1616352 (Refugee)

1616352 (Refugee) [2019] AATA 4483 (16 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1616352
COUNTRY OF REFERENCE:                  Indonesia
MEMBER:Tamara Hamilton-Noy
DATE:16 July 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 16 July 2019 at 12:22pm
CATCHWORDS
REFUGEE – protection visa – Indonesia – race – Chinese Indonesian – religion – Christian – victim of rape – fear of harm from assailants – fear of discrimination and harassment – passage of time since rape – evidence that harm was motivated by ethnicity – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES

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 15 September 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of Indonesia, applied for the visas on 30 November 2015. The delegate refused to grant the visas on the basis that the applicants are not persons 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 applicants meet any of the alternative criteria in s.36(2)(a), (aa), (b) or (c), that is whether they are persons in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or are members 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 applicants travelled to Australia on apparently genuine Indonesian passports. They have at all times maintained that they are citizens of Indonesia. The Tribunal finds that the applicants are citizens of Indonesia and have assessed their claims against Indonesia as their country of nationality.
The applicants’ backgrounds
[Applicant 1] is a [age] year old female from Jakarta, Indonesia. She told the Tribunal that her mother and daughter, now [age] years of age, are residing in Indonesia. She has a brother and sister also living in Indonesia. She was educated to the end of high school and then worked in [an occupation] and then in [another occupation] while in Indonesia. She stated that she was married to [Applicant 2] in November 2011 and that they have had a further child since arriving in Australia, who is now [age].
[Applicant 2] is a [age] year old male from Surabaya, West Java, Indonesia. He was educated to the end of high school and attended a course [at] university. He worked [in an occupation] in Surabaya before coming to Australia.
The Tribunal accepted the information provided about the applicants’ backgrounds as correct.
Claims for protection
[Applicant 1] claimed in her protection visa application that there is a lot of discrimination against Chinese ethnic Christians. The applicant states that she was raped by two police officers [in] April 2008 while walking home. These officers, whose names are [Mr A] and [Mr B], threatened to kill her and said they would come back and find her. They took her KTP card ID. Two months later she attended [a medical professional], [who specialised in a specific field], and found out she was pregnant. She had an abortion performed. On one occasion a stranger riding a motor cycle sexually assaulted her on the street. In 2009 she met [Applicant 2] and they had a child in [year]. The police officers who had raped her would go to her mother’s house. The applicant and her husband and child moved to another area of Surabaya but still felt unsafe. She did not report it to police because in Indonesia there is no justice and no law.
The applicant claimed in her protection visa application that she was baptized in March 1999. She submitted that it is rare to have Chinese and Christian students in a public high school. Sometimes other students looked at her differently. When she travelled on public transport people shouted at her and called her a Chinese scoundrel dog. People on the bus tried to grab her and touch her, putting their hand under the seat and trying to sexually harass her. This stopped her from studying in Surabaya.
The applicant submitted in her claim that in May 1998 there were riot disasters in Indonesia. Chinese women and girls were raped and killed. Chinese properties were destroyed. The applicant submitted that if she returned to Indonesia she could be persecuted or raped again by the police officers [Mr A] and [Mr B] who are still looking for her.
At the hearing [Applicant 1] told the Tribunal that she had left Indonesia in December 2012 as her mother told her to go, after the sexual assault. She had travelled in [Country 1] in August 2012; to [Country 1], [Country 2], [Country 3] and [Country 4] in October 2012; and to [Country 4] and [Country 5] in November 2012. She agreed that a month after the last trip she had left for Australia. She stated that she knew an agent in Australia and came to Australia on a visitor visa.
The Tribunal asked the applicant why she waited three years to lodge a protection application and she stated that she wanted to get away from the officers [who had raped her] and came to Australia to feel safe. She stated she was from a poor family and didn’t know about protection visas and was only focused on leaving.
The applicant stated to the Tribunal that she was [age] years of age at the time of the rape, and it had occurred [in] April 2008. She had met her husband by this stage but was not in a relationship with him at the time. In response to questions put by the Tribunal, the applicant stated that she had not met or had contact with the police officers in question, [Mr A] and [Mr B], prior to the assault. She knew their names as they were on their uniforms. She had gone shopping and to a movie, and was going home in the taxi in the heavy rain. The driver left her on the side of the road because of the rain and she was walking. She was scared and lonely and approached the police officers to ask if they could help her get to her house and they said they would protect her. The shops were all closed. The Tribunal asked how the police officers knew who she was and she said they took her wallet and her identification card.
The applicant stated that the police officers had come to her house but she never came out. They went one month after the assault, then after another six months, then after another eight months and they come to her mother’s house every year. She did not go to the police to report the assault. They are still coming to her house because they are scared if she tells what happened.
The Tribunal asked the applicant why the two police officers would be still looking for her, given it was 11 years since the assault. She stated that they come and ask her mother where she is. Her mother is very sick at the moment, and they say to her to tell her daughter they are missing her. She has not seen them since the assault occurred. She left her daughter in Indonesia when she came to Australia because she was traumatised and couldn’t take care of her, and her mother told her to recover first.
The Tribunal noted the Department’s delegate had found that the doctor the applicant attended for an abortion was a specialist in men’s [health] and observed that this was not the type of doctor it would be expected she would attend for an abortion. The applicant stated that if they knew he’d done other things on the side; if they go and ask, he would take them into a private room and know that he will do an abortion on the side. She obtained his name from her mother’s friend.
The applicant stated that she returned to live with her mother after the assault, until she was married in 2011. She stayed at home, she would go for a walk in the morning and then go back home, and if really necessary she would go shopping for food. She took two to three days off work and then return to work. She told her mother about the rape seven weeks later, after taking a pregnancy test that was positive. She didn’t tell anyone else about the rape.
The Tribunal noted that the applicant had stated earlier in her evidence that the police officers had attended a month after the assault but her mother was not aware at that time that the rape had occurred. The applicant stated that her mother asked her why the police officers were coming around and the applicant had said it was maybe because of her motor bike, she had had no wallet and told the police to come and take money, and told her mum she had received a penalty.
The applicant gave evidence of having moved [number] minutes away by motorbike when she married her husband. When the police officers came to the house after she had gone, her mother told them she was working on a different island. The Tribunal asked when the police officers had last gone to her mother’s house and the applicant said she is not exactly sure but it was maybe in June last year. The Tribunal asked why the applicant had stayed in Indonesia for three years in her mother’s house and a further year with her husband, and why she had not left Indonesia earlier, and she stated that she had no money until she met her husband. As to why they had returned for a month from their travels, prior to travelling to Australia, the applicant said that in Indonesia if they want an Australian visa they must go travelling; they made their passport look like they travel around the world.
The Tribunal observed that it couldn’t see how the applicant would be at risk from these men 11 years after the assault and she said she had fear, that maybe they would come back again. The Tribunal noted that the applicant is now married and could expect a level of protection from her husband and she said that the police officer doesn’t know she is married; he may think she is still single.
As to what the applicant fears if she returns to Indonesia, she stated that she fears the police officers coming back and saying something bad to her, or doing something bad to her. She and her husband have no power. She is just a citizen and they cannot protect her.
The Tribunal asked about the applicant’s claims to fear harm because she is a Chinese Indonesian and a Christian. She stated to the Tribunal that she has many stories from before she came to Australia. On the bus she had people saying things to her. While she was still at school she went to buy eggs and a young male on a bike squeezed her breast before riding away. She would be very scared to go outside or go walking.
The applicant said she would sometimes attend a protestant church while in Indonesia. Since arriving in Australia she has attended a community church, after she met people from Indonesia who told her about the community. A Pastor from [Australian City 1] attends the church once a month. The Tribunal asked what experiences the applicant had had going to church in Indonesia that made her concerned and she stated that there had been bombs in Surabaya last year that made her scared; before that she was not scared going to church, but now it is very dangerous.
The Tribunal observed it was unable to understand why the applicant couldn’t return to live in the area she was residing with her husband from 2011 to 2012 and she stated that they had been renting. As to why they couldn’t return to that area, she stated that they had only been renting there a short time. She is not feeling very confident given her tragedy. She is not sure whether the authorities would protect her; she is Chinese and so is not really a citizen. The Tribunal asked whether there are other areas of Indonesia that the applicant may be able to live and she said in response that her parents became bankrupt and they went to Surabaya.
The Tribunal noted the findings in the delegate’s decision that Indonesia has a population of 255 million people and that it was unlikely that the rapists would have the ability to find her anywhere, especially in more populated and urbanised areas. The Tribunal asked why the applicant could not live in another area of Indonesia and the applicant stated that she had never known another country except Surabaya East Java. She is very scared because perhaps the police officer can access a computer and know what her address is. She would need to obtain a new identification card and they will ask her where she lives; she is scared that he can look on the computer and know if she is there.
The applicant stated to the Tribunal that she left Indonesia seven years ago. When Widodo won the recent election there was a demonstration. She is not confident because she is Chinese Christian and there are many Muslims.
[Applicant 2] also gave evidence at the hearing. He told the Tribunal that the applicants have no reason to live in Indonesia. He chose to marry [Applicant 1] and protect her and became estranged from his family as a result, because his parents didn’t like her. They cannot return to Indonesia because they are already doing something good for the community in [Australian City 2] and have friends there. The Tribunal asked whether there were other areas of Indonesia the applicants could live and [Applicant 2] stated that he doesn’t have any family there anymore; there is only them, her mother and the baby.
The Tribunal noted at the hearing that it had considered country information, in particular the most recent DFAT report from 25 January 2019. This report says that there are 2.8 million Chinese Indonesians in Indonesia; that since the end of Suharto, the government has removed most official policy measures discriminating against ethnic 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 persistent anti-Chinese sentiment may lead to low levels of societal discrimination. The Tribunal observed that the information may lead the Tribunal to believe that the applicants face a low level of discrimination but that risk of serious harm is unlikely if they return to Indonesia. [Applicant 2] stated in response that it is true, but the opposite is true sometimes. [Applicant 1] stated that they never know; maybe analysts record and write, but they never know; Chinese are in the minority there.
The Tribunal also noted the Country of Origin Information Services Section report dated 27 February 2019, which states that Chinese Indonesians generally live free from societal and 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 specific religious or ethnic concerns. [Applicant 2] stated in response that this is not true and it is not like that; there is fighting about religion and ethnicity. [Applicant 1] did not seek to respond to this report.
The Tribunal noted that it had considered the DFAT report (25 January 2019) in relation to the applicant’s religious claims. The Tribunal accepted from the report that there had been attacks on churches in Surabaya in 2018. The report states that Indonesia’s government recognises Protestantism as one of the six official religions; that religious pluralism is an established part of modern Indonesia; that a wide range of local and international sources consider that inter-faith tolerance remains strong; and that local sources do report an increase in localised instances of religious intolerance over the past decade, including threats from hardline Islamist organisations. [Applicant 1] stated in response that she has already put a good life in place in Australia. [Applicant 2] stated that they have no relatives or family and have made a new life in Australia.
The Tribunal also noted the COISS report (27 February 2019) which states that rates of religious violence in Indonesia are generally low; that the wave of violence which broke out after Suharto in 1998 has subsided; that occasional attacks continue against minorities such as Shi’a and Ahmadi Muslims; that Christians living in Indonesia are generally free to practice their faith without interference owing to their officially recognised status; and that Christians sometimes encounter difficulties obtaining permits for places of worship in areas populated by hard-line Islamist groups. [Applicant 2] stated in response that he feels very affected and does not agree with this; he now has no family in Indonesia. [Applicant 1] stated that if she returns she will be scared of Christmas time. They are very happy to live in Australia as they can celebrate Christmas and have made friends in church.

The Tribunal asked whether there was any other basis on which the applicants fear returning to Indonesia and [Applicant 1] said the same reasons as she had said before.
Claims relating to past sexual assault
The Tribunal found [Applicant 1] to give her evidence about the sexual assault that occurred in a clear and credible manner and accepted that she had been raped by two males in April 2004. The Tribunal was prepared to accept that [Applicant 1] identified the two males in question as police officers based on their uniforms and name tags on the uniforms and was prepared to accept that the officers threatened to kill her and took her identification card. The Tribunal was prepared to accept that [Applicant 1] had an abortion in the circumstances she stated and that the professional she dealt with for the abortion was a specialist in another field that performed abortions secretly.
The applicant states that she fears harm from the two police officers, [Mr A] and [Mr B], if she returns to Indonesia. However, after taking two to three days off from work after the assault, the applicant returned to work and remained living with her mother, at the address that had been described on her identification card, without further incident.
The applicant was unable to explain to the Tribunal when the police officers last came to her mother’s house. The Tribunal was prepared to accept that the police officers had visited the house a month after the rape. However, the applicant’s assertion that the police officers had visited the house more recently was given in a vague manner and the Tribunal does not find that the police officers visited the applicant’s mother’s house more than once or, most recently, in or around July 2018.
The Tribunal finds that the assault occurred some 11 years ago now and does not find that the applicant would be of any interest to the police officers if she was to return to Indonesia in the foreseeable future. In so finding, the Tribunal has placed weight on the applicant having stayed in her home for a further three years after the assault, and then residing with her husband for a further year during which there were no further issues.
The Tribunal finds that the two men will not look for the applicant or target her upon her return to Indonesia. The Tribunal is not satisfied there is a real chance that, if the applicant returns to Indonesia, she would be at risk of serious harm from the two police officers.
Claims relating to ethnicity
The Tribunal accepted that the applicants are Chinese Indonesian and that, if they return to Indonesia in the reasonably foreseeable future, they will return to the Surabaya area.
The Tribunal accepted that [Applicant 1] experienced verbal harassment due to her ethnicity when she was younger in Indonesia. The Tribunal accepted that the applicant was sexually assaulted on a bus as a student and that she was raped in 2004. However, there is no evidence before the Tribunal to suggest that the assaults were motivated by the applicant’s ethnicity and the applicant did not suggest to the Tribunal that they were. The Tribunal finds that the applicant was not sexually assaulted on either occasion due to her ethnicity.
The country information considered by the Tribunal indicates that there were riots against Chinese Indonesians in 1998 which included incidents of violence against women. However, the country information indicates that at present Chinese Indonesians face low level discrimination in Indonesia. The Tribunal found that the applicants may face low level discrimination if they return to Indonesia in the foreseeable future but are unlikely to face other harm because they are Chinese Indonesian. The Tribunal found that there is not a real chance that, if the applicants return to Indonesia, they would be at risk of serious harm for reasons of their ethnicity.
Claims relating to religion
The Tribunal accepted that the applicants are of the Christian faith. [Applicant 1’s] evidence to the Tribunal was that she had felt safe in Indonesia when attending church.
The applicants have practiced their faith by way of monthly church services since arriving in Australia and the Tribunal considered that they would continue to attend church services if they return to Indonesia.
The Tribunal accepts that there were bombings of churches in Surabaya in mid-2018. However, there is no information before the Tribunal to suggest there is a continuing pattern of such incidents. Further, the country information considered by the Tribunal states that religious pluralism is an established part of Indonesian society and that Christians in Indonesia are generally free to practice their faith without interference.
Looking forward to the foreseeable future, the Tribunal finds that there is not a real chance that, if the applicants return to Indonesia, they would be at risk of serious harm because of their religion.
The Tribunal has considered the cumulative claims of [Applicant 1] with respect to her past experiences of sexual harassment and rape in Indonesia and the harassment she stated she experienced when younger. The Tribunal has considered the risk to the applicant as a woman returning to Indonesia, as a Chinese woman and as a Chinese Christian woman. The Tribunal finds that the risk of the applicant facing such harm in the foreseeable future is remote and finds that, when her claims are considered cumulatively, the applicant does not have a well founded fear of persecution for these reasons.
The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
The Tribunal has also considered the applicants’ 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.
‘Significant harm’ is defined at s.36(2A) to include arbitrary deprivation of life, imposition of the death penalty, torture, cruel or inhuman treatment or punishment and degrading treatment or punishment.
The Tribunal has found that the applicants do not face a real chance of serious harm if they return to Indonesia in the foreseeable future. The Tribunal has found that [Applicant 1] is not at risk of serious harm from the two police officers who raped her and is not at risk of serious harm based on the sexual assault that occurred when she was a student, or for reasons of her religion or ethnicity. The Tribunal finds that the type of discrimination the applicants may face does not amount to significant harm within the meaning of the legislation.
The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Indonesia, there is a real risk that the applicants will suffer significant harm.
For the reasons given above the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
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 4483

16 July 2019

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Areas of Law

Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Jurisdiction

Procedural Fairness

Natural Justice

Statutory Construction

Remedies