1620081 (Refugee)

1620081 (Refugee) [2020] AATA 3365 (17 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1620081
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Paul Noonan
DATE:17 July 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 July 2020 at 12:43pm

CATCHWORDS
REFUGEE – protection visa – Indonesia – fear of harm from creditors – general political and economic conditions – claim of fear of harm from loan shark added at tribunal hearing – threats and physical punishment – credibility – contradictory, implausible and vague evidence – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Guo v MIEA (1996) 64 FCR 151
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
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 11 November 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 5 October 2015. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia owes protection obligations. The delegate did not conduct an interview with the applicant.
I exercised the Tribunal’s discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic on 17 March 2020, with a second hearing on 10 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 Bhasa and English languages and the applicant raised no concerns during either hearing with respect to the quality of the interpretation or that he was having any difficulties understanding the interpreters. The applicant was not represented in relation to his review.
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 themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
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.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
I accept that the applicant is a citizen of Indonesia. The information and evidence before me establishes his nationality. The applicant states in his initial application for protection that he has no right to enter and reside in any third country and I accept that he does not.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case are whether the applicant is a refugee, and if not, whether there are substantial grounds for believing that there is a real risk that he will suffer significant harm as a necessary and foreseeable consequence of him being returned to Indonesia.
In his application to the Department, the applicant declared he was born in [Location] Central Java, Indonesia, in [Year], and that his ethnicity is ‘Java’ and religion is Islam. The applicant stated he can speak, read and write Indonesian and English. He indicated he was married in his home country in 2013. The applicant declared a father, mother, [a number of] brothers and [a number of] sisters as family members, all residing in Indonesia. He stated he was a self-employed [Occupation 1] before his departure and was unemployed at the time of application. He also stated he resided at a single address in Indonesia until his departure for Australia.
The applicant declared he had previously travelled to [Country 1] and [Country 2] for short tourist visits in late 2014.
The applicant first arrived in Australia [in] September 2015. On 5 October 2015, he made an application for protection and was granted an associated bridging visa.
The applicant’s written claims are:
·He left Indonesia because of problems such as “distrust of the judiciary and law enforcement, distrust and demoralisation on politician in the house of representatives; poor system of government bureaucracy starting from the lowest level up to the top, the destruction of the global economy, impact on the nation’s economy, poverty and unemployment are still big.”
·He had to borrow money from his relatives and friends. He could not repay the debt. He lived in mental distress and fear as many people in similar situations have been hit and injured.
·He received verbal threats of harm from his creditors in Indonesia; he sought help from police but they did not want to trouble themselves with his personal problems.
·He thinks if he returns to Indonesia, he will get caught by the creditors and will be beaten and injured, or killed. They are searching for him. He tried to move to another part of Indonesia but his creditors can still find him. Hence, he has to keep moving places. He thinks some of the people around him reported his location to his creditors.
Does the applicant have a well-founded fear of persecution should he be required to return to Indonesia?
The Applicant’s loan shark claim
The applicant informed me that he feared harm from a loan shark whom he identified as [Mr A].
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, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at paragraph 196). However, the Handbook also states (at paragraph 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.
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.
I have serious concerns about the credibility of the applicant with respect to this claim for the following reasons:
·Firstly, the applicant gave significant contradictory and vague evidence with respect to past harm from the loan shark, whom he identified as a previous friend, [Mr A]. He informed me that he had received a verbal threat from [Mr A] when he had been unable to make a monthly repayment. He then gave evidence that he was physically punished by [Mr A]. The applicant stated that he had received a threat that he would be hit when he had been unable to make monthly repayments on the due date. They would occasionally stop him on the street and eventually there were incidents of physical punishment of him. He also stated that since coming to Australia, he has not received any threats from [Mr A]. After the first hearing the applicant then wrote to me, after I had raised a concern that he had not mentioned physical violence in his written claim, and submitted that he had never been physically harmed by [Mr A]. He submitted this may have been due to a misunderstanding or interpretation issue. I consider the applicant’s evidence about physical harm was detailed and I reject as implausible that there was any misunderstanding or interpreter issue because there was no such concern raised by the applicant during the hearing. Further, I consider it is implausible that the applicant would give detailed evidence of physical harm due to a misunderstanding. Further, the applicant also separately claimed that he only started receiving threats from the loan shark after moving to Australia, that he had started receiving threats soon after taking out the loan with [Mr A] in 2014, and that he had started receiving threats from [Mr A] only recently, after he has struggled to pay him due to a downturn in work in Australia. I consider this significant contradictory and vague evidence significantly undermines the credibility of the applicant’s claim to fear harm from a loan shark.
·Secondly, I have serious concerns about the implausibility of the applicant’s evidence with respect to the repayments of his various loans. He claimed that he owed money to a registered financial institution [and] to a friend, [Ms B], as well as to [Mr A]. He had borrowed money from [the institution] and [Mr A] in 2014 and later from [Ms B] to facilitate his travel to Australia. He gave evidence that he has repaid [the institution] and [Ms B] but only partially repaid [Mr A] despite owing significantly more to these other creditors. When I put this concern to the applicant, he stated that he had paid [the institution] to avoid incurring significant interest. He had repaid [Ms B] as he had made a commitment to her to do so. Further, he stated that he had been quite relaxed about repaying [Mr A], as he had given him four years to repay the loan, and it was only recently that he had received demands for repayment from [Mr A] after he has struggled to pay him with a drop off in work due to the pandemic. I find it highly implausible that, had the applicant fled Indonesia and sought protection, on the basis of fearing harm from [Mr A], that he would then prioritise the repayment of other loans for which he was not receiving threats of harm. I consider the implausibility of this evidence further undermines the credibility of the applicant’s claim to fear harm from a loan shark.
·Thirdly, the applicant gave further contradictory and vague evidence when he claimed to have approached the police about [Mr A] in Indonesia, after first receiving a threat from him when he first could not make a monthly repayment. Not only does this evidence contradict his evidence that he was relaxed about repayments to [Mr A] until recently but, when I asked when he had made this report, the applicant stated that he could not remember as it was a long time ago. I consider this answer to be unreasonably vague and I would expect that he would remember when he first received a threat of harm that resulted in him reporting the matter to the police, which he stated in his original claim was the basis upon which he fled Indonesia. I find this contradictory and vague evidence further undermines the applicant’s credibility and I do not accept that he has ever reported [Mr A] to the police.
·Fourthly, in his written claim the applicant stated that he had borrowed money from friends and relatives, which is contradictory to the evidence that he gave at hearing that he borrowed money from a financial institution and a loan shark. When I put this to the applicant, he submitted that he had not written his claims himself and accordingly this is an unintended error. I asked the applicant why he had not verified the accuracy of his written claim before submitting it. The applicant stated that he did not question or verify the claim and his friend had just informed him that he had completed and submitted the form for him. He had paid his friend to do so. I asked him who his friend was, to which he gave a vague reply that the person has already gone home. I do not accept as reasonably plausible that the applicant would not take care to ensure that accurate details, setting out the basis of his claim, were put before the delegate which is the basis for him seeking protection. I do not accept as reasonably plausible his explanation that he simply paid a person whom he could not name to fill the form out, and took no care to ensure the details were correct. I consider this contradictory, vague and implausible evidence to further undermine the credibility of his claim to fear harm from a loan shark.
Conclusion – The applicant’s loan shark claim
On the basis of the above considerations, I do not accept that the applicant has borrowed money from a loan shark. This is because his evidence is significantly contradictory, implausible and vague. Given these concerns, I find that the applicant’s claim to face harm from a loan shark are not credible. I do not accept that the applicant has received any threats of any kind from a loan shark named [Mr A]. As I have found the applicant’s evidence with respect to this claim to be not credible, I reject his claim to owe money to a loan shark named [Mr A] in Indonesia or that he has ever been harmed or threatened with harm by a loan shark named [Mr A] or any other person in Indonesia. I am therefore not satisfied that, on return to Indonesia, the applicant faces a real chance of serious harm from any person for reason of money owed to a loan shark now or in the reasonably foreseeable future.
The applicant’s political and economic claim
The applicant clarified to me that he is not making a claim for protection due to his political opinion. He confirmed he has never been involved in politics in the past. His written claim on this point was about the state of the Indonesian economy and the impact that poor political standards in Indonesia have on the economic performance of the country. He submitted that his concern is that the poor state of the Indonesian economy makes it difficult to earn an income.
The applicant confirmed that he had resided in Jakarta, Indonesia, prior to coming to Australia, and that his family including his wife still resided there. His wife lives in a house belonging to his parents and they have two children. He sends money back to them from Australia. In Australia, he has been working as [an Occupation 2] for [a] firm. He is residing in [Suburb], Melbourne.
Before leaving Indonesia, the applicant stated that he was self-employed delivering [produce] between cities. He stated that he left Indonesia to come to Australia due to the weak economic situation at the time.
I put to the applicant that country information reflects that Indonesia is currently a functioning democracy with significant constitutional guarantees around freedom of expression and association. Further, the general human rights situation in Indonesia has significantly improved since the end of the New Order regime.[2] I also noted that country information indicates that protests about corruption and democracy are common and that activists are generally able to operate freely and without significant barriers.[3] Further, with respect to the economy, Indonesia has experienced sustained economic growth and poverty is falling, and Java is a hub for employment and investment. I put to the applicant that his employment history and this country information may suggest to me that he would be able to find employment should he return to Jakarta and as such there is not a real chance he will be subjected to serious harm due to the state of the Indonesian economy. The applicant responded that the reality of life in Indonesia is different to the theory and in reality there are still high levels of unemployment and poverty.
[2] Department of Foreign Affairs and Trade, Country Information Report, Indonesia, 25 January 2019, p.13.
[3] Department of Foreign Affairs and Trade, Country Information Report, Indonesia, 25 January 2019, p.25.

I am satisfied, on the evidence, and after considering relevant country information, that the applicant will be able to find gainful employment should he return to Indonesia due to his past work experience and the reasonably strong employment situation and economy in Jakarta, Java, to which he will return, and that accordingly he will not be denied a capacity to earn a livelihood or subject to significant economic hardship. I am also satisfied, on the evidence of the applicant, and after considering relevant country information, that he will not be subject to harm due to his political opinion.
Having considered the applicant’s evidence with respect to his economic concerns and political opinion claim, I am not satisfied that, on return to Indonesia, the applicant faces a real chance of serious harm from any person for any reason, now or in the reasonably foreseeable future.
Having considered the applicant’s claims, and in light of my findings earlier in these reasons, I find that the applicant does not have a well-founded fear of persecution should he be required to return to Indonesia.
Complementary protection
In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), I have considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm.
For the reasons set out above, I have not accepted there to be a real chance that if he returns to Indonesia, the applicant will be targeted by a loan shark, or be subjected to harm due to the state of the Indonesian economy or for reason of his political opinion, now or in the reasonably foreseeable future.
In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the refugee definition.[4] For the same reasons, the Tribunal does not accept there to be a real risk that the applicant would face significant harm on this basis.
[4] MIAC v SZQRB [2013] FCAFC 33 per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297] and Flick J at [342].
For these reasons, I do not accept there to be a real risk that the applicant would face significant harm as a necessary and foreseeable consequence of being returned to Indonesia.
CONCLUSIONS
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).
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). I am not satisfied that the applicant is 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.
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 3365

17 July 2020

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction