V97/07417 [1998] RRTA 713 (9 February 1998)

The applicant, who is a citizen of Indonesia, arrived in Australia in mid 1996. On 22 July 1996 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (the Act). On 14 March 1997 a delegate of the Minister for Immigration and Multicultural Affairs refused to grant a protection visa and on 10 April 1997 the applicant sought review of that decision. On 31 December 1997 the applicant advised the Tribunal that he did not wish to attend a hearing and would like a decision to be made on his application on the basis of the papers already before it.

No issue arises in this case as to the validity of the application for review or as to the Tribunal's jurisdiction to review the delegate's decision.

A criterion for a protection visa is that at the time of the decision the Minister, or on review the Tribunal, is satisfied that the applicant is a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended the 1967 Protocol relating to the Status of Refugees: ss.5(1) and 36(2) of the Act. Australia is a party to the Refugees Convention and the Refugees Protocol and has protection obligations to people who are refugees as defined in them.

Article 1A(2) of the Convention defines a refugee as any person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

This definition contains four key elements. First, the applicant must be outside his or her country. Second, the applicant must fear persecution. Not every threat of harm or interference with a person's rights for a Convention reason constitutes "being persecuted". Mason CJ referred to persecution as requiring "some serious punishment or penalty or some significant detriment or disadvantage" (Chan Yee Kin v MIEA [1989] HCA 62; (1989) 169 CLR 379 at 388). Harm or threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group which is subjected to systematic harassment, amounts to persecution if done for a Convention reason. In appropriate cases it may include single acts of oppression, serious violations of human rights, and measures "in disregard" of human dignity. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors. Third, the reason for the persecution must be found in the singling out of one or more of the Convention reasons - race, religion, nationality, membership of a particular social group or political opinion. The phrase "for reasons of" serves to identify the motivation for the infliction of the persecution.

Fourth, the applicant's fear of persecution for a Convention reason must be a "well-founded" fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a 'well-founded fear' of persecution under the Convention if they have genuine fear founded upon a "real chance" of persecution for a Convention stipulated reason. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. A "real chance" is one that is not remote or insubstantial or a far-fetched possibility.

Finally, the applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country. The object of the Convention is to provide refuge for those who, having lost the de jure or de facto protection of their governments, are unwilling to return to the countries of their nationality. It follows that whenever the protection of the country of nationality is available, and there is no ground based on well-founded fear for refusing it, the person concerned is not in need of international protection and is not a refugee. Whether an applicant satisfies the Convention definition is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

These principles were established by the High Court in Chan Yee Kin v MIEA [1989] HCA 62; (1989) 169 CLR 379, Applicant A & Anor v MIEA and Anor (1997) 142 ALR 331 at 354 and MIEA v Guo & Anor (1997) 144 ALR 567 at 575-6, and the Full Federal Court in Ram v MIEA & Anor [1995] FCA 1333; (1995) 57 FCR 565 at 568.

The applicant's claims are set out in written submissions to the Department and written submissions to the Tribunal. They are as follows:

The applicant claims both in his primary application for a protection visa and in a written submission to the Tribunal that he refused to participate in demonstrations against his employer in Jakarta. He says that these demonstrations took place in 1996 rather than in 1997 which was the date which he gave in his primary application. He claims that the discrepancy was caused by a misunderstanding with a friend who assisted him with his application. The difference in the dates is significant because the applicant was in Australia throughout 1997.

The applicant claims that because of his non-participation in the demonstrations he was threatened by other participants, the majority of whom were Javanese Muslims. The applicant is of Chinese descent and says that his being Chinese was a factor in the threats he received.

The applicant further claims that several of those who did not participate in the demonstrations were murdered because of their non-participation.

The applicant goes on to claim that the Chinese community in Indonesia are regularly discriminated against because of their racial background.

The applicant also claims that he is fearful that if he returns to Indonesia he will be harassed by the demonstrators with whom he refused to demonstrate in 1996. He says that some of these demonstrators live in the same village as he does and would be likely to attack him if he were to return.

The applicant went on to claim in his submission to the Tribunal that the political unrest currently taking place in Indonesia will result in persecution of the ethnic Chinese community.

The applicant also claims to be a Christian in his primary application for a protection visa. He says that Christians too, are discriminated against in Indonesia.

The Tribunal accepts the applicant's explanation of the discrepancy between the dates on which the applicant claims to have refused in demonstrations against his employer. In these circumstances, the Tribunal accepts that the applicant refused to participate in demonstrations against his employer during 1996 and that he may have been threatened as a result of his non-participation in these demonstrations.

The Tribunal also accepts that the applicant's Chinese ethnicity may have been a factor in his being threatened.

The issue of when discriminatory treatment amounts to persecution has been canvassed by the Office of the United Nations High Commissioner for Refugees in Handbook on Procedures and Criteria for Determining Refugee Status January 1992. It is noted in the Handbook that:

"54. Differences in the treatment of various groups do indeed exist to a greater or lesser extent in many societies. Persons who receive less favourable treatment as a result of such differences are not necessarily victims of persecution. It is only in certain circumstances that discrimination will amount to persecution. This would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn his livelihood, his right to practise his religion, or his access to normally available educational facilities.

55. Where measures of discrimination are, in themselves, not of a serious character, they may nevertheless give rise to a reasonable fear of persecution if they produce, in the mind of the person concerned, a feeling of apprehension and insecurity as regards his future existence. Whether or not such measures of discrimination in themselves amount to persecution must be determined in the light of all the circumstances. A claim to fear of persecution will of course be stronger where a person has been the victim of a number of discriminatory measures of this type and where there is thus a cumulative element involved." (p.15)

In Chan's case at 431, McHugh J. comments that:

"...the denial of access to employment, to the professions and to education or the imposition of restrictions on the freedoms traditionally guaranteed in a democratic society such as freedom of speech, assembly, worship or movement may constitute persecution if imposed for a Convention reason."

The Tribunal also accepts the independent evidence before it that there is widespread discrimination towards people of Chinese descent in Indonesia. The Tribunal finds that there is a course of systematic discrimination in relation to certain aspects of employment opportunities, education and religion, directed at those of Chinese ethnicity in Indonesia.

The United States Department of State Country Reports on Human Rights Practices for 1996 remarks that:

"The Government officially promotes racial and ethnic tolerance. Ethnic Chinese, at approximately 3 percent of the population by far the largest nonindigenous minority group, are the target of both official and societal discrimination. Since 1959 noncitizen ethnic Chinese have been denied the right to run businesses in rural Indonesia. Regulations prohibit the operation of all Chinese schools, formation of exclusively Chinese cultural groups or trade associations, and public display of Chinese characters. Since August 1994, firms working in the tourist industry have been allowed to produce Chinese-language brochures, programs, and similar material for Chinese-speaking tourists. However, Chinese-language publications, with the exception of one government-owned daily newspaper, may neither be imported nor produced domestically..."

However, the independent evidence available in Country Reports on Human Rights practices for 1996: Indonesia published by the U.S. State Department does not suggest that people of Chinese ethnicity are excluded from education or employment, or that they face serious impediments or restrictions to their livelihood.

The independent evidence indicates that people of Chinese ethnicity have been victims in communal disturbances. It is not a necessary element of persecution for Convention purposes that an individual should be the victim of a series of acts; a single act may suffice. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is "being persecuted" for the purposes of the Convention: see Chan's case, per McHugh J at p. 430. Similar comments were made in that case by Mason CJ. at p.388 when he spoke of harm or the threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group.

"Not every threat of harm to a person or interference with his or her rights for a Convention reason constitutes being persecuted. Whilst not wishing to minimise the problems encountered by the Chinese community in these disturbances, the evidence before the Tribunal does not demonstrate a course of systematic conduct against the Chinese community as distinct from an existence of ethnic tensions where over time intermittent incidents have occurred in which members of the Chinese community have been mistreated or had their property damaged. Such incidents of violence cannot be seen as part of the systematic course of conduct directed at persons of Chinese ethnicity which I have identified and found to exist in Indonesia. In my view such violence is different in nature to the general pattern of discrimination against persons of Chinese ethnicity which exists in Indonesia."

