1600050 (Refugee)

[2018] AATA 3888

1600050 (Refugee) [2018] AATA 3888 (4 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1600050

COUNTRY OF REFERENCE:                  Indonesia

MEMBER:Frances Simmons

DATE:4 October 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 04 October 2018 at 4:57pm

CATCHWORDS

REFUGEE – protection visa – Indonesia – social group – religious tour operator – threats and assaults from disgruntled customers – subject of legal action in Indonesia – delay in applying for protection credibility issues – inconsistencies between protection visa application and evidence at the Tribunal – no protection claims for the second and third named applicants – decision under review affirmed  

LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J, 5K-LA, 36, 65, 438, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
MZAFZ v MIBP [2016] FCA 1081

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 7 December 2015 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act). The primary applicant arrived in Australia on 28 March 2015 holding a [temporary] visa.

2. The applicants, who the Tribunal accepts are citizens of Indonesia, applied for the visas on 21 September 2015. The primary applicant attended an interview with the delegate. His wife and son did not make their own claims for protection. The delegate refused to grant the visas on the basis that the applicant’s claims were not credible.

3. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CRITERIA FOR A PROTECTION VISA

4. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

6. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a) of the Act. In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b) of the Act.

7. Under s.5J(1) of the Act, a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in s.5J(2)–(6) and ss.5K–LA of the Act, which are extracted in the attachment to this decision.

8. If a person is found not to meet the refugee criterion in s.36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in s.36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The Tribunal has considered the evidence before the Department and the evidence before the Tribunal.

    Invalid s.438 certificate

11. A certificate purportedly issued pursuant to s.438(1)(a) of the Act has been placed on folios 96–104 of the departmental file restricting the disclosure of the information contained therein.[1] If a certificate is issued because the disclosure of information or documents would be contrary to the public interest, it is necessary for the certificate to specify the reasons why. For s.438 certificates, this is any reason specified in the certificate that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding.[2]

    [1] Department file, folio 118.

    [2] S.438(1)(a)(i).

12. In the Tribunal’s judgment the certificate placed on folios 96–104 of the departmental file is invalid as the description of the reasons for restriction does not properly identify a basis for public interest immunity. The certificate states that the disclosure of the information would be contrary to the public interest because it would reveal internal working documents and business affairs. In MZAFZ v MIBP[3] the Federal Court held that the Tribunal had erred in treating a non-disclosure certificate as valid where the only reasons cited in the certificate as contrary to the public interest were ‘internal working documents’ as this had never been a sufficient basis for public interest immunity whether at common law or under statute and did not identify the harm that could be done to an agency by the disclosure of the documents. At best, the words ‘internal working documents’ disclosed a reason that could form part of the basis for a claim, but not the basis of the claim itself.[4]

    [3] MZAFZ v MIBP [2016] FCA 1081 (Beach J, 7 September 2016).

    [4] MZAFZ v MIBP [2016] FCA 1081 (Beach J, 7 September 2016) at [37]. See also BXD15 v MIBP [2017] FCA 1209 (Flick J, 12 October 2017) at [46]–[48].

13. The Tribunal advised the applicant of its view that the s.438 certificate was invalid. Having determined the certificate is invalid, the Tribunal has proceeded to treat the information contained in folios 96–104 in the usual way. As discussed with the applicant, folios 96–104 contain departmental notes relating to his visitor visa application and his son’s visitor visa application. To the extent that this information is relevant to the review, it is set out in the decision of the delegate, a copy of which was provided to the Tribunal by the applicant.

    Background

14. The first named applicant states he reads, writes and speaks Indonesian, Arabic and English.[5] He is of the Muslim faith. He departed Indonesia on 9 December 2014 on a passport issued in his own name and travelled to [Country 1]. He was granted a [temporary] visa to visit Australia on 21 January 2015. He arrived in Australia on 28 March 2015. On 19 June 2015 he departed Australia before returning on 24 June 2015. On 21 September 2015 the applicant lodged a valid protection visa application.

    [5] Departmental file , folio 90.

15. The applicant has previously travelled to [Country 2] in 2008, [Country 3] and [Country 4] in 2010, [Country 5], [Country 1] and [Country 6] in 2013 and [Country 1], [Country 6] and [Country 7] in 2015. In April 2017 he travelled to [Country 6] and returned to Australia in May 2017.

16. The second named applicant was born on [date] in Indonesia. She first arrived in Australia on 28 March 2015. She returned to Indonesia on 23 June 2015. She arrived back in Australia on 17 August 2015.[6] In 2017 she travelled to [Country 6] and returned to Australia.[7]

    [6] Tribunal file, folio 86-91.

    [7] Tribunal file, folio 79-82.

17. The third named applicant was born on [date]. He first arrived in Australia on 2 March 2013. He departed on 13 December 2013.  He re-entered Australia on 8 February 2014.[8]

    Claims before the Department

    [8] Tribunal file, folio 75-78 (passport pages).

