V97/07455 [1998] RRTA 590 (3 February 1998)

The applicant, who is a citizen of Indonesia, arrived in Australia in December 1994. In January 1997 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (the Act). In March 1997 a delegate of the Minister for Immigration and Multicultural Affairs refused to grant a protection visa and in April 1997 the applicant sought review of that decision.

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.

The applicant was represented on the Application for Review to the Refugee Review Tribunal by A1 Migration Services. He was not represented at the hearing.

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, written submissions to the Tribunal and oral evidence given to the Tribunal on 14 January 1998. The following are the applicant's claims to Refugee Status together with relevant background information:

The applicant was born in Java, Indonesia, where he lived until he left for Australia in late 1994. He travelled on a valid passport. He entered Australia on a 3 months visitor visa. He was self employed from April 1986 to May 1993. He received 12 years education from 1960 to 1972. He described himself as belonging to the "Chinese Indonesia" ethnic group, and he is a Christian. He is not currently employed. He speaks English, but is unable to read or write in that language. He has not been assisted in making his application by a migration agent. He has never travelled outside his home country before his current journey to Australia.

In his application he claimed that he had a friend who was the leader of a social group. He accepted his friend's offer to join the group and became a member. At first he considered the group to have very good purposes and goals, but later he learnt that the activities of the group were done illegally. The applicant immediately quit the social group. However, his friend told him that if he left, he would be killed. Although he was afraid to leave the group, the applicant could not stand to see the illegalities, so he ran away to Australia. He no longer feels safe in Indonesia. The applicant's business was also destroyed. The Indonesian authorities cannot and will not protect him because they have insufficient money and the army prefers to protect the social group.

On 16 April 1997, A1 Migration Services lodged a submission on behalf of the applicant to support his application for review. He lodged completely new claims. He claimed that Chinese people are badly discriminated against in Indonesia, and that on a number of occasions he has been mistreated and persecuted.

In 1973, he was riding a motor cycle when he rode up to an anti-Chinese riot. He was pulled from his motor cycle which was burnt, and he was beaten. He was in hospital for one and a half months for treatment for his injuries.

In 1994 he was riding a motor cycle when he was hit by a car driven by some Bataknese. He was threatened and blamed for the accident so he ran to the nearest police station, but the police did not protect him because he was Chinese. They allowed the Bataknese to beat him up.

The applicant claims that he received letters from his mother informing him that in late 1996 when his parents were inside their house it was set on fire by some people and everything was burnt. He lodged with the submission a photograph of an unidentified building which had been partially destroyed by fire .

The applicant claimed that as a Chinese, his life is always in danger. He referred to anti-Chinese riots and his experiences (above). He has always been persecuted by Muslims who hate the Chinese very much. Some government officials are fanatic Muslims and try to make life difficult for Chinese. If he cannot remain in Australia, he will die sooner or later at the hands of Islamic extremists. The authorities will not help him unless they are paid.

At the hearing, the applicant amended the details in his application, and his claims. He first applied for a passport in the mid 1970s in case he needed it to come to Australia. After it expired he "re-activated it". He had no difficulty in renewing his passport, which took only a week to obtain. He departed for Australia from the Jakarta airport.

In the past he has travelled to Singapore, Hong Kong and Thailand, using the passport which has since expired.

He entered Australia on a three months visitor visa in 1994. Since then he has had a holiday looking around Australia. First he went to Perth where he had friends, then he went to several other places, including Adelaide, Brisbane, the Gold Coast and Sydney. He is happiest in Sydney, where he is now living.

In his application he stated that he is not employed. He explained that he was able to support himself because he had been in business in Indonesia. He had a business in his home town for 15 years and after that he came to an arrangement with his parents that he would find a place to which he could run away and live. His business has not been closed down and his parents are running it for him. When he needs money, his parents send it to him. Depending on what he needs, they send him $2000 or $3000 every 3 or 4 months. He affirmed that he is not working and has not worked since arriving in Australia. He is having a rest from work, and he fills in his time by travelling from one city to another, talking to friends, going fishing and playing badminton. He lives in a flat in Sydney for which he pays $70 per week.

He also corrected the information concerning his education in Indonesia. In his home town he attended a Chinese school until grade 3, and then attended Indonesian schools. He was attracted to business and worked from 1978 to 1986 "like an apprentice to (his) parents" and then, from 1986, was in business alone.

The Tribunal asked the applicant when and why he stopped looking after his business. He responded that he stopped in 1992 to 1993 because things became too hard with too much harassment. He started to think about where he could go to live for his old age and for the rest of his life.

The harassment came from gangsters who came to the business to ask for money and other things. If he did not comply they would have disturbed or destroyed his business and would have harassed his customers. From the commencement of business, if he had not given money it would have been difficult to run the business. From 1993 he started to give more and more responsibilities to his parents. Because his residence was over the business, he still remained involved to a small extent. His parents had originally run the business before it had been handed to him.

In the 12 months before he came to Australia he visited friends to learn the techniques of business, to enable him to decide what he would do until his old age.

He has siblings who live in Indonesia. His parents have remained in Indonesia and live in the first floor above the business.

The Tribunal asked the applicant why he had not claimed persecution on the basis of his Chinese ethnicity when he made his application for a protection visa. He responded that he had told his agent about both the racial problem and the social organisation to which he had belonged. He said that when he received the notification of the rejection of his application, he went to his agent's house, but as the agent was not at home he went to a new agent. He asked the new agent why his application had been refused, and was advised to appeal to the Tribunal. He did not get proper advice or help when he lodged his application. When he heard the reasons for the rejection of his application, he realised it had not been complete.

Referring to the claims in his application, the Tribunal asked the applicant to explain what he did not like about the social group or club he had referred to. He responded that they only collected money for having fun and gambling, and not for a social reason. They got together and gambled with each other. He was asked what happened when he decided that he did not like the group. At the end of 1993, he told them that he no longer wanted to be a member, but he was told by the leader, probably because they needed his money, "Get out of here and I will kill you!" Each member contributed money to the group and he was told that if a member left the group the funds would dry up. However, the other members told him not to listen to the leader, and to leave if he wanted to leave. Even so, he said that he is still afraid. In response to a question from the Tribunal, the applicant said that he had no gambling debts, and no member of the club owed him money.

The applicant told the Tribunal who had persecuted him on the basis of his race. In 1963, when he was a student at a school for Chinese children, an anti-Chinese riot occurred. The school children were moved to an open space because stones were thrown at the windows and onto the roofs of the school buildings. He felt very frightened. Since that day he has been aware of his Chinese descent.

He referred to the occasion in 1973, when rioting indigenous people attacked him whilst he was riding his motor bike. He said that the police took action. When he was in hospital recovering from his injuries, he learnt that some rioters were interrogated by the police and some of these had been arrested.

He referred to a riot which arose as a result of problem between the police and the local people at a town he named. There was a riot in which Chinese businesses were attacked. In addition to the photograph of a fire-damaged shop which he had lodged with the Tribunal, the applicant produced further photographs of the building and said that he also had a recording of the noise which occurred at that time. He said that the photograph he had lodged was of his sister's business. The applicant said that he had invested 100 million rupiah in the business. His parents were visiting his sister at that time and they lost personal belongings in the fire.

In answer to a question from the Tribunal, the applicant said that the police arrested some people after the riot.

The applicant explained that although he had put capital into that business, his sister does not send him any money from the business. He has told her to keep the money from the business for the present, as he has money.

Recently, in January 1998, a riot occurred near the applicant's home town where Chinese businesses were attacked. The police attended the riot quite late, when it was underway. The rioters broke shop windows of businesses owned by Chinese and some others, and started fires in rubbish bins, when fortunately it rained.

The applicant said that this was all he could tell the Tribunal about persecution on the basis of race. In answer to a question from the Tribunal as to whether he could provide details of any other discrimination or persecution he had suffered because of his Chinese ethnicity, the applicant responded that there was nothing else he could tell the Tribunal. He added that the "race thing" is making life very stressful in Indonesia.

If he were to return to Indonesia today he fears that something like what occurred in the past could happen to him again, and he might be killed. If he returned to Indonesia he would die. Asked why he thought he would die, he responded that it was because there would be anti-Chinese indigenous people there. The people he fears most are not members of his social group, but people who, when they were dissatisfied with the government, would make scapegoats of the Chinese. He wishes to remain in Australia where people are protected, and animals are protected.

The Tribunal put to the applicant country information concerning the situation of Chinese Indonesians, and the Indonesian government's response to this. He agreed that Chinese are targeted because they are seen to be wealthy, but indigenous people could also become traders. It was true that President Suharto's policies had assisted Chinese, but from the point of view of ordinary people a different reality was experienced. If Chinese people wanted a permit to be issued, they had to provide smoothing money.

The Tribunal also put to the applicant country information concerning parts of Indonesia where ethnic Chinese are in a majority and find conditions more salubrious. The applicant has not considered moving to another area in Indonesia because he believes it is the same throughout Indonesia. The Tribunal also put to the applicant information concerning the procedures set up by the authorities for riot alerts. The applicant responded that he did not know whether this system had been established in his home town, but in any event, police never arrived until a riot was well underway.

The applicant claims that he faces persecution in Indonesia on the basis of his Chinese ethnicity. The applicant claims that he faces harm or mistreatment in Indonesia from a member of a social club involved in gambling from which he resigned.

On the applicant's own evidence, his principal motivation in leaving Indonesia appears to have been his disillusionment with his life as a businessman and the condition of harassment from petty criminals under which he was forced to carry out his business activities. He was looking for somewhere more to his liking in order to live out the rest of his life, and in the light of this prospect, visited business friends in order to learn business techniques in the months prior to his departure.

The applicant also claimed to fear harm or mistreatment in Indonesia from a member of a social club involved in gambling because he resigned from this group. He varied this claim by stating that several members had told him to leave if he wanted to, and that his fear of the leader of this group was less than his fear of persecution on the basis of his race. Based on his own evidence, it is clear that his original claim was exaggerated and that his resignation was not a cause for concern to all members. He no longer claimed that his defection would result in his death. His resignation may have caused resentment to some, but however great that resentment, the Tribunal is not satisfied that his fear of harm or mistreatment resulting from his resignation is for any Convention related reason. The Tribunal finds that the applicant does not have a fear of harm or mistreatment on return to Indonesia for a Convention reason on the basis of this claim.

The applicant also claimed that he feared persecution in Indonesia because of his Chinese ethnicity. The applicant's education and employment history do not indicate that he suffered any significant restrictions because of his Chinese ethnicity. He was able to complete tertiary education, undertake self-employment as a business-man, and travel overseas on several occasions. The impediments to business which he described were minor criminal activities which affected business in general, and there is no evidence before the Tribunal to suggest that these were related in any way to his Chinese ethnicity. Moreover, his parents have been able to carry on business successfully for a lengthy period despite any such harassment.

The applicant had no difficulty in obtaining a passport in his name. He has travelled overseas in the past, and left Indonesia without difficulty when he came to Australia in 1994.

The applicant raised the claim based on race for the first time after his application based on problems relating to his membership of a social club involved in gambling had been rejected. He gave evidence that he changed his agent following this rejection. He claimed that he had mentioned both grounds to his first agent, but had been badly advised by him. The Tribunal does not find this explanation to be satisfactory. It has difficulty in believing that an agent, however allegedly inept, would fail to make a claim on what is a specified Convention ground. The applicant speaks both English and Indonesian, and therefore should have been in a position to describe his case clearly. The applicant affirmed that an agent had prepared his application and original submission.

The applicant claimed that he had been attacked by an anti-Chinese mob in 1973 when riding his motor cycle, and as a result spent one and a half months in hospital. He gave evidence that his sister's business had been attacked by rioters in 1996, resulting in significant fire damage. He claimed that there had recently been a riot where Chinese businesses were attacked. He gave evidence that on each occasion the police had taken action against those involved in the riots. He affirmed that these were the only incidents of persecution which he could provide. His agent had mentioned an incident involving Bataknese, and vague claims of persecution by Muslims, but the applicant, despite prompting from the Tribunal, did not mention either of these.

However he did make a general claim to the Tribunal that the "race thing" made life stressful. The applicant has provided no supporting evidence for any of his claims, except for a photograph of a burnt-out shop but without evidence of its proprietor. The Tribunal accepts that the applicant may have been attacked as he alleged in 1973 by persons who may have been anti-Chinese rioters, and that his sister's business may have been among those damaged in the riot in 1996. It accepts that the police attended on each occasion and took action against those involved.

In addition, the applicant has also claimed that there is discrimination ("the race thing") against Chinese, and communal unrest which has led, and will lead in the future, to attacks on ethnic Chinese property.

The only occasion on which the applicant claimed in his evidence to the Tribunal to have suffered personally from discrimination or persecution on the basis of his race, was that occasion described in his oral evidence, which occurred over 24 years ago when he was attacked when he rode his motor cycle into an alleged anti-Chinese mob. The applicant was able to complete his education and undertake business activities without any further racially motivated incidents. The Tribunal accepts that the incident where stones were thrown at his Chinese primary school over 34 years ago may have occurred, as this is consistent with information concerning opposition to Chinese institutions at this period, but it is unclear why the applicant failed to make this claim earlier. However, the applicant was able to complete his education without further incident.

The submission signed by his agent, and lodged by him on 16 April 1997, contains some inaccuracy and embellishment of his claims. The applicant gave evidence that the incident described concerned his sister's shop, whilst the submission claimed that it concerned his parent's house. When this discrepancy was put to the applicant, he explained that his parents had been visiting his sister.

He did not confirm the vague information of an incident concerning a motor vehicle accident in 1994 as alleged by his agent, but if this accident and incident did occur, on the evidence before the Tribunal, it would be a matter to be appropriately pursued in either the Indonesian civil or criminal jurisdictions. As there is no evidence that the matter was further pursued, and as the applicant did not recall it at the hearing, it was either of a minor nature or an embellishment.

Independent evidence before the Tribunal indicates that official and informal discrimination against ethnic Chinese, who comprise about 3% of the population and number about 5 million, exists in Indonesia. Since 1959 non-citizen ethnic Chinese have been denied the right to run businesses in rural areas. Regulations prohibit the operation of all Chinese schools for ethnic Chinese, formation of exclusively Chinese cultural groups or trade associations, and the display of Chinese characters. In August 1994 the ban on the use of Chinese characters was eased slightly to allow firms working in the tourist industry to produce Chinese language brochures, programs, and similar material for Chinese speaking tourists. Private instruction in Chinese is discouraged but takes place to a limited extent. Notwithstanding the prohibition of Chinese schools for ethnic Chinese, access to state education is non-discriminatory and state universities have no formal quotas that limit the number of ethnic Chinese. The law forbids the celebration of the Chinese New Year in temples or in public places, but its enforcement was limited in 1995, and Chinese New Year decorations were displayed in public shopping areas in major cities. During general demonstrations (such as during the lead-up to Presidential and other major elections) and particularly in the major Indonesian cities, Chinese businesses and private homes can be the target for burning and looting. However, people of Chinese ancestry are among the most wealthy people in the country, being successful in business, the professions and, in particular, banking. Others hold high positions in the Government: see US State Department Country Reports on Human Rights Practices for 1995, Washington DC, March 1996 and The Department of Foreign Affairs and Trade ( DFAT) Country Profile - Indonesia, October 1994 at p. 12.

There are reports that some of the anti-Chinese sentiment in Indonesia is resentment at the wealth controlled by the Chinese in Indonesia: for example see The Strait Times,"Rich Indonesians object of Envy", 28 August 1994, The Sydney Morning Herald - David Jenkins, Rich Chinese and Riots in Indonesia, 2 May 1994 and the Far Eastern Economic Review , "The 5th Column - A Class Act", 16 June 1994. Indeed in his article David Jenkins states due to their energy and business acumen people of Chinese ethnicity control about 70 per cent of all private commercial, financial and industrial activity.

The applicant referred to two recent riots, which he alleged were anti-Chinese. The applicant mentioned property damage only when referring to these riots. The applicant claimed that as an ethnic Chinese his life in Indonesia is always in danger. He was unable to supply any evidence to support this claim except to refer to riots in general.

A general claim was also made about anti-Chinese rioting in Indonesia, unspecified as to time and place, which made it impossible for the applicant to reside anywhere in that country without fear for his life. Although the applicant has failed to supply any supporting evidence which would enable the Tribunal to identify this wide claim, the Tribunal has considered country information on riots with racist overtones which occurred recently.

The evidence suggests that each riot has its own dynamics and that the riots were not related. Rioting was not a nationally coordinated campaign and in each case people were angry about local problems and a variety of issues. In riots in Java, Chinese shops were destroyed, Christian Churches were burnt and symbols of authority such as police stations were the targets of attack. Riots were sparked initially by a variety of causes: abuse during Ramadan to which young men responded with violence targeting ethnic Chinese; Madurese trans-migrants in Kalimantan who were perceived to take local jobs became victims of rioters; allegations that in Tasikmalaya three Muslim leaders had been beaten by the police after the son of an officer was disciplined at his Islamic school, and this culminated in anti-Chinese and anti-police rioting in which rioters, many of them young, set fire to 3 churches, and at least 2 shops and cars, some of the targets being owned by ethnic Chinese (reported 27 December 1996). However, reports indicate that the police responded to and quelled the riots. Rioters were prosecuted and sentenced. The authorities arrested the youths and other persons responsible for violence and they received 3 to 4 months or 6 months gaol terms for wilful destruction. (CX21876 Far Eastern Economic Review 9 January 1997 Tinderbox: Riots with Racist and Sectarian Overtones are Breaking Out with Increase Frequency in Java; CX21519 Asiaweek 24 January 1997 Class Struggle: Can Economic Progress Solve the Recent Ethnic and Religious Unrest?; Tapol Bulletin, The Situbondo tragedy, No. 138 December 1996; Agence France Presse, Shadow of religious riots hangs over Moslem holy month in Indonesia, 10 January 1997; The Straits Times, Behind the riots in Indonesia, 30 December 1996; and Memorandum to Tribunal of 8 May 1997 of Dr. Gerry Van Klinken and Associate Professor Charles Coppel).

In 1994 ethnic riots occurred in Medan, located in North Sumatra, in which ethnic Chinese were targeted. The government responded to the violence by dispatching the army and perpetrators of violence were prosecuted. President Suharto stated that while political demonstrations were not banned, any violence or discord based on ethnic or religious differences would not be tolerated: see Sydney Morning Herald, "Troops patrol city after Sumatran ethnic riots" , 18 April 1994, Sydney Morning Herald, "Army alert for Medan protest", 19 April 1994, Times Business Publications, "Four go on trial in connection with Medan riots", 7 June 1994 and British Broadcasting Corporation, "Alatas assures China of resolve to curb Medan riots", 25 April 1994. An article in the Sydney Morning Herald, "Indonesia: Rich Chinese and riots in Indonesia", 2 May 1994, examines the background to the Medan riots and assesses the likelihood of repeat riots. The article refers to three factors that are grounds for optimism and states as follows:

. "The first centres on the current interpretation of Pancasila, the national ideology. While some people find President Soeharto infuriatingly opaque when he talks about Pancasila, it is clear that, for him, Pancasila encompasses a spirit [of] tolerance towards religious and ethnic minorities, including Chinese, even if Chinese may still be used as milch cows by indigenous Indonesians.

. Second, this is the first serious anti-Chinese riot in eight years. That suggests that it may be possible to reduce both the frequency and the severity of such occurrences.

. Finally, it is clear that the army is no longer prepared to stand back and let pribumi [ethnic Indonesians] mobs vent their frustration on the "non-pri" minority."

Unfortunately, it seems that the situation may well continue or even deteriorate. Sources indicate that mob violence is becoming more common in Indonesia ("Days of Rage", Far Eastern Economic Review, 15 February 1996). According to "Tinderbox", ibid, 9 January 1997:

"Riots with racist and sectarian overtones are breaking out with increasing frequency in Java. The underlying reasons: income disparity and social injustice....

If land disputes are an almost endemic cause of unrest in rural Indonesia, the anti-Christian and anti-Chinese nature of the latest riots is seen as another manifestation of the frustration many Indonesians feel over the twin blights of income disparity and social injustice - and the inability of either the bureaucracy or the political structure to handle localized grievances....

In most Javanese towns, ethnic-Chinese Indonesians are seen to represent a widening and much more visible income gap. That's because at 3.5% of the population, they control 70%-80% of private capital-the highest imbalance in Southeast Asia."

The applicant's account of violence generally in Indonesia is consistent with the above information. He gave evidence that the police took action against the rioters in 1973 and in 1996.

The alleged personal experience of which the applicant gave evidence to the Tribunal occurred in 1973 and is now too remote in time to suggest that he has been subject to persecution in recent times. The Tribunal believes on the evidence before it that his personal experiences in recent years cannot amount to persecution. However, the Tribunal considered whether, based on his personal experience there is a real chance that at some time in the foreseeable future he could experience violence of sufficient seriousness to be classified as persecution.

The first difficulty for the applicant's claim is that the problems which he and his family are alleged to have experienced, and which he claims to fear in the future, emanate not from the Indonesian authorities but from local Indonesian civilians. It has been made clear by the High Court in Applicant A v. Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331 that

_"_persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or is or appears to be powerless to prevent that private persecution."

(Per McHugh J at 354). See also Brennan CJ at 334, and Sandeep Dogra v. Minister for Immigration and Ethnic Affairs (unreported, Federal Court, Madgwick J, 28 April 1997) at 5-7.

However, the evidence is clear that the Indonesian authorities are willing and able to protect the Chinese population from mob violence. Thus the Christian Science Monitor article quoted above notes that "Indonesian Chinese feel more comfortable under General Suharto's rule, which has calmed anti-Chinese fervor, reformed and revived the economy, and boosted the fortunes of influential Chinese businessmen". See also the article, "Rich Chinese and Riots in Indonesia", Sydney Morning Herald, 2 May 1994 (supra).

The article notes a hostility to Chinese on the part of the Indonesian military in the past, but says that there has been a "change in army thinking" recently, due to a realization that "it can be dangerous to let unrest get out of hand".

The Far Eastern Economic Review ("Jakarta Takes a Significant Step", 24 November 1994) refers to an increasing softening of official attitudes in Indonesia towards the Chinese, which is politically and economically driven, and which is manifested, for example, in a new tolerance for the use of the Chinese language. The same journal reported to the same effect on 13 March 1997 ("The Outsiders"), noting how President Suharto's economic policies have proved favorable to Chinese businessmen.

Therefore, while acknowledging the very real threats under which many Chinese in Indonesia evidently live, the Tribunal concludes that the present Indonesian Government is not itself anti-Chinese, and is willing and able to act to protect Chinese when they come under threat from private individuals or groups. It is true that they may not always be 100% effective in doing so. However, no government is able to offer a 100% guarantee of protection to all its citizens. On the evidence available to the Tribunal, the Indonesian Government is willing and able to offer the level of protection to Chinese which a citizen is entitled to expect from his or her government.

The Tribunal makes its decision on the basis of the evidence as to the present time and the reasonably foreseeable future (see Mok v. Minister for Immigration, Local Government and Ethnic Affairs (No. 1) [1993] FCA 545; (1993) 47 FCR 1), and does not speculate beyond what it is able reasonably to foresee at present.

The agent's submission made on behalf of the applicant contained a general claim that protection is only available to Sino-Indonesians if they are prepared to pay for it. None of the country information quoted above supports a claim that the Indonesian Government is only willing to protect the Chinese population from mob violence, from private individuals and from groups if they are prepared to pay for it. The applicant did not claim that he or his family had suffered in this way. He did claim that it is necessary to provide "smoothing money" for the issue of permits.

In this respect, the Tribunal notes country information which indicates that corruption is a common occurrence in Indonesia. Both Sino-Chinese and indigenous pribumi Indonesians, if in business, may have to buy access to certain benefits. A recent survey on corruption, conducted by an independent graft agency based in Germany, found that Indonesia is the worst country in the world with regards to bribery and 'kickbacks'. The survey was reported to have found that "Indonesia is the world's most corrupt country": see "Asia leads in corruption", The Guardian Weekly, 20 August 1995, p. 3; "NZ cleanest in the business", The Sydney Morning Herald, 15 August 1995, p. 8; and "Indonesia corrupt: study" , The Canberra Times, 15 August 1995, p. 7.

In their Country Profile-Indonesia, October 1994, at p. 9 and cable O.JA6378, 28 October 1994, DFAT states that in the issuance of official documents in Indonesia, the paying of bribes is not unusual. Moreover, ethnic Chinese are often subjected at an individual level to corrupt practices by public servants, including the police, because of the widely held perception that all Indonesians of Chinese descent are rich. The Sydney Morning Herald reported that in Indonesia "Chinese business partners continue to reap vast profits from government projects and tenders, intensifying popular anger at the huge gap between rich and poor. Corruption remains endemic..."(see_: 'Time to look beyond Soeharto',_ 27 June 1994, p. 13).

The applicant's claim to have personally suffered harm or mistreatment on the basis of his race is too remote in time to be of relevance to his present and future situation. Apart from general claims of racial discrimination, the applicant has not provided the Tribunal with any evidence from which the Tribunal could be satisfied that if he were to return to Indonesia he has a real chance of facing significant detriment or disadvantage or any other mistreatment amounting to persecution for a Convention reason. In coming to this conclusion, the Tribunal is aware of and accepts that discrimination against ethnic Chinese exists in Indonesia. It also accepts that corruption is common. The Tribunal does not seek to minimise the impact of these practices on individuals, but in the Tribunal's view, such practices amount to discrimination, not persecution.

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.