1610609 (Refugee)

1610609 (Refugee) [2019] AATA 6497 (4 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1610609
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Sheridan Lee
DATE:4 November 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 November 2019 at 12:44pm
CATCHWORDS
REFUGEE – protection visa – Indonesia – race – religion – Chinese – Christian – fears retribution from thieves – delay in applying for protection after arrival in Australia – added new claims at hearing – limited options to remain in Australia – inconsistent evidence – credibility issues – no real chance of serious harm – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Kavan v MIMA [2000] FCA 370
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
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 29 June 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant is [an] Indonesian woman of Chinese heritage and Christian faith. She applied for the visa on 24 July 2015 on the basis that she fears retribution from thieves whom she reported to the police. The delegate refused to grant the visa on the basis that effective state protection would be available to the applicant in Indonesia.
The Tribunal viewed a copy of the applicant’s Indonesian passport and I accept that the applicant is a citizen of Indonesia and will assess her claims against Indonesia as the country of reference for the purposes of s.5H(1)(a) and receiving country for Complementary Protection purposes.
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).
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, I have 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 applicant first arrived in Australia [in] January 2014 on a [temporary] visa. The [temporary] visa expired on 17 April 2014 and the applicant remained in Australia unlawfully until she applied for protection on 23 July 2015.
On her application for protection form, the applicant outlined that she witnessed two thieves breaking into her neighbour’s home in Indonesia. Despite being threatened by the thieves, she reported the incident to the police and they apprehended the offenders. When the police took the thieves away in the police car, they locked eyes with the applicant. At that point she wasn’t worried, because the thieves had been caught. However, [a number of] months later they were released and took revenge. Every day the thieves would bully her and destroy things at her home. The applicant couldn’t return home each day.
The applicant reported the incidents to the police, but they couldn’t assist her because there was no evidence to support her allegations.
The applicant felt scared and unsafe in Indonesia as a result of the harassment and intimidation. She outlined that she will have a nervous breakdown if she has to return. The applicant cannot relocate to another area of Indonesia because she has no support or relatives in other parts of the country.
The decision of the delegate, which was provided to the Tribunal by the applicant on review, outlines that on 24 July 2015, the applicant was invited to contact the Department to arrange an interview. No further contact was received.
Application for merits review
The applicant applied for merits review of the decision to refuse her protection visa application on 14 July 2016. No further evidence was submitted to the Tribunal prior to the hearing.
On 23 May 2019, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.
The applicant gave evidence that she was born in Pontianak, Indonesia. Her parents separated when she was around five or six, and she continued to live with her mother in Pontianak until she moved to Surabaya at fifteen years of age. The applicant has [siblings]. [Details of siblings deleted].
Fear of retribution from thieves
The applicant gave evidence that about six years ago she witnessed a thief enter her neighbour’s house while she was living at [a location]. She called the police and the thief was arrested, but after [a number of] months the thief came back and started to bully her. He came with a knife and threatened to kill the applicant.
I clarified how many thieves were involved and the applicant stated that there were two. She explained that they would alternate in harassing her, although sometimes both of them would come. The applicant did not know the identity of the thieves. She described them as thugs and explained that they would get drunk and she was afraid one day they would kill her.
The threats would occur at the applicant’s home, however sometimes they would coincidentally see her on her way to work. The thieves would make the applicant afraid by following her. The applicant alleged that the thieves contacted her countless times over a period of [a number of] months. I asked if the applicant remained at her home and she said yes. She explained that she would leave for work early and come home late. If she wasn’t at work she would stay at home. The applicant lived alone.
The applicant reported the harassment to the local police station on two occasions however there was no change. The police typed something but the applicant didn’t receive a police report or anything in writing. The applicant had no proof to show the police. She believes the police would wait until something happened to her, like she were killed, before they would do anything.
I asked the applicant how she discovered that the thieves went to prison. She explained that she saw them taken away by the police with her own eyes. She didn’t see them go to jail, but assumed that they did. She provided a statement to the police, but she was not required to give evidence as a witness in court.
Fear of persecution on the basis of Chinese ethnicity and Christianity
In addition to her original claim to fear retribution from thieves, the applicant expressed a reluctance to return to Indonesia on the basis that she a Chinese girl. She gave evidence that Chinese Indonesians are treated poorly. In 1998, a lot of women were raped and the applicant’s Aunty was raped and killed. The assailants [details deleted] and the incident caused the applicant’s Uncle to become mentally disturbed. The applicant was [young] at the time and recalled that they were hungry and a lot of shops were razed.
The applicant believes that the general population has started to cause problems again because Jok (President Joko Widodo) is backed by the Chinese. She expressed a sentiment that if a Muslim kills a Chinese person, their blood is halal.
The applicant gave evidence that Chinese Christians had been targeted in bombings in Surabaya and highlighted that there were issues the day prior to the hearing (a reference to riots that occurred in protest to the April election results). I asked if the applicant was Christian and she said yes, she was Catholic, however she doesn’t go to church in Australia.
Later in the hearing, I asked the applicant if she would attend church if she returned to Indonesia. In response she said that she sometimes attends a church [in a suburb], but she couldn’t recall the name of the church. The church is not a Catholic church, because she attends with friends that are Christian. When she was in Indonesia she attended [a church] in Surubaya.
The applicant’s mother is Buddhist, however the applicant and her [siblings] went to a Catholic school. The applicant and [one sibling] became Catholic. [One] sister is still Buddhist because her husband is Buddhist.
The applicant alleged that Chinese are not allowed in the Indonesian army.
I asked the applicant if anything had happened to her in the past because of her ethnicity or religion. She gave evidence that once when she was walking, someone touched her breast. I questioned if the person said anything to her and she said they didn’t, they just grabbed her breast from behind. This behaviour seems normal when you are Chinese.
At the hearing, the applicant supplied print outs of eight news articles about the 2019 Indonesian election results and the riots that followed, anti-Chinese and anti-Christian sentiment, an article about the 2018 bombing of the Santa Maria Catholic Church in Surabaya, an extract from Wikipedia about discrimination against Chinese Indonesians and an extract about Prabowo Subianto Djojohadikusumo.
Mental health
I asked the applicant about her mental health as she had claimed that she would suffer a nervous breakdown if returned to Indonesia on her application for protection. The applicant gave evidence that she finds it hard to sleep. She has never sought medical assistance and noted that it is expensive in Indonesia and in Australia she is at peace.
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan,[1] the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at [482]:
care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
[1] (1996) 40 ALD 445
The Tribunal also accepts that ‘if the applicant’s account appears credible, [s]he should, unless there are good reasons to the contrary, be given the benefit of the doubt’ (The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
I note that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is simply assumed or if it is mere speculation.
Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for them. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[2]
[2] MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.
In addition, 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 established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality.[3]
[3] See, Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
Assessment of evidence
I accept that the applicant is an ethnically Chinese Indonesian woman and that she identifies as a Christian. However, I have serious concerns about the credibility of the applicant’s evidence in respect of witnessing a home burglary and being subjected to ongoing threats and harassment by the thieves. In particular, I note the applicant’s delay in applying for protection after her arrival in Australia, addition of new claims at the hearing and inconsistencies in and improbability of her evidence.
On her application form, the applicant outlined that she could not return home each day due to harassment from the thieves. However, at the hearing, she explained that whenever she wasn’t working, she would remain at home. Furthermore, she gave evidence that she continued to live alone at the same address for six months after the burglary of her neighbour. It is unclear why the thieves would be motivated to continue harassing the applicant if she was not called upon to give evidence in court, they were released by the police after such a short detainment and the police withheld assistance to the applicant. In addition, the applicant gave evidence that when she reported the harassment to the police, they withheld assistance on the basis that she had no supporting evidence. However, if the police had arrested the thieves and taken a statement from the applicant in relation to the burglary, they would reasonably be assumed to know the identity of the thieves and have some evidence as to the motivation of the reported harassment.
On the application for protection, the applicant claimed that she would suffer a nervous breakdown if returned to Indonesia. At the hearing, she gave evidence that she had difficulty sleeping in the past. No medical evidence was submitted in support of the applicant’s claim that she would suffer a nervous breakdown if returned to Indonesia. Without any expert opinion, I cannot make a finding that the applicant has anxiety or any other medical condition. I do not accept that the applicant will suffer a nervous breakdown if returned to Indonesia.
In addition to the inconsistencies in the applicant’s evidence, I had some concerns with the applicant’s motivation for submitting an application for protection. Delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm.[4] The applicant applied for a protection visa on 24 July 2015, more than 18 months after she arrived in Australia. When questioned about the delay in lodging a protection application, the applicant simply said she didn’t know she could apply until she met a [person] who told her what to do. I do not consider this to be a convincing explanation for the delay. At the time she applied, the applicant had limited options to remain in Australia and might reasonably have been expected to seek advice or assistance in respect of her options. This is not indicative behaviour of someone that fears for their physical safety. In addition, when asked about why she left Indonesia at the hearing, the applicant commented on the inability to earn a decent wage in Indonesia.
[4] Zhang v RRT & Anor [1997] FCA 423; Kavan v MIMA [2000] FCA 370.
Applicants are expected to present their case in full before the primary decision-maker. In the current case, the applicant did not raise any concerns about persecution on the basis of her ethnicity or religion until she appeared before the Tribunal. At the hearing, the applicant explained that her main concern is that she will be bullied due to her ethnicity if returned to Indonesia. Section 423A of the Act requires the Tribunal to draw an adverse inference as to the credibility of an applicant’s claim or evidence where an applicant raises a claim or presents evidence that was not put forward before the primary decision was made. I consider that the applicant’s attempt to rely on a new set of claims detracts from credibility of her original claim to fear retribution from thieves.
While each of the above points may not support a conclusive finding as to the applicant’s credibility on its own, considering all of the evidence cumulatively and having regard to the applicant’s narrative as a whole, I do not find the applicant to be credible. For these reasons, I do not accept that the applicant witnesses a burglary or that she was harassed, threatened or had damage caused to her personal property.
Ethnically Chinese Indonesians
Despite my findings in respect of the applicant’s credibility, I accept that she is ethnically Chinese. The Department of Foreign Affairs and Trade (DFAT) Country Information Report Indonesia[5] outlines that Indonesia is one of the world’s most ethnically diverse countries, hosting more than 300 ethnic groups and more than 700 languages.
[5] 25 January 2019
In relation to ethnically Chinese Indonesians, DAFT reports:
Successive waves of immigration to Indonesia from China over more than five centuries have resulted in an established ethnically 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…
…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.
Since the end of the New Order regime in 1998, successive governments have removed most official policy measures discriminating 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.
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.
In 2012, President Widodo faced strong criticism from conservative Islamist groups in his campaign for the Governorship of Jakarta for having a Chinese Indonesian and Christian running mate, Basuki Tjahaja Purnama, popularly known as ‘Ahok’, who later succeeded him…
…Anti-Chinese sentiment in Indonesia intersects with religious and economic issues. Islamic organisations blamed China for a supposed upsurge in communist sentiment, a politically sensitive subject, in mid-2016. Increased Chinese investment in Indonesia has also caused local critics to express concerns about imported Chinese labour and Chinese control over national assets.
Small-scale local riots took place in a town in North Sumatra in 2016, following an allegation of blasphemy against a Chinese Indonesian woman (see Blasphemy and Defamation of Religion). 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…
…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. Although memories of the crisis have caused continued anxiety amongst many members of the Chinese Indonesian community, exacerbated by events such as the Ahok blasphemy trial and the 2016 riots, DFAT assesses that Chinese Indonesians currently face a low risk of violence. Persistent anti-Chinese sentiment may lead to low levels of societal discrimination.

The applicant gave evidence that she was once grabbed on the breast from behind. However there was nothing said by the assailant to indicate that the assault was ethnically motivated. While the applicant gave evidence of a horrific sexual assault and murder of her Aunty, there is no evidence to suggest that she herself has ever suffered harm as a result of her ethnicity.
I accept that since the DFAT report was published in January, there have been some further riots in Indonesia following the election of Joko Widodo in May. The riots resulted in the deaths of a number of protestors. At the time of the protests, Indonesian authorities blocked access to some social media sites in an attempt to stem the spread of fake news. Some news outlets reported that one of the hoax stories was that Chinese soldiers had posed as riot police.[6] The South China Morning Post reported that ‘some protestors on Wednesday chanted anti-Chinese slogans such as ‘Usir Cina’ (‘kick Chinese out’) and ‘Awas Asing’ (‘beware of foreigners’) – apparently in reference to Jokowi, who has been criticised for favouring the Chinese Indonesian community and for his openness to investments from China’.[7] Nevertheless, I consider that these events were isolated and the response of the Indonesian authorities demonstrates a willingness and ability to protect its citizens, including the ethnic Chinese community. I do not consider that the recent events demonstrate that the situation in Indonesia has significantly changed since DFAT reported that Chinese Indonesians face a low risk of violence and low levels of societal discrimination. For these reasons, I do not accept that the applicant faces a real chance or risk of suffering significant harm on the basis of her Chinese ethnicity.
Christianity
[6] ‘Indonesia blocks Facebook and WhatsApp features after ‘fake news-inspired’ riots and deaths’, The Independent, 23 May 2019
[7] ‘Indonesian Riots: Prabowo Subianto tells supporters to go home after unrest after election results leaves six dead’, 22 May 2019, South China Morning Post
I have some concerns about the authenticity of the applicant’s claim to have converted to Christianity. In particular, I note that on her application for protection, she identified herself as Buddhist. Further, at the hearing, the applicant originally gave evidence that she does not attend church in Australia, but later gave evidence that she sometimes attends church with friends. Nevertheless, information published by DFAT indicates that conversion to and from Christianity is relatively common in Indonesia and Christianity is Indonesia’s second-largest religion after Islam. Approximately 24 million Indonesians listed their religion as Christian in the 2010 census. Protestants make up approximately 7 per cent of the total population and Catholics approximately 3 per cent of the total population. For this reason, I have provided the applicant with the benefit of the doubt and accept that she now identifies as Christian.
Terrorism is a threat in Indonesia, as in much of the world. As highlighted by the applicant at the hearing, a Catholic church was attacked in February 2018. Further, and a series of incidents occurred in May 2018, including church bombings and suicide and sword attacks in Surabaya and Pekanbaru. Nevertheless, DFAT reports that Indonesia’s elite anti-terrorism force, Detasemen Khusus 88, commonly known as ‘Densus 88’ or ‘Detachment 88’ is effective in investigating and disrupting terrorist attacks.
Christians are generally able to practise their faith freely throughout Indonesia. Christians residing in some areas, particularly where hard-line Islamist groups are more influential (such as Aceh, and parts of East and West Java) have occasionally been prevented from worshipping, including through forced church closures and the disruption of church services, however this violence and discrimination appears to be localised. Christians do not generally experience discrimination in gaining access to health care, education or employment.
DFAT assesses that Christians residing in areas where they are a majority do not face either official or societal discrimination. Christians residing in areas where conservative Islam is prevalent face a low risk of societal discrimination in the form of impediments to worship, although this risk is unlikely to include violence. DFAT assesses that Christians face a low risk of terrorism in spite of recent exceptional events. For these reasons, I do not accept that the applicant faces a real chance or risk of suffering significant harm on the basis of her religion.
Chance of harm
The applicant claims to fear harm from two thieves and from society in general on the basis of her ethnicity and religion if returned to Indonesia. As outlined, I do not accept that the applicant witnesses a burglary or that she was assaulted, harassed or threatened by the thieves. I do accept that the applicant is an ethnic Chinese Indonesian and that she is Christian.
I have considered cumulatively what I have accepted of the applicants claim and find that the applicant does not face a real chance of serious harm, now and into the reasonably foreseeable future, for any reason if she were returned to Indonesia. I therefore find that the applicant is not a refugee within the meaning of s.5H and does not fall within Australia’s protection obligations under s.36(2)(a).
For the same reasons that I found there is no real chance of serious harm, I find that the real risk element of the test in s.36(2)(aa) has not been met.[8] I find that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India there is a real risk that he will suffer significant harm: s.36(2)(aa).
[8] as per the judgment in MIAC vSZQRB [2013] FCAFC 33.
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.
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.
…

[2019] AATA 6497

4 November 2019

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction