1612861 (Refugee)

[2019] AATA 4478

1612861 (Refugee) [2019] AATA 4478 (11 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1612861

COUNTRY OF REFERENCE:                  Indonesia

MEMBER:Scott Clarey

PLACE OF DECISION:  Melbourne

DATE:11 October 2019

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 October 2019 at 11:42am

CATCHWORDS

REFUGEE – protection visa – Indonesia – domestic violence and threats to kill – ex-husband’s non-acceptance of legal divorce on religious grounds – fear of harm from ex-husband or associates – credibility – inconsistent claims and evidence – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 36, 65, 423A

Migration Regulations 1994 (Cth), Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547

MIAC v SZQRB [2013] FCAFC 33

MIMA v Rajalingam (1999) 93 FCR 220

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

Selvadurai v MIEA (1994) 34 ALD 347

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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 12 August 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. [The applicant] who claims to be a citizen of Indonesia, applied for the visa on 7 October 2015. The delegate refused to grant the visa on the basis that they were not satisfied there was a real chance of persecution for one or more of the reasons mentioned in s.5J(1)(a) of the Act.

3. [The applicant] applied to the Tribunal for review of this decision on 16 August 2016. [The applicant] provided the Tribunal with a copy of the delegate’s decision record.

4. [The applicant] appeared before the Tribunal on 23 May 2019 and 9 October 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bahasa Indonesia and English languages.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.

9. 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

10. 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

    Identity

11. [The applicant] claims to be a citizen of Indonesia and has provided a copy of her passport to the Department with the application. I find that the applicant is a citizen of Indonesia, which is also the receiving country for the purposes of the refugee and complementary protection assessments.

    Relevant background

12. [The applicant] is a [age]-year-old woman who was born in West Java, Indonesia. She claimed to be of Javanese ethnicity and a Muslim. She has [number siblings]. Her father was [an Occupation 1] who passed away in 2005 and her mother passed away in 2007 (although there was some confusion about this timeline, as discussed below). When she graduated high school, [the applicant] said that she moved to Bandung, West Java to attend university, where she studied [Subject], graduating in 1996. That same year an imam introduced her to a man to whom she wed shortly after in what she described as an arranged marriage. She gave birth to two [children], the first in [year] and the second in [year]. Both [children] currently attend university in Indonesia. [The applicant] said that she divorced her husband in early 2010 and moved first into her parents’ house and then into a rental property. [The applicant] stated that the last time she spoke to her husband was prior to her divorce in 2010 (this too was the subject of some confusion, discussed below). [The applicant] arrived in Australia in July 2015 on a visitor visa. She applied for the protection visa under review on 7 October 2015. [The applicant] said that she was currently living in [Suburb] and worked at a [workplace].

13. [The applicant] set out her claims for protection in her application form as follows:

    Why did you leave that country?

    I left Indonesia in order to avoid a risk of being harmed by my husband. My husband is a very scaring person, he always treated me terribly. He is easy to be angry. He always shouted at me, tortured me. In June 2010 he hit me on my face many times until I lost consciousness. I reported to police, but police did not want to be involved in such family issues. I tried to move to another city, but he thereatened to kill our [children]. I had to come back home. He can find me wherever I hided in other parts of Indonesia. I was nearly killed by him several times. I am afraid I will be killed by him if I still stay in Indonesia.

    What do you think will happen to you if you return to that country?

    I will be killed by my husband if I still stay in Indonesia.

    Did you experience harm in that country?

    My husband is a very scaring person, he always treated me terribly. He is easy to be angry. He always shouted at me, tortured me. In June 2010 he hit me on my face many times until I lost consciousness. I reported to police, but police did not want to be involved in such family issues. I tried to move to another city, but he thereatened to kill our [children]. I had to come back home. He can find me wherever I hided in other parts of Indonesia. I was nearly killed by him several times.

    Did you seek help within the country(s) after the harm?

    Yes. In June 2010 he hit me on my face many times until I lost consciousness. I reported to police, but police did not want to be involved in such family issues.

    Did you move, or try to move, to another part of that country to seek safety?

    Yes. I tried to move to another city, but he thereatened to kill our [children]. I had to come back home. He can find me wherever I hided in other parts of Indonesia.

    Do you think you will be harmed or mistreated if you return to that country?

    My husband is a very scaring person, he always treated me terribly. He is easy to be angry. He always shouted at me, tortured me. In June 2010 he hit me on my face many times until I lost consciousness. I reported to police, but police did not want to be involved in such family issues. I tried to move to another city, but he thereatened to kill our [children]. I had to come back home. He can find me wherever I hided in other parts of Indonesia. I was nearly killed by him several times. I am afraid I will be killed by him if I still stay in Indonesia.

    Do you think the authorities of that country can and will protect you if you go back?

    No. In June 2010 he hit me on my face many times until I lost consciousness. I reported to police, but police did not want to be involved in such family issues.

    Do you think you would be able to relocate within that country?

    Yes. I tried to move to another city, but he thereatened to kill our [children]. I had to come back home. He can find me wherever I hided in other parts of Indonesia.

14. On 5 May 2019 [the applicant] sent an email to the Tribunal that attached a document purporting to be a translated police report of a domestic violence incident. The report was dated [January] 2010 and the incident that it detailed was alleged to have occurred [in] March 2009. The translated report includes a description of the event taken from [the applicant], but includes no details about if the incident was investigated by the police. I note the Tribunal does not have a copy of the original document which the submission claims to be a translation of. I note also that the claimed English translation of the police report does not appear to be from a NAATI accredited translation service. For these reasons I place limited weight on this document. Issues relating to the alleged incident detailed in the report are discussed further below. [The applicant]’s email of 5 May 2019 also attaches a close-up photo of what appears to be a woman’s closed eye. It is not clear that the woman depicted in the photo is [the applicant] because only a small section of a face is visible. [The applicant] claimed at the hearing that this photo was provided as evidence of an injury sustained by her at the hands of her ex-husband. It is not clear from viewing the photo what those injuries are or indeed if there are injuries depicted at all. For these reasons, I place no weight on this photo.

    Findings and reasons

15. The issues in this review are whether [the applicant] has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) of the Act and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to her receiving country of Indonesia, there is a real risk she will suffer significant harm.

16. For the following reasons, I have concluded that the decision under review should be affirmed.

    Assessment of claims

17. [The applicant] claims to fear that if she returns to Indonesia she will be physically harmed or killed by her ex-husband and/or agents acting on his behalf. 

    Fear of harm from ex-husband

18. At the hearing, [the applicant] told the Tribunal that she wed her husband in an ‘arranged’ marriage in 1996, at the recommendation of her imam. [The applicant] said that she initially thought that he was a good choice of husband and the early stages of the marriage were a happy time. She said that it was after the birth of her second child in [year] that issues began to surface, and she began to realise they had different interpretations of religious doctrine as her husband believed in the practice of polygamy and she did not. She said that after the birth of her second child her husband secretly acquired a second wife. She said that as his wife, she was meant to obey her husband and if she expressed disquiet or displayed disobedience he was entitled to hit her. [The applicant] said that her husband would come and go from the house intermittently, and was often ill tempered when he was at home. She said that if he was angry he would hit and slap her, and showed no guilt about his actions. She said her husband would disappear to an unknown location for extended periods and suddenly reappear without explanation. [The applicant] said that she had not told her family of her situation or her unhappiness in the marriage because she was ashamed.

19. [The applicant] stated that her husband once kicked her in the presence of her father, who witnessed the incident. After this, she said that her father asked her to move to the parents’ house in Bandung, which she did for a brief period in 2005 before returning to her home in Sukabumi. [The applicant] said that she first asked for a divorce from her husband in 2009, which made him angry because in his view, women had no right to ask for a divorce. [The applicant] reported an abusive incident to the police in January 2010 because she said she needed evidence to support her application for divorce. She said that her husband was ‘active as a political activist in an Islam political party’, which meant that getting a divorce would have been bad for his image. She said that her husband then took her youngest [child] away from her without her knowledge, and made threats to her that if she wanted her child back then she should not ask for a divorce, although [the applicant] could not remember when this happened.

20. Although she was not sure of the exact date, [the applicant] said that she officially divorced her husband in March or April 2010, although I note that the Tribunal has no official record before it of this event. [The applicant] said that her husband found the legal divorce hard to accept because in his religious worldview, she was still his wife. She stated that she was granted custody of the children and initially moved into her parents’ house. She stated that she has not spoken to her husband since prior to the divorce, although she could not remember the exact date of her last interaction with her ex-husband, and thought that it might have been in December 2009.

21. [The applicant] said that members of the religious/political group that her husband belonged to came to her house and invited her to join some of their classes. The invitation aroused suspicion and [the applicant] thought it may be an attempt by her husband to get her to reconcile the marriage. [The applicant] said that for this reason ‘my parents decided to lease a house for me to move into’ in the hope that nobody could find her there, but she said the group ‘would always find me there’. When asked how the group would find her, she said they were very ‘spread’. I note that this evidence contradicted evidence [the applicant] gave relating to the timeline of her parents’ deaths (discussed further below). When I asked what the group did when they found her, [the applicant] gave a vague response, stating that she was accused of exiting the group which made her a ‘kaffir’ in their eyes. The group made it clear that ‘it would be halal, meaning perfectly fine, to murder me’. When I clarified if it was her husband making these threats, [the applicant] said it was not her husband but members of a group that she named as Jemaah Islamiyah. [The applicant] has not spoken to her husband since prior to their divorce in 2010.

22. When asked if she had reported these threats to the police, [the applicant] said that she did report it but the police did nothing because she could not pay them. When asked when she first received these death threats, [the applicant] gave a vague and off-point answer, stating that when she had joined the group herself in university she knew that it would be halal for the group to murder her. When I repeated the question about when the death threat had first been made to her, [the applicant] said they had knocked on the door of the house she was renting and ‘this person threatened me that I must return to my husband and if not wouldn’t know what would happen to me’. When I asked if it was an explicit death threat or it was couched in general terms, [the applicant] said that she was told ‘if you do not return to your husband at some point in the future someone will murder you’. She then said that when she reported this explicit threat to police, action was taken; she was returned to her parents’ house and her children were placed in a secure boarding school. She said that she still did not feel safe so she moved around, lodging with various family members.

23. When asked why she did not feel safe as the police were aware of the threat and had taken some action, [the applicant] said that the police can only do so much and she was scared. She said the police had only suggested to her she should move to a small town in a remote location to get away from the threat, but she didn’t want to do that because she was scared the organisation had many connections in remote places. When asked to put a date on when this occurred, [the applicant] gave a vague and confused response, said this was in 2005 and then changed her answer to say it was in 2015. She then said ‘I’m not really remember the detail because I forget, this was a long time’. When I asked [the applicant] if she could be more specific regarding the timeline, given the significance of these events, both in terms of her life and in the context of her claims for protection, she paused for a long time before stating that she thought these threats occurred around 2014 or January 2015, approximately eight months before she moved to Australia. 

24. When asked about her specific fears relating to her ex-husband if she were to return to Indonesia, [the applicant] said that because her husband still believed she was his wife according to Islamic law, she feared that if she returned to Indonesia he would expect her to come and live with him again even though he has remarried. She said that ‘this is my only fear’, and that her ex-husband was still active in the Islamic community and could find her anywhere in Indonesia. [The applicant] said that as far as her ex-husband was concerned, he would consider that he is entitled to kill her at any time because she had already disobeyed him. She said that she feared he may kill her, and that she did not want to die a meaningless death. When asked why she thought the threat still existed given it had been nearly 10 years since she had last spoken to her husband, [the applicant] said that Jamaah Islamiah did not accept the legal divorce was valid. In both Jamaah Islamiah’s and her husband’s view, she is still married to her husband. She said that the Islamic community is very tight knit and they would pursue this matter on behalf of one of their members forever.

    Credibility

25. 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 (1996) 40 ALD 445, 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. The Tribunal also accepts that ‘if the applicant’s account appears credible, 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.

2. When assessing claims made by applicants, the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

3. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

4. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (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).

5. I note that there were significant credibility issues arising from specific information provided by [the applicant]. As a result I have serious concerns about the credibility of [the applicant’s] evidence about her claims relating to her fear of harm from her ex-husband and/or agents acting on his behalf. I note that [the applicant] provided hesitant, vague and at times contradictory evidence when questioned about specific details of her claims. This included evidence related to death threats she claimed to have received from a political/religious group linked to her ex-husband. She gave confused and inconsistent evidence related to specific aspects of her claims. This included evidence relating to specific dates of events (including her parents’ deaths), the general timeline relating to her claims, and details relating to a specific incident mentioned in a police report submitted to the Tribunal (discussed in further detail below). I note that significant time and effort was spent at the hearing to ensure that [the applicant] understood what was being asked of her, including rephrasing or repeating questions when required.

6. As noted above, [the applicant] had trouble remembering specific dates relating to the timeline of the relationship, and provided contradictory evidence in relation to these key dates. This included details relating to the breakdown of the relationship, when she had last seen her husband and a claimed incident relating to violence against her by her ex-husband. For example:

   ·     In her protection visa application, [the applicant] repeatedly stated that she was physically assaulted by her husband [in] June 2010. For example, she stated that ‘In June 2010 he hit me on my face many times until I lost consciousness. I reported to police’. When asked at the hearing when the last time she saw or spoke to her husband directly, [the applicant] stated that it was prior to her legal divorce which she said was finalised in March or April 2010, although she was unsure of the exact date. She said that the last time she saw her ex-husband was possibly in December 2009, although she was unsure of the exact date but was sure it was prior to the divorce.

   ·     In the translated police report (dated  [January] 2010 and submitted to the Tribunal by [the applicant] on 10 May 2019), an alleged incident of domestic violence was detailed that occurred [in] March 2009. When asked why there was such a time lag between the alleged incident ([in] March 2009) detailed in the report and her reporting it to police ([in] January 2010), [the applicant] stated that she had reported it to police at that time so she could use the report as evidence in her divorce proceedings. When asked if the incident detailed in the report was the same incident she had referred to in her protection visa application, [the applicant] offered a series of vague, evasive and off-point answers before stating that it was the same incident of domestic violence being referred to in both documents. As noted above, the incident in the protection visa application was said to have taken place [in] June 2010 (not [March] 2009 as detailed in the police report).

7. [The applicant] also provided at times vague, evasive and contradictory oral evidence relating to the general timeline of her life history and aspects of her personal circumstances, including when her parents had passed away and what assistance they had provided to her during her marriage troubles. For example:

   ·     [The applicant] initially said her father had passed away 12 years ago and her mother had passed away 10 years ago. She then stated that they had passed away after her divorce. When I pointed out to her that this timeline didn’t make sense (as she had claimed the divorce occurred in 2010), [the applicant] changed her answer and said they had passed away before the divorce although she wasn’t sure when. After a short hearing adjournment, [the applicant] said she had contacted her [sibling] via phone and her [sibling] had confirmed that their father had passed away in 2005 and her mother had passed away two years later. At the second hearing, [the applicant] stated that her mother had passed away in 2008.

   ·     At another point in the discussion, [the applicant] stated (as detailed above) that after she had separated from her husband in 2009 she was visited by members of the religious/political group that her husband belonged to and invited by them to join some of their classes. This aroused suspicion and [the applicant] thought it may be an attempt by her husband to get her to reconcile the marriage. [The applicant] said that for this reason ‘my parents decided to lease a house for me to move into’ in the hope that nobody could find her there.

8. At the hearing, I explained to [the applicant] my concerns relating to specific inconsistencies in her evidence and gave her an opportunity to comment. In relation to the inconsistent evidence relating the date of the alleged incident of domestic violence, [the applicant] stated that because there were a number of alleged incidents that happened a long time ago, she was unable to remember the exact dates of the events. She said that she had wanted to forget all of these issues since coming to Australia and not think about them again. [The applicant] said that she was not sure what information to submit so she just submitted whatever she had. With regard to the inconsistency of when she last saw her husband, [the applicant] said she could not remember when this was. In relation the inconsistency relating to the timeline of her parents’ death, she stated that she was nervous at the hearing and she had completely forgotten when her parents had passed away. She said that she had meant to say that her family had rented a property for her, not her parents as they were deceased at the time.

9. I am mindful that memories can be dimmed by the passage of time, and I understand that [the applicant] may have been nervous at the hearing. I accept that [the applicant] may feel uncomfortable talking about certain elements of her past, including her unhappy relationship with her ex-husband. I accept that it is not always possible or necessary for an applicant to remember specific details or exact dates. Even when making allowances for such factors, given the highly significant nature of the events being discussed regarding the serious threat she claimed to have been subjected to, I have formed the view that it could be reasonably expected that [the applicant] would have had a more clear, coherent and consistent recollection of specific details relating to the relationship, her claims, the general timeline of events and her life circumstances during the period in question.

10. Considering all of the evidence cumulatively, and having regard to [the applicant’s] personal circumstances and narrative as a whole, I do not find her to be credible. I find [the applicant’s] evidence in relation to her claimed fear of harm from her ex-husband to be vague, improbable, inconsistent and ultimately, unreliable. I find her explanation of these inconsistencies unsatisfactory and I do not accept them. For these reasons I have not accepted key aspects of her claims. While I am prepared to accept that [the applicant] was married and is estranged from her ex-husband, and that the relationship may be an acrimonious one, I do not accept that [the applicant’s] life has been threatened by her ex-husband as claimed. I do not accept that [the applicant] was a victim of domestic violence at the hands of her ex-husband as claimed. I do not accept that her ex-husband (or agents acting on his behalf) issued death threats to her as claimed. I do not accept that her ex-husband (or agents acting on his behalf) have an intention to kill or physically harm [the applicant] as claimed. For these reasons I find remote the chance that [the applicant] would be seriously harmed by her ex-husband on return to Indonesia due to the nature of their relationship, issues relating to their religion or for any other reason, even taking into account the fact that I accept that they are estranged and that the relationship may be an acrimonious one. I find that [the applicant’s] fears of persecution on this basis are not well founded.   

11. I note that [the applicant’s] claims relating to threats from Jemaah Islamiyah were only raised at the hearing. I found these claims to be undetailed and unreliable. 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 note that at the hearing, although she was unsure about the general timeline, [the applicant] claimed that these threats took place before she left Indonesia and before she lodged her protection visa application. It is therefore reasonable to expect that such significant and relevant information would have been included in the original claim. In this case, after discussing the issue with her at the hearing, I am satisfied that [the applicant] does not have a reasonable explanation as to why the claim was not raised with, or evidence was not presented to, the primary decision maker and/or the claim was not put forward prior to the hearing despite having had opportunities to do so. I therefore do not accept that [the applicant] and/or her husband were (or are) members of Jemaah Islamiyah (or any other militant Islamic organisation) or that [the applicant] is being threatened by agents of such a group on behalf of her husband or for any other reason. I find that [the applicant’s] fears of persecution on this basis are not well founded.   

    Conclusion – refugee grounds

12. Having considered [the applicant’s] claims both individually and cumulatively, all of the available evidence and relevant country information, I find that [the applicant] does not face a real chance of persecution on return to Indonesia for any reason in the reasonably foreseeable future and that her fear of persecution is not well-founded.

13. For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore [the applicant] does not satisfy the criterion set out in s.36(2)(a).

    Complementary protection

14. Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa). 

15. For the reasons given above, I have found there is not a real chance that [the applicant] would suffer persecution involving serious harm from her ex-husband or anyone else as a consequence of her former relationship or for any reason.

16. In considering whether there is a real risk that the applicant would suffer significant harm if returned to Indonesia, I have noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[1]

    [1] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].

17. [The applicant] has not advanced any claims indicating that she considers she would face a real risk of significant harm if returned to Indonesia other than for the reasons discussed above relating to her claims under the refugee criterion. Given I do not accept that [the applicant] faces a real chance of suffering persecution involving serious harm if she returns to Indonesia, I also find, having regard to the findings of fact set out above, that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Indonesia, there is a real risk that she would: suffer significant harm in the form of being arbitrarily deprived of her life; having the death penalty carried out on her; being subjected to torture; being subjected to cruel and inhuman treatment and punishment; and/or being subjected to degrading treatment or punishment by her ex-husband, or anyone else, as a necessary and foreseeable consequence of her being removed from Australia to Indonesia. 

18. Consequently, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

19. 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 criteria in s.36(2).

    DECISION

20. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Scott Clarey
    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.

    …