1705250 (Refugee)

1705250 (Refugee) [2020] AATA 3391 (7 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1705250
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Paul Noonan
DATE:7 July 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 7 July 2020 at 06:13pm

CATCHWORDS
REFUGEE – protection visa – Indonesia – fear harm from loan sharks – came to Australia to work and to pay off debts – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 7 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 10 October 2016. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia owes protection obligations.
I exercised the Tribunal’s discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic on 25 June 2020. I determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. I also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. I am satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The hearing was assisted by an interpreter in the Indonesian and English languages. I was satisfied that the applicant understood the interpreter and my questions to her during the hearing and note that the applicant did not raise any concerns with respect to the interpreter or any difficulty in understanding my questions during the hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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) of the Act. In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1) of the Act, a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-5LA of the Act, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
In light of the findings made below, it has not been necessary to make findings pursuant to s.36(3) of the Act relating to third country protection.
Migration history and identity
In her application to the Department, the applicant declared she was born in [City 1], Jawa Tengah, Indonesia, in [year], and that her ethnicity is Indonesian and religion is Islam. The applicant stated she can speak, read and write Indonesian and English. She declared her father is currently residing in Indonesia. The applicant did not provide details of her relationship, employment or residential history. She indicated that she completed high school in her hometown in [year].
The applicant first arrived in Australia [in] July 2016 as the holder of a Subclass 600 tourist visa. On 10 October 2016, she applied for protection and was granted a bridging visa in connection with this application.
Country of reference
The applicant provided the Department with a copy of her Indonesian passport, which satisfied the delegate as to her identity and Indonesian citizenship.
On the basis of such, and in the absence of evidence to the contrary, the Tribunal accepts that the applicant is a citizen of Indonesia and that her identity is as she claims it to be. The Tribunal accepts that Indonesia is her ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Claims for protection
In her written claim for protection, lodged with the Department on 10 October 2016, the applicant stated (in summary) that she left Indonesia and her family there because her family business collapsed. Her family is unable to pay a loan shark, who came to their house every day and night threatening torture and killings, leaving her family in worse fear than living in war. The applicant stated she was so scared she was unable to sleep or eat. She hopes she will be able to help her family pay back its debts while in Australia.
The applicant stated that if she returns to Indonesia, she is worried that she will be harmed or killed. She indicated that she did not seek help from anyone in Indonesia and did not try to relocate internally. The applicant thinks the authorities are too corrupt to protect her.
The applicant did not provide any further written submissions to substantiate her claims to the Department or Tribunal prior to the hearing with the Tribunal. The applicant was not offered a protection visa interview by the Department.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case are whether the applicant is a refugee and if not, whether there are substantial grounds for believing that there is a real risk that she will suffer significant harm as a necessary and foreseeable consequence of being returned to Indonesia.
Does the applicant have a well-founded fear of persecution should she be required to return to Indonesia?
At the commencement of the hearing I read the applicant’s written claims to her and asked her if there was anything she wished to add to her claims for protection. The applicant stated that her written claims are correct and she did not have anything further that she wished to add to her claims.
The applicant then however informed me that she had personally borrowed money from a loan shark in addition to money borrowed by her family. I asked her why she had not set out that she had personally borrowed money from the loan shark in her written claim? The applicant stated that all of her family had borrowed money. She claimed the money borrowed was used for the family trading business. I asked her for more detail and she submitted the money was used to buy stock for the family [business]. She informed me that she had borrowed one billion rupiah. Her family in total had borrowed 3 billion rupiah. I note that at today’s exchange rate that is around AU$300,000. The applicant then informed me she is in Australia to earn money so that her family can be protected from the loan shark. She submitted that she sends money to her family who then transfer it to the loan shark. When asked who the money was borrowed from the applicant stated it was several loans from several people. She could not remember their details; however, then offered that one of the loan sharks was known as a [Mr A]. She stated that the family had provided their house as collateral for the loan which was owned by her parents. She stated that they had been unable to service the loan with the high interest rates and the loan shark had repossessed the family house. She submitted the house had been sold for 250 million rupiah leaving an amount owing of 500 million rupiah.
The applicant confirmed to me that neither she nor anyone in her family had been physically harmed by the loan shark. However, the loan shark had come to their house and threatened them when they had been unable to service the loans. She confirmed that since she had moved to Australia neither her nor any member of her family had received any threats of harm from the loan shark. She submitted this is because she is paying the debt from her earnings in Australia and this is why there have been no threats. She informed me she is working at a [factory] in Melbourne [for] a [company]. Prior to that she worked at [another workplace].
The applicant also informed me that since the repossession of their house her family has relocated to Yogyakarta in Central Java where they rent a house. They had done so about three months after she had left for Australia. She noted this is about three to four hours travel distance away from their old residence. She noted that the loan shark did not know where they were now living. The applicant confirmed that if she returned to Indonesia she would live with her family again and work in their new retail business in Yogyakarta.
She submitted that she did not know how her family ascertained how much they still owed the loan shark or how they paid the debt but speculated they may do so by phone. I asked the applicant why she and her family had sought a loan from a loan shark at an interest rate of what she stated was 20% per month and not sought a loan from a registered financial institution at a lower rate, when they had collateral to provide. The applicant stated it was just easier to get a loan from the loan shark and they needed money to restock the business urgently. They borrowed a small amount and then just kept borrowing more to buy more [stock]. The applicant confirmed she had no documentary evidence of the loans. They were only given handwritten notes stating how much they owed.
I put to the applicant the following relevant country information for her consideration: DFAT assesses that former gang members have a low risk of violence and that gangs are unlikely to have the resources to pursue a former member, particularly outside of their area of activity. The response of police to victims of gang violence would not be different to other victims of crime or criminals. While the risk of violence from loan sharks cannot be ruled out, DFAT is not aware of a pattern of incidents. Further local sources say loan sharks are unlikely to lend money to debtors who do not have some kind of collateral, particularly land, and that repossession of that capital is more likely than violence for those unable to pay. Most Indonesians, including in rural areas, have access to finance including from banks, agents from banks, or in some cases from local government administrations. Usury generally targets the poor and those who live in rural areas. Government financial assistance is generally available to those communities. Most Indonesians have access to banking services.[1]
[1] Department of Foreign Affairs and Trade Country Information Report, Indonesia, 25 January 2019, p.35
I put to the applicant that this country information may suggest that the loan shark would be unlikely to have the resources to pursue her family to another area of Indonesia and that they would also be unlikely to resort to violence after having repossessed the loan collateral and having not previously resorted to violence. The applicant submitted that as long as the loan keeps getting paid the loan sharks will not look for her family. I asked how the loan sharks would locate her family, especially in a large urban area such as they are in now or in Jakarta. She submitted that they might ask their relatives or friends where they live now. I asked the applicant if she or her family had ever sought protection from the authorities to which she replied they never had. I asked her if there is any reason that the police would withhold protection from her. The applicant stated that the police can only offer her protection if she is physically harmed by the loan shark. She believes they will by unable to take any effective action if she is just threatened with harm. I put to the applicant country information indicates that the response of police to victims of gang violence would not be different to other victims of crime or criminals. While the risk of violence from loan sharks cannot be ruled out, DFAT is not aware of a pattern of incidents.[2] The applicant stated that the police may help her if is she is hurt physically.
[2] Department of Foreign Affairs and Trade Country Information Report, Indonesia, 25 January 2019, p.35
In considering the applicant’s claims I also note country information that indicates that an estimated 70% of individuals and small to medium businesses in Indonesia do not have access to traditional sources of finance. [3] However, country information also indicates that in general loan sharks target poor communities or villages and they often offer loans based upon little or no collateral, little paperwork and instant approval.[4]
[3] ‘Indonesia tightens net on digital loan sharks’, PwC. 29 September 2019, 20200518205509
[4] “Fighting Loan Sharks in Indonesia’, Bamboo Microcredit, 17 August 2018, CXBB8A1DA33801
The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility.[5] However the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, that it is ‘well-founded’ or that it is for the reason claimed. Rather it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
[5] Guo v MIEA (1996) 64 FCR 151, per Foster J at 194 (Full Federal Court)
A decision-maker is not required to accept uncritically any and all of the allegations made by an applicant.[6]
[6] MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191 and Prasad v MIEA (1985) 6 FCR 155 at 169–70
The applicant has claimed that she and her family have borrowed considerable sums of money from a loan shark to facilitate the stocking of their [business]. The country information indicates that, in general, loan sharks target the poorest communities and offer little in the way of paperwork. This suggests that, in general, the amounts offered by loan sharks are small amounts of money. Given the prevalence of loan shark lending in Indonesia and the country information indicating that, often, little formal documentation is exchanged, I am prepared to accept that the applicant and her family have incurred a debt to a loan shark in the past and that they provided their house as collateral for the lending.
However, I consider that the applicant has embellished the true amount she and her family borrowed, and I do not accept that the applicant and her family still owe money to a loan shark or that there is a real chance of the applicant experiencing serious harm from the loan shark should she return to live with her family in Indonesia for the following reasons:
·I do not accept as reasonably plausible that the applicant and her family would need to borrow an amount totalling 3 billion rupiah or AU$300,000 for the purpose of buying stock for their [business], which when asked, was the only explanation for the borrowings that the applicant was able to provide. I also do not accept as reasonably plausible that the applicant or her family would have no paperwork to be shown or records of such claimed large transactions or repayments. This is because the applicant has claimed that her parents still live in Indonesia and are still in contact with the loan shark to repay the loan and as such I am satisfied that relevant documentary evidence is accessible to the applicant to support her claims.
·Further, the applicant gave evidence that the family home had been repossessed, realising an amount of 250 million rupiah, and her family had then moved to another part of Indonesia to start a new business soon after she moved to Australia in 2016. Accordingly, the collateral provided was nowhere near the total of the claimed borrowings. I do not accept as reasonably plausible that a loan shark would risk such a large amount of money without sufficient collateral. Country information reflects that only small amounts are lent without sufficient collateral and otherwise collateral is required. Therefore, I conclude that the loan shark lent the applicant and her family money, to the value of the collateral provided, and that the subsequent realisation of the collateral has satisfied the debt.
·I find that the applicant’s embellishment of the amount of money owing undermines the credibility of her claim to be continuing to service debts outstanding to the loan shark from her earnings in Australia and I reject her claim to be doing so.
·Country information indicates loan sharks are more likely to repossesses collateral than resort to violence which indicates the loan shark will not, having repossessed their collateral, seek to enact violence upon the applicant or her family. This is in accordance with the applicant’s evidence that at no stage has she or her family been physically harmed by the loan shark. I accept that, prior to 2016, the applicant and her family may have received some threats, should the loan not be repaid; however, I do not accept that her family was threatened day and night with torture and death as being reasonably plausible, when the families collateral was subsequently realised by the loan shark with no occurrence of violence and the family was able to move away unharmed. This indicates that the loan shark is unmotivated to harm the applicant or her family.

Having considered the applicant’s evidence with respect to her loan shark claim, I am not satisfied that either her or her family still owe money to a loan shark or that the loan shark is now motivated in any way to harm the applicant or her family.
I also note the applicant’s evidence that her family have relocated within Indonesia and that she would return to live with them and work in the family business should she be required to move back to Indonesia. As noted at the hearing, country information indicates that loan sharks generally are not capable of pursuing people outside their home area. I am also satisfied there is no real chance that the loan shark, based in the applicant’s home area, would be able or willing to pursue the applicant in another area of Indonesia (or would have any interest or capacity to do so more than four years after the applicant departed Indonesia and her family departed their former home area). Further I am satisfied that the applicant will not face harm for economic reasons should she return to Indonesia, as she is able to resume work in the family business, which was how she supported herself, prior to departing Indonesia.
I am therefore not satisfied that, on return to Indonesia, the applicant faces a real chance of serious harm from any person for any reason, now or in the reasonably foreseeable future.
Having considered the applicant’s claims, and in light of my findings earlier in these reasons, I find that the applicant does not have a well-founded fear of persecution should she be required to return to Indonesia.
Complementary protection
In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), I have considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that she will suffer significant harm.
For the reasons set out above I have not accepted there to be a real chance, that if she returns to Indonesia, the applicant will be targeted by a loan shark now or in the reasonably foreseeable future.
In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the refugee definition.[7] For the same reasons the Tribunal does not accept there to be a real risk that the applicant would face significant harm on this basis.
[7] MIAC v SZQRB [2013] FCAFC 33 per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297] and Flick J at [342]
For these reasons I do not accept there to be a real risk that the applicant would face significant harm as a necessary and foreseeable consequence of being returned Indonesia.
CONCLUSIONS
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa). I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Paul Noonan
Member

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

[2020] AATA 3391

7 July 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction