1615795 (Refugee)

1615795 (Refugee) [2019] AATA 6216 (13 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1615795
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Tamara Hamilton-Noy
DATE:13 August 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 August 2019 at 1:03pm
CATCHWORDS
REFUGEE – protection visa – Indonesia – ethnicity and religion – Chinese Christian – racism at school and work – threats and attacks by local Muslim leader and work clients – health condition and surgery in Australia, with ongoing care and possible need for further surgery – country information – status of Chinese in Indonesia – status of Christians in Indonesia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB [2013] FCAFC 33
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 2 September 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Indonesia, applied for the visa on 12 August 2015. The delegate refused to grant the visa on the basis that they were not satisfied that the applicant was a person to whom Australia owes protection obligations.
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
The issue in this case is whether the applicant meets any of the alternative criteria in s.36(2)(a), (aa), (b) or (c), that is whether he is 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 of such a person. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Country of nationality

The applicant travelled to Australia on an apparently genuine Indonesian passport. He has at all times maintained that he is a citizen of Indonesia. The Tribunal finds he is an Indonesian citizen and has assessed his claims against Indonesia as his country of nationality.

The applicant’s personal background

The applicant is a [age] year old male from East Java, Indonesia. He told the Tribunal that he was educated in Indonesia to secondary school level before commencing a degree in [subject] at [a] [University], but left this after two years due to a traffic accident and the associated medical costs. He gave evidence that his father, stepmother [and a number of siblings] remain living in Indonesia and that he has [a number of relatives] currently living in Australia.
The Tribunal accepts each of the above matters to be true.

Written claim for protection

The applicant claims in his protection visa application that he left Indonesia because he suffered racism in Indonesia for being an Indonesian Chinese. He helped his father in his father’s shop after graduating from high school and had suffered racism while in school. He worked in a [company] and in 2004 an Indonesian client accused him of stealing his money and the applicant states he was beaten and threatened by the client and other Indonesians and they asked him to give them money. He had heard from other colleagues that the same things happened to other Indonesian Chinese in the company. He quit his job in 2004 and when back to help his father in his shop. Indonesians spray painted racist words on the shop window and came and robbed the applicant in the shop in 2011. The Indonesians wanted to kill him. The local police didn’t want to help him because he is Indonesian Chinese.

The first Tribunal hearing

The first Tribunal hearing was held on 24 May 2019, with the assistance of an Indonesian interpreter. The applicant gave evidence to the Tribunal that his written application for protection was correct and that he did not want to change or add anything to his stated reasons for seeking protection.
At the hearing the applicant told the Tribunal that he had come to Australia in May 2011 on a [temporary] visa and decided he would like to stay in Australia. His intention had been to leave Indonesia and he had to choose a country that allowed a [temporary] visa. He stated that, after his [temporary] visa expired in June 2011, he had not applied for another visa to remain in Australia as his English was very poor and he feared being sent home given the experiences he had had in Indonesia. He eventually applied for protection in August 2015. He had not applied for protection earlier, as he had no idea he could until a friend studying at [a] University gave him the idea and told him to apply. As to whether he had come to Australia to travel as a [temporary entrant] or because he was escaping what had happened in Indonesia, he stated that from the start he had sought to run from Indonesia but believed Australia wouldn’t grant him protection.
The Tribunal asked the applicant about his experiences that had made him leave Indonesia and he stated that someone in his home area didn’t like him and wanted to hit him, so he searched for an opportunity to leave. The person in question was a religious leader, [Mr A], who is Muslim. [Mr A] sent people to physically harm him and they hit him and punched him in 2011. The Tribunal asked how the applicant had come into contact with [Mr A] and he stated that [Mr A] is respected in his community. The Tribunal asked again about how the applicant had come to know [Mr A] and he stated that he was working for [another] company and people came to his workplace who may not have liked him, maybe because he is Chinese. The Tribunal asked whether these people were clients of the company and he stated that they just turned up and mentioned these things to him, and he had no means to find out who they were. The Tribunal put the question again to the applicant and he stated that they just turned up, and perhaps a client was not happy with his services. He had no idea whether a client arranged for the others to threaten him and has no idea why they may have done this (if they did), because he was undertaking his work ‘according to procedure’.
The Tribunal asked about how [Mr A] was relevant to what had happened and the applicant stated that one of [Mr A]’s men told him that [Mr A] had been looking for him and he needed to be careful. He had never had any business dealings with [Mr A]. The Tribunal asked whether the incident with [Mr A] was the only reason he had left Indonesia and he stated yes.
The applicant then stated to the Tribunal that there had been another incident in 2004 when he was working in Malang for a [company]. One client made accusations against him, but he disagreed with the reasons for the workplace collapsing and did not believe it was his fault. He left that company and that city and ran. He then returned to assist his father, and did this from 2004 to 2009.
The applicant stated that he then started working with a different [company] and did this from 2009 to 2011. The incident happened with [Mr A] in November or December 2010, but all he did was work ‘according to the procedure’. The Tribunal then asked the applicant to clarify that it was correct that [Mr A]’s man had threatened him in November or December 2010 and, following an extended pause, the applicant stated that he thinks [Mr A]’s man happened afterwards, and his impression was it was because of unhappy clients.
The Tribunal indicated that it was having trouble understanding the applicant’s account of what he says happened in Indonesia and he stated in response that it is common knowledge in Indonesia that Chinese people are targeted and it is quite common to use a mob or target people of Chinese background.
The Tribunal noted the information provided by the applicant in his written application, and noted that in his original claim for protection he had not mentioned [Mr A], and had said he was working in his father’s shop in 2011 and was the victim of a robbery while working in the shop, which was different to the account he had given at the hearing, that he was working for a second [company] during this time. The Tribunal indicated that, because of the differences in the applicant’s accounts, it may not accept the applicant’s stated reasons for leaving Indonesia. The applicant stated in response that he cannot say anything as something has been written.
The Tribunal asked what the applicant fears if he returns to Indonesia in the foreseeable future and he stated that it is because of the current conditions in Indonesia; and because he is handicapped with a [health condition] and his GP has recommended he go to hospital to be cared for but he doesn’t want to do this because it would become costly for his father. The Tribunal noted that the medical information the applicant had provided to the Tribunal indicated that he was reluctant to return to hospital because he is working and he stated in response that legally he could not ask for money from the government so he had to work.
The Tribunal asked what conditions in Indonesia were of concern to the applicant and he stated that he is treated differently in the eyes of the law and by government agencies and by the community. The Tribunal asked whether there were other areas of Indonesia the applicant felt he could live in, aside from where his family is living, and he stated that his GP has already warned him about his [health condition], he needs a [surgical procedure] and might end up needing [further surgical procedure]. As to why this couldn’t be performed in Indonesia, he stated that it would be very costly and his father and himself couldn’t afford [the] operation.
The Tribunal asked about any other concerns the applicant had about returning to Indonesia and he queried how he could protect himself. As to why the authorities wouldn’t protect him, he stated that the issue is that since his birth, his birth certificate, identification card and passport all have ways of identifying him as Chinese and he feels he could not protect himself. He feels he has the government as his enemy.
The Tribunal noted that it had considered the most recent DFAT report for Indonesia, which states that there are 2.8 million Chinese Indonesians in Indonesia, comprising 1.2% of the population; that since the end of the Suharto government, the government has removed most official policy measures discriminating against ethnic Chinese Indonesians, that Chinese new year is celebrated, Chinese cultural performances and languages are accepted that barriers to citizenship have been removed; that some anti-Chinese sentiment remains and that rich and prominent businesspeople who are Chinese Indonesian face resentment from some non-Chinese Indonesians; that apart from riots in 2016, anti-Chinese violence has been low since 1998; and that DFAT has assessed that Chinese Indonesians face a low risk of violence, and anti-Chinese sentiment may lead to low levels of societal discrimination.[1] The Tribunal noted that this information suggests that the chance of serious harm is remote if the applicant returns to Indonesia. The applicant stated in response that, based on that information, he has to admit there is low risk of serious harm, however, the sentiment is still simmering and continues and will ‘eventually destroy him’.
[1] DFAT Country Information Report – Indonesia, 25 January 2019.
The Tribunal asked whether anything had happened to the applicant before he left that would make him think he faces a higher change of more than low level discrimination if he returns. The applicant stated because of the condition of his [health]. His GP is puzzled by why he has such a [health condition] and said it could be because in the past he was hit physically and this might cause trouble to [him]. There is a problem because he is a victim of violence.
The Tribunal noted it had also considered the most recent Country of Origin Information Services Section report dated 27 February 2019, which states that Chinese Indonesians generally live free from official discrimination; that anti-Chinese sentiment typically results from economic resentment rather than racism; and that this is from the perceived prosperity of Chinese Indonesians relative to the broader community, rather than for religious or ethnic concerns.[2] The Tribunal noted that this information may also lead the Tribunal to believe that the risk of significant discrimination or serious harm is unlikely if the applicant returns to Indonesia. The applicant stated in response that he had already suffered trauma long before the 1998 incident. After Ahok his perception of discrimination has continued. The common understanding among Chinese in Indonesia is that it is important to stay quiet and it is pointless to make noise raising any issues. The Tribunal asked what the applicant fears if he doesn’t stay quiet and he stated that they will make him suffer and make his life difficult and will finish him off. The Tribunal asked who “they” are and the applicant stated that all he can say is that they need to be quiet and accept their fate.
[2] DHA, Country of Origin Information Services Section, Indonesia – Common Claims, effective from 27 February 2019.
The Tribunal noted that the DFAT report from 25 January 2019 states that the Constitution guarantees the right to obtain medical care; that a national health insurance scheme has begun; and that the Tribunal had been unable to identify any country information that suggested that Indonesia would withhold medical services from the applicant because he is Chinese Indonesian. The Tribunal asked what the applicant fears if he returns to Indonesia for medical treatment and he stated that the facilities in Australia are better. If he seeks medical assistance he doesn’t think he would be given his right to services like everybody else, because of his Chinese background.
The applicant provided a large folio of documents to the Tribunal at the hearing, which the Tribunal has read and considered. These include media reports on ongoing discrimination faced by Chinese Indonesians and to the end to legislative discrimination and assimilation policies Chinese Indonesians previously faced; on the imprisonment of Ahok; on the Surabaya bombings in May 2018 where it was later found that members of the families involved had been radicalised; and on increased religious conservatism and increased security alerts prior to the election results being formally announced in May 2019. The documents also provided general medical information about [specific medical conditions] and specific information about the applicant having had four GP appointments booked between March 2018 and February 2019; four appointments at the [specialist] Clinic at [a] Hospital between March 2018 and March 2019; an appointment at the [surgery] clinic at [the] Hospital in February 2018; admissions to [the] Hospital from [date 1] October 2017 to [date 2] October 2017 and [date 3] October 2017 to [date 4] October 2017 for severe [specific medical condition]; an admission to the [Hospital]’s [specialist] unit from [March] 2018 to [March] 2018; and a future [diagnostic procedure] booked at the [Hospital] for March 2020.

The second Tribunal hearing

The applicant was invited to a second hearing in relation to matters he had raised in the previous hearing regarding his religion. The second Tribunal hearing was held on 16 July 2019, again with the assistance of an Indonesian interpreter.
At the commencement of the hearing the Tribunal attempted to telephone [the] applicant’s GP, and was advised by her medical service that she was on leave for a further two weeks. The applicant telephoned Dr [B] at the request of the applicant. Dr [B] told the Tribunal that he is a [specialist] at [the] Hospital and that, on reviewing his notes about the applicant, performed an operation on [in] March 2018 to repair a [defective specific body part]. The applicant would have spent five to seven days in hospital; Dr [B] has not seen him prior to those dates or since that time. Ongoing management would be through the GP or the [specialist] clinic at [the] Hospital. The applicant added that in March 2019 he had seen the [specialist] clinic and been advised he still had a [defective specific body part].
The Tribunal asked the applicant about his concerns about returning as a Christian to Indonesia and he stated that it was the communications that were threatening him, about him being of Chinese background. The Tribunal asked again about the applicant’s concerns about being Christian in Indonesia and asked about his religious background, and he stated that he attended church in Indonesia, [a Church] in Surabaya. The Tribunal asked why given the applicant had been living in East Java, 102 kilometres away from Surabaya and the applicant stated that his father was a preacher at a church in [City] and he was attending churches in both Surabaya and [City]. He was studying at university in Surabaya and was attending church at least every fortnight in Surabaya, and once a week while in [City].

The Tribunal asked about the applicant’s experiences going to church in Indonesia that caused him concern. He stated that he was restricted and there was verbal unpleasant communication. He had been baptised in Year [grade] and was attending a branch of the church similar to the [specified] faith. Since being in Australia he has attended [a] Church in [Suburb 1] and a Christian church in [Suburb 2]. He last attended three weeks ago and before that, two weeks prior to that. He does not attend more often because of his [health] condition; if he felt he was strong enough he would go.
The applicant stated that if he returned to Indonesia, because of his health condition, he would likely return to [City]. His father is still involved in the church there. The Tribunal asked whether anything of concern had happened at the church and the applicant stated in response that even if anything happened, they would keep it quiet.
The Tribunal noted it had considered country information including the DFAT report from 25 January 2019 and COISS report from 27 February 2019, which indicated that Christians are generally free to practice their religion in Indonesia and that, while there had been church bombings in Surabaya in 2018, the Tribunal had not identified any information that there was ongoing risk, or that there was risk to churches in [City].[3] The applicant stated in response that he could only mention unpleasant verbal communication. If he returned he would fear harm from [Mr A] and would go back to [City].
[3] DFAT Country Information Report – Indonesia, 25 January 2019; DHA, Country of Origin Information Services Section, Indonesia – Common Claims, effective from 27 February 2019.
The applicant provided further media reports to the Tribunal at the second hearing which the Tribunal read and considered. These again referred to ongoing discrimination against ethnic Chinese Indonesians in media reports published in 2017 and 2018. The applicant also provided a medical research report on [specified] disease risk in Indonesia, published in April 2019, which had found that high [specified] risk is common among adults [age] years of age and over, called for primary prevention approaches and noted that people were receiving treatment at a higher rate in urban areas compared to rural areas.

Claims relating to race

Turning first to the applicant’s stated reasons for leaving Indonesia, the Tribunal found the applicant to give his evidence in an unclear and unconvincing manner. A number of questions had to be put to him repeatedly and he was unable to explain to the Tribunal how the man who he states came to his workplace was connected to [Mr A] or [Mr A]’s men. The Tribunal finds that the applicant was not targeted by an individual known as [Mr A] prior to leaving Indonesia. The Tribunal does not accept that one of [Mr A]’s men told the applicant that [Mr A] was looking for him or that [Mr A] sent men to physically attack him in or around 2011.
The Tribunal is prepared to accept that the applicant had conflict with a client while working with a [company] in 2004. The applicant stated to the Tribunal at the hearing that his only reason for leaving Indonesia was [Mr A]. When prompted, he then gave the Tribunal details about his father’s shop being robbed and having racist words spray painted on the shop. The applicant’s written claim for protection claimed this was in 2011, however, in his oral evidence to the Tribunal the applicant stated he was working for a [company] in 2011. The applicant was unable to explain the discrepancies in his account to the Tribunal, stating to the Tribunal that he “cannot say anything”. The Tribunal does not accept that the applicant was working in his father’s shop in 2011 or that he was robbed in 2011 or that racist words were spray painted on his father’s shop in 2011.
The applicant submitted that he suffered racism as a Chinese Indonesian and the Tribunal is prepared to accept that the applicant suffered racism at school, as outlined in his written claim for protection.
The country information considered by the Tribunal included the most recent DFAT report from January 2019 and the Country of Origin Information Services Section (COISS) report from February 2019. Both of these were discussed with the applicant at the hearing. This information indicates that there has been an improvement for Chinese Indonesians since the end of Suharto and, with the exception of riots in 2016, anti-Chinese violence has been low since 1998. The DFAT report finds that Chinese Indonesians are at low risk of violence but may face low levels of discrimination.
The Tribunal accepts that the applicant faced racism at school and accepts that he has had conflict with a former client while in Indonesia. However, the Tribunal finds that the experiences of the applicant do not amount to serious harm. The Tribunal accepts that as a Chinese Indonesian the applicant may face a low level of discrimination if he returns to Indonesia in the foreseeable future. The Tribunal finds, however, that there is not a real chance that the applicant will suffer serious harm if he returns to Indonesia now or in the foreseeable future for reasons of his race.

Claims relating to religion

The Tribunal accepts the applicant’s claims that he attended church in [City] during his childhood and Surabaya while at university. The Tribunal is prepared to accept the applicant experienced what he described as unpleasant verbal communication while attending church in Indonesia.
The Tribunal considered the most recent DFAT report and the COISS report relating to Christians in Indonesia. These reports were discussed with the applicant during the hearing. The country information states that Protestantism is one of the officially recognised religions in Indonesia and that religious pluralism is an established part of modern Indonesia and sources indicate that inter-faith tolerance remains strong. The country information states that Christians in Indonesia are generally free to practice their faith without interference due to their officially-recognised status, although sometimes have difficulties obtaining permits for places of worship in areas populated by hard-line Islamist groups.
The Tribunal finds that, if he returns to Indonesia in the foreseeable future, the applicant will likely to continue to attend church on a reasonably regular basis. The Tribunal accepts from the country information that there have been threats from Islamist organisations in the past decade and that there were bombings of churches in Surabaya in mid-2018, however the Tribunal has not identified any country information suggesting that there are likely to recur in the foreseeable future. The country information considered by the Tribunal indicates that the applicant practices a recognised religion in Indonesia, that Christians are generally free to practice their faith and that inter-faith tolerance is strong. The Tribunal finds that the negative communications experienced by the applicant previously in Indonesia do not amount to serious harm and that, if he returns, there is not a real chance that he would face serious harm for reasons of his religion.
The applicant also stated to the Tribunal during the hearing that if he is required to return to Indonesia, he has health issues that will make his return difficult. The Tribunal accepts that the applicant had two admissions to [the] Hospital in October 2017 for [specific medical condition] and that surgery was discussed and was declined at this time. The applicant was admitted again to [the] Hospital [in] March 2018 and underwent [surgery] on [a date in] March 2018. He was discharged [in] March 2018 on medication with specialist follow-up.
The most recent DFAT report, discussed with the applicant during the hearing, states that the Constitution guarantees the right to obtain medical care and that health services vary in quality and availability between districts. The implementation of a national health insurance scheme was commenced in January 2014, aimed at providing universal health coverage by 2019. Health facilities in poorer eastern provinces and urban slums have lower capacity to treat people with chronic diseases who may have to travel to larger cities to access health services.[4]
[4] DFAT Country Information Report – Indonesia, 25 January 2019.
The DFAT report indicates that the applicant has a right to access medical care under the Constitution and no information has been provided by the applicant, or identified by the Tribunal, indicating that the applicant would have medical treatment withheld for any reason, including for reasons of his race and/or his religion. The Tribunal finds that the applicant has previously resided in [City] and Surabaya, both of which are urban areas. The Tribunal finds that the applicant would be able to access medical services if returned to Indonesia. The Tribunal finds that the applicant does not face a real chance of serious harm if he returns to Indonesia in the foreseeable future because of his health issues, considered both separately to and cumulatively with his other claims.
The Tribunal finds that there is not a real chance that the applicant would face persecution on return to Indonesia in the foreseeable future.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
The Tribunal has also considered the applicant’s claims having regard to the complementary protection obligations. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
Based on the above findings, the Tribunal finds that there is not a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia.
The Tribunal concluded that the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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.
Tamara Hamilton-Noy
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 6216

13 August 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice