1621151 (Refugee)

1621151 (Refugee) [2021] AATA 593 (15 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1621151
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Anne Grant
DATE:15 February 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 February 2021 at 10:37am
CATCHWORDS
REFUGEE – protection visa – Indonesia – claimed rape by uncle – no police assistance – business failure and debts owed – credibility – unlawful status – non-adherence to visa conditions – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
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 7 December 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 31 August 2015. The delegate refused to grant the visa on the basis that they did not accept any of the applicant’s claims as credible and were not satisfied that she feared persecution in Indonesia because of her race, religion, nationality, membership of a particular social group or political opinion. In considering the complementary protection provisions, the delegate relied on their findings about her credibility and found that there were not substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of her being returned to Indonesia.
The hearing was initially listed on 8 April 2020 but could not proceed and was cancelled due to the Covid19 Pandemic restricting travel within Melbourne. The hearing was rescheduled on 2 February 2020 and the applicant attended the hearing in person. The hearing was assisted by an interpreter in the Indonesian and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a refugee and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Indonesia, there is a real risk that she will suffer significant harm.
The applicant has provided her passport and it supports her claim to be an Indonesian national. Her nationality is not in issue in this review. Based on the information and evidence before it, the Tribunal is satisfied that Indonesia is the country of the applicant’s nationality and the receiving country in considering her protection claims.
The applicant arrived in Australia [in] August 2013 on a class FA, Subclass 600 visitor visa. That visa ceased on 8 November 2013 and the applicant became unlawful. She applied for a protection visa on 31 August 2015.
The applicant’s claims
In her written claims, the applicant referred to a personal history involving a broken home and a violent uncle who she feared will harm her if she returns to Indonesia. She stated that she was ‘never married’ and had no children. The claims suggest that she had been raped by her uncle, who then hunted her afterwards and got his friends to ‘look after her’. She claimed to fear he will hurt and/or kill her if she returns to Indonesia, and that he is a powerful and influential person in the town who has his own gangsters. She claims that she lodged a police report, but her uncle found out about it and he threatened to hurt her aunt if she made another police report. There was no action taken by the police against him.
The applicant provided a copy of the delegate’s decision at the time of lodging her request for review. She was interviewed by the delegate. According to the delegate’s decision, she told the delegate that she thought she was applying for a bridging visa and that none of the written claims in the application for a protection visa were correct. They were made up by a [friend] who completed the application on her behalf. At hearing, the applicant confirmed that the claims in her written application were untrue. She stated that she had no idea what the application said at the time it was lodged.
According to the delegate’s decision, she told the delegate that she and her husband came to Australia because her husband had mortgaged her parents’ family home and then his [business] failed, leaving a risk that her parents’ family home would be sold to recover the debt. She claimed that the lender came to their home demanding repayment of the debt and threatening that the house would be sold. She claimed that she had children who are living in Indonesia with her family. Her siblings are repaying the debt so that the house is not sold. She has separated from her husband whilst in Australia. The applicant said that she cannot return to Indonesia because the income is insufficient to repay the debts and she has limited education. She worked as [an occupation] in Indonesia for two years but had to leave her job when she had children.
The applicant told the delegate that she fears returning to Indonesia because she might be sued for the debt and be made a bankrupt. She wanted to stay in Australia and earn money to repay the debt. The delegate stated that the applicant had not provided a coherent explanation for failing to apply for a visa whilst she was unlawful after the expiration of her visitor visa.
At hearing, the applicant was given an opportunity to describe her fears and reasons for applying for a protection visa. She confirmed the information and evidence she had given the delegate (as discussed above) as being correct. She said that her written claims were false and she was never harmed by an uncle nor does she fear harm from any relative or person associated with any relative in Indonesia.
The applicant gave evidence that she and her husband’s [business] failed, and her husband had used her parents’ family home as security for business borrowings. They started to face demands to repay the debts and threats that the home would be seized. In total they owed around [amount] million Rupiah (approximately [amount] AUD.) The amount owed to the bank (and secured by the property) was [amount] million rupiah. Apart from the bank, the other creditors were [suppliers] who had supplied on credit and never been paid. The applicant claimed that people started coming around to their house to demand payment, and even threatened to burn down the house or damage the property. She and her husband decided to travel to Australia to earn money to repay the debts. They left their young children with the applicant’s parents.
The applicant said that she and her husband separated very shortly after arriving in Australia. She has had no contact from him since then. She said that he did contact her family in Indonesia to enquire about seeing the children ‘at some point’, (she could not say when that was) but she claims she told her mother to refuse to see him. She does not know if he is in Australia or in Indonesia. He gives no financial support for their children. The applicant gave evidence that she has divorced him in Indonesia but did not resolve any property or child support issues.
The applicant gave evidence that one of her cousins is helping her and the family to repay the mortgage, so the house is ‘safe’ from repossession. The house title is in her parents’ name but is security for the first loan made to her partner for the [business]. She contributes what she can from her salary in Australia for the loan on the house, and also to support the children. However, she noted that the house debt has caused her family real distress. Her father worried about it a lot until he passed away. However, she confirmed that the bank payments have been made and that loan is up to date. There is around [amount] million rupiah (AUD[amount]) owing on that debt. As far as she is aware, none of the other business debts have been paid. Her brother works [in a] business and her sister in [another workplace]. It was put to the applicant that by continuing to pool family resources if she returned to Indonesia, she and her family could continue to repay the bank debt if they worked together. The applicant claimed that her salary would be too low to help much and she feared the other creditors besides the bank would come to her if she returned and demand payment too. She said she didn’t know what would happen if she returned to Indonesia.
It was noted that she claimed that men associated with the business debts came to their house and threatened to burn it down or damage it before she and her husband left Indonesia. The applicant confirmed this and said that they have not returned or harassed her family since her departure. She claimed that this was because it was her and her husband they are chasing - not her family - but she believes that if they found out she had returned, they would start to harass her again with demands.
The applicant confirmed that her fear is that if she returns to Indonesia without having repaid all of the debts owed, she will be harassed again for repayment. She claimed not to have considered bankruptcy because she feared it would risk the loss of her parents’ house to realise debts. The applicant claimed that if she was harassed or threatened by the other creditors, the police would consider it a personal matter and would not assist her. She gave evidence that she had not reported the harassment or threats in the past because the creditors said they would report her to the police. She could not articulate what they would report her for. The applicant claimed to still fear they would report her to police, though she agreed with the Tribunal’s suggestion that the business debts were civil in nature and would not, on their face, involve the police.
The Tribunal noted that the applicant’s migration and visa history suggested that she had demonstrated little respect for Australian laws - which might therefore call into question the reliability of her evidence. It was noted that her evidence is that she came to Australia on a visitor visa which did not permit work and fully intended to work anyway. Then she overstayed her visa and was illegally in the country from November 2013 to August 2015, when she applied for a protection visa which, on her own evidence, included totally false claims. She was advised that this series of events might cause the Tribunal to consider that the applicant is not a reliable witness, because it suggests she is prepared to say and do anything (even if false) to remain in Australia indefinitely. The applicant claimed that she didn’t know she couldn’t work on a visitor visa at first and also didn’t know that the claims made by [her friend] in her protection application were false. She added that when she first had an opportunity to speak to an immigration officer, she told them the truth about her protection claims and reasons for coming to Australia. She also stated that everything she had told the Tribunal (and had sworn on the bible as a good Christian) was the truth. She claimed that she does respect Australia’s migration system but does not want to go back to Indonesia until she is sure the creditors won’t ‘make her life difficult’. She noted that the house loan is still not repaid and claimed there would still be some danger the family might lose their home if she returns and cannot earn enough to repay it. The monthly repayments are [amount] Rp (approximately AUD[amount].)
The applicant also claimed that she might not find work sufficient to continue to repay the debts and also provide for her own and her children’s needs on her return to Indonesia. She claimed that she has a low education. She worked in the past as [an occupation] and has also worked in Australia in factory work. The Tribunal noted that she could continue to rely on her family to contribute as much as necessary to meet the repayments, just as they had done over the past several years. The applicant agreed; but expressed concern about then owing them money in return. Mostly though, she said she is concerned about the other creditors and what they may do – they may make demands of her and ‘cause her problems’.
Whilst the Tribunal has some concerns about the applicant’s historical migration conduct and the false claims lodged with her application for protection, after considering her evidence overall it was satisfied that the applicant was being truthful in giving evidence about the business debts and her fear that her family would lose their home and that she would face ongoing demands from other business creditors in Indonesia.
The Tribunal rejects the applicant’s written claims in whole because she has stated that (and it is accepted that) they are false. She was not assaulted or threatened or hunted by any uncle or by anyone associated with an uncle. The Tribunal will not consider those claims further.
The Tribunal accepts that the applicant and her husband ran a small business that failed, that they owed around [amount] Rp (Indonesian rupiah) to a bank mortgage and [amount] Rp to other suppliers and traders at the time the business failed in 2013. These amounts are roughly equivalent to AUD[amount] and AUD[amount]. The Tribunal accepts that they faced demands from their creditors, who came to the home (where the business had been conducted) and demanded payment of invoices. The Tribunal is prepared to accept that the business creditors may have also engaged debt collectors who used threats of damaging property in order to convince the applicant and her husband to settle the debts. The applicant stated that (and the Tribunal accepts) those threats were not carried out – that is, they did not damage any property (including the family home) before the applicant left Indonesia, and have not since then. It is not claimed and there is no evidence before the Tribunal that the applicant experienced any physical assault or threat of same from the creditors or their debt collectors. The Tribunal accept thats the applicant did experience some verbal harassment and intimidation with threats of litigation and property damage or seizure from the business creditors in 2013. The Tribunal also accepts that the mortgage loan has been largely repaid and is not in default, and that the other business debts may remain outstanding.
Does the applicant have a well-founded fear of persecution?
The Tribunal notes the applicant’s evidence that, since she departed the country, the mortgage on the family home has been largely repaid, and that she is now less concerned than she was about any chance of seizure of the home by the bank. Additionally, the other creditors have not returned to the family home to ask about the applicant, nor have they made threats and menaces to her family aimed at prompting her to repay or to start repaying them. This is the case despite the applicant’s evidence that, as far as she is aware, no repayment of any part of those debts has been made in the ensuing 8 years. Consideration of this evidence does not suggest that the applicant faces a real chance of serious harm from her business creditors, such as being subjected to serious physical harassment, physical assault or even threats of same over the debts.
Bearing in mind the applicant’s evidence that the business debts remain outstanding as far as she is aware, the Tribunal accepts that there is a real chance (in the sense that it is relatively low but greater than a remote chance) that the applicant will face some revival of demands by business creditors (apart from the bank or creditor whose debt was secured by the mortgage) if she was to return to her home area. However, the Tribunal considers that demands for payment and business collection demands, including the threat to sue the applicant to resolve a business dispute – or even the taking of civil action to require repayment – would not involve causing the applicant serious harm. As discussed with the applicant at hearing, the Tribunal considers that ordinary demand and enforcement of business contracts as described by the applicant would not ordinarily ground a claim for persecution or causing an applicant serious harm unless it involved serious personal harassment, assault or threats and intimidation.
The Tribunal has considered the inclusive definition of ‘serious harm’ in s.5J(5) of the Act. The real chance of harm faced by the applicant does not involve a threat to her life or liberty, significant physical harassment or ill treatment. Nor does it involve any threat to her capacity to subsist, the denial of access to basic services or her capacity to earn a livelihood of any kind. It involves a demand to repay and make arrangements to repay ordinary business debts after the failure of a business. The Tribunal finds that the harm feared by the applicant does not involve causing the applicant serious harm and therefore that there is not a real chance that the applicant will suffer serious harm at the hands of business creditors if she returns to Indonesia, now or in the reasonably foreseeable future. The Tribunal finds that the real chance of harm (that she may be pestered and face demands to pay and possibly be subjected to civil litigation to repay debts incurred by her husband in their business) does not and would not involve causing the applicant serious harm as required by s.5J(4)(b).

In addition, the Tribunal considers that the persecution she fears is because of business debts which remain outstanding. It is not due to her race, religion, nationality or political opinion. Whilst the applicant may belong to particular social groups such as ‘divorced women left with debts of their husband’ and ‘failed business persons’ – the reason for the persecution she fears is not because she is a member of any particular social group. She fears the enforcement by demand or litigation of business debts that she was involved in though her marriage. The Tribunal is also satisfied and finds that the persecution due to business debts is not for one or more of the reasons in s.5J(1)(a).
The applicant did not specifically claim any other reason to fear harm returning to Indonesia. However, she did state that the wages there are lower than in Australia and she feared that if she returned and found work in Indonesia, she would not earn sufficient income to support herself and her children as well as to repay the debts. This claim of economic hardship due to a lower standard of living does arise on the facts of this case and has been considered by the Tribunal.
The applicant’s evidence is that - although she might find work in Indonesia on her return, because of low salary and working conditions in Indonesia generally, there is a real chance that her employment income would be insufficient to support her and her children and also to repay any debts that are demanded. The Tribunal noted that she could continue to rely on her family (including her cousin) – just as she has since being in Australia - to resolve issues of economic hardship and meet debt demands on return – whether or not she found well-paid work. Although she agreed with that possibility, the applicant expressed a desire not to be in that position and to feel like she owed them. She didn’t want to go home until all of the money is repaid - because if she did return before then, ‘she was not sure what her life would be like.’
As discussed generally with the applicant at hearing, the Tribunal cannot see any substantial difference in the applicant’s feared potential economic hardship in Indonesia on her return to her actual circumstances in Australia - apart from her fear of facing direct demands from the creditors. Over her lengthy stay in Australia, her evidence was that she has continued to rely on the financial assistance of friends and family to meet her own needs, those of her children and also to meet the repayments necessary to reduce the mortgage over the family home. She could, for example, return to Indonesia and find work in a major city such as Djakarta without alerting her creditors by returning to her home community. This would have the added advantages of distancing her from her regional creditors in her family home town and also bringing her physically closer to her children. The applicant conceded that this was possible and it might even be easier to find work in Indonesia in a big city than in Australia due to the language difficulties she faces here; but re-stated her concern that she would at some stage have to face the other debts if she returned, and she is concerned about ‘what her life may be like’ in that event.
The Tribunal accepts that the applicant might face economic hardship on her return to Indonesia, due to the lower standard of living there, her lack of academic qualifications and the possibility that she will likely have to work in a low skilled job or in industry on her return. However, the Tribunal does not consider that the economic hardship she faces and would experience would be severe or extreme, or be at a level where she would be unable to subsist or support her family. Additionally, she did not claim and there is no suggestion on the facts of this case that low paid work and economic hardship would be as a result of persecution for any reason – rather, she conceded and claimed that the economic conditions in Indonesia were generally difficult and that they applied to everyone. The Tribunal finds that whilst there is a chance that the applicant may face some economic hardship in Indonesia (due to low paid work, poor standard of living and low employment opportunity), that the harm she fears for this reason would not amount to causing her ‘serious harm’ as required by s.5J(4)(a). The Tribunal finds also that harm due to economic hardship would not be for any of the reasons in s.5J(1)(a) and would not involve systematic and discriminatory conduct as required by s.5J(4)(c).
No other claims arise on the information and evidence before the Tribunal. The Tribunal has considered the applicant’s claims individually and cumulatively. The Tribunal has found that there is not a real chance that the applicant will suffer serious harm as required by s.5J(4)(b) due to debts or economic hardship if she returns to Indonesia and also that none of the applicant’s claims of persecution are for one or more of the reasons in s.5J(1)(a). The Tribunal finds that the applicant does not have a well-founded fear of persecution in Indonesia either because of business debts or because she may face economic hardship on her return, even when those claims are considered cumulatively.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary Protection
The applicant claims that she will face demands and possible harassment and civil litigation by business creditors if she returns to Indonesia and that she will experience financial hardship due to the lower standard of living there and low paid work and conditions. No other claims arise on the information and evidence before the Tribunal.
The Tribunal refers to and relies on its findings above in relation to the applicant’s claims when considering the refugee provisions. The Tribunal has accepted that there is a real chance that the applicant will face some demands from creditors and civil litigation if she returns to Indonesia and that she will experience some economic hardship on her return. However, the Tribunal has not accepted that there is a real chance that she will suffer physical assault, threats or physical intimidation at the hands of her creditors or that she will suffer serious harm as a consequence of economic hardship due to low paid employment or poor living conditions in Indonesia.
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.
Noting that the real chance test is the same as the real risk case, the Tribunal finds that there is a real risk that the applicant will face demand for payment of debts (including potential verbal harassment and civil litigation) from her business creditors if she is returned to Indonesia. The Tribunal also finds that there is a real risk that the applicant may experience some economic hardship due to low paid work or the general standard of living in Indonesia.
However, the Tribunal finds that there is not a real risk that she will be subjected to the death penalty, that she will be arbitrarily deprived of her life or that she will be tortured for any reason. The Tribunal has considered the definition of ‘cruel and inhuman’ and of ‘degrading’ treatment or conduct in s.5 of the Act. The Tribunal is not satisfied that the verbal harassment and civil litigation which the applicant potentially faces on her return if the creditors resume their demands for payment (even if it were to include threats to seize property in payment of debts) would amount to causing her severe pain or suffering (whether physical or mental) or that such demands and harassment as she may face (demands and civil litigation or the threat to seize property) would ever be reasonably regarded as ‘cruel or inhuman’ in nature. The Tribunal considers that the civil contract dispute and enforcement of credit agreements is a part of everyday human interaction. Similarly, the Tribunal is not satisfied that demands and verbal harassment for payment would reasonably cause or be intended to cause the applicant extreme humiliation which is unreasonable, even if it occurs on her return. Based on the information and evidence before the Tribunal, the harm feared by the applicant from her creditors and of which the Tribunal has found she is at real risk does not satisfy the definition of significant harm in s.36(2A) of the Act.
In relation to the applicant’s claim to fear economic hardship due to living conditions, the Tribunal finds that even if the applicant were to do so, this harm also does not satisfy the definition of ‘significant harm’ in s.36(2A). The Tribunal finds that the harm she fears of economic hardship does not involve her being deprived of her life, subjected to the death penalty or to torture. It does not involve any person ‘intentionally inflicting’ such harm on her as required by s.5 in considering whether it is ‘cruel or inhuman treatment or punishment’. Nor would it involve any act or omission which causes and is intended to cause the applicant extreme humiliation which is unreasonable. This harm, should it occur, would be due to the prevailing economic conditions and the applicant’s own work and education skills and not due to an act or omission by any party.
Additionally, in relation to the applicant’s claim to fear economic hardship due to the low wages and poor living conditions in Indonesia, the Tribunal considers that this claim represents a risk to the society of Indonesia generally and not to the applicant personally. Applying s.36(2B)(c), there is taken not to be a real risk of significant harm to the applicant in Indonesia for that reason.
After considering the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being returned to Indonesia, the applicant will suffer significant harm.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is 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.
Anne Grant
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.
…

[2021] AATA 593

15 February 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice