1610041 (Refugee)

1610041 (Refugee) [2020] AATA 316 (11 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1610041
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Tania Flood
DATE:11 February 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 February 2020 at 2:24pm
CATCHWORDS
REFUGEE – protection visa – Indonesia – race – ethnic Chinese – religion – Buddhism – victims of extortion attempts and robberies – anti-Chinese sentiment – delay in applying for protection – debt to a loan shark – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
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 and Border Protection on 31 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 20 January 2016. The delegate refused to grant the visa on the basis that the applicant does not face a real chance of persecution in Indonesia as a result of his Chinese race and nationality. In addition, on the basis of country information, the delegate found that the applicant would be able to seek and obtain the protection of Indonesian police.
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 themselves 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.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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 there is a real chance the applicant will suffer serious harm if he returns to Indonesia now or in the reasonably foreseeable future for reason of his race, religion, nationality, membership of a particular social group or political opinion or alternatively, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Indonesia there is a real risk he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of claims
According to information contained in his application for a Protection visa, the applicant is a [age] year old citizen of Indonesia. He is Indonesian Chinese and speaks English and Indonesian. He was born in North Sumatra and resided at an address in Jakarta, before coming to Australia. He also lived in [Country 1] for nine years. His mother lives in Indonesia. He does not have family members in Australia. He completed primary school and high school in Semarang, Indonesia. He was employed as a [Occupation 1] at a [business] located in [Country 1], from 2004 to 2013.
He arrived in Australia [in] January 2014 as the holder of a [visitor visa]. He applied for a Protection visa on 20 January 2016. On 31 May 2016 a delegate of the Minister refused his Protection visa application.
In his application for a Protection visa the applicant made the following claims:
He is Indonesian Chinese. He and his family have suffered from racism since he was a child.
He could not go to work after he graduated from high school because of the racism from his local community.
He claims groups of native Indonesians asked his parents for money all the time and discriminated against them. In 2004 several groups of native Indonesians came to his family home and smashed their furniture, doors, and windows, because his parents did not have money.
His parents arranged for him to go to [Country 1] and work in a [business]. He worked in [Country 1] for nine years and returned to Indonesia in May 2013.
He claims he continued to experience racism from the native Indonesians. They beat him when he refused to give them money.
The authorities do not want to help him because he is Indonesian Chinese. He cannot relocate as the discrimination is nationwide.
Protection visa interview
The applicant was invited to an interview with the Department on 30 May 2016 but did not attend.
Submissions to the Tribunal
On 20 January 2020 the applicant submitted the following documents related to the review of the cancellation of his Bridging visa. The review was finalised by a differently constituted Tribunal [in] January 2020.
Letter from [a union] stating that the applicant was taken into immigration detention in December 2019. He had sought assistance from the organisation before he was detained, but due to the demand for migration services, they could not assist him earlier.
Submission by the applicant’s representative, dated 5 January 2020. The submission states that the applicant belongs to an ethnic and religious minority in Indonesia, as he is a Chinese Christian. The applicant’s family had moved to Jakarta as the ethnic and religious discrimination against the Chinese population in Sumatra limited the employment opportunities available to his father. His father passed away in 1998 and in the same year mass anti-Chinese riots broke out in Jakarta. In the years that followed ethnic discrimination and extortion continued. The submission states that the applicant experienced discrimination and physical abuse in both northern Sumatra and Jakarta, followed by repeated extortion attempts by Javanese locals. Extracts from a 2019 DFAT Report were provided to support his claim of anti-Chinese sentiment and discrimination in Indonesia.
It is claimed that when the applicant decided to travel to Australia on a visitor visa he intended to take his first break from work in ten years and see something of the country and to try to find a means by which he could secure permanent residence. Though he knew he needed to escape from discrimination and the threat that pervaded life in Jakarta he was not familiar with the concept of asylum or the process of applying for a Protection visa. Had he known he would have submitted his Protection visa application before his visa expired.
In regards to his protection visa application, the submission states that the applicant received advice from an unregistered migration agent who summarised his protection claims in a very brief manner, and did not inform the applicant that he was invited to attend an interview with the Department.
The applicant claims he has exhausted his savings and accrued significant debt to his family members in Indonesia (in the order of AUD$30,000).
Oral evidence to the Tribunal
On 7 February 2020 the applicant provided the following oral testimony when he appeared before the Tribunal:
He and his parents were born in Indonesia. He is unsure where his grandparents were born.
His mother and [relative] live together in Jakarta in a property owned by his [relative]. He has an older sister who also lives in Jakarta with her husband.
