1618371 (Refugee)

1618371 (Refugee) [2020] AATA 4419 (25 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1618371

COUNTRY OF REFERENCE: Indonesia
MEMBER:Paul Noonan
DATE:25 August 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 25 August 2020 at 04:53pm
CATCHWORDS
REFUGEE – protection visa – Indonesia – fear harm from loan shark – credibility concerns – inconsistent evidence – delay in applying for protection – state of the Indonesian economy – capacity to subsist – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2
CASES
Guo v MIEA (1996) 64 FCR 151
Kopalapillai v MIMA (1998) 86 FCR 547
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 24 October 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 1 July 2016. The delegate refused to grant the visa on the basis that the applicant was not a person to whom Australia owes protection obligations.
I exercised the Tribunal’s discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic on 23 July 2020. I determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. I also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. I am satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The hearing was assisted by an interpreter in the Indonesian and English languages. I was satisfied that the applicant understood the interpreter and my questions to her during the course of the hearing and note that the applicant did not raise any concerns with respect to the interpreter or any difficulty in understanding my questions during the hearing.
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. An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a) of the Act. 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) of the Act, 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 s.5J(2)-(6) and ss.5K-5LA of the Act, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Migration history and identity
In her application to the Department, the applicant declared she was born in Ponorogo, Indonesia, in [year], and that her ethnicity is Indonesian and religion is Islam. The applicant stated she can speak, read and write Indonesian and read and write English. She stated she is in a married relationship that was officialised in Indonesia. She declared her father, mother and [siblings] as currently residing in Indonesia. The applicant stated she worked a single job in Indonesia as [an Occupation 1], and that she completed high school in [year].
The applicant first arrived in Australia [in] February 2014 as holder of a [temporary] visa. This visa expired [in] May 2014, at which point the applicant became unlawful. On 1 July 2016, she applied for protection and was granted a bridging visa in connection with this application.
Country of reference
The applicant provided the Department with a copy of her Indonesian passport, which satisfied the delegate as to her identity and Indonesian citizenship.
On the basis of such, and in the absence of evidence to the contrary, the Tribunal accepts that the applicant is a citizen of Indonesia and that her identity is as she claims it to be. The Tribunal accepts that Indonesia is her ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Claims for protection
In her written claim for protection, lodged with the Department on 1 July 2016, the applicant stated (in summary) that she left Indonesia due to the overall poor economic conditions in the country, which have opened the gates to hyper-active loan sharks. The applicant stated she struggled to develop her business under such conditions and that she is unable to repay her debt, and so she is seeking Australia’s protection.
The applicant stated that she was beaten by loan sharks she borrowed from because she was unable to repay the loan with high interest. The loan sharks have also threatened to kill her. The applicant stated she did not seek help inside Indonesia as the matter is personal and that officials are scared to help as the loan sharks may also harm them. The applicant believes she will be harmed by the loan sharks if she returns to Indonesia.
She stated that she tried to relocate inside Indonesia but the loan sharks still found her and were angry at her for running away. The applicant believes the authorities will not protect her because they say it is a personal matter.
The applicant was not offered a Protection visa interview by the Department.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this review are whether the applicant has a well-founded fear of being persecuted for a refugee ground 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.
Section 5AAA of the Act makes clear that it is the applicant's responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Credibility
The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility.[1] However the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, that it is ‘well-founded’ or that it is for the reason claimed. Rather it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
[1] Guo v MIEA (1996) 64 FCR 151, per Foster J at 194 (Full Federal Court)
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, she 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).
The Hearing
The applicant informed me that she is in a relationship with a man who is now working in [Country 1]. She is married, however, she is no longer in a relationship with her husband. She has a son living with her parents in Indonesia and she supplies them with money. She left Indonesia to find work in Australia to enable her to repay her debt and support her family. Her husband provided no support to her or her son. She has worked in a [factory] for the past two years in Australia. She has been here for nearly seven years. She needs to stay here a bit longer because she needs to make more money to give her son a better future. If she goes back she will be without money to enable her to do so and repay the debt.
I put to the applicant her original written claims and asked her if they represented an accurate and fair representation of her claim for protection. The applicant replied yes. I asked her if there is anything that she wishes to add to her claims for protection? The applicant replied that she would like an opportunity to pay off her debts and a short time later she will return to Indonesia. She confirmed to me that her claims for protection are related to a fear of harm with respect to her debt and a fear of harm with respect to the general state of the Indonesian economy.
I asked the applicant if she completed her written claim herself to which she replied she did, but her friend assisted her in order to help her work here. She really wanted to come to Australia for work and needed assistance with her English in writing the claim. She was desperate as she had been here for two years without a work right and needed to arrange it to get work. Her friend is no longer in Australia and has returned to Indonesia. I put to the applicant that she had not listed her second husband, first husband or son in her written claim but had only listed her parents and siblings. The applicant submitted that she did not know what the person who had assisted her with the claim had written. I put to the applicant that she had listed the date of birth of her parents and siblings and the fact that she has not disclosed her child or husband may cause me to doubt her credibility with respect to her claim to fear harm from a loan shark, due to the fact that her husband and son are in Indonesia. I asked the applicant where her first husband is now and she does not know, except to say that he is no longer in Indonesia.
I put to the applicant that her written claim with respect to owing money to a loan shark appears to be lacking in detail, and asked her why she had not provided more detail in her claim in respect of this fear of harm. She noted that she was stressed and had been here for two years without a visa. I also put to the applicant that she had spent some years in Australia unlawfully and only after a lengthy period of time in Australia did she apply for protection. I put to the applicant this delay in applying for protection may cause me to question whether she has a genuine fear of harm and her delay may be reflective of a primary desire to work in Australia rather than a genuine fear of harm. The applicant submitted that when she was in Australia early on she had no friends here and did not understand what her options were. It’s only recently that she understood the system. She confirmed that she had come to Australia with her friend who had returned. I asked the applicant how she survived in Australia when she was residing here unlawfully. The applicant stated that she did casual work here and there.
I asked the applicant why she made a decision to come to Australia. The applicant stated because the economy is bad and she needed money to support her family, and if you don’t have food in Indonesia no one will look after you. Further, she was unable to support repayment demands for her loan.
With respect to the loan she claims to owe to loan sharks, the applicant stated that her first husband borrowed this money. She remarried again after he left her because he did not want to repay the debt. The loan shark kept asking her for the money and threatening to take her home which in fact belongs to her mother. She claimed that her first husband put her mother’s house forward as collateral for the loan. She did not know who her first husband borrowed the money from. I questioned how her first husband had been able to give collateral for the loan with respect to her mother’s house. The applicant was unsure how this occurred. When she questioned her first husband he slapped her. When he left, the loan shark just threatened that he would take the house. When I asked her who the loan shark is the applicant stated they are Indonesian people. She thought their name was [Mr A]. She has had no contact with her first husband for over 10 years. They asked for about AU$40,000 or AU$50,000. I questioned why they would ask for money in Australian dollars. I asked her how much her first husband borrowed in Indonesian currency and how much they asked from her, to which she replied whatever she had. She was unable to provide specific amounts. I put to the applicant that she had given evidence that the loan shark had approached her and asked for repayment of the loan. I asked her again how much in Indonesian currency did they say was owing. The applicant then replied [amount] Rupiah. I asked the applicant when did the loan shark first approach her, to which she replied in around 2014. I asked her when her husband first borrowed the money to which she replied she had forgotten. She had remarried in 2013 and then come to Australia soon after. She divorced in 2018.
