1608000 (Refugee)

1608000 (Refugee) [2019] AATA 5702 (2 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1608000
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Fiona Meagher
DATE:2 May 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 02 May 2019 at 12:45pm
CATCHWORDS
REFUGEE – protection visa – Indonesia – borrowed from money lenders – financial and personal abuse by husband – threats by money lenders and husband – inconsistent evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v MZYYL [2012] FCAFC 147
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 6 May 2016 to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Indonesia applied for the visa on 18 May 2015. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant is a refugee is defined by section 5J(1) of the Act , and not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Indonesia, there is a real risk the applicant will suffer significant harm.
CRITERIA FOR A PROTECTION VISA
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.
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.
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 themself of the protection of that country: s.5H(1)(a). 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).
Under s.5J(1), 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 ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), 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 ss.36(2A) and (2B), which are extracted in the attachment to this decision.
“Significant harm” for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if or she will arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. “Cruel or inhuman treatment or punishment”, “degrading treatment or punishment”, and “torture”, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Relocation
Under s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. The Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
State protection
Under s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.
Mandatory considerations
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
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Documents before the Tribunal
The Tribunal had before it a copy of the applicant’s claim for protection (provided to the Department), a copy of the delegate’s decision dated 6 May 2016, and medical certificates dated variously:

·1 February 2017;
·3 May 2017;
·10 May 2017
·14 June 2017;
·21 June 2017;
·18 August 2017;
·29 January 2018;
·18 May 2018;
·21 May 2018;
·14 June 2018;
·20 August 2018;
·9 April 2019; and
·One undated.
Applicant’s migration history
The applicant’s migration history is set out in the delegate’s decision. She entered Australia on a Visitor visa granted on 29 October 2014, [in] November 2014. On 27 January 2015 she was granted a Bridging visa. On 2 February 2015 her Visitor visa ceased. On 17 February 2015 her Bridging visa ceased and a further Visitor visa was granted. On 18 May 2015 the applicant lodged a Protection visa application.
Country of reference
The applicant provided identity documents to the Department indicating that she is an Indonesian national. The Tribunal is satisfied that she is an Indonesian national, and that there is no evidence to suggest that she has the right to enter and reside in any other country than Indonesia. She is therefore not excluded from Australia’s protection by s.36(3) of the Act.
Accordingly, the Tribunal will assess the applicant’s claims against Indonesia as the country of reference.
Departmental Interview
The applicant attended an interview with the Department on 10 December 2015. The contents of the interview are summarised in the delegate’s decision, a copy of which was provided with the application for review.
Evidence at hearing
The applicant attended a hearing on 13 October 2017 to give evidence and present her claims. At the hearing she was assisted by an interpreter in the Indonesian language.
The Tribunal discussed with the applicant her background, her family, her reasons for leaving Indonesia, her life in Australia and why she fears returning to Indonesia. The Tribunal formed the view that aspects of her evidence were vague, lacking in detail, non-responsive, implausible and unconvincing. There were inconsistencies in her evidence. The Tribunal has considered the evidence given by the applicant and has concerns in relation to her credibility and the veracity of her claims. The Tribunal’s concerns are noted below.
The applicant was asked by the Tribunal what she was afraid of if she were to be returned to Indonesia. The applicant’s response was that she was sick a lot because of her husband, and that she had many debts which she had still not paid off. She also said that she had [number of] children, all of whom were spread out. She said that she had to ask a friend to look after the youngest (who turned [age] on [date]), and that her third child, (who turns [age] in [month year]) had to go to Java to “run away from the people who have vengeance against” her. The applicant stated that her husband threw things at her and once hit her with [an object] on the side of her body. The applicant said that she knew karate so she used to try and dodge him. She also said that her husband once hit her with [another object] until her toe was swollen and the bone protruded.
The applicant told the Tribunal that her relationship with her first husband came about because she accidentally fell pregnant before marriage. She said she had three children with her first husband, and does not now know his whereabouts, other than that he has gone to live in [Country 1]. The applicant said that her first husband has many debts because he has many children.
The applicant went on to tell the Tribunal that she was aware that her [relative], and his mother, were interested in her becoming her [relative’s] partner. She said that she did not respond to his advances as she had three children and was still in love with her first husband. However, she said that she started to change her mind when her [relative] told her that he would take care of her children. Therefore she married her [relative] who is the father of her fourth child. The applicant said that after the birth of her fourth child her [relative] started to treat her badly. The applicant said that her [relative] was not nice to her children from her first husband, and that she would never have married him had he not promised to care for her three older children. The applicant also said that her second husband wanted sons, and was particularly interested in her and she had two sons already. The applicant said that she was interested in marrying her [relative] as she had realised that she needed help raising her children. It is the applicant’s second husband whom she fears.
The applicant said that after the birth of their [child] she started to see her husband’s real character. She said that before her marriage she had a company which [did specified work]. She said that she gave her husband capital from that company as she was aware of the cost of raising three children. However, she said that she was left with debts, and that her husband would not give her any money. The applicant said that she also had a piece of land which had been given to her first husband which she had used as collateral against which to borrow money, in respect of which she had to make repayments. The applicant said that her husband did not care about her problems in that regard.
The Tribunal persisted asking the applicant about the sequence of events surrounding her marriages, and the birth of her children, and established the following chronology:
·The applicant met her second husband when she was young, as they are [relatives], and were neighbours at the time of meeting.
·The applicant was unable to remember the date upon which she met her first husband.
·The applicant had her first child.
·[Month Year]: the applicant had her second child.
·The applicant’s first husband went to [Country 1].
·[Year]: applicant’s first husband returned from [Country 1] and the couple had their third child.
·1996: the applicant’s first husband returned to [Country 1] leaving her with three children to raise.
·December 2008: the applicant married her second husband.
·[Month Year]: the applicant and her second husband had a [child] (the applicant’s fourth child).
The applicant said that as well as giving her youngest [child] to a friend to be cared for, her [oldest child] (who was born in [month year]) was taken by her [sibling] to be cared for. In addition, her [second child], born [date], was taken by her [other sibling] to be cared for.
The applicant told the Tribunal that a further problem she had was that she had elderly parents to look after – her mother is old and her father has had a stroke.
The applicant said that the problems with her second husband started when her [third child] needed money to go to high school. She said that her second husband accused her [third child] of being a spendthrift. She said that at the same time she needed money for her parents as her father had had a stroke. The applicant told the Tribunal that her second husband told her that “I will never trust you with money even though you have cried blood”.
The Tribunal asked the applicant why she thinks she will suffer serious harm. The applicant’s response was that it was because her husband was not nice, and that she felt “squeezed” between a debtor and her husband financially. The applicant told the Tribunal that she owes a lot of money and the interest is accumulating. She said that the debtor keeps asking her for payment and her second husband won’t help. She said that both her husband and the person to whom she owes money hate her. She said that they have both threatened to kill her.
The Tribunal asked the applicant to describe the circumstances in which she had been threatened. She replied that the creditor said to her “no matter how much that it becomes you have to pay no matter what”. She said that her husband told her “it’s your fault – why did you do that – I don’t want to be responsible for your debts”. The applicant said that her second husband chased her out of the house one night and said that she was not welcome to return as he was sick of people coming to the house asking for money. She said that her husband told her that the man to whom she owed money will kill her. The applicant said that she had a text from a man to whom she owed money, which said “I will track you down and kill you”. The applicant said that her husband saw someone following her around which made her father frightened, and caused him to have a stroke.
The applicant said that her husband often threatened to kill her. He said that she could not go anywhere – he would pay people to follow her around wherever she went. The applicant said that no one except her son knows that she has come to Australia.
The Tribunal asked the applicant about her debts. She said that at the beginning she borrowed 14 million IDR, and after three months she had paid 10% of her debt back. Then she said she borrowed another 30 million IDR. The applicant said that, due to accumulating interest, she eventually owed 75 million IDR to one moneylender, and she borrowed 50 million IDR from another.
The applicant said that she also had another old debt from 2002 (before she got married) of 5 million IDR. The applicant said that she borrowed the 5 million IDR from the worst moneylender. She said that he took her “certificate” (as security), and then colluded with her husband with respect to the interest. The applicant said that the man who lent her the money referred to in this paragraph says that the debt is now 300 million IDR, in respect of which she cannot pay.
The applicant said that in Indonesia she has no one to lean on and she has a lot of debts. She said that people turn up in front of her house on motorbikes and she feels really scared. She said that her husband does not care if she is safe. The applicant said that she has to therefore be able to stay outside of Indonesia. She said that her husband can find her anywhere within Indonesia.
The applicant then told the Tribunal that she begged her friend in Lombok to ask his friend to sponsor her to Australia on a Visitor visa.
The Tribunal referred the applicant again to the issue of her debts, and asked her what she feared in respect of them. The applicant said that murder is a common response from moneylenders who are not paid back. The Tribunal asked the applicant why, given that she had had some of the debts for a very long time, had she not therefore suffered harm already. The applicant said that she feels tired and does not want to go home and care for her parents. She said that her brother cannot help take care of her parents as he has a mother-in-law and his wife works.
The applicant went on to say that she had been admitted to hospital for long-lasting headaches, migraines and an inability to sleep because her husband would not pay her debts. The applicant said that even though her husband has a certificate in respect of the debts, he is very angry that she does not pay them back. The applicant said that that is why she sent her son to live first in Bali where he worked as a [Occupation 1], and then to Java because she knew many people from Lombok in Bali. She also said that she sent her son to live in Bali and Java because she was concerned that people might take revenge against him. The applicant reiterated that she needed to be “returned anywhere but Indonesia”. She said that she does not know how to make her husband’s anger subside.
The Tribunal asked the applicant further questions regarding her claims of family violence with respect to her husband. She said that she was a slave to her husband, and the Tribunal asked her in what respect. She said that her husband did not give her money. She said he was very harsh and made her wake up very early to manage the workers on the farm, but when he sold the harvest he did not give her any money. She said that her husband also ignored their daughter when she was sick, and treated her differently from his other children. She went on to say that he always looked after his children from his first wife.

The applicant told the Tribunal that she’d asked her husband’s permission before she went overseas “to try and do the right thing and leave on good terms”, but he threatened her by saying “I will find you and I will kill you if you dare to take a step out of Indonesia”. She also said that he told her he regretted marrying her, and when she asked him for a divorce he said that that was never going to happen.
The applicant went on to tell the Tribunal that her husband would not let her work. She said that she was offered work by [a person] but her husband would not allow her to leave. She said that her husband does not like to see her dress nicely to go to work. She said in that regard she feels sorry for her father who spent money to send her to university and she is now unable to return the favour by working for [that person].
The applicant then told the Tribunal that the village head is her husband’s [relative]. She said that if she asked for a signature from him to allow her to go overseas he would never have provided it. She said therefore she went through an Indonesian company which takes care of workers who want to go overseas.
The Tribunal discussed with the applicant the concerns it had regarding her claims.
It discussed country information relevant to Indonesia including from the DFAT Country Information Report dated 9 June 2015, and consistent with that contained in the DFAT Country Information Reports dated 22 December 2017 and 25 January 2019. Country information included the availability in Indonesia of protections in relation to domestic violence, the availability of health care, and in particular the size and diversity of Indonesia giving rise to an ability on the part of the applicant to be able to relocate. In particular the Tribunal discussed with the applicant the fact that “Indonesia is the world’s largest archipelagic state. It comprises around 17,500 islands, of which approximately 6000 are inhabited.” The population exceeds 258 million people. More than half of Indonesia’s population lives on the island of Java and more than 20% live on the island of Sumatra. Furthermore, Indonesian citizens are able to move and reside freely around the country, and it is commonplace to relocate.
The Tribunal also told the applicant that it had concerns regarding the time she had taken to make her application for protection, and with respect to the inconsistencies in her evidence.
The applicant responded that she was unable to go to a family violence shelter because the village head is her husband’s [relative]. She said that she reported her husband to the police once and they told her to make things better at home. The applicant said that her husband was only nice to her when he wanted to sleep with her.
The applicant told the Tribunal that she had a number of health problems including [specified]. She said that she had fortnightly [medical] tests, and that [certain issues were found]. The applicant said that she was very scared about her [medical condition], and that overwhelming fear could cause her to die instantly. The applicant said that when she came to Australia she worked really hard, and that when she became unwell her general practitioner gave her a certificate for Centrelink however Centrelink refused to provide her with any money as she was still on a Bridging visa. The applicant went on to say that she does not need much money because she can actually continue to work although her energy levels are low because of her [medical] problems.
The applicant acknowledged that Indonesia does have domestic violence shelters, as referred to in the delegate’s decision, but that she was unable to access them as her husband wakes up really early and watches her and monitors her on her mobile phone. The applicant said that is why she had never reported her husband - because he watched her. The Tribunal notes that the applicant was inconsistent in relation to whether or not she reported her husband for domestic violence.
The applicant said, in relation to the issue of relocation, that it would not be available to her as her husband would find her because he has a [relative] working at the airport. He also knows people who work in the ports. The applicant also said that she cannot go somewhere else because her husband controls her.
With respect to the claimed threat of violence from the moneylenders, the applicant said that she cannot go to the police station as it is next to the village where the dangerous moneylender lives. She said she is afraid of going to the office of the head of the village as there is so much corruption in Indonesia. She said that she was unable to report her concerns to anyone else in the police as they are easily bribed, and one has to start by “reporting to the bottom of the ladder” before any concerns may be escalated. She also said that she had reported problems with [a relative] to the police and the head of the village asked her why she did not instead report them to him.
With respect to the issue of the time taken to make the application, the applicant said that all she cared about was getting out of Indonesia. She said that she went to [Australian City 1] where her sponsor sent her to a motel and she had to pay $50 a day. She said that she had no money to work so she looked for a mosque as she thought Muslims might help her. She found a women’s group at which she met a [Country 1] lady who introduced her to another Indonesian woman with whom she stayed for $100 a week. The Tribunal told the applicant that that did not explain why she had not made her Protection visa claim earlier. She said that she knew nothing about Protection visas. She said that the Indonesian lady sent her to [Town 1] to a [workplace] where she found work. She said that she was told she was not allowed to work because she was on a Visitor visa, but she continued to work notwithstanding.
The applicant then told the Tribunal that she went to the Department of Immigration twice and told them her story, and was asked by a Departmental officer whether she wanted to make an application for a Protection visa. She said that she instead extended her Visitor visa. She said that she then obtained a second extension on her Visitor visa but was concerned about whether she could work. The applicant said that then she asked how she could get a Protection visa.
The Tribunal explained that it had concerns regarding the inconsistencies contained within the applicant’s evidence. For example she was inconsistent about making reports to the police station and whether she was able to work given her health. She said that she knew nothing about obtaining a Protection visa, but later said that the Department of Immigration had asked her whether she wanted to apply for a Protection visa, at which point she had instead extended her Visitor visa. The applicant responded that she is concerned about her [medical condition], she needs money, and she needs to be able to get healthy and to work overseas. She said that she cannot go back to Indonesia. She said that medical care was very expensive in Indonesia and that the Indonesian healthcare card does not cover her [medical condition] nor the [medication] which she obtains at no cost in Australia. The applicant went on to say that she hopes to get healthy first. Then she wants to plead for help to get money for rent and food so that she can stop work. She said the doctor has written a certificate in that regard.
Findings
The Tribunal finds that the applicant that the applicant has been married twice and has four children.
The Tribunal accepts that there are difficulties in the applicant’s second marriage including that her husband has made verbal threats, thrown an object at her, and does not wish to give her money. The Tribunal does not accept that the applicant is unable to report her husband to the police or otherwise take advantage of protections available to victims of domestic violence in Indonesia.
The Tribunal also accepts that the applicant has borrowed money in Indonesia, which money she is required to repay. However, based on the applicant’s evidence in relation to the moneylenders, including that it was vague and discursive, and that she was not responsive to the Tribunal’s questions, the Tribunal does not accept that the applicant is being threatened in relation to the loans. The Tribunal takes into consideration, in this regard, the fact that there was no documentary evidence before the Tribunal of the loans or the claims for them to be repaid. The Tribunal also notes that at least one of the loans was taken out as long ago as 2002, and the applicant provided no evidence of suffering any harm of the kind envisaged by the refugee convention between then and 2014 when she left Indonesia and came to Australia, notwithstanding that interest would have been accruing over that time.
The Tribunal accepts, based on the applicant’s evidence, and the medical certificates submitted by her that she has a number of health problems. The Tribunal acknowledges that Australia has a very highly regarded health care system, however country information, as discussed with the applicant at hearing is that the Indonesian constitution guarantees citizens the right to obtain medical care and obliges the state to provide medical services and facilities. Indonesia is moving towards universal healthcare. Accordingly the Tribunal does not accept that the applicant is unable to avail herself of healthcare facilities in Indonesia.
The Tribunal has concerns regarding inconsistencies contained within the applicant’s evidence, in particular in relation to dealings she had with the police. The Tribunal also has concerns as to why the applicant took so long to apply for a Protection visa – instead choosing to extend her Visitor visa, in circumstances where on her own evidence, a Department of Immigration officer, upon hearing her story asked her whether she wished to apply for a Protection visa.
The Tribunal does not accept that the applicant is unable to relocate within Indonesia. Given its population and the size of the country, including that the population is spread over 6000 inhabited islands, the Tribunal does not accept that there is a real chance or a real risk that the applicant’s husband would locate her or subject her to serious or significant harm, if she were to relocate to another part of Indonesia. In that regard, the Tribunal has also considered the effluxion of time since the applicant last had contact with her husband, which was prior to her departure for Australia in October or November 2014.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. The Tribunal does not accept that the applicant left Indonesia for any reason contemplated by the refugee criterion. Rather, the Tribunal considers that the applicant wishes to stay in Australia to take advantage of the healthcare system, and either work opportunities or to avail herself of social security payments.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa). The Tribunal finds there is no real risk that she 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 am I satisfied that there is a real risk that she will suffer arbitrary deprivation of his life or the death penalty. I am not satisfied the applicant will be subject to significant harm for any reason if she is removed/returns to Indonesia,
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Fiona Meagher
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.
…
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.
…
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.
…
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.
..
36Protection 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.
…

[2019] AATA 5702

2 May 2019

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