In my view violence as a result of civil or communal disturbances of itself does not amount to persecution in the Convention sense: see Murugasu v Minister for Immigration and Ethnic Affairs, unreported, Federal Court, 28 July 1987 per Wilcox J. at p.8 and 13.

In any event the independent evidence available through the U.S. State Department Report, concerning riots which occurred in Java in 1996/7, indicates that the Indonesian government has intervened to halt such violence and has prosecuted the perpetrators. It cannot be said that the Indonesian authorities have tolerated the ethnic violence or failed to protect members of the ethnic Chinese community in such incidents.

Clearly no State can ensure the complete safety of all of its citizens against all forms of harm, mistreatment or even death. The Tribunal accepts the independent evidence which indicates that the Indonesian authorities have acted to restore order in situations of civil disturbance and have taken action against those who have committed criminal offences. The Tribunal finds that protection is available from the Indonesian authorities to people of Chinese ethnicity in response to the conduct of mobs in such incidents of civil disturbance. It also finds that if the applicant were to suffer mistreatment in the context of a riot such harm does not amount to persecution. Moreover, the Tribunal finds that in the context of a riot in the future, protection is available to the applicant from the Indonesian authorities.

Taking into account all the evidence the applicant has not provided any information from which the Tribunal could be satisfied that his specific or general claims of racial discrimination amount to persecution for Convention purposes. The Tribunal is not satisfied on the evidence before it that the applicant has a well-founded fear of persecution owing to his ethnicity.

In relation to the question of religious freedom in Indonesia the United States Department of State Country Report on Human Rights Practices for 1996 remarks that:

"The Constitution provides for religious freedom and belief in one Supreme God. The Government recognizes Islam, Catholicism, Protestantism, Buddhism, and Hinduism, and permits the practice of the mystical, traditional beliefs of "Aliran Kepercayaan." Although the population is over 85 percent Muslim, the practice and teachings of the other recognized religions are generally respected, and the Government actively promotes mutual tolerance and harmony among them. However, some restrictions on certain types of religious activity, including unrecognized religions, exist.

Because the first tenet of Pancasila is belief in one Supreme God, atheism is forbidden. The legal requirement to adhere to Pancasila extends to all religious and secular organizations. The Government strongly opposes Muslim groups that advocate establishing an Islamic state or acknowledging only Islamic law. The Government banned some religious sects including Jehovah's Witnesses, Baha'i, and in some provinces the messianic Islamic sect Darul Arqam. The Government closely monitors Islamic sects considered in danger of deviating from orthodox tenets, and in the past has on occasion dissolved such groups.

High-level officials continued to make public statements and emphasize by example the importance of respect for religious diversity in the country. Lower-level officials, however, were frequently alleged to be reluctant to facilitate and protect the rights of religious minorities.

The law allows conversion between faiths, and such conversions occur. The Government views proselytizing by recognized religions in areas heavily dominated by another recognized religion as potentially disruptive and discourages it. Foreign missionary activities are relatively unimpeded, although in East Timor and occasionally elsewhere missionaries have experienced difficulties and delays in renewing residence permits, and visas allowing the entrance of new foreign clergy are difficult to obtain. Laws and decrees from the 1970's limit the number of years that foreign missionaries can spend in Indonesia, with some extensions granted in remote areas like Irian Jaya. Foreign missionary work is subject to the funding stipulations of the ORMAS Law. Citizens practicing the recognized religions maintain active links with coreligionists inside and outside the country and travel abroad for religious gatherings."

In the light of this evidence the Tribunal does not accept that the applicant would face persecution in the terms of the Convention on religious grounds.

Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.

The Tribunal is not satisfied that the applicant is a refugee and affirms the decision not to grant a protection visa.