He lived in Jakarta from 1998 until around 2002 when he went to work in [Country 1] for nine years. When he returned to Indonesia he again lived in Jakarta.
After senior high school he completed a [course] in [Discipline 1]. He did not work in Indonesia. In [Country 1] he worked in a [business] [undertaking specified tasks].
He only started working in Australia in 2017. Before that he travelled around Australia living off the 50,000AUD in savings he accumulated while working in [Country 1]. Thereafter he borrowed money from a bank in Indonesia but that loan has since been repaid. Through his mother he borrowed more money from a loan shark (around 20,000AUD) but he has only managed to meet the interest repayments on that loan. The loan was obtained by his mother using his [relative]’s house as collateral. He is afraid that if he returns to Indonesia he will not be able to repay the loan shark and this will put his mother and [relative] at risk of harm and homelessness.
He is a Buddhist. Any reference to him being Christian in submissions is incorrect.
He came to Australia to “refresh” after working for nine years in [Country 1]. He wanted to rest and travel. He also wanted to get away from the racial discrimination against Chinese Indonesians and was also fearful of the terrorist bombings which were occurring at the time.
When asked why he had applied for a Protection visa he said that he was introduced to an agent but was under the impression that the agent was applying for him to get a Bridging visa. He said he was unaware that a Protection visa application had been lodged by the agent.
In the past he suffered racial discrimination in Indonesia. He was bullied at school and he has lost count of the times he has been the victim of extortion at gun point and robbery. He said that his family and Chinese friends have also been subjected to this type of treatment in Indonesia. He said that in about 2001 he and his family were out at the temple and when they returned they found the house had been burgled. He said they reported it to the police but whenever they enquired about the progress of the investigation they were told it was ongoing.
When he returned to Jakarta from [Country 1] he encountered the same problems and that is also the time that the bombings occurred.
His greatest fear of returning to Indonesia is because his mother and [relative] could potentially lose the house to the loan shark. He said he doesn’t have any work experience in Indonesia and Chinese Indonesians are discriminated against in employment.
Responding to country information regarding the situation for Chinese Indonesians now he said that some parts of Jakarta, including West Jakarta where he lives, still have high rates of criminality and robbery and extortion occurs frequently. He said these matters are not reported in the media.
Responding to country information regarding the ability to freely practice religion in Indonesia he maintained that most companies prefer to hire Muslims.
Responding to country information about loan shark operations in Indonesia he said that loan shark companies have debt collectors who employ violence.
Responding to country information about police protection in Indonesia he said that he has never seen a Chinese police or military officer. He said the police say they offer protection but if ever you lodge a complaint nothing gets done about it.
He has no other reason to fear returning to Indonesia.
Country Information
DFAT’s Country Information Report on Indonesia (25 January 2019) notes the following:
3.5      Successive waves of immigration to Indonesia from China over more than five centuries have resulted in an established Chinese Indonesian community throughout the country. The 2010 census recorded 2.8 million ethnic Chinese living in Indonesia, comprising 1.2 per cent of the population. This figure may understate the actual number, as some Indonesians of Chinese descent are reportedly reluctant to self-identify due to past tensions.
3.6      The Suharto-era New Order regime implemented a range of measures that discriminated against Chinese-Indonesians. The law prohibited Chinese language newspapers, schools and cultural expressions, and many Chinese Indonesians were pressured to take Indonesian names. Some ethnic Chinese had difficulty obtaining citizenship and Chinese Indonesians were required to carry a document proving their Indonesian citizenship. As noted in Recent History, in May 1998 during the Asian financial crisis, rioters targeted the ethnic Chinese community due to their perceived wealth. As many as 1,000 Chinese Indonesians died in incidents related to the riots, women were raped, and businesses were burned or looted.
3.7 Since the end of the New Order regime in 1998, successive governments have removed most official policy measures against ethnically Chinese Indonesians. Chinese New Year is celebrated as a national public holiday, Confucianism is an officially recognised religion, Chinese cultural performances and languages are accepted, and the Constitution no longer distinguishes between ethnic Chinese and ‘indigenous’ Indonesians, with barriers to citizenship removed. In 2014 then-President Yudhoyono issued a regulation changing the Indonesian word used to designate ‘of Chinese descent’ from one which was often associated with racial slurs. A number of Chinese Indonesians have held high office and work in a range of sectors, including the police, clergy and the business community.
3.8 Some anti-Chinese sentiment remains at a societal level. Although many Chinese Indonesians are not wealthy, most of the country’s richest and most prominent businesspeople are ethnically Chinese Indonesian, which is a source of resentment for some non-Chinese Indonesians.
3.11     Small-scale local riots took place in a town in North Sumatra in 2016, following an allegation of blasphemy against a Chinese Indonesian woman. While the riots were ostensibly anti-Buddhist, most Indonesian Buddhists are ethnically Chinese and local media described the riots as anti-Chinese and stated that some Chinese families had fled the region. A number of youths were arrested, prosecuted and imprisoned in the wake of the riots.
3.13     With the notable exception of the 2016 riots, which may have been partly motivated by racial tensions, anti-Chinese violence has been low since events in 1998. …… DFAT assesses that Chinese Indonesians currently face a low risk of violence. Persistent anti-Chinese sentiment may lead to low levels of societal discrimination.
FINDINGS AND REASONS
Claimed racial discrimination and fear of returning to Indonesia for this reason
The Tribunal accepts that the applicant is an Indonesian citizen and of Chinese heritage and ethnicity. The Tribunal accepts his claimed Christianity is an error and that he is a Buddhist.
The Tribunal is also prepared to accept that the applicant experienced bullying as a child and that he and other family members were victims of extortion attempts and robberies prior to his departure to [Country 1]. The Tribunal is prepared to accept that this was due to their race and/or Chinese ethnicity.
The applicant claims that he continued to experience the same degree of societal discrimination after he returned to Jakarta from [Country 1] after a nine year absence. He gave no details of any specific incidents of harm he experienced at this time and indeed the reasons given for his decision to leave Indonesia were more to do with the security situation in light of terrorist bombings in Jakarta and other parts of the country than any claimed mistreatment on account of his race or ethnicity. His claimed experience at the time is also not, in the Tribunal’s opinion, supported by information outlined in DFAT’s Country Information Report on Indonesia dated 25 January 2019. Relevantly, DFAT reports that while the ethnic Chinese community was targeted by rioters in 1998 due to their perceived wealth, with the notable exception of small scale local riots in North Sumatra in 2016, anti-Chinese violence has been low since the events in 1998. Notably, DFAT reports that since the end of the Suharto-era New Order regime in 1998, successive governments have removed most official policy measures discriminating against ethnically Chinese Indonesians. Significantly, the Constitution no longer distinguishes between ethnic Chinese and ‘indigenous’ Indonesians and in 2014 then President Yudhoyono issued a regulation changing the Indonesian word used to designate ‘of Chinese descent’ from one which was often associated with racial slurs.
While it is accepted that a degree of anti-Chinese sentiment remains at a societal level, given the reported changes which have occurred since 1998 and taking account of the unconvincing nature of the applicants evidence, the Tribunal is not persuaded that he continued to experience the claimed racially motivated harassment or violence which would amount to serious harm after his return to Jakarta in 2012 or 2013. The Tribunal finds, on the available evidence, that the applicant’s decision to depart Indonesia was motivated by the terror threats which prevailed at the time and/or the desire to visit another part of the world.
In forming the above view the Tribunal has placed weight on the applicant’s explanation for the significant delay between his arrival in Australia [in] January 2014 and his lodgement of a Protection visa application on 20 January 2016. When the delay was discussed with him during the hearing he said that he was in fact unaware that his agent had even lodged a Protection visa on his behalf claiming instead that he thought he was being assisted to obtain a Bridging visa. In the Tribunal’s view this response calls into the question whether the applicant fled Indonesia for the reasons claimed and whether he genuinely fears returning to Indonesia due to ongoing racial discrimination.
Is there a real chance the applicant will suffer serious harm if he returns to Indonesia now or in the reasonably foreseeable future?
Race and/or ethnicity and religion

The Tribunal has considered the country information outlined above in respect of the applicants race/ethnicity and religion, and the applicant’s responses to the information which was discussed generally with him at hearing. Notwithstanding his responses the Tribunal is satisfied that the DFAT report is a reliable source and is based upon on the ground knowledge and discussion with a wide range of sources, including credible open source reports as well as protected sources. The Tribunal considers the DFAT report provides a credible and balanced assessment of the situation faced by ethnic Chinese Indonesians. Based on DFAT’s report, while some historical biases against ethnic Chinese Indonesians persist, the situation has improved markedly since 1998 and ethnic Chinese are assessed by DFAT to have only a low risk of official discrimination and overall face low levels of societal discrimination.
The Tribunal concludes that there is not a real chance the applicant will be subjected to ethnically motivated violence or otherwise targeted for extortion or physical harm or other forms of harassment on return to Indonesia for reason of his race/ethnicity.
As to whether the applicant will face difficulties finding employment on account of his race/ethnicity and/or Buddhist religion, as noted in the country information section above, most official policy measures which previously discriminated against ethnically Chinese Indonesians have now been removed. Also, as discussed with the applicant during the hearing freedom to choose and practice a religion of choice is guaranteed by the Constitution. In addition, DFAT reports religious pluralism is an established part of modern Indonesia and a wide range of local and international sources consider that inter-faith tolerance remains strong despite some localised instances of religious intolerance over the past decade.[1] The applicant’s response to this information centred on his fear that employers in Indonesia favour Muslim recruits.
[1] DFAT Country Information Report, Indonesia, 25 January 2019
While the Tribunal does not discount the possibility that the applicant could encounter some discrimination in private employment on account of his race/ethnicity and/or Buddhist religion, Indonesia’s Constitution enshrines freedom from discrimination and Discrimination Law is in place to safeguard individuals’ rights. In any event, as discussed with the applicant during the hearing Chinese Indonesians have a significant stronghold in business and options for finding employment in Chinese run businesses would very likely be available to him. The Tribunal notes the applicant’s claim that he has no work experience in Indonesia but despite this he has qualifications in [Discipline 1] and work experience obtained in [Country 1] and Australia which will likely assist him to find employment if he returns to Indonesia.
The Tribunal concludes that there is not a real chance the applicant will suffer persecution involving serious harm arising from employment discrimination on the grounds of his race/ethnicity and/or religion. The Tribunal is also satisfied that there is not a real chance the applicant will suffer persecution in the course of practicing his Buddhist faith in Indonesia.
Loan shark
During the Tribunal hearing the applicant expanded upon the claimed debts he has accrued in Indonesia. He said his greatest fear of returning to Indonesia relates to the fact his mother secured a loan of 20,000AUD from a loan shark on his behalf and in the event he is unable to meet the repayments on return they may lose the house which was put up as collateral for the loan. The applicant’s testimony is that he asked his mother to obtain the loan to finance his living expenses in Australia after his savings ran out.
As discussed with the applicant during the hearing the Tribunal is not persuaded that there is in fact a debt to a loan shark. Firstly, the applicant claims that he lived for two to three years in Australia off savings he accumulated working in [Country 1]. As discussed with him during the hearing, given the economic conditions and average earnings in [Country 1] the Tribunal doubts his ability to have accumulated 50,000AUD in savings. The Tribunal notes the applicant indicted at hearing that he supplemented his [business] wages with gambling and other ventures but the Tribunal nevertheless remains unpersuaded that he was able to live for two to three years in Australia by simply relying on the savings he brought with him to Australia. Whereas the applicant maintains that he only started working in Australia in 2017 the Tribunal considers it very likely that he commenced work well before that date and therefore had no need to borrow money in Indonesia. In forming this opinion the Tribunal finds it significant that the applicant claims to also have secured a bank loan in Indonesia during the time he has lived in Australia which he says he has been able to repay. Secondly, as discussed with the applicant during the hearing the Tribunal is not persuaded that his mother and aunt would put their only source of shelter at risk in order to finance the applicant’s protracted and allegedly non-lucrative stay in Australia particularly as the Tribunal is not satisfied that his departure from Indonesia was due to the harm which is claimed.
For the above reasons, and in the absence of any verifiable evidence in support of this claim, the Tribunal does not accept his mother obtained a loan of 20,000AUD from a loan shark on his behalf. It follows that the Tribunal does not accept the claimed harm he fears on return to Indonesia resulting from this loan.
The Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm if he returns to Indonesia now or in the reasonably foreseeable future for reason of an outstanding loan to a loan shark.
The Tribunal notes the applicant’s written submission that he also borrowed money from relatives in Indonesia. However, despite being asked whether he had expressed all his fears of returning to Indonesia before the hearing concluded he raised no fear of harm for this reason. In any event, for the same reasons outlined above the Tribunal is not prepared to accept the applicant needed to or did incur debts to relatives in Indonesia.
Having carefully considered the available evidence, and for all the reasons given above, the Tribunal is not satisfied that the applicant satisfies the criterion in s.36(2)(a) of the Act. Therefore the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa) of the Act. For the same reasons already articulated above the Tribunal is not satisfied that 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 he will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Tania Flood
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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
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 the 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
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
…

[2020] AATA 316

11 February 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies