1705248 (Refugee)

1705248 (Refugee) [2020] AATA 4526 (18 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1705248
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Joseph Lindsay
DATE:18 September 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 September 2020 at 12:52pm

CATCHWORDS
REFUGEE – protection visa – Indonesia – relationship with a married woman – applicant’s claims same as his partner’s – fear of partner’s estranged but legal husband – domestic violence and general mistreatment at the hands of husband and in-laws – husband’s alleged connections to a criminal gang – credibility concerns – inconsistent information between written application and oral evidence at hearing – English language difficulties – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 423A
Migration Regulations 1994 (Cth), 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 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 10 March 2017 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 22 August 2016.
[The applicant] appeared by audio before the Tribunal on 9 June 2020 with the assistance of an interpreter in the Indonesian and English languages. [The applicant] was not represented by a registered migration agent. [The applicant] attended the hearing with his partner, [Ms A]. [Ms A] is in a relationship with [the applicant] and, as referred to below, [Ms A] made her own separate application for protection (Tribunal case number 1619516).
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
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Protection claims
[The applicant]’s claims were contained in his 866 Form (Dept file [number]), stated as follows:
Q88:     I am seeking protection in Australia, so that I do not have to return to:
A:       Indonesia
Q89:     Why did you leave that country(s)?
AI established a relationship with a women who had been separated but still married status people
Q90:     What do you think will happen to you if you return to that country(s)?
A        I will be killed because of a relationship with a married women.
Q91:     Did you experience harm in that country(s)?
A        No
Q92:     Did you seek help within the country(s) after the harm?
A        No. Maintain family honor
Q93:     Did you move, or try to move, to another part of that country(s) to seek safety?
A        No
Q94:     Do you think you will be harmed or mistreated if you return to that country(s)?
A        Yes
Q95:     Do you think the authorities of that country(s) can and will protect you if you go back?
A        No
Q96:     Do you think you will be able to relocate within that country(s)?
A        No
Connection to [Ms A]’s claims
For the purposes of clarity, it is pertinent to note that [the applicant] told the Tribunal that his claims were the same as [Ms A]’s claims, and that his claims were not different, in any way, from [Ms A]’s claims.
The Tribunal then asked [the applicant] why he left Indonesia, and in response he said that at first he came to Australia for a holiday but then he decided to stay. [The applicant] then said that he met [Ms A] and then “other problems” arose. When the Tribunal asked what those “other problems” were, [the applicant] said that because he met [Ms A] in Australia and he heard her story, he was very sad and because he was her partner, so he thought he should protect her.
In short, [the applicant] claimed he would be harmed if returned to Indonesia due to his involvement with [Ms A].
It is therefore relevant to give an account of the hearing that included both [Ms A] and [the applicant].
Hearing on 9 June 2020
In the hearing the Tribunal asked [Ms A] about her background.
[Ms A] said that she was born in [Town 1] Buleleng, Bali, on [date]. She said that she grew up in Bali and that she went to school in Bali. [Ms A] said that she had completed Vocational High School. [Ms A] said that she was [age] years old when she left school. [Ms A] said that after she left school, she worked in a company, where she was a [Occupation 1]. She said that as part of her duties, she received orders from hotels. [Ms A] said that she did that job for about one and a half years. [Ms A] said that after she left that job, she did not work because she got married to her first husband, and his name is “[Mr B].”
[Ms A] said that her mother and father were still alive, but that when she was three years old her parents abandoned her and left her in an orphanage. [Ms A] said that the name of the orphanage was [Orphanage 1] in Bali.
[Ms A] said that she had brother and sisters, including step-siblings, but that she lived separately from them. She said that she does not know them very well.
[Ms A] said that she was in the orphanage for about [number] years, from the age of [age] to when she was about [age] years old. [Ms A] said that said that there was about [number] children at the orphanage.
[Ms A] said that she got married when she was [age] years old [in] 2002 in Bali in Balinese custom. She said she met her future husband when she was introduced to him by a friend. [Ms A] said that she knew her husband for a year before they got married, but it was after she fell pregnant that they got married. [Ms A] said that her husband worked for a [specified] company delivering [specified goods] to [businesses].
[Ms A] said that none of her family attended her wedding. She said that after the wedding, she lived with her husband and his family members (her in-laws) at Mengwi, Bali. When asked when she had her baby, [Ms A] started crying. She said that when she remembered she felt sad and cried. [Ms A] said that she had actually considered aborting the baby, but that she was advised by the doctor to keep the baby. [Ms A] said that she kept the baby and gave birth to a baby boy. [Ms A] said that the boy’s name is “[Child C]” and he was born on [date].
[Ms A] said that she then had a second child to her husband, a boy named “[Child D]” born either [date] or [date], but then she said she forgot the exact date of birth. [Ms A] said that she then stayed at home and did not work.
When the Tribunal asked [Ms A] about her marriage, she said in response that during her marriage she never felt comfortable. In further explanation, [Ms A] said that she never felt comfortable living with “them” because they often tormented her and said nasty words to her. When the Tribunal asked [Ms A] if she was indicating that her in-laws were generally being unkind to her, she said “yes, especially my mother in law.” [Ms A] said that her in-laws looked down on her because they knew she was poor and she was raised in an orphanage and she did not have parents. She said her in-laws were cruel to her and she had to follow whatever orders they gave her.
[Ms A] said that she stayed living with her in-laws for “more or less” 13 or 15 years before she left to come to Australia. [Ms A] said that she left to come to Australia [in] August 2015 and she arrived in Australia [later in] August 2015.
[Ms A] indicated that she left Indonesia and came to Australia because she wanted to get away from her husband and her in-laws because they were all living together at the same house. [Ms A] confirmed that she lived at the same house as her husband and her in-laws from the time she got married until the time she left in 2015.
[Ms A] spoke about her marriage to her husband. [Ms A] said that her husband would beat her up and threaten to kill her. She said that her husband was a drunk and a smoker.
[Ms A] said that before she got married, her husband was kind but that after she got married her husband and her in-laws were cruel to her.
When asked where her two sons were now, she said they were with their father. [Ms A] said that she actually had three children, and that the third child was a boy named “[Child E]” born on [date]. [Ms A] said that all three children were with their father.
[Ms A] indicated that since coming to Australia she has had another child, a daughter born on [date]. [Ms A] indicated that the father of her daughter was her partner, [the applicant].
[Ms A] indicated that she was still married to her husband in Indonesia but she did not speak to him at all. [Ms A] indicated that she had only spoken to her first son, but only “secretly.”
When asked what she did when she came to Australia, [Ms A] said that she did not work but she just helped a “friend” to “have food and pay for accommodation” and occasionally she was asked to work part time on the weekends.
When asked to explain to the Tribunal how it was that she decided to leave Bali to come to Australia, [Ms A] indicated that she wanted to get away from her husband and family, and she wanted to start a new life in Australia.
When asked why she chose Australia to come to, she said that it was difficult to get a visa to come to Australia so it would be impossible for her husband and his family to come to Australia. When asked if she said it was difficult to get a visa to come to Australia, she confirmed that she thought it was difficult to get a visa to come to Australia. [Ms A] said that she was helped by a friend to come to Australia.
When asked what she meant when she said a friend helped her to come to Australia, [Ms A] indicated that a company in Bali “sponsored” her. When asked who it was who sponsored her, [Ms A] said that she did not know the name of the person who sponsored her, but that the company’s name is “[Business 1]”. [Ms A] then indicated that when she first “organised it” the agent “looked after everything” and she was only told that she had obtained a visa. [Ms A] then indicated that she did use an agent in Bali to help her to get the visa, but she forgot the name of the agent because it has been so long ago.
When the Tribunal asked the applicant if the reason she came to Australia was to work, she said in response that initially she came to Australia as a visitor, but that in the end she decided to stay in Australia to live and work, and as well to avoid her husband’s family. The applicant then again confirmed that she came to Australia to work. When asked what work she came to Australia to do, she said that she came to promote the company, “[Business 1].” When asked if she had actually worked for “[Business 1]” when she came to Australia, she said she was introduced by the agent to “[Business 1]” and was offered to promote the company in Australia. When again asked whether she had actually worked for “[Business 1]” when she came to Australia, she said “yes.” When asked for the address in Australia where the business was, she said the business was in Sydney but she forgot the business address. When asked how long she worked there for, she said “after I told my problems to the agent and the agent told me about [Business 1] one or two weeks.” When again asked how long she worked for [Business 1] in Australia, she said “more or less, two or three days.” When asked what work she did, she said “promotion.” When asked what was “promotion work”, she said “I promote their products.” When asked how she promoted the products, she said “I promoted the products with an interpreter because my English was not that good and also they helped me to come to Australia.”
When the Tribunal asked the applicant if the process of her “working” for “[Business 1]” to get a visa to come to Australia was just a scheme to get her to Australia, she said “yes.”
When the Tribunal asked the applicant what she did after she stopped working for “[Business 1]” after 2 or 3 days, she said she did not work but she helped out a friend for money so she could get some food. When asked what her friend’s name was, she said she had many friends, including a person named “[Ms F]” When asked how long she stayed with her friend, she said she cleaned homes of “friends” to get money for food and for renting a place where she lived with other people. She said she used the money to pay the rent. When asked what work she did after that, she said she sometimes worked at a farm. When asked how long she did farm work for she said “around one year.”
When asked why she did not go to another part of Indonesia, she said “it is very easy to find a person in Indonesia, especially because he has many friends and he is a member of a community organisation.”
When asked how this was relevant, she said that if a person is a member of a “community organisation” you have many friends and you are even feared. When asked again how this was relevant, she said that it mattered a lot because her husband could ask his friends to “check” and they might kill her. She said the organisation was highly feared in Bali. She said the name of the organisation was called “[Organisation 1]”
When asked what “[Organisation 1]” did, she said the organisation had “good activities” and “bad activities.” She then said that she did not know much about this organisation, but that her husband joined the organisation to have many friends. When asked if “[Organisation 1]” was a criminal organisation, she said that “you can say that but you can also say it is not.” When asked if “[Organisation 1]” was a gangster organisation, she said it was “something like that.” When the Tribunal put to [Ms A] that “[Organisation 1]” either is or is not a “gangster organisation,” she said “yes it is.” When asked if she was telling the Tribunal the truth, she said “I’m telling you the truth.”
When asked if she had prepared her own protection application, she said “yes.” When asked if she had written her protection application in her own handwriting, she said “I was helped by a friend because my English is not good.”
When asked if all the information in her protection application was correct, she said “yes correct, I didn’t lie.”
When asked what she would you do if she went back to Indonesia, she said that she did not want to go back. She said she was afraid she would be killed and she was afraid of her husband and his family. She indicated that the situation had caused her some mental problems. She indicated that she had consulted a psychologist in “[street name]” in Victoria.
The Tribunal put to [Ms A] that she had indicated that all of the information in her protection application was true and correct, and she said “yes.”
The Tribunal put to [Ms A] that it may have some concerns about whether the information she had provided was credible.
The Tribunal put to [Ms A] that it may have some concerns about her claim of her marriage in Indonesia. The Tribunal put to [Ms A] that she had signed the declaration on her protection application that all of the information in her application was complete, correct and up to date in every detail. When the Tribunal asked [Ms A] if she had signed the application form herself and whether the signature on the form was her signature, she said “Yes.”
The Tribunal put to [Ms A] that the first concern was in respect to what she had said in her protection application about her relationship status. The Tribunal put to [Ms A] that in her response to question 35 of her protection application, she had ticked the box that said “separated” and that the date of separation was [in] 2015 in Bali. The Tribunal put to [Ms A] that the box that says “Married” was blank, with no information provided at all about the date the relationship began, or the date of the marriage or the place of the marriage, yet in the hearing [Ms A] had told the Tribunal that she was married and that she was still married. The Tribunal put to [Ms A] that, subject to her comment, it appeared that she had given inconsistent information to the Tribunal about her relationship status. The Tribunal put to [Ms A] that it appeared that she had given the Tribunal information that was different from what she had said in her protection application and that may affect her credibility, so the Tribunal asked her if she wanted to say anything about it. In response, [Ms A] said that when she applied for the visa, she told her friend about the situation but her friend did not put the complete story on her application, only the short version, but what she was now saying to the Tribunal was the truth.
The Tribunal put to [Ms A] that the next concern was in respect to what she had said in her protection application about her family members. The Tribunal put to [Ms A] that in her response to question 42 of her protection application about what family members she had who were in Australia or overseas, including partners, children, parents and siblings, she had provided no information at all, but in the hearing she had said that she had a husband, three sons, her own mother and father, and her own siblings including step siblings, who were overseas in Indonesia. The Tribunal put to [Ms A] that, subject to her comment, it appeared that she had given inconsistent information to the Tribunal about her family members and that this may impact on her credibility, and the Tribunal asked her if she wanted to say anything in response. In response, [Ms A] said that she prepared the protection application with the help of her friend and she could not tell her friend everything about herself. She said that she did not want everyone to know about what had happened to her, and so she told her friend just “brief” information and not the “complete” information.

The Tribunal put to [Ms A] that the next concern was in respect to what she had said in her protection application at question 81 about her previous addresses that she had lived in for the last 30 years. The Tribunal put to [Ms A] that in the hearing she had told the Tribunal that a) she had grown up in an orphanage from the age of [age] years old, b) she stayed at the orphanage until around about the time she got married, c) she then lived with her husband and in-laws and three sons from around the time she got married until the time she left Indonesia. The Tribunal put to [Ms A] that in her response to question 81 of her protection application, she had only lived at one address in Bali, from [year] until 2015. The Tribunal put to [Ms A] that it appeared, subject to her comment, that the information she had given to the Tribunal about her previous addresses in Indonesia was different from the information she had provided in her written protection application, which she said was true and correct. The Tribunal put to [Ms A] that it appeared the information she had provided on this matter was inconsistent and it may impact on her credibility. In response, [Ms A] said that what she said was the truth and she did not lie.
The Tribunal put to [Ms A] that the next concern was in respect to what she had said in her protection application at question 84 which states “Give details of all employment and unemployment.” The Tribunal put to [Ms A] that she told the Tribunal that she had worked when she was in Indonesia, she worked before she got married, she stopped work after she got married. However, at question 84 of her protection application which states “Give details of all employment and unemployment” she provided no information at all. The Tribunal put to [Ms A] that it appeared, subject to her response, that the information she had provided about her employment history in Indonesia was inconsistent. In response, [Ms A] said that she filled out the form with the help of her friend and that her friend was the one who wrote the information because [Ms A]’s English was not good and, also, [Ms A] did not tell the whole story and that she only wrote brief information and she did not want everyone to know about what happened to her in Indonesia.
The Tribunal put to [Ms A] that the next concern was in respect to what she had said in her protection application at question 85 which states “Give details of all education and qualifications since birth.” The Tribunal put to [Ms A] that it acknowledged that she had said she had got someone else to complete her written protection application.
The Tribunal then put to [Ms A] that there was very little information in her written protection application about her claims for protection. The Tribunal put to [Ms A] that a particular concern was that [Ms A] had claimed at the hearing that her husband was involved in a criminal gang, and she indicated that through his connections in this criminal gang, she would be harmed if she returned to Indonesia. The Tribunal put to [Ms A] that none of this information, about her husband’s alleged connections to a criminal gang in Indonesia, is mentioned at all in her written protection application. The Tribunal put to [Ms A] that the Tribunal may have serious concerns that she had embellished the information she had given to the Tribunal at the hearing in order to further her protection claims, and that the Tribunal may find that [Ms A] had not given the Tribunal credible information in relation to her protection claims. In response, [Ms A] said that when her friend filled out the application form, they did not fill out the details but that what she had told the Tribunal now was the truth. [Ms A] said that when her friend filled out the form, they did not ask her about such details as the Tribunal had asked her about but that what she was telling the Tribunal now was the truth.
The Tribunal then asked [Ms A] if there was quite a period of time in which [Ms A] was unlawful in Australia before she put in her protection application. In response, [Ms A] said “yes, I didn’t know anything. Then my friend told me that I should have a bridging visa when I am in Australia so I immediately applied for a visa and I was helped by this friend. Because I didn’t know absolutely anything when I first came to Australia.”
The Tribunal then put to [Ms A] that it may question her about her claim, where she indicated that she did not know anything about her visa situation when she came to Australia. The Tribunal then put to [Ms A] that she gave evidence to the Tribunal that she saw an agent in Bali and arranged a visa in order to come to Australia to work, and that in doing so [Ms A] indicated that she had some understanding of the type of visa on which she was entering Australia, and for that reason the Tribunal may not accept her explanation that she did not know “anything” in respect to her visa situation when she came to Australia.
The Tribunal also put to [Ms A] that given she went unlawful in Australia before applying for protection, the Tribunal may find that she may not have a genuine fear of returning to Indonesia. In response, [Ms A] said that she swears that she did not know anything about the visa and even after she arrived she did not know anything about a bridging visa and it was only after her friend told her that she should not stay in Australia unlawfully, that her friend explained about the visa and helped her to apply. She said if she had known, she would have applied long ago.
The Tribunal then put to [Ms A] that it may have concerns about whether she had given credible information to the Tribunal and, for the reasons discussed, the Tribunal may find that she had not given credible information about her claims for protection to the Tribunal. In response, [Ms A] said that she did not know anything “about this” and she only asked a friend to help her.
The Tribunal then asked [Ms A] if there was anything the Tribunal had not asked her about which she thought the Tribunal should ask her about. In response, [Ms A] said “no.”
The Tribunal then put to [Ms A] that it may find that, because she had not given credible information to the Tribunal about her protection claims, she would not face a real chance of serious harm or a real risk of significant harm if she returned to Indonesia in the foreseeable future. In response, [Ms A] said she did not want to go back to Indonesia because she had a partner and child here in Australia. She said that she would not know what to do next and that she was afraid that she would be killed if she retuned because she was still married and her husband also held a grudge against her because she now had a partner and a child in Australia.
The Tribunal then spoke to [Ms A]’s partner, [the applicant]. The Tribunal asked [the applicant] if his claims were the same as [Ms A]’s claims, and he said “yes.” The Tribunal asked [the applicant] if his claims were different in any way to [Ms A]’s claims, and he said “no.” The Tribunal then asked [the applicant] why he left Indonesia, and in response he said that at first he came to Australia for a holiday but then he decided to stay. [The applicant] then said that he met [Ms A] and then “other problems” arose. When the Tribunal asked what those “other problems” were, [the applicant] said that because he met [Ms A] in Australia and he heard her story, he was very sad and because he was her partner, so he thought he should protect her.
When the Tribunal asked [the applicant] what he feared if he went back to Indonesia, he said that he was [Ms A]’s partner, and that if he returned with [Ms A] and their child, he might get killed, and so he wanted to stay in Australia and not return to Indonesia.
When the Tribunal asked [the applicant] why he thought he would get killed, he said that because he had his partner and child and they had a child together, even in Indonesia [Ms A]’s status would be that she was still married to her husband even though she was separated from him. [The applicant] said that [Ms A]’s husband might come after himself, [Ms A], and their child and then a tragedy will happen.
When the Tribunal asked [the applicant] if he completed his protection application, he said he was helped be a friend.
When the Tribunal asked [the applicant] if all the information in his protection application was true and correct, he said “yes.”
When the Tribunal asked [the applicant] if he had been present with his partner, [Ms A], when the Tribunal had spoken to [Ms A] about credibility concerns the Tribunal may have, he said “yes.”
The Tribunal put to [the applicant] that because the Tribunal may have concerns about the credibility of [Ms A]’s protection claims, and that [the applicant] indicated that his own protection claims were based on [Ms A]’s protection claims and that they were actually the same claims and that he had no other claims to make apart from [Ms A]’s claims about what she said had happened to her, and that this was the basis for [the applicant]’s claimed fear about what would happen to him if he went back to Indonesia, the Tribunal would also have to put such concerns to [the applicant]. The Tribunal put to [the applicant] that it was now seeking his comment.
[The applicant] said that his claim for protection was based on what had happened to [Ms A].
The Tribunal put to [the applicant] that even though the information the Tribunal had received was about [Ms A], [the applicant] had asserted that his claims for protection were the same as [Ms A]’s claims for protection, and that was why the Tribunal was seeking a response from [the applicant], to which he said “yes.”
The Tribunal put to [the applicant] that the Tribunal had spoken to [Ms A] about potential inconsistencies between what she had told the Tribunal in the hearing compared to what had been written in her protection application, to which he said “yes.”
The Tribunal put to [the applicant] that the Tribunal had to put information to him in accordance with s.424AA of the Act, because it was [Ms A] that had given the Tribunal her information and this information did not come from [the applicant].
The Tribunal put to [the applicant] that it was required to give [the applicant] clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.
The Tribunal put to [the applicant] that the Tribunal was required to ensure, as far as is reasonably practicable, that [the applicant] understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review.
The Tribunal put to [the applicant] that the Tribunal would endeavour to synthesise exactly what the clear particulars were in order to put them to [the applicant].
The Tribunal put to [the applicant] that because there appeared to be inconsistent information between what [Ms A] had said in the hearing and what was written in her protection application, the Tribunal may have concerns about whether [Ms A] had given the Tribunal credible information about her protection claims, and they covered the following issues: a) in respect to the information [Ms A] had given to the Tribunal about her marriage in Indonesia compared to what was in her written protection application, b) in respect to the information [Ms A] had given to the Tribunal about her family members in Indonesia compared to what was in her written protection application, c) in respect to the information [Ms A] had given to the Tribunal about her previous addresses in Indonesia compared to what was in her written protection application, d) in respect to the information [Ms A] had given to the Tribunal about her work history in Indonesia compared to what was in her written protection application, e) in respect to the information [Ms A] had given to the Tribunal about her education in Indonesia compared to what was in her written protection application, f) in respect to the information [Ms A] had given to the Tribunal about what she said happened to her in Indonesia and about what would happen to her if she went back to Indonesia appeared to be different compared to what was in her written protection application, in particular the part where [Ms A] told the Tribunal that her husband in Indonesia was part of a criminal gang where in her written application there was no mention at all of what appears to be a very significant aspect of what she said happened to her in Indonesia. The Tribunal put to [the applicant] that all of these issues, in addition to [Ms A] being unlawful for a period of time before she submitted her application for a protection visa, raised the Tribunal’s concerns about whether or not [Ms A] had given credible information about her protection claims and whether or not [Ms A] had a genuine fear of harm in returning to Indonesia, which was why when the Tribunal spoke to [Ms A] the Tribunal put to [Ms A] that the Tribunal may find that she did not give credible information in respect to her protection claims. The Tribunal put to [the applicant] that he had indicated to the Tribunal that his claims for protection were based on [Ms A]’s circumstances and were nothing to do with himself separate to [Ms A]. The Tribunal put to [the applicant] that if [Ms A]’s claims were not credible, then that would be the reason, or a part of the reason, for affirming the decision that is under review.
The Tribunal put to [the applicant] that the Tribunal was required to orally invite him to comment on or respond to the information; and advise [the applicant] that he may seek additional time to comment on or respond to the information; and if [the applicant] seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that [the applicant] reasonably needs additional time to comment on or respond to the information.
In response, [the applicant] indicated to the Tribunal that he did not want to have an adjournment and that he wanted to respond to the Tribunal immediately.
[The applicant] then said that regarding his application, he said he must admit that he did not really understand it because his English was not good and it was his friend who filled out the application form and he didn’t ask in such details and that was why he did not tell the story in such details and it was not written. He said that what was told to the Tribunal was the truth and he became involved in the matter because of his relationship (with [Ms A]).
The Tribunal asked [the applicant] whether he himself had gone unlawful in Australia, and in response he said “yes.” When asked how long he was unlawful in Australia before he put in a protection application, [the applicant] said he arrived in Australia in 2014 and he applied for protection in 2016. When asked whether he was saying he was unlawful for two years, [the applicant] said “yes, approximately.” The Tribunal put to [the applicant] that due to what he had just told the Tribunal, that he was unlawful for approximately two years before he submitted an application for protection, and in addition to the concerns raised that he had made a protection application based on information that the Tribunal may find is not credible, the Tribunal may find that [the applicant] also did not have a genuine fear of harm in returning to Indonesia. In response, [the applicant] said that before he met [Ms A], he did not have this problem (involving his relationship with [Ms A] and his ability to return to Indonesia given his relationship with [Ms A]). [The applicant] said that his child was born here and it was impossible for him to return to Indonesia. When the Tribunal asked him why it was impossible for him to return to Indonesia, [the applicant] said it was because [Ms A] was still legally married, and if he returned a tragedy could happen, whether it be himself who would be killed or his child who would be killed. The Tribunal asked whether [Ms A] was sitting next to him and he said yes. [The applicant] confirmed that both himself and [Ms A] were listening and could hear what the Tribunal had to say. The Tribunal said to both [the applicant] and to [Ms A] that the Tribunal has had regard to the DFAT Country Information Report for Indonesia (dated 25 January 2019), including the part about the Indonesian police. The Tribunal asked both [the applicant] and [Ms A] whether there was any reason why either of them could not get help from the Indonesian police. In response, [the applicant] said that in Indonesia if you have no money your case will not be handled by the law there. [Ms A] indicated in response that when she was in Indonesia she reported her situation to the Indonesian police but they did not assist her. [Ms A] indicated that her problems continued and she did not want to make a report again in order to protect the family’s reputation and also she was concerned that her family might kick her out and she would not have a place to stay or be able to be with her children anymore. In further questioning from the Tribunal, [Ms A] again indicated that after she reported her situation to the Indonesian police, there was no response from the police. [Ms A] said that the “torment” often happened and she wanted to report it to the police but she wanted to protect the family’s reputation. The Tribunal put to [Ms A] that it had a further potential concern about whether [Ms A] had given the Tribunal credible information where at question 92 of her protection applicant where in respect to the question “did you seek help in the country after the harm,” [Ms A] ticked “no”. The Tribunal put to [Ms A] that the reasons she gave in her response at question 92 of her protection application form was “maintain family honour.” The Tribunal put to [Ms A] that, yet again, it appeared that she had given inconsistent information to the Tribunal about what she said happened to her in Indonesia compared to what was written in her protection application which she had previously indicated was correct information, and that these circumstances may impact on her credibility. In response, [Ms A] said that because she was helped by her friend to fill out the application and her friend did not ask her such details, and she indicated that this was her explanation for the inconsistent information.
The Tribunal then put to [the applicant] that the Tribunal had to, in accordance with s.424AA of the Act, put to him the information that [Ms A] had given to the Tribunal about her inconsistent evidence in regard to her whether [Ms A] did actually make a report to the Indonesian police about any harm she allegedly suffered. The Tribunal put to [the applicant] that it was required to give [the applicant] clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.
The Tribunal put to [the applicant] that [Ms A] may have given further information to the Tribunal that was not credible. The Tribunal explained that the consequences of that information being relied on were that [Ms A]’s claims for protection were not credible and, therefore, [the applicant]’s claims for protection would also not be credible.
The Tribunal indicated to [the applicant] that the Tribunal was required to orally invite him to comment on or respond to the information; and advise [the applicant] that he may seek additional time to comment on or respond to the information; and if [the applicant] seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that [the applicant] reasonably needs additional time to comment on or respond to the information.
In response, [the applicant] indicated to the Tribunal that he did want to have an adjournment and he agreed he was happy to have a short adjournment. The Tribunal granted additional time for [the applicant] to comment on or respond to the information. After the adjournment, [the applicant] indicated that there was a misunderstanding because the form was filled out by a friend and it was not written in the protection application even though [Ms A] did tell her friend that she went to the police. [The applicant] indicated that [Ms A]’s friend did tell her that in her protection application she had to say what happened in her marriage. [The applicant] indicated that it was probably also their fault that they did not check the information in the protection form before it was submitted. [The applicant] indicated that they did not understand a lot about the visa they were applying for. [The applicant] indicated that the friend only wrote about what happened during the marriage and perhaps only wrote it briefly but what was told by [Ms A] to the Tribunal was the truth.

When the Tribunal asked [the applicant] and [Ms A] if either of them wished to say anything further, [the applicant] said that what [Ms A] told the Tribunal was the truth. [The applicant] asked the Tribunal for advice about what he should do about his protection application, but the Tribunal said to [the applicant] that it was not appropriate for the Tribunal to give advice to [the applicant] about his protection application.
[Ms A] indicated that she could also say what she said and would leave the decision to the Tribunal.
Identity findings
The Tribunal finds that the applicant is [the applicant] born [date], the applicant is a citizen of Indonesia and Indonesia is his receiving country, and he does not have a right to enter and reside in any third country.
Analysis and findings
The Tribunal has carefully considered the claims and evidence in respect to [Ms A]’s claims for protection. As stated at paragraph 12 above, [the applicant] told the Tribunal that his claims were the same as [Ms A]’s claims, and that his claims were not different, in any way, from [Ms A]’s claims.
The Tribunal has significant concerns that [Ms A] did not provide credible information to the Tribunal about her claims for protection. The Tribunal’s concerns are due to the significant inconsistencies in the information she provided to the Tribunal in respect to her claims for protection.
In respect to exactly why [Ms A] gave inconsistent information about her employment history, educational background, family members and previous addresses, the Tribunal accepts that [Ms A] has some English language difficulties and that she got another person to complete her protection application.
[Ms A]’s alleged marriage and any threat posed to her by her husband in Indonesia
The issue of [Ms A]’s marriage is of critical importance to her protection claims because [Ms A] claimed that her husband in Indonesia would harm or kill her if she returned to Indonesia.
As indicated above, at the hearing [Ms A] told the Tribunal that she got married to a man named “[Mr B]” when she was around [age] years old [in] 2002 in Bali in Balinese custom. [Ms A] indicated to the Tribunal that she was still married to her husband in Indonesia, but that she had left him when she left Indonesia to come to Australia in 2015. [Ms A] said she had three sons to her husband and that she and her husband and children lived together with her in-laws.
However, in [Ms A]’s written protection application, at her response to question 35 of her protection application, she had ticked the box that said “separated” and that the date of separation was [in] 2015 in Bali. The box on the form that says “Married” was blank, with no information provided at all about the date the relationship began, or the date of the marriage or the place of the marriage.
It is a significant curiosity to the Tribunal that even with English language difficulties and even if she got a friend to help her to complete her protection application that there would be such an omission of information in her protection application in respect to her marriage , given that other accurate information was provided on the application form such as [Ms A]’s name and date of birth. [Ms A] never provided marriage certificate or any photos of her husband or children. [Ms A] certainly had the wherewithal to obtain a visitor visa to initially come to Australia.
However, the Tribunal is prepared to give [Ms A] the benefit of the doubt and find that he is married to a man named “[Mr B]” in Indonesia and that she had three boys in Indonesia. The Tribunal finds that [Ms A] has been separated from her husband for at least five years and that she does not speak to her husband at all.
The Tribunal accepts that [Ms A] was clearly unhappy in her marriage and that she was unhappy with her in-laws. The Tribunal accepts that [Ms A] wanted to leave Indonesia and start a new life for herself in Australia.
The Tribunal accepts that [Ms A] is now in a relationship with [the applicant] and that they have had a child together in Australia.
However, as indicated above, the Tribunal has significant concerns as to whether [Ms A] has given completely credible information about her circumstances in Indonesia. Further, the Tribunal has concerns that [Ms A] has embellished her claims in order to achieve a migration outcome and to increase her chances of obtaining a protection visa.
In the hearing, [Ms A] made allegations that her husband and her in-laws in Indonesia were unkind to her and mistreated her. [Ms A] made allegations that her husband was violent to her. [Ms A] made allegations that she went to the Indonesian police for assistance and that they did not assist her. [Ms A] made allegations that her husband was a member of criminal organisation in Indonesia and that if she returned to Indonesia either he or his criminal associates would be able to hurt her.
As indicated above, the Tribunal discussed these issues with [Ms A] and put its concerns to her in respect to the credibility of her claims.
In respect to [Ms A]’s claims of domestic violence, the Tribunal finds that [Ms A] provided very little information in support of her claims in this respect. [Ms A]’s account of domestic violence and general mistreatment at the hands of her husband and in-laws was vague and lacked sufficient detail such that the Tribunal would be able to achieve reasonable satisfaction such that would reasonably allow the Tribunal to reasonably find that [Ms A] was subjected to domestic violence and general mistreatment at the hands of her husband and in-laws in Indonesia. Accordingly, the Tribunal does not accept [Ms A]’s claim that she was subjected to domestic violence and general mistreatment at the hands of her husband and in-laws in Indonesia.

100. In connection with her claims of domestic violence are that she went to the Indonesian police for assistance. However, as indicated above, the Tribunal has concerns that in the hearing [Ms A] claimed she did go to the police and that they did not assist her but in her written protection application she indicated that she did not go to the police at all and that the reason she did not go to the police was to “maintain family honour.” The Tribunal acknowledges that [Ms A] said that because she was helped by her friend to fill out the application and her friend did not ask her such details, and she indicated that this was her explanation for the inconsistent information. However, the Tribunal is not satisfied by [Ms A]’s explanation for such significantly different accounts in respect to her claim of going to the Indonesian police, and does not accept that [Ms A] ever went to the Indonesian police for assistance.
101. Likewise, the Tribunal’s concerns about [Ms A] apparently embellishing her claims where she claimed in the hearing that her husband was a member of a criminal organisation. As indicated above, in the hearing [Ms A] claimed her husband was a member of a criminal or gangster organisation in Indonesia called “[Organisation 1]”. Even allowing for some misunderstandings or lack of English proficiency or that [Ms A]’s friend prepared the application, the omission of such significant claims from her written protection application is a particular concern for the Tribunal. As indicated above, the Tribunal put its concerns to [Ms A] in accordance section 423A of the Act. The Tribunal is not satisfied by [Ms A]’s explanation as to why she did not provide this information in her application form for a protection visa.
102. The Tribunal has considered this issue about [Ms A]’s new claim and evidence to the Tribunal about her Indonesian husband’s involvement in a criminal or gangster organisation that was not raised in the application before the primary decision was made. In carefully considering this matter, the Tribunal is not satisfied that [Ms A]’s explanation for not raising these such claims is a reasonable explanation as to why the claim was not raised, or the evidence was not presented, before the primary decision was made. Accordingly, in accordance with s.423A of the Act the Tribunal has drawn an inference unfavourable to the credibility of the claim or evidence that [Ms A]’s Indonesian husband was involved in a criminal or gangster organisation and finds that these claims are not credible. The Tribunal finds that [Ms A]’s claims that her husband was a member of a criminal or gangster organisation in Indonesia called “[Organisation 1]” to be an embellishment.
103. The Tribunal’s overall credibility concerns about [Ms A] and whether she has a genuine fear of returning to Indonesia are further reinforced where she went unlawful for a significant period of time before she put in an application for a protection visa. The Tribunal would reasonably have expected that if [Ms A] had come to Australia to seek protection, she would have sought protection within a reasonable period of time after she first arrived in Australia in 2015 and that she would not have waited for such a period of time, including a period of time in which she was unlawful, before applying for protection.
104. The Tribunal accepts that [Ms A] does not want to return to Indonesia and that she wants to stay in Australia with [the applicant] and their daughter. However, the Tribunal does not accept that [Ms A] has a genuine fear of returning to Indonesia.
105. For the reasons above, the Tribunal does not accept that [Ms A]’s protection claims are credible. Specifically, the Tribunal does not accept that:
-[Ms A] was ever harmed in Indonesia by anybody, including her alleged husband or her alleged in-laws.
-[Ms A] ever sought assistance from the Indonesian police in respect to any alleged harm.
-[Ms A] would be harmed or killed by anyone if she returned to Indonesia in the foreseeable future.

106. The Tribunal has considered what risks there may be to [Ms A] in returning to Indonesia in the foreseeable future given her status as a woman who is still married to a man but is separated from him and in a relationship with another man.
107. The Tribunal has considered the DFAT Country Information Report for Indonesia dated 25 January 2019. The only reference to adultery is at paragraph 3.33 but this refers to province of Aceh, and it has no applicability to [Ms A] because she is from Bali. There does not appear to be any information in the DFAT report that indicates that [Ms A] could not get a divorce from her husband. There does not appear to be sufficient information in the DFAT report that would reasonably cause the Tribunal to find that [Ms A] would face a real chance of serious harm or a real risk of significant harm if she returned to Bali, Indonesia, in the foreseeable future, given her status as a woman who is still married to a man but is separated from him and in a relationship with another man. In addition, there does not appear to be sufficient information in the DFAT report that would reasonably cause the Tribunal to find that [Ms A] would not be able to access assistance from the Indonesian police should she require assistance.
108. Accordingly, the Tribunal does not accept that [Ms A] faces a real chance of serious harm or a real risk of significant harm if she returned to Bali, Indonesia, in the foreseeable future, given her status as a woman who is still married to a man but is separated from him and in a relationship with another man.
109. Whilst the Tribunal does accept that [Ms A] is in a relationship with [the applicant] and they have a child together, the Tribunal does not accept that these circumstances would reasonably lead to [Ms A] facing either a real chance of serious harm or a real risk of significant harm should she return to Indonesia in the foreseeable future.
110. In considering and balancing the above findings, both individually and cumulatively, the Tribunal is not satisfied that [Ms A] faces either a real chance of serious harm or a real risk of significant harm should she return to Indonesia in the reasonably foreseeably future.
111. Having carefully considered the available evidence, and for all the reasons given above, the Tribunal is not satisfied that [Ms A] satisfies the criterion in s.36(2)(a) of the Act. Therefore [Ms A] is not a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
112. Having concluded that [Ms A] does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa) of the Act. For the same reasons already articulated above the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of [Ms A] being removed from Australia to Indonesia there is a real risk she will suffer significant harm. The Tribunal is not satisfied that [Ms A] is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
113. In light of the Tribunal’s findings above in respect to [Ms A], the Tribunal considered [the applicant]’s protection claims. The Tribunal accepts that [the applicant] did not leave Indonesia for reasons of fear of harm to himself. The Tribunal accepts that [the applicant] met [Ms A] in Australia and started a relationship with her and they have a child together.
114. The Tribunal has considered the DFAT Country Information Report for Indonesia dated 25 January 2019. The only reference to adultery is at paragraph 3.33 but this refers to province of Aceh, and it has no applicability to [the applicant] because he is also from Bali. There does not appear to be sufficient information in the DFAT report that would reasonably cause the Tribunal to find that [the applicant] would face a real chance of serious harm or a real risk of significant harm if he returned to Bali, Indonesia, in the foreseeable future, given his status of being in a relationship with a woman who is still married to another man but is separated from that man, particularly given the lengthy period of time of separation. In addition, there does not appear to be sufficient information in the DFAT report that would reasonably cause the Tribunal to find that [the applicant] would not be able to access assistance from the Indonesian police should he require assistance.
115. Accordingly, the Tribunal does not accept that [the applicant] faces a real chance of serious harm or a real risk of significant harm if he returned to Bali, Indonesia, in the foreseeable future, given his status of being in a relationship with a woman who is still married to another man but is separated from that man, particularly given the lengthy period of time of separation.
116. Whilst the Tribunal does accept that [the applicant] is in a relationship with [Ms A] and they have a child together, the Tribunal does not accept that these circumstances would reasonably lead to [the applicant] facing either a real chance of serious harm or a real risk of significant harm should he return to Indonesia in the foreseeable future.
117. In considering and balancing the above findings, both individually and cumulatively, the Tribunal is not satisfied that [the applicant] faces either a real chance of serious harm or a real risk of significant harm should he return to Indonesia in the reasonably foreseeably future.
118. Having carefully considered the available evidence, and for all the reasons given above, the Tribunal is not satisfied that [the applicant] satisfies the criterion in s.36(2)(a) of the Act. Therefore [the applicant] is not a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
119. Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa) of the Act. For the same reasons already articulated above the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Indonesia there is a real risk he will suffer significant harm. The Tribunal is not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
120. There is no suggestion that [the applicant] satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.
DECISION
121. The Tribunal affirms the decision not to grant the applicant a protection visa.
Joseph Lindsay

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 4526

18 September 2020

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Appeal