The applicant gave evidence that she had opened a [business] in Indonesia with her mother prior to coming to Australia. She confirmed she had not borrowed money herself. I put to the applicant that I am concerned about contradictions in her evidence in that her written claim contained no mention of her husband borrowing money and she had not detailed that he had done this or subsequently left. Rather she had written that she had borrowed money herself for the purposes of her business. I put to her that I may expect such important details would be documented in her written claim and this contradiction in her evidence central to her claim may cause me to doubt her credibility. The applicant submitted that she did not want to tell her friend who assisted her with her written claim that her husband was no good. I put to the applicant that by this time she had remarried and her friend would presumably have known that she had remarried. I put to the applicant that I may not accept as reasonably plausible that she would not wish to disclose this claim in such circumstances. The applicant submitted that this may be an error by her friend. I put to the applicant that she ticked the application form that she had in fact completed the form herself. The applicant stated she had no comment on this and just wished to tell the truth to me. She just wants one or two more years in Australia to work more in Australia. She requested that she be allowed to stay for at least two years and then she promises that she will return.
I asked the applicant when the loan shark first approached her asking her for money, to which the applicant replied she could not remember. I asked the applicant what happened when the loan shark first approached her. She was not threatened herself, rather they just threatened to take the house and she felt fear because of this. I again put to the applicant that the house was not her first husband’s and questioned on what basis the loan shark would actually be able to take the house if it was not actually legally given as collateral for the loan. The applicant did not know; she just felt fear. I asked the applicant if she was required to pay a regular monthly amount, to which she replied she just paid money when she could. She was unaware if there was an interest rate attached to the loan. I asked the applicant if they had given any indication as to when they wanted the loan repaid by, to which the applicant stated yes. I asked her how much was owing when the loan shark first made contact with her to which the applicant replied [amount] Rupiah. I asked her if she made any repayments when she was in Indonesia to which she replied no. I questioned the applicant as to why she feared harm when she had not been threatened with harm by the loan shark. The applicant stated that she had already left for Australia when they first approached for repayment of the loan. She claimed that they actually approached her mother who was now asking her to send money to help repay the loan. She then claimed that her mother had given the loan shark title to her house because her first husband had hit her in front of her. Her mother had agreed to provide collateral because she did not want the applicant to be hurt by her husband.

I asked the applicant how she obtained money to travel to Australia. The applicant stated that her second husband gave her money to come and she sold a bike and a cow.
The applicant then confirmed that the loan shark has not threatened her with harm; she has just been told to pay the debts. Since she has left Indonesia she stated that her mother has been intimidated by the loan shark. This occurred before she started paying the money after she obtained a job in Australia.
I put to the applicant that her claim appears to be that she came to Australia to earn money to assist her parents not lose their house, which was provided as collateral for the loan, and further that she has given evidence that she has not been directly threatened with harm by the loan shark. The only threat that appears to have been made is to repossess the house. I noted that the applicant was in Australia and not earning money for a period of time and therefore the loan was not being repaid at that time and the loan sharks still did not threaten any harm. I put to the applicant that I may consider that this history indicates that there is no real chance of harm to her should she return to Indonesia from the loan shark, and further, this contradicts her claim to have suffered past harm from the loan shark. I put to the applicant that in her written claim she wrote that the loan sharks had told her verbally that they would kill her and that they had beaten her as well. I noted that this written claim contradicts her verbal evidence and may cause me to doubt her credibility. The applicant stated that she was only threatened on the phone. She then further contradicted herself by stating that it was not a serious beating. I put to her that earlier she had stated she had not been harmed by the loan shark. I put to her that such significant contradictions may also cause me to doubt her credibility. The applicant simply stated that she had forgotten details of what happened. I put to the applicant that I may not accept as credible that she had forgotten about threats and harm she had received, when this is the reason she had left Indonesia. The applicant stated that she did not want to respond to this concern.
The applicant confirmed that she grew up in East Java and this is where her family is and where she would return to. I put to the applicant with respect to her concerns about the general economic conditions in Indonesia that country information indicates that poverty in general in Indonesia is falling. Further, Java and Sumatra are hubs for employment and investment.[2] I put to the applicant that this information may suggest to me that should she return to that area her prospects for employment are reasonable. The applicant submitted that she worked in her [shop] with her mother previously and she has no skills or education to obtain a different type of job. The business failed and for this reason she needs to help her mother. The applicant did not put forward any other reasons as to why she would be specifically denied employment.
[2] Department of Foreign Affairs and Trade, Country Information Report – Indonesia, 25 January 2019, p. 9
Assessment of claims
Loan Shark
Having carefully considered the applicant’s evidence I consider her claim to fear harm from a loan shark is not credible. Her evidence in respect to this claim was highly inconsistent and implausible. I consider this to be the case for the following reasons:
·Firstly, the applicant put in her written claim that she had borrowed money from a loan shark for the purposes of her business. In her evidence to me she then claimed her first husband had borrowed the money and used her mother’s house as collateral. I do not accept the applicant’s submission that she had someone else write her application and she did not know what was written as reasonably plausible, or that she did not want to disclose that her first husband was no good as reasonably plausible explanations for such a significant discrepancy in the origins of the claimed loan. Further the applicant did list significant levels of detail in her claim including her immediate family and their birth dates, which indicates that in fact she was closely involved in the detail of the written claim at that time. Further, she disclosed in the form that she had in fact completed the claim without assistance. When I put this to the applicant she declined to comment. I am satisfied that the applicant was closely involved in the completion of the claim form. I therefore consider the significant inconsistencies that I highlighted to her during the hearing between her written claim and her verbal evidence, significantly undermines the credibility of her claims.
·Secondly, I am troubled, as put to the applicant, that in her written claim she listed her parents and siblings as immediate relatives with detailed information being their respective birth dates, but did not list her claimed son or her second husband to whom she was still married at that time. This omission of immediate relatives is another significant inconsistency and calls into question the credibility of the applicant’s claim that she was married to a man who was responsible for taking out a loan with a loan shark and then leaving her with the burden of servicing the loan.
·Thirdly, as noted during the hearing, the applicant spent over two years in Australia unlawfully and without a work right. I consider this to be highly inconsistent with the applicant’s evidence that she left Indonesia to escape a loan shark from whom she feared harm. In such circumstances I would expect she would not have delayed making a claim for protection for so long. I do not accept her submission that she delayed making a claim for protection for over two years as she was unaware of her protection options, because she had no friends here and had language barriers as being reasonably plausible. The applicant claims to have come to Australia to seek protection from serious harm from a loan shark. Despite this she made no attempt for over two years to investigate her legal options rather than remain in the country unlawfully, but did not do so, and instead chose to pursue work illegally. I would expect that if her fear of harm was genuinely held she would have at least made some inquiries in that time with respect to her protection options.
·Fourthly, the applicant’s evidence in respect to threats of harm was highly inconsistent and implausible. In her written claim she stated that she had been beaten and the loan shark had threatened to kill her. However, in her evidence to me she claimed that she had not been harmed or approached directly by the loan shark, and in fact the loan shark had only threatened to repossess her mother’s house after she had already left for Australia. She also separately claimed she had in fact been beaten but not badly. Further, she was unable to state how much was required in repayments from the loan shark or what interest rate was being applied to the claimed loan, and when first asked who the loan shark was she gave a vague answer of ‘Indonesian people’ before then stating she thinks the name is ‘[Mr A]’. I would expect a far more detailed and consistent account of the applicant’s dealings with the loan shark, and the fact that this has not been the case, further causes me to doubt the credibility of the applicant’s claim to fear harm from a loan shark. I do not accept the applicant’s submission that she had simply forgotten such significant details to be reasonably plausible given the overall level of inconsistency and vagueness of her evidence.
After considering the applicant’s evidence with respect to her claim to fear harm from a loan shark, I do not accept her claim as credible for the reasons set out above. I am satisfied on this basis that neither the applicant, her claimed former husband or her parents owe money to a loan shark and that she has not been threatened with harm by a loan shark in the past. It follows that I do not accept there is a real chance that the applicant will be seriously harmed by a loan shark should she return to Indonesia now or in the foreseeable future.
Considering the applicant’s oral evidence and her personal circumstances, and my findings with respect to the lack of credibility with respect to her claim to fear harm from a loan shark, I find that the applicant's primary motive in coming to Australia related to her desire to seek to improve her future economic circumstances and prospects and support her family financially.
Economic conditions
The applicant submitted at the hearing that she needs to keep working in Australia to enable her to support her family financially, and that economic conditions and her ability to earn equivalent money in Indonesia are low and that if you don’t have food in Indonesia no one will look after you. In considering these comments I have given consideration to country information, as set out at the hearing, that poverty in general in Indonesia is falling. Further, Java and Sumatra are hubs for employment and investment.
I accept that the applicant is concerned that she may not be able to earn as much money in Indonesia as she can in Australia. However, should she return to Indonesia she would be returning to an area of the country, being Java, which as put to the applicant during the hearing, is noted in country information as a hub for investment and employment. I do not accept her submission that she will not be able to find work because she has no skills, as she ran a small business in Indonesia and, further, she has proven capable of finding and maintaining work for a considerable period of time in Australia which indicates she is workforce ready.
Considering the above background, along with the country information cited and the applicant’s employment history, I conclude that the state of the Indonesian economy and the applicant’s circumstances are not such that there is a real chance the applicant would suffer instances of serious harm as listed at s.5J(5)(d)-(f) of the Act. That is, there is not a real chance that she would suffer hardship that threatens her capacity to subsist; or that she would be denied access to basic services, where the denial threatens her capacity to subsist; or that she would be denied the capacity to earn a livelihood of any kind, where the denial threatens her capacity to subsist for any reason should she return to Indonesia in the foreseeable future.
Does the applicant have a well-founded fear of persecution if returned to Indonesia?
Having considered the applicant's claims individually and cumulatively, for the reasons given above, I do not accept that there is a real chance that the applicant will suffer persecution involving serious harm from a loan shark, or anyone else, or for any other reason, should she return to Indonesia now or in the foreseeable future. Accordingly, she does not have a well-founded fear of harm.
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
Having regard to the findings of fact set out above, I am also not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa). In this regard I do not accept that there is a real risk that the applicant would suffer significant harm from a loan shark, or from anyone else, as a necessary and foreseeable consequence of being removed from Australia to Indonesia.
I have also considered the applicant’s economic claims under complementary protection. I am satisfied that there are no compelling reasons before me that might indicate the applicant would be specifically denied employment should she return to her home area in Java which is noted as an area of higher employment and investment in Indonesia. As noted earlier in these reasons she is gainfully employed in Australia and this indicates she will also be able to work in Indonesia. I am therefore satisfied that there is not a real risk that the applicant would suffer significant harm, including being subjected to cruel or inhuman treatment or punishment; or degrading treatment or punishment, due to the state of the Indonesian economy and/or the cost of living in Indonesia, or for any other reason, as a necessary and foreseeable consequence of her being removed from Australia to Indonesia.
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 any of the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Paul Noonan
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)   pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)    that is not inconsistent with Article 7 of the Covenant; or
(d)   arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)    that is not inconsistent with Article 7 of the Covenant; or
(b)   that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)    for the purpose of obtaining from the person or from a third person information or a confession; or
(b)   for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)    for the purpose of intimidating or coercing the person or a third person; or
(d)   for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)    for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)    a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)   if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H   Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)    in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)   in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:    For the meaning of well-founded fear of persecution, see section 5J.
…
5J    Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)    the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)    without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)    the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)    a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)    significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K   Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:    Section 5G may be relevant for determining family relationships for the purposes of this section.
5L   Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)    a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)    any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)    protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)    the person can access the protection; and
(b)   the protection is durable; and
(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36    Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)   a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)    the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)    the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)    the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)    the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2020] AATA 4419

25 August 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Natural Justice