1613387 (Refugee)

1613387 (Refugee) [2019] AATA 5926 (10 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1613387
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Scott Clarey
DATE:10 July 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 10 July 2019 at 12:19pm

CATCHWORDS
REFUGEE – protection visa – Indonesia – fears serious harm from former husband – insufficient evidence – inconsistent evidence – credibility issues – delay in applying for protection visa not indicative of someone who fears for their physical safety – no well-founded fear of persecution – 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
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
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Zhang v RRT & Anor [1997] FCA 423

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

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 12 August 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant (Miss [full name], herein Miss [A]) who claims to be a citizen of Indonesia, applied for the visa on 15 September 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.
Miss [A] applied to the Tribunal for review of this decision on 23 August 2016. The applicant provided the Tribunal with a copy of the delegate’s decision record.
Miss [A] appeared before the Tribunal on 3 June 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
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Identity
Miss [A] 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
Miss [A] is a [age] woman who was born in [Indonesia]. Miss [A] claimed to be of Javanese ethnicity and a Muslim. She claimed to speak, read and write both English and Bahasa Indonesia. She claimed that she moved to a remote district called [District 1] (in North Sumatra) with her family as part of a transmigration program when she was in her teens. She claimed that her family was given some land with title as part of the program. Miss [A] stated that she was brought up by her grandmother in [District 1] when her parents divorced and her father moved away. She is the only child from her parents but her mother subsequently remarried and had [other] children, who are Miss [A]’s half-siblings. Miss [A] said that she finished school [and] worked the family’s plot of [land]. Miss [A] stated that she lived with her mother, her stepfather and her [half-siblings]. Life was difficult as the area was very remote, not accessible easily by car.
Miss [A] claimed she was married in a religious ceremony [in] April 2007 to a man named [Mr B], although she did not obtain a marriage certificate. She moved from the family home to live with her husband (in the same village) after the wedding. Miss [A] stated that she lived and worked in Jakarta for almost four years prior to arriving in Australia in October 2013 (on a [temporary] visa). In January 2014 this visa ceased and Miss [A] remained in Australia unlawfully. She applied for the protection visa under review on 15 September 2015. Miss [A] said that she lived in [Suburb 1] and has worked [intermittently].
Claims from the protection visa application
Miss [A] set out her claims for protection in her application form as follows:
Why did you leave that country?
I had left out of Indonesia in order to avoid the risk of being harmed or killed by my ex boy friend [Mr B]. [Mr B] is a crazy person. He always treated me terribly. [Mr B] tortured me every day when I was in Indonesia. In October 2009 I wanted to separate with [Mr B]. He threatened to kill me and my parents. My father was very angry with [Mr B] because he tortured me. He even kicked my father many times. I reported to police. [Mr B] was arrested by police, and detained for only 1 day. [Mr B] tortured my more terribly after he was released. I tried to move to another place, but [Mr B] can always find me. I am afraid [Mr B] may kill me if I still stay in Indonesia. Thus, I came to Australia to seek help.
What do you think will happen to you if you return to that country?
I think I will be harmed by my ex boy friend [Mr B] if I go back to Indonesia.
Did you experience harm in that country?
Yes. [Mr B] is a crazy person. He always treated me terribly. [Mr B] tortured me every day when I was in Indonesia. In October 2009 I wanted to separate with [Mr B]. He threatened to kill me and my parents. My father was very angry with [Mr B] because he tortured me. He even kicked my father many times. I reported to police. [Mr B] was arrested by police, and detained for only 1 day. [Mr B] tortured my more terribly after he was released. I tried to move to another place, but [Mr B] can always find me. I am afraid [Mr B] may kill me if I still stay in Indonesia. Thus, I came to Australia to seek help.
Did you seek help within the country(s) after the harm?
Yes. I reported to police. [Mr B] was arrested by police, and detained for only 1 day. [Mr B] tortured my more terribly after he was released.
Did you move, or try to move, to another part of that country to seek safety?
Yes. I tried to move to another place, but [Mr B] can always find me.
Do you think you will be harmed or mistreated if you return to that country?
Yes. I think I will be harmed if I return to Indonesia. In October 2009 I wanted to separate with [Mr B]. He threatened to kill me and my parents. My father was very angry with [Mr B] because he tortured me. He even kicked my father many times. I reported to police. [Mr B] was arrested by police, and detained for only 1 day. [Mr B] tortured my more terribly after he was released. I tried to move to another place, but [Mr B] can always find me. I am afraid [Mr B] may kill me if I still stay in Indonesia.
Do you think the authorities of that country can and will protect you if you go back?.
No. I reported to police. [Mr B] was arrested by police, and detained for only 1 day. [Mr B] tortured my more terribly after he was released.
Do you think you would be able to relocate within that country?
No. I tried to move to another place, but [Mr B] can always find me.
Findings and reasons
The issues in this review are whether Miss [A] 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.
For the following reasons, I have concluded that the decision under review should be affirmed.
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 (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.
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.
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.
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).
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).
Delay in seeking protection
I have concerns relating to the timing of the application for protection in considering the genuineness of Miss [A]’s claims to fear serious harm in Indonesia. I note that a 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 (see Zhang v RRT & Anor [1997] FCA 423; Kavan v MIMA [2000] FCA 370). Miss [A] first arrived in Australia in October 2013 on a [temporary] visa.
I note that Miss [A] applied for a protection visa on 15 September 2015, approximately two years after arriving in Australia and approximately 18 months after she had become unlawful. At the time she applied for the protection visa, she had limited options to remain in Australia.
When considered in conjunction with my other concerns relating to Miss [A]’s evidence and claims detailed below, I find that this delay in applying for a protection visa is not indicative of someone who fears for their physical safety. When considered in conjunction with my other credibility concerns I find that it suggests that she did not have a well-founded fear of persecution for the reasons claimed and that she made the protection visa application only when she had few other options to remain in Australia.
Assessment of claims
Miss [A] claims to fear that if she returns to Indonesia she will be physically harmed or killed by her husband/boyfriend.
Fear of harm from husband
In the protection visa application, Miss [A] claimed that she was married to [Mr B] [in] April 2007 in a religious ceremony but did not legally register the marriage. Although Ms [A] referred to [Mr B] in her protection visa application as her boyfriend, I accept that they were married in April 2007 as claimed. Miss [A] stated that [Mr B] ‘always treated me terribly’ and that he ‘tortured her every day when I was in Indonesia’. Miss [A] stated that in October 2009 she told [Mr B] that she wanted to separate from him. He threatened to kill her parents. Miss [A] stated ‘I reported to police. [Mr B] was arrested by police, and detained for only 1 day’. She claimed that she was ‘tortured more terribly after [Mr B] was released’.
At the hearing, Miss [A] claimed that the relationship was fine for an extended period of time and he was not violent toward her. Approximately three months prior to [October] 2009 (the date Miss [A] stated that [Mr B] attempted to murder her), she claimed his personality changed; he became angry and shouted at her, although she did not know why. She claimed that on the morning of [day] October 2009 they had a heated exchange about money and work issues, of the kind that she said was not out of the ordinary for married couples, but she was not alarmed at this point. Miss [A] claimed that [Mr B] then suddenly behaved as if he’d ‘lost his mind’ and he became violent. Miss [A] said that [Mr B] used a [implement] to inflict multiple grievous wounds on her. She claimed that he also used a knife to stab [her]. Miss [A] claimed that from his actions it was clear that [Mr B]’s intention was to murder her. I note that Miss [A]’s oral evidence relating to the specific details of the claimed attack was particularly nebulous and required significant prompting.
Miss [A] claimed that [Mr B] fled after the attack because he was scared the police would apprehend him. She was taken to hospital by neighbours and returned home five days later. Miss [A] stated that she has not seen or heard from [Mr B] since the day of the attack [in] October 2009. Miss [A] stated that she did not report the incident to police because of her physical state and because the police station was hours away from her rural home. She said that her neighbours had reported the attack to police but the police had never visited her or taken her evidence. Miss [A] said she was not aware of any action that had been taken by the police against [Mr B] in relation to the attack on her. Miss [A] claimed that early in 2010 she moved to Jakarta to live and work [there]. She was in Jakarta for almost four years prior to arriving in Australia in October 2013. Miss [A] claimed she returned home to her village once immediately prior to leaving for Australia to say goodbye to her parents.
I have serious concerns about the credibility of Miss [A]’s evidence about her claims relating to her fear of harm from her husband. I note that Miss [A] provided hesitant, vague and at times contradictory evidence when questioned about specific details of her claims. Key aspects of her story are inconsistent between the oral and written evidence. For example:
·In the protection visa application (as noted above) Miss [A] stated that she had reported her husband’s abuse to the police and that he had been arrested for one day and then released. She stated that he ‘tortured me more terribly after he was released’. When asked at the hearing if she had reported her husband’s behaviour to the police, Miss [A] contradicted her statement in the visa application, stating that she had not reported her husband’s behaviour to the police for various reasons including because of her poor physical state after the claimed attempted murder and because the police station was hours away from her rural home. She stated that her neighbours had reported the incident to police but the police had never contacted her. She said that her husband ran away after the attack and that to her knowledge no action was ever taken by the authorities against her husband for the claimed attack. Miss [A] stated that she had not seen, heard from or been threatened by her husband since the day of the attack [in] October 2009.
·In the protection visa application (as noted above) Miss [A] indicated that it was her intention to separate from her husband that had precipitated the claimed attack in October 2009. When asked at the hearing about what had led up to the claimed attack, Miss [A] said she’d had an unremarkable argument with her husband about money and work issues, of the kind typical between married couples. She said that at that point she was not alarmed but her husband suddenly became enraged and acted as if he’d ‘lost his mind’ before attacking her.
·In the protection visa application (as noted above) Miss [A] stated that her husband ‘treated me terribly’ and ‘tortured me every day when I was in Indonesia’. When asked at the hearing about her marriage, Miss [A] stated ‘at the beginning [the relationship with [Mr B]] was fine, it was much later, closer to the day I was supposed to be murdered, he became emotional and suddenly the relationship changed’. She stated that the relationship had not been characterised by violence up to that point and that her husband’s behaviour only began to change in the three months leading up to the claimed attack. She stated that from around July 2009 [Mr B]’s temperament changed; he became easily angered and began to shout at her. She stated that the claimed violent assault [in] October 2009 came out of the blue after the unremarkable argument (discussed above).
·In the protection visa application (as noted above) Miss [A] stated that her husband had ‘threatened to kill me and my parents’ and had assaulted her father on numerous occasions. At the hearing, Miss [A] made no mention of her parents’ involvement or of prior death threats made by her husband. She stated that the claimed attack in October 2009 had come out of the blue with no prior warning, other than her husband’s more irritable disposition in the three months prior.

At the hearing I explained to Miss [A] my concerns relating to specific inconsistencies in her written and oral evidence and gave her an opportunity to comment. Miss [A] stated that she had been assisted by a friend to translate her words in making the application and that errors may have occurred in the translation process. When I asked how very specific (and inaccurate) claims were made on her behalf, such as her father having been a victim of violence as well, a police report having been made by Miss [A] and [Mr B] having been arrested, detained and released by police, Miss [A] said that she had not felt comfortable disclosing all of the details to her friend who helped her and therefore they did not have the complete picture in filling out the protection visa application form. Miss [A] said that it was her neighbours who reported her husband to the police and that this is the information that they had conveyed to her when she returned to the village. I have considered Miss [A]’s explanations of these inconsistencies but I am not convinced by them.
I am mindful that memories can be dimmed by the passage of time, and I understand that Miss [A] may have been nervous at the hearing. I accept that it is not always possible or necessary for an applicant to remember specific details or 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 Miss [A] would have had a more coherent and consistent explanation of the specific details relating to the claimed threats and incidents during October 2009 and the period leading up to it.
Considering all of the evidence cumulatively, and having regard to Miss [A]’s personal circumstances and narrative as a whole, I do not find her to be credible. I note that there is no documentary evidence to corroborate any of Miss [A]’s claims. I find Miss [A]’s evidence in relation to her claimed fear of harm from her husband to be vague, improbable, illogical and inconsistent. 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 Miss [A] is estranged from her husband, and that the relationship may have been an acrimonious one, I do not accept that Miss [A]’s life has been threatened by her husband as claimed. I do not accept that Miss [A] was a victim of violence at the hands of her husband as claimed. I do not accept that her husband attempted to murder her as claimed. I do not accept that her husband has an intention to kill or physically assault Miss [A] as claimed. I note that by her own admission, Miss [A] has not seen or had any contact with her husband for nearly 10 years. She has not claimed to have been threatened by him since she last had contact with him in October 2009. I also note that Ms [A] lived and worked in Jakarta for almost four years prior to arriving in Australia in October 2013, without any reported incident.
For these reasons I find remote the chance that Miss [A] would be seriously harmed by her husband on return to Indonesia due to the nature of their relationship, or for any other reason, even taking into account the fact that I accept that they are estranged and that the relationship may have been acrimonious. I find that Miss [A]’s fears of persecution on this basis are not well founded.
Conclusion – refugee grounds
Having considered Miss [A]’s claims both individually and cumulatively, all of the available evidence and relevant country information, I find that Miss [A] 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.
For the reasons given above, I am not satisfied that Miss [A] is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore Miss [A] does not satisfy the criterion set out in s.36(2)(a).
Complementary protection
Having concluded that Miss [A] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
For the reasons given above, I have found there is not a real chance that Miss [A] would suffer persecution involving serious harm from her husband, society, the Indonesian authorities or anyone else as a consequence of her former marriage or for any reason.
In considering whether there is a real risk that the applicant would suffer significant harm if returned to Vietnam, 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].
Miss [A] 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 Miss [A] 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 Miss [A] 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 husband or the Indonesian authorities, or anyone else, as a necessary and foreseeable consequence of her being removed from Australia to Indonesia.
Consequently, I am not satisfied that Miss [A] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that Miss [A] 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, Miss [A] does not satisfy the criteria in s.36(2).
DECISION
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.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)    the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2019] AATA 5926

10 July 2019

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