18. In his protection visa application the applicant states that between 2009 and December 2013 he was [in a senior position] at [Company A], a tourism business in Jakarta. He states that from January 2014 he was self-employed in [ a certain industry] in [a subdistrict of Jakarta]

19. In the applicant’s written claims he states that in 2009 he became a shareholder of [Company A] because he had helped the owner, [(Mr B)] revitalise the company. The applicant and [Mr A] each had a 5% share in Company A and Mr B had a 90% share. He states that he started concentrating on Hajj pilgrimage tours. He claims that from the beginning there were ‘religious opinion problems’ between him and Mr B. Mr B used his own interpretation of various Islamic principles and wanted the applicant to impose these beliefs on potential travellers. He claims that Mr B wanted to remove him from Company A but that to do so would have been costly for Mr B.

20. The applicant claims that in February 2010 Mr B made a separate deal with a private [Country 4] airline, [name deleted]. The applicant claims he was in [Country 3] at the time and did not know of the deal. Upon his return, Mr B explained that the deal was for the Hajj pilgrimage. The applicant asked Mr B what impact this would have on the arrangements that the applicant had already made for pilgrimage tours with Company A. He claims that Mr B ignored the issue and called the applicant Kafir (an unbeliever) and demanded that the applicant screen pilgrims based on their religious beliefs and lifestyle or voluntarily withdraw from his 5% shareholding. The applicant refused to comply with either request.

21. The applicant claims that Mr B ‘continued with the business but without my knowledge documents were changed to withdraw him [the applicant] from the company’. He claims that Mr B ‘took money from people for tours but the tours did not eventuate’. He claims that because he is a shareholder he is responsible for paying these people back. He claims he has sold what he has but is unable the cover the costs. He claims that he has been threatened and told that he and his family will be killed and he has not been able to return to Indonesia.

22. The Tribunal has listened to the interview the applicant attended with the delegate. Where the delegate refers to the applicant’s evidence in his decision record he does so accurately.

23. The applicant told the delegate that Mr B wanted him out of the company in 2011 because of differences in their religious beliefs. When questioned by the delegate, he stated he did not leave Company A in 2011 and conducted successful Hajj tours in 2010 and 2011. The applicant told the delegate that Hajj tours arranged by Company A for 2012 and 2013 did not occur. He claims that money that pilgrims paid for the tours was embezzled by the former owner of the company, Mr B. The applicant told the delegate that 850 people paid for the Hajj tour in 2013 and this included people who had paid for the Hajj tour in 2012 which did not proceed.

24. The applicant told the delegate Mr B withdrew from Company A in 2014 and informed the pilgrims that the applicant took the money they paid for the Hajj tours and used this money to become the majority shareholder. The applicant told the delegate that the pilgrims came to him with a letter indicating that he was a 95% shareholder at the beginning of 2014 and that the pilgrims believe that the applicant is responsible for taking their money.

    Evidence before the Tribunal

25. The applicant supplied a copy of the delegate’s decision to the Tribunal.

26. Only the first named applicant appeared before the Tribunal to give evidence. The second and third named applicants applied for the visas on the basis that they were members of the first named applicant’s family unit and, when asked, the first named applicant told the Tribunal that they did not have their own claims for protection.[9]

    [9] Tribunal file, folio 30. (In the response to the hearing invitation the second and third named applicant indicated they would not be taking part in the hearing and they did not appear before the Tribunal at the scheduled hearing.)

27. At the hearing the applicant submitted:

    a.A document titled ‘Declaration of meeting resolutions of [Company A]’ dated 12 January 2011. According to the English translation, it states that [Mr B] transferred 900 shares to the applicant and therefore the applicant held 950 shares in Company A and as a result of this transfer the shareholders in Company A would comprise of the applicant, who held 950 shares, and [Mr A], who held 50 shares (the 2011 Meeting resolution). The meeting resolution appoints a new board of commissioners of Company A, comprising of the applicant in the role of the Director and [Mr A].

    b.A document titled ‘Sale and purchase of shares [Company A]’ dated 12 January 2011 which states that [Mr B] declares to have sold and delivered to the applicant 900 shares in the limited liability company ‘[Company A]’. The sale and purchase agreement was executed in the presence of two notaries (the 2011 Sale and purchase of shares).

28. The applicant informed the Tribunal that the second and third named applicants were available by telephone but that they did not have their own claims. In response to questions about whether he would like to request the Tribunal to take evidence from his wife or son, the applicant told the Tribunal that his wife and son didn’t know much about his claims and that he did not think there was any point in calling them.

29. The applicant was questioned about his claims at the hearing. He claimed he had been targeted by debt collectors acting on behalf of disgruntled pilgrims. The Tribunal discussed with the applicant its concerns about the credibility of his claims. Where relevant his evidence is discussed further below in the assessment of claims and evidence.

    Post hearing submission

30. After the hearing the applicant requested and was granted additional time to provide a police report that he referred to during the hearing. The applicant told the Tribunal in order to find this document he had to ask his relatives to search through all his documents and he was reluctant to make such a request. He also had not realised the necessity of this document as it was not specifically requested by the Department. His advisor added that it is impossible to recommend to a client a particular document would assist a case.

31. The applicant then submitted a police summons issued in September 2013 (the police summons). According to the English language translation, the police summons, which is dated 26 August 2013, indicates that the applicant was summoned pursuant to [certain charges] to meet with a police inspector in Jakarta [in] September 2013 to be heard as a witness in an investigation into [a criminal offence]. The summons refers to a police report made by a [named person] [in] August 2013. It does not refer to Mr B or Company A.

    ASSESSMENT OF CLAIMS AND EVIDENCE

32. The Tribunal accepts the applicants are citizens of Indonesia and that they are who they claim to be.

    Claims made before the Tribunal

33. The applicant claims that he is being pursued by debt collectors acting on behalf of pilgrims who are owed money because Hajj pilgrimage tours organised by [Company A] did not occur. The applicant claims that he was [in a senior position] and shareholder of Company A. The applicant claims that Hajj tours arranged by Company A for 2012 and 2013 did not occur and that the money that pilgrims paid for these tours was embezzled by the former owner of the company, Mr B. He claims that Mr B withdrew from Company A and falsely told the pilgrims that the applicant was responsible for taking the money they had handed over for the Hajj pilgrimage. He claims that Mr B told the pilgrims that the applicant had used their money to become the majority shareholder in Company A.

34. The Tribunal asked the applicant who would harm him if he went back to Indonesia now. In response, he said debt collectors hired by that Muslim community. They threatened him and wanted to kill him and that was why he was given until 10 December 2014 to leave Indonesia. He left Indonesia on 8 December 2014. When asked whether anyone had actually harmed him in Indonesia, he said he had been hit ‘sometime in 2014’. Asked who assaulted him, he said ‘the debt collectors sent by the customers’. The applicant gave evidence that as a shareholder in Company A he is responsible to pay back the pilgrims and, despite selling what he had, he was unable to cover the cost. Asked how much money he owed to the pilgrims he said initially it was US[amount] and now he has paid US[amount] to the pilgrims and owed a further US[amount].

    Credibility assessment

35. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims[10] and it has had regard to the Tribunal’s guidelines on the assessment of credibility in protection visa matters. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[11] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[12]

    [10] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2011 at paragraph 196.

    [11] MIMA v Rajalingam (1999) 93 FCR 220.

    [12] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.

36. This is a case where the applicant has made new claims and provided new evidence after the primary decision was made. Before the Tribunal the applicant claimed for the first time that he reported the conduct of Mr B to the Indonesian police. During the hearing he also suggested that legal proceedings had been brought against him in relation to the outstanding debts. As discussed at the hearing, if an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, s.423A of the Act requires the Tribunal to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made.

1. The Tribunal has significant concerns about the credibility of the applicant’s claims. In summary: important elements of the applicant’s claims, such as when and in what circumstances Mr B withdrew from Company A, have changed significantly over time. The Tribunal found elements of the applicant’s claims highly improbable (for example, he was unable to credibly explain why he was personally targeted but action was never taken against Company A). The Tribunal also considers that the fact that the applicant resided continuously at the same address up until he left Indonesia in December 2014 and that his wife voluntarily returned to Indonesia from Australia in 2015 casts doubt on his claims that debt collectors threatened to harm him and his family. The Tribunal was also concerned that the applicant raised new claims before the Tribunal and did not support these claims with any meaningful details. The Tribunal has also considered the documentary evidence but, for reasons below, it does not accept any of the documents assist his case. The Tribunal’s reasons for concluding that the applicant is not a credible witness are set out in detail below.

   Evidence about the circumstances in which Mr B withdrew from Company A

2. The Tribunal is concerned that the applicant’s evidence about when and in what circumstances Mr B withdrew from Company A has changed over time. Before the Department the applicant stated that he became a shareholder in Company A in 2009 after he was introduced to the owner, Mr B by a friend, [Mr A]. The applicant stated that he was [in a senior position] of Company A and that he and [Mr A] each purchased 5% of the company shareholding. He told the Department that the majority shareholder and owner, Mr B, was the general director of Company A and held 90% of the shareholding. The delegate asked the applicant if he had any documents to prove that he held shares in this company. The applicant responded that he did not have proof that he held shares in this company.[13]

   [13] Tribunal file, folio 38 (delegate’s decision, p.6).

3. The applicant initially told the delegate that Mr B withdrew from the company without the applicant’s knowledge at the beginning of 2014.[14] When the delegate put to the applicant that Indonesian company law for PT companies indicated that a shareholder could not simply absolve himself of his shareholding but that an extraordinary general meeting of shareholders was required to change the shareholding composition or the board of directors, the applicant agreed this was the law and mentioned a business lawyer was used to facilitate the change of shareholdings.[15]

   [14] Tribunal file, folio 37 (delegate’s decision, p.7).

   [15] Tribunal file, folio 37 (delegate’s decision, p.7)

4. The delegate raised with the applicant that the deeds of Company A were submitted with his son’s [temporary] visa application in January 2013 (the May 2011 company deeds).[16] These company deeds were issued on 3 May 2011 and, although the applicant told the delegate Mr B withdrew from the company in 2014, the 2011 company deeds list only two shareholders: the applicant and [Mr A]. The delegate’s decision records:

   The applicant was advised these company deeds indicated that the owner who the applicant claimed had 90% of the company never existed or that if he did there was a formal change in shareholdings many years before the applicant claims the owner left the company in 2013. The applicant maintained that the owner was still in control of the company … but did not address the issue of company deeds he submitted to the Department.[17]

   [16] Tribunal file, folio 37 (delegate’s decision, p.8).

   [17] Tribunal file, folio 37 (delegate’s decision, p.8).

5. Before the Tribunal the applicant confirmed there was no reference to Mr B in the May 2011 company deeds and he claimed that Mr B transferred his shares in Company A to the applicant in January 2011.

6. The Tribunal is concerned that whereas the applicant told the delegate he did not have any proof that Mr B divested himself of shares and that Mr B withdrew from the company without the applicant’s knowledge in 2014, before the Tribunal the applicant produced documentation stating that Mr B sold and transferred his shares to the applicant in January 2011. In contrast to his written claims which state that Mr B wanted the applicant out of Company A and his evidence to the delegate which was that Mr B wanted him out of the company in the beginning of 2011[18], the applicant told the Tribunal that in January 2011 he became the majority shareholder in Company A after entering into an agreement to purchase shares from Mr B.

   [18] Tribunal file, folio 38 (delegate’s decision, p.6).

7. Whereas the applicant’s written claims state that Mr B withdrew from Company A without his knowledge and the applicant repeated this claim to the delegate, he told the Tribunal that in 2011 Mr B asked the applicant to remove his name from Company A so that they could make applications to the International Air Transport Association (IATA). He gave evidence that this was necessary because Mr B’s name was blacklisted by IATA and Mr B asked the applicant to remove his name so the Company could then apply to IATA.[19] The applicant claimed that Mr B’s withdrawal from Company A was not publicised and that Mr B continued to be the managing director of Company A until 2014. Asked when Mr B stopped being the managing director of Company A, he said in the beginning of 2014 when Mr B returned to Indonesia from [Country 4] and reported to the customers he was no longer with Company A and that owners of Company A were the applicant and [Mr A]. He claimed that Mr B told the pilgrims that the applicant had used the money they had handed over for the Hajj tours to become the majority shareholder. The applicant said he became the majority shareholder in 2011 but he never paid for the shares.

   [19] The International Air Transport Association (IATA) is the trade association for the world’s airlines, representing some 290 airlines or 82% of total air traffic.

8. The Tribunal finds that the applicant has provided contradictory and not credible evidence about Mr B’s claimed withdrawal from Company A. As the Tribunal put to the applicant, his written claims state without his knowledge documents were changed for Mr B to withdraw from Company A. In contrast, the applicant submitted documentation (the 2011 Meeting resolution and the 2011 Sale and purchase of shares) to the Tribunal which indicates that he knew that Mr B withdrew from Company A in 2011 as Mr B transferred his shares to the applicant. In response the applicant conceded that he did know that Mr B withdrew from the company at the time this documentation was signed in 2011. Asked to address the inconsistency between his written claims and his evidence to the Tribunal, the applicant stated that what he said in his interview with the delegate was what he didn’t know, which was that Mr B showed the deed to the Muslim people (customers) to show that Mr B had left the company and that it wasn’t the case that the applicant didn’t know that the deed was changed. The applicant suggested to the Tribunal that the purpose of Mr B withdrawing from the company was to avoid problems that would have otherwise been encountered as a result of Mr B being blacklisted by IATA.

9. The Tribunal finds that the applicant has provided inconsistent accounts of when and in what circumstances Mr B withdrew from Company A. The Tribunal notes that when the delegate reminded the applicant of his written claims the applicant stated Mr B withdrew from Company A at the beginning of 2014 and without his knowledge.[20] The Tribunal finds that the applicant’s evidence to the Tribunal about when and in what circumstances Mr B withdrew from Company A is inconsistent with his written claims and his evidence to the delegate, which was that Mr B withdrew from Company A without the applicant’s knowledge. The applicant’s changing evidence about Mr B’s withdrawal from Company A suggests to the Tribunal that the applicant is willing to change his evidence in an effort to address concerns about the credibility of his claims.

   [20] Tribunal file, folio 37 (delegate’s decision, p.7).

10. The Tribunal was also concerned that other aspects of the applicant’s evidence about his interactions with Mr B changed over time. For example, when asked directly by the tribunal whether he had arguments about religious matters with Mr B, he gave evidence that Mr B used religious arguments to turn people against him. Asked to explain, the applicant said that he and Mr B had different understandings of jihad and they recorded their respective views on a piece of paper. He claimed that Mr B then informed the customers that the applicant held the view of jihad articulated by Mr B in order to turn the customers against the applicant. As the Tribunal discussed with the applicant, this account of his disagreement with Mr B is different from his written claims in which he claimed that Mr B accused the applicant of being Kafir and demanded that the applicant screen pilgrims based on their religious beliefs but made no mention of an argument about the meaning of jihad or his claims that Mr B misrepresented the applicant’s religious views to the pilgrims. In response to the Tribunal’s concerns, the applicant elaborated on his written claims. However, the Tribunal remains concerned that the applicant’s evidence about his dispute with Mr B has shifted over time and this casts doubt on the credibility of his claims.

    Claims that the applicant was targeted by debt collectors/disgruntled pilgrims

11. The Tribunal asked the applicant why the pilgrims who were owed money did not take action against Company A, instead of pursuing him personally. The applicant initially responded that the company continued to operate until December 2014. He then said until May 2014 they were still coming to the office and if he wasn’t at the office sometimes they would come to his home. The Tribunal notes that the applicant told the delegate that things started to go bad in December 2013 and from 2014 the threats began and that groups of people would come to his house. The applicant claimed that action was taken against him but not against [Mr A] because the customers believed he held the majority (95%) of the shares. He also suggested that Mr B turned customers against him by providing the pilgrims with false information about his religious views and telling them that the applicant bought the majority of shares using the money from the Hajj tours. He claims that [Mr A] was approached by these debt collectors after the applicant left Indonesia in 2014 and forcefully asked to say where the applicant was. The Tribunal has considered these explanations but remains concerned that the applicant has not credibly explained why the debt collectors pursued him, but did not take action against Company A or the other shareholder, [Mr A].

12. Furthermore, the Tribunal considers the fact that the applicant remained living at the same address in Indonesia until 8 December 2014 is difficult to reconcile with his evidence that things started to go bad in December 2013 and during 2014 he was personally subject to threats/assaults from disgruntled pilgrims and/or debt collectors. The applicant told the Tribunal that he lived at the same address in Jakarta from [year] until he left Indonesia in December 2014. The Tribunal finds that the fact that the applicant resided continuously at the same address until he left Indonesia on 8 December 2014 undermines his claims that he was of adverse interest to any persons or groups in Indonesia, that things became bad in 2013, and his claims that he was assaulted by debt collectors sometime in 2014.

13. The Tribunal finds the applicant’s evidence about his involvement in Company A in 2014 and his ongoing residence at the family home in Jakarta difficult to reconcile with his evidence to the delegate, which was that things went bad in 2013 and that the family began to receive threats from January 2014. Asked whether he worked regularly at Company A in 2014 he responded that he worked at Company A until May 2014 almost five days a week. Asked how often he worked at Company A after May 2014, he claimed that in May 2014 the office was sold to a named person in order to pay money back to people. He said that after the office was sold they leased a place for a few months until he left. He confirmed that between May and December 2014 Company A continued to operate a rental premises. The Tribunal noted that he had stated that he was working five days a week at Company A until May 2014 and after that time he continued working at Company A at a different location. Questioned about whether he was doing any other work in 2014, he said he went back to the [other] business in 2014. Asked whether he was doing this when he was working five days a week at [Company A], he responded that he was looking for partners but nobody wanted to partner with him because they were afraid that he was having problems.

14. However, as the Tribunal put to the applicant he had stated that he was starting a [company] in 2014 and these did not seem like the actions of someone who was afraid of being harmed in Indonesia. The applicant told the Tribunal initially that was how it was but he was looking for a way out and he only had until 10 December because a big group of pilgrims hired a debt collector. The applicant also gave evidence that he was able to remain in Indonesia during 2014 as he was paying off his debts in small instalments. He told the Tribunal when the issue occurred at the start of 2014 he had started to sell off his assets and he was starting to pay off the debts to particular pilgrims (who had less money).

15. The applicant also claimed that he was forced to sign a piece of paper the consequence of which was that if he was killed or injured the debt collectors could get money from his life insurance. When asked whether he mentioned this detail in his written claims he responded that he raised this issue in his interview with the delegate. The Tribunal acknowledges that the delegate’s decision records the following exchange:

    It was put to the applicant that he departed Indonesia on 8 December 2014 and that he was not granted his [temporary] visa to visit Australia until 21 January 2015. The applicant then said he had sold everything at the end of 2014 when he had not heard about his visa application. The applicant was asked why he did this given he had not been granted any visa for Australia at this stage and the applicant stated that the people he owed money to realised he would be of no use to them if he died and attempted to register him with an insurance company to profit in the event of his death.[21]

    [21] Tribunal file, folio 36 (delegate’s decision, p. 9).

16. However, the Tribunal remains concerned that the applicant’s written claims do not mention that he was forced to register with an insurance company so that the pilgrims could profit in the event of his death. The Tribunal is concerned that this is an example of the applicant’s willingness to embellish his evidence in an attempt to strengthen his claims. Also of concern: at the hearing the Tribunal raised concerns that the applicant had not mentioned his claims that he was assaulted in 2014 before the Department. The applicant responded that he had raised these claims in the interview with the delegate. When the Tribunal observed it had listened to the interview and queried whether he had raised this claim, the applicant responded that he had also listened to the interview and when he said he was assaulted this was not translated by the interpreter. Even if this assertion about the interpreter omitting to mention a claim was accepted, the Tribunal remains concerned that there is no mention of the applicant’s claims that he was assaulted by debt collectors in his written claims. The Tribunal is of the view that the applicant’s evidence has shifted and changed over the protection visa application process and this draws the Tribunal towards the conclusion that the applicant is not a credible witness.

17. During the hearing the applicant was questioned about whether Company A was still operating. The applicant told the Tribunal that when he applied for a visitor visa in 2014 he correctly stated he was the Director of Company A but that he was no longer a director of the company as Company A closed in December 2014. It was put to him that Company A was listed on the ASITA website in 2018.[22] He said ASITA did not remove the company and Company A no longer exists. The Tribunal noted that the contact person on the ASITA Jakarta website was [Mr A], one of three people that the applicant had named as a shareholder in Company A. The applicant told the Tribunal that he was not sure why ASITA Jakarta was still listing Company A on its website and he suggested telephoning the number listed on the webpage would confirm Company A is closed. As discussed at the hearing, it is up to the applicant to put forward evidence in support of claims and no documentation has been produced to support his claims that Company A has been closed. Moreover, even if the Tribunal were to accept Company A closed in December 2014, this would not resolve the Tribunal’s concerns about the credibility of the applicant’s claims that he is of adverse interest to debt collectors or anyone else in Indonesia.

    New claims raised before the Tribunal

    [22] [Source deleted]

18. When the Tribunal asked the applicant whether he reported to the police that Mr B was embezzling money from Company A, the applicant claimed for the first time that in the beginning of 2014 he took evidence to the police that Mr B was involved in taking money from the company. He claimed that the police didn’t understand and blamed him as the company deed did not name Mr B and the only listed shareholders were the applicant and [Mr A]. When asked whether he was of any interest to the police, the applicant responded yes, he got a lot of summons, not just in Jakarta. Later in the hearing the applicant also suggested that legal proceedings had been brought against him in Indonesia in relation to his outstanding debts to the pilgrims.

19. The Tribunal is not satisfied that the applicant provided a reasonable explanation for not raising these claims before the delegate made his decision. The applicant told the Tribunal that when he was interviewed by the Department he was never asked for evidence that he was summoned by the police but the Tribunal had asked and this was why he said it existed. The applicant also told the Tribunal that he wasn’t asked to prove there was a police summons or legal proceedings against him, he had only been asked to prove Mr B existed. However, as discussed with the applicant, it is up to the applicant to put forward evidence in support of his claims. Furthermore, the Tribunal considers that if the applicant had reported Mr B to the police and/or if legal proceedings had been brought against the applicant by the disgruntled pilgrims/debt collectors then it is reasonable to expect that the applicant would have mentioned these matters at an earlier point in time.

20. In any event, the Tribunal is of the view that the new claims raised before the Tribunal lack any meaningful or persuasive detail. The new claims are not otherwise credible by reason of corroborating documentation. The Tribunal put to the applicant that he had not produced any documentation that would support his claims that he was now the subject of legal action in Indonesia, that he was the subject of a summons, or that he had reported these matters to the police. It was put to the applicant that he spoke English and Indonesian and he was well aware he needed to provide documentation to corroborate his claims and he was asked why, if such documentation existed, it had not been submitted. He stated they were all in Indonesia and he couldn’t get them. He then claimed some of the documents had been lost and when the office was taken over there was an assault and most of the documents had been taken. He still had a police summons at his sister’s home so maybe he could provide this. The Tribunal finds this explanation unpersuasive. The Tribunal considers if documentation relevant to his case had been lost or taken from him that this is a matter the applicant would have raised in the evidence he presented to the Department.

1. On the evidence before it, the Tribunal does not accept that the applicant is the subject of legal proceedings in Indonesia or that he reported the actions of Mr B to the police. There is also no credible evidence before the Tribunal that the applicant is of any adverse interest to the police in Indonesia. The applicant has not provided any documentation to substantiate his suggestion that there are legal proceedings against him in Indonesia and the Tribunal rejects any suggestion that the pilgrims/debt collectors have taken legal action against the applicant. While the applicant has produced a summons dated August 2013, for the reasons noted below, even if this document is accepted on face value, it does not corroborate his claims that he reported Mr B to the police in 2014. The contents of the summons do not refer to Mr B or to Company A.

   Family members return to Indonesia from Australia

2. The Tribunal finds the fact the applicant’s wife returned to their home area in Indonesia from Australia on 19 June 2015 and remained there until 17 August 2015 undermines the applicant’s claims that threats have been made to harm or kill his family. The Tribunal notes that the applicant gave evidence that his wife did not return to the family house but stayed at accommodation 10 kilometres away. The Tribunal has also considered his evidence that she was testing the waters to see if it was possible to return to Indonesia but after one and a half months ‘they knew she was there’. The applicant told the Tribunal that two people came to his house in Indonesia and asked if his wife was in Indonesia but that they did not know exactly where she was and before the delegate he claimed his daughter was advised people were aware his wife was in Indonesia one and half months after she arrived.

3. The applicant claimed that if one person were to become aware that he had returned to Indonesia word would spread to everyone and, as he needed to work, it would not be possible for him to hide. The Tribunal put to the applicant, Indonesia has a population of 258 million people and comprises over 6000 inhabitable islands[23] and asked whether he could avoid the harm he feared by relocating to another part of Indonesia The applicant responded that he had considered this possibility but then he discovered there were 850 pilgrims from 33 provinces and he feared moving to other areas as the pilgrims would know he was there. The Tribunal has considered this evidence but finds it contrived and unpersuasive, particularly in light of the fact that his wife and son voluntarily returned to Indonesia after the applicant claims the threats against him and his family commenced.  

   [23] DFAT Country Information Report: Indonesia, 22 December 2017.

4. On the evidence before it, the Tribunal is not satisfied that the applicant’s wife or son encountered any harm when they returned to Indonesia from Australia. The applicant has not claimed that the second named applicant was harmed when she was in Indonesia in 2015. Nor is it claimed that the third named applicant was harmed when he returned to Indonesia from Australia between 11 December 2013 and 8 February 2014. The applicant also told the Tribunal that his daughter, who is resident in Indonesia, is safe as she lives with her husband and not in his [the applicant’s] house. On the evidence before it, the Tribunal considers the fact that his wife and son returned to their home area in Indonesia after the applicant claims threats against him and his family commenced and that his daughter continues living in Indonesia undermine the suggestion that threats had been made to kill or harm the applicant’s family. On the evidence before it, the Tribunal does not accept that the applicants’ family members, including his wife and son, have been threatened or otherwise harmed by debt collectors/disgruntled pilgrims and nor does the Tribunal accept that unidentified people were looking for the applicant while his wife was in Indonesia.

   Delay in applying for a protection visa

5. The applicant first arrived in Australia on 28 March 2015 but he did not apply for a protection visa until 21 September 2015. Asked to explain his delay in applying for a protection visa to the Tribunal, he stated he tried to look for an agent to assist him and he did not understand about the law and had been told he needed an agent. He had to leave Australia because his visa was only valid for three months so he returned to [Country 6] for five days and came back to Australia and found an agent. Before the delegate he gave evidence that when he arrived in Australia he found an agent who advised him that it was not possible to obtain a visa for Australia and it was only when he returned to Australia from [Country 6] that he found his current migration agent.

6. The applicant claims that his delay in applying for a protection visa is explicable because he believed he needed an agent to assist him with his application as he had an agent to assist with his visitor visa application and his son’s application for a [temporary] visa. His evidence is that he speaks, reads and writes Indonesian and English. He has travelled extensively.  Having regard to the applicant’s immigration history and his capacity to speak, read and write English, the Tribunal finds it very difficult to accept that he was unaware that he could lodge a protection visa application without the assistance of an agent or that he could not locate an agent to assist him for six months. The Tribunal is not satisfied that the applicant has adequately explained his six-month delay in applying for a protection visa. While this delay is not determinative the Tribunal considers that it casts further doubt on the applicant’s claims that he is afraid of returning to Indonesia.

   The documentation submitted to the Tribunal does not assist the applicant’s case

7. The Tribunal has considered the documentation submitted during the review process. In the Tribunal’s view, even if the documentation is accepted on face value, it does not assist the applicant’s case.

8. The 2011 Meeting resolution and the 2011 Sale and purchase of shares were submitted at the hearing. The applicant explained that he did not provide these documents to the delegate because he did not realise that Immigration would make an issue about the company deed that he put forward with his son’s [visa] application or that the question of whether Mr B existed would be in issue. The Tribunal accepts that, as a general proposition, it is reasonable for an applicant to provide documentation to the Tribunal in an effort to address specific concerns raised in the delegate’s decision. However, the 2011 Meeting resolution and 2011 Sale and purchase of shares do not assist the applicant’s case.

9. As discussed above, the Tribunal is concerned that while the applicant’s written claims indicate that Mr B withdrew from Company A without the applicant’s knowledge in 2014, the documentation the applicant has produced to the Tribunal indicates that Mr B’s shareholding was transferred to the applicant with his knowledge in 2011. As discussed with the applicant, the documentation does not have any security features and could easily be manufactured. Furthermore and in any event, even if the sale and purchase agreement and the meeting resolution were accepted on face value, these documents do no more than establish that the applicant entered into an agreement to purchase shares in Company A from Mr B in 2011. The Tribunal does not accept the applicant’s claims that he is of adverse interest to debt collectors and/or disgruntled pilgrims in Indonesia.

10. With respect to the police summons submitted after the hearing, the Tribunal does not accept that the applicant has provided a reasonable explanation as to why this document was not provided before the primary decision. In any event, if the Tribunal were to accept the summons is a copy of a genuine document, it does not assist the applicant’s claims. Even if the summons were to be accepted on face value all it establishes is the applicant was summoned by the police in 2013 as a witness in relation to a police investigation in deception. It does not suggest that the applicant himself is of any adverse interest to the police; it does not refer to Mr B or Company A; and it does not corroborate the applicant’s claims that he reported the actions of Mr B to the police, either in 2014 or at any other time.  

    Conclusions on the credibility of the applicant’s claims

11. For all the reasons set out above, the Tribunal does not accept that the applicant’s claims are credible and finds that he is not a witness of truth. While it is possible that the applicant was a director and/or shareholder of Company A, the Tribunal is not satisfied that the applicant is now, or was in the past, of adverse interest to anyone in Indonesia because of his association with Company A and/or because he has been falsely accused of embezzling money owed to pilgrims and/or because Company A owes money to pilgrims. The Tribunal does not accept that Mr B had a dispute with the applicant in relation to matters of religious opinion, or that he was pressured by Mr B to impose religious views on prospective pilgrims or that the applicant had a dispute with Mr B for any of the other reasons claimed. Even if it were to be accepted that Mr B was a shareholder in Company A in the past, the Tribunal rejects in their entirety the claims that there was a dispute between the applicant and Mr B, that Mr B falsely accused the applicant of stealing money owed to pilgrims, and that pilgrims then engaged debt collectors to take action against the applicant. The Tribunal finds the applicant has manufactured his claimed dispute with Mr B. The Tribunal does not accept that Mr B embezzled money from pilgrims and then sought to blame the applicant for these actions. Even if it were to be accepted that the applicant was summoned to give evidence to the police in 2013, the Tribunal is not satisfied that the investigation was related to Mr B and/or Company A. On the evidence before it, the Tribunal does not accept that the applicant is of adverse interest to anyone in Indonesia as a consequence of the actions of Mr B or for any other reason.

12. The Tribunal rejects, in their entirety, the applicant’s claims that he has attracted the adverse interest of disgruntled pilgrims and/or debt collectors and/or the Indonesian police. The Tribunal does not accept that the applicant is of any adverse interest to the police or to any other persons or groups in Indonesia. The Tribunal does not accept that the applicant has outstanding debts in Indonesia to pilgrims or that he is of adverse interest to disgruntled pilgrims, debt collectors, the police, Mr B or any other individuals or groups. The Tribunal does not accept that the applicant and/or his family members have been threatened by debt collectors or any other person or group in Indonesia. The Tribunal is not satisfied that the applicant’s family members, including the second named applicant and the third named applicant, have been threatened or otherwise harmed by debt collectors/disgruntled pilgrims or any other individuals or groups. The Tribunal finds that the only profile the applicants have in Indonesia is that of ordinary Indonesian citizens. In light of its assessment that the applicant’s claims are not credible, the Tribunal finds that in Indonesia the applicant does not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future, for the reasons he claims.

13. The Tribunal finds that the applicant does not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future, for one or more of the five reasons set out in s.5J(1) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

    Complementary protection

14. The Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia, there is a real risk that he will suffer significant harm. The Tribunal has found the applicant’s claims are not credible and, for the reasons given above, rejects in their entirety his claims that he has attracted the adverse interest of disgruntled pilgrims and/or debt collectors acting on their behalf. The Tribunal does not accept that the applicant was or is of any adverse interest to disgruntled pilgrims and/or debt collectors and/or the police or any other persons or groups in Indonesia. Having carefully considered all the evidence before it, for the reasons given above the Tribunal has concluded that the applicant is not a credible witness.

15. The Tribunal does not accept that the applicant has told the truth about the reasons that he left Indonesia or why he does not wish to return to Indonesia now. Accordingly, having regard to its findings of fact, the Tribunal finds that there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. Nor is the Tribunal satisfied that there is a real risk that he will suffer arbitrary deprivation of his life or the death penalty. The Tribunal is not satisfied the applicant will be subject to significant harm for any reason, as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia.

    The second and third named applicants

16. The second and third named applicants have not advanced their own claims for protection. Because the Tribunal does not accept that [the applicant] is of any adverse interest to anyone in Indonesia for any of the reasons claimed, the Tribunal rejects in their entirety his claims that his family have been threatened. Before the Tribunal the second and third named applicants did not advance their own claims to be owed protection. Accordingly, on the evidence before it, the Tribunal is not satisfied that either the second or third named applicants satisfy the criterion in s.36(2)(a) or (aa) of the Act for a protection visa.

    CONCLUSION

17. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) of the Act for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.

    DECISION

18. The Tribunal affirms the decision not to grant the applicants protection visas.

    Frances Simmons
    Member

    
    

    ATTACHMENT – Extract from Migration Act 1958

    5 (1) Interpretation
    …
    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)that is not inconsistent with Article 7 of the Covenant; or

    (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)that is not inconsistent with Article 7 of the Covenant; or

    (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    receiving country, in relation to a non-citizen, means:

    (a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)for the purpose of intimidating or coercing the person or a third person; or

    (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    5J Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)    the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)    conceal an innate or immutable characteristic of the person; or

    (c)    without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)    the persecution must involve serious harm to the person; and

    (c)    the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)    a threat to the person’s life or liberty;

    (b)    significant physical harassment of the person;

    (c)    significant physical ill‑treatment of the person;

    (d)    significant economic hardship that threatens the person’s capacity to subsist;

    (e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)    disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)    a characteristic is shared by each member of the group; and

    (b)    the person shares, or is perceived as sharing, the characteristic; and

    (c)    any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)    the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)    protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)    the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)    the person can access the protection; and

    (b)    the protection is durable; and

    (c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    ..

    36 Protection visas – criteria provided for by this Act

    …

    (2A)A non‑citizen will suffer significant harm if:

    (a)   the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)   the death penalty will be carried out on the non‑citizen; or

    (c)   the non‑citizen will be subjected to torture; or

    (d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)   the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …