indonesia against any threats alleged from the taxation officer and gang.
3. On 28 July 2016 the Delegate refused to grant the Visa on the basis that the Applicant did not meet the criteria for protection as a refugee as set out in s 5J(1)(a) and s 36(2)(a) and did not fall within the complementary protection provisions in s 36(2)(aa) (Delegate's Decision).

1. On 11 August 2016 the Applicant lodged an application for review with the Tribunal. On 16 August 2016 the Tribunal acknowledged receipt of the application.
2. On 17 January 2019 the Applicant was invited to attend a hearing on 7 February 2019. The Applicant provided a completed response form on 3 February 2019.
3. The hearing proceeded on 7 February 2019 (First Tribunal Hearing). The Applicant appeared with the assistance of an Indonesian interpreter. The hearing was adjourned to 9 May 2019 (Second Tribunal Hearing). The letter confirming the date of the hearing requested that the Applicant provide any written submissions or documents supporting his case no later than one (1) week prior to the hearing.
4. On 5 May 2019 the Applicant provided a statement which deposed to his experience as an ethnically Chinese and non-Muslim Indonesian and the anti-Chinese sentiment in Indonesia. He included hyperlinks to articles about political intolerance of non-Muslims in Indonesia.
5. The Second Tribunal Hearing was held on 9 May 2019 and the Applicant appeared with the assistance of an Indonesian interpreter.

1. On 30 June 2019 the Tribunal decided to affirm the Delegate's Decision.
2. The Tribunal considered the Applicant's visitor visa application and the employment reference letter attached to the application. The Tribunal showed the documents to the Applicant at the Second Tribunal Hearing and put to him that the documents were inconsistent with his evidence. The Applicant responded that he did not complete the application form, assumed the letter was created by his travel agent, he was unaware of the letter and had not been employed by the company. The Tribunal accepted the Applicant's responses.
3. The Tribunal accepted that the Applicant had the subjective belief that his report of corruption and his Chinese ethnicity had a role in the termination of his employment and harassment by a gang of thugs. It was also accepted that the Applicant feared risk of harm from the manager of his former employer due to anti-Chinese and anti-Christian violence. The Tribunal was not satisfied that there was a real chance that the Applicant would be harmed by his former manager or the manager's agents upon returning to Indonesia due to the effluxion of time since the report of corruption. The Tribunal did not accept that the Applicant would re-agitate the corruption matters upon return and did not accept that his capacity to subsist would be threatened.
4. The Tribunal accepted that there was anti-Chinese and anti-Christian sentiment on societal level in Indonesia and that Chinese faced low level discrimination but found that the chance of this amounting to serious harm for the Applicant was remote. The Tribunal did not accept that the Applicant's Chinese ethnicity and or his religion was the essential or significant reason for the harm he experienced in 2014 and that the Applicant had not experienced serious harm or significant harm because of his Christianity as he did not have a high political profile. The Tribunal found that there was insufficient evidence to allow the Tribunal to be satisfied that the Applicant would face a real risk of serious harm by reason of his religion.
5. The Tribunal considered country information and the Applicant's evidence regarding his own personal experiences and circumstances and ultimately that any chance of discrimination that he may face because of his ethnicity and or his Christianity would not amount to serious or significant harm and that consequently there is no real chance that the Applicant would face serious harm if he were to return to Indonesia now or in the foreseeable future.
6. The Tribunal was not satisfied that the Applicant was a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa).

1. The Application was filed in this Court on 25 July 2019, within 35 days of the date of the Tribunal's Decision pursuant to s 477 of the Migration Act.
2. The Applicant filed a Notice of Address for Service appointing a lawyer on 4 November 2024.
3. On 15 September 2021 Orders were made by consent for the Applicant to file at least 28 days before the final hearing any amended application and written submissions. The Applicant filed his material outside of this time.
4. This matter was heard on 6 May 2025 and proceeded in person (Hearing). The Applicant was represented by his Solicitor and the Respondents were represented by the Solicitor for the Minister.
5. The Applicant filed an Application in a Proceeding on 1 May 2025 and made an application for adjournment at the commencement of the Hearing. The Minister opposed the application.
6. The Applicant made an application for leave to amend the grounds of review. The Applicant sought to rely upon the grounds of review contained within the Outline of Submissions filed on 30 April 2025 (Applicant's Written Submissions). The Applicant abandoned those grounds of review in his Application and sought to rely on only those grounds referred to in the Applicant's Written Submissions. The Minister was prepared to proceed with the Hearing on this basis. Accordingly leave was granted to the Applicant to amend the Application.[4] The application for an adjournment by the Applicant was dismissed and the matter proceeded on the amended grounds of review.
7. The Applicant's Written Submissions referred to fresh evidence upon which the Applicant sought to rely. The Applicant abandoned his reliance on this evidence.
8. The Applicant relied upon the following documents:

(a) The Amended Application;

(b) The Affidavit of the Applicant filed 25 July 2019, annexing the Tribunal's Decision;

(c) The Applicant's Written Submissions; and

(d) The List of Authorities filed on 30 April 2025.

(a) The Response filed 10 August 2019;

(b) The Outline of Submissions filed 22 April 2025, in so far as they were relevant; and

(c) The List of Authorities filed 22 April 2025.

1. The Minister filed a Court Book on 26 August 2021.
2. The grounds of review relied upon by the Applicant at the Hearing[5] were:

1. The Tribunal has made a decision that is irrational, illogical and unreasonable with findings reliance on assumption to assess an element in the refugee criteria s 5J(1)(b) of the Act (Migration Act). (Ground 1) 2. The Tribunal has ignored relevant material in its findings to s 5J(1)(C) of the Act. (Ground 2)

1. The Tribunal has failed to properly assess the significant harm element for the purpose of the Complimentary Protection per s 36(2)(aa) of the Act. (Ground 3)

Ground 1 - The Tribunal has made a decision that is irrational, illogical and unreasonable with findings reliance on assumption to assess an element in the refugee criteria s 5J(1)(b) of the Act (Migration Act).

1. The Applicant's contention under this ground has three (3) limbs. The first limb relates to the risk of further persecution by the former manager, the second limb relates to the Applicant's stance against corruption and the third limb to economic hardship.
2. It was submitted that the Tribunal's findings that the Applicant's former manager would not harbour any desire for revenge or engage in further persecution of the Applicant was unfounded and based on assumption. In support of this submission, it was asserted that the Applicant's family had been subject to harassment in 2023. It was also submitted that it was likely that the former manager would engage in acts that would keep his alleged crime concealed.
3. It was further submitted that the Tribunal's conclusion that there is no indication that the Applicant would reopen the corruption complaint or take a stand against corruption was based on unfounded and irrational assumption because the Applicant harbours a strong desire to continue fighting against corruption in his home region. It was alleged that the Tribunal had failed to take into account that the Applicant had modified his behaviour despite holding strong anticorruption views to avoid persecution. It was suggested that this modified behaviour should have been sufficient to show a risk of harm and that a failure to take into account the Applicant's modified behaviour was an error.
4. The third limb of the Applicant's argument on this ground related to the Tribunal's finding that the Applicant would not suffer significant economic hardship or a denial of a capacity to earn a living of any kind. It was submitted that the Tribunal's reasoning was incomplete and that the Tribunal only relied on the evidence of the Applicant that he still receives occasional IT work from contacts in Indonesia. In support of this submission the Applicant sought to rely on the contentions that wages and conditions offered with respect to the work performed by the Applicant did not meet International Labour Organisations standards, that the Applicant was now over 35 years of age and would face difficulty obtaining work because of maximum hiring age limits of 35 years of age, the regional minimum wage is approximately $500.00 per month and insufficient for a decent standard of living and the employment and economic situation in Indonesia was dire.
5. The Minister submitted that with respect to this ground the Applicant effectively was disagreeing with the decision of the Tribunal, that evidence that was before the Tribunal was rehashed and that the Applicant was in reality submitting that the Tribunal should have made a different decision. It was further submitted that this Court was unable to stand in the "shoes" of the Tribunal and to do so would involve undertaking impermissible merits review.
6. The Applicant misconceives what the role of this Court is. Nothing submitted by the Applicant with respect to Ground 1 identifies any basis for an assertion that the Tribunal findings were illogical or irrational. The findings of fact were open to the Tribunal. The Applicant has been unable to point me to an error as contemplated in Minister for Immigration and Citizenship v SZMDS[6]. What the Applicant seeks is a merits review of the decision of the Tribunal. The Court cannot undertake impermissible merits review.[7] No jurisdictional error has been identified by the Applicant, this ground must be dismissed.

Ground 2 - The Tribunal has ignored relevant material in its findings to s 5J(1)(C) of the Act

1. With respect to Ground 2 the Applicant alleges that the Tribunal failed to consider the Applicant's status as a whistle blower in conjunction with the Applicant's Chinese Christian identity. It was submitted that if the Tribunal had considered the Applicant's status as a whistleblower and Chinese Christian together rather than separately it would have concluded that relocation to another area of Indonesia was not viable because wherever the Applicant relocates there would always be a real chance of persecution.
2. The Minister submitted that the Tribunal considered the Applicant's whistleblower status and his Chinese Christian identity both separately and cumulatively. It was submitted with respect to the Applicant's relocation argument that it must fail on the basis that the Tribunal considered relocation at paragraph [69] of its decision. The Tribunal considered that the former manager and his agent would not have the willingness to harm the Applicant outside his home area and further found that although relocation without his family would not solve the problem because of the attitudes throughout Indonesia against Chinese and or Christians these considerations were irrelevant for the purpose of section 5J(1)(c) and determined that whether the Applicant was Chinese or Christian was irrelevant to establishing whether the Applicant would face harm on return.
3. It is apparent reading the Tribunal's decision as a whole and taking a commonsense and realistic approach to understanding the Tribunal's reasons[8] that the Tribunal has systematically made findings regarding the Applicant's whistleblower status and his Chinese Christian ethnicity culminating in a general finding at paragraph [83] of the Tribunal's Decision that individually and cumulatively that the Applicant was not a person in respect of whom Australia had protection obligations. No jurisdictional error has been established by the Applicant. This ground must be dismissed.

Ground 3 - The Tribunal has failed to properly assess the significant harm element for the purpose of the Complimentary Protection per s 36(2)(aa) of the Act.

1. It was submitted by the Applicant that the Tribunal did not appreciate the distinction between serious harm and significant harm for the purposes of the complementary protection provisions. It was contended that the Tribunal failed to address the complementary protection criteria with respect to the religion and ethnicity claim and not with respect to the whistleblower claim
2. The Minister submitted that such a submission by the Applicant could not be sustained in circumstances where the Tribunal correctly identified the definition of significant harm contained in section 36(2A) of the Act and set out the real risk test as being the same as the real chance test.[9]. The Minister identified that the Tribunal set out its assessment of the Applicant's claims against the refugee criteria in paragraphs [61] to [83] of the Tribunal's Decision. The Tribunal set out its assessment of the Applicant's claims against the complimentary protection criteria at paragraphs [84] to [89] of its decision.
3. I do not accept the Applicant's submissions on this ground. It is clear from the Tribunal's decision, as the Minister submitted, that this is not a case in which there was any relevant criteria that the Tribunal did not address. The Applicant has failed to establish a jurisdictional error on the part of the Tribunal. Ground 3 is dismissed.

1. No jurisdictional error has been identified by the Applicant. I dismiss the Amended Application.
2. The Minister sought costs in the scale amount of $8,371.30, as prescribed in Item 3, Division 1, Part 2 of Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Accordingly, the Applicant is to pay the Minister's costs in the sum of $8,371.30.
3. Orders will be made accordingly

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bingham.

[1] An Application in a Proceeding was filed on 6 May 2025 amending the Grounds of Review in the Application filed on 25 July 2019.

[2] Tribunal's Decision, [14]; Minister's Submissions filed 22 April 2025, [4].

[3] Migration Regulations 1994 (Cth), regs 866.21 and 866.22.

[4] Orders of Judge Bingham made on 6 May 2025, Orders 2 and 3.

[5] As written in the Application in a Proceeding filed on 6 May 2025.

[6] [2010] HCA 16; 240 CLR 611.

[7] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang), [31].

[8] Wu Shan Liang, 271-272; Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044, [14]-[15].

[9